NOVEMBER 1988 

COMMISSION DECISION 

11-28-88 Local 2274 v. Clinchfield 

ADMINISTRATIVE LAW JUDGE DECISIONS 

11-02-88 Fleniken's Sand & Gravel 

11-02-88 Hoover Incorporated 

11-02-88 Consolidation Coal Company 

11-04-88 Sec/D. Wagner v. Clinchfield Coal 

11-07-88 Columbia Portland Cement 

11-07-88 Columbia Portland Cement 

11-07-88 Columbia Portland Cement 

11-07-88 Columbia Portland Cement 

11-07-88 Columbia Portland Cement 

11-15-88 Southern Ohio Coal Co. 

11-17-88 Rochester & Pittsburgh Coal Co. 

11-23-88 U.S. Steel Mining Company 

11-28-88 Marion Docks, Inc. 

11-28-88 Local 9958 v. Kaiser Coal Corp. 

11-28-88 UMW A/Paul Luce v. Unimin Corporation 

11-28-88 Consolidation Coal Company 

11-29-88 Green River Coal Company 

11-29-88 E. Bruno v. Cyprus Plateau Mining 

11-29-88 Oneida Coal Company 

ADMINISTRATIVE LAW JUDGE ORDERS 

10-04-88 Material Service Corporation 

VA 83-55-C 

CENT 88-26-M 

SE 87-116-M 

WEVA88-244 

VA 88-19-D 

LAKE 88-54-M 

LAKE 88-55-M 

LAKE 88-58-M 

LAKE 88-59-M 

LAKE 88-62-M 

WEVA88-6-R 

PENN 88-152-R 

WEVA 88-193 

WEVA 88-169-R 

WEST 87-186-C 

CENT 88-157-DM 

WEVA 88-176 

KENT 88-13-R 

WEST 88-157-D 

WEVA 88-167 

LAKE 88-122-M 

Pg. 1493 

Pg. 1509 

Pg. 1520 

Pg. 1539 

Pg. 1542 

Pg. 1545 

Pg. 1552 

Pg. 1558 

Pg. 1560 

Pg. 1562 

Pg. 1564 

Pg. 1576 

Pg. 1584 

Pg. 1589 

Pg. 1621 

Pg. 1632 

Pg. 1633 

Pg. 1640 

Pg. 1649 

Pg. 1660 

Pg. 1666 
NOVEMBER 1988 

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

Rochester and Pittsburgh Coal Company v. Secretary of Labor, Docket No. 

PENN 88-194-R. (Judge Fauver, September 27, 1988). 

Review was denied in the following case during the month of November: 

Green River Coal Company v. Secretary of Labor, Docket No. KENT 87-202-R, 

etc. (Judge Fauver, October 21, 1988). 
COMM.ISSION DECISIONS 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW. 6TH FLOOR 

WASHINGTON. D.C. 20006 

November 28, 1988 

LOCAL UNION 2274, DISTRICT 28, 

UNITED MINE WORKERS OF AMERICA 

v. Docket No. VA 83-55-C 

CLINCHFIELD COAL COMPANY 

BEFORE: Backley, Doyle, Lastowka and Nelson, Commissioners 

DECISION 

BY THE COMMISSION: 

This compensation proceeding arises under the Federal Mine Safety 

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

"Act"). We previously remanded this matter for further proceedings to 

determine whether a causal nexus existed between an imminent danger 

withdrawal order and violations of mandatory standards and, if such a 

nexus were found, to award specific sums of compensation due miners 

idled by that order. 8 FMSHRC 1310 (September 1986). On remand, the 

parties stipulated that such a nexus existed and Commission 

Administrative Law Judge Gary Melick awarded compensation including 

prejudgment interest but denied the claim of complainant United Mine 

Workers of America ("UMWA") for attorney's fees and costs. 9 FMSHRC 

1276 (July 1987)(ALJ). We granted petitions for discretionary review 

filed by both parties. For the reasons that follow, we affirm the 

judge's award of prejudgment interest on the compensation due and his 

denial of attorney's fees and costs. We further announce a modification 

in the method of calculating interest in both compensation and 

discrimination cases arising under the Mine Act. 

I. 

Factual and Procedural 

Background 

The compensation claim at issue arose following an underground 

explosion on June 21, 1983, at the McClure No. 1 underground coal mine 

of Clinchfield Coal Company ("Clinchfield") located in Dickerson County, 

1493 
Virginia. On the morning of June 22, 1983, an_inspector of the 

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

issued to Clinchfield a withdrawal order, pursuant to section 103(k) of 

the Mine Act, 30 U.S.C. § 813(k), affecting the entire mine. Later that 

same morning, the inspector issued to Clinchfield an imminent danger 

withdrawal order, under section 107(a) of the Act, 30 U.S.C. § 817(a), 

also affecting the entire mine. The imminent danger order was 

terminated on July 18, 1983, and on September 30, 1983, the UMWA filed a 

complaint for one-week compensation pursuant to the third sentence of 

section 111 of· the Act on behalf of the miners idled due to the imminent 

danger order. l/ 

On March 26, 1984, MSHA issued to Clinchfield one citation and 

four withdrawal orders pursuant to section 104(d)(l) of the Act, 30 

U.S.C. § 814(d)(l), three of which alleged that the cited violations had 

resulted in a methane ignition causing the June 21 explosion at the 

McClure No. 1 Mine. 

In a summary decision issued on July 23, 1984, the Commission 

ll In relevant part, section 111 of the Act, as codified, provides: 

Entitlement of miners to full compensation 

[l] If a coal or other mine or area of such mine 

is closed by an order issued under section 103, 

section [104], or section [107], all miners working 

during the shift when such order was issued who are 

idled by such order shall be entitled,-regardless of 

the result of any review of such order, to full 

compensation by the operator at their regular rates 

of pay for the period they are idled, but for not 

more than the balance of such shift. [2] If such 

order is not terminated prior to the next working 

shift, all miners on that shift who are idled by 

such order shall be entitled to full compensation by 

the operator at their regular rates of pay for the 

period they are idled, but for not more than four 

hours of such shift. [3] If a coal or other mine or 

area of such mine is closed by an order issued under 

section [104] or section [107] of this title for a 

failure of the operator to comply with any mandatory 

health or safety standards, all miners who are idled 

due to such order shall be fully compensated after 

all interested parties are given an oppor.tunity for 

a public hearing, which shall be expedited in such 

cases, and after such order is final, by the 

operator for lost time at their regular rates of pay 

for such time as the miners are idled by such 

closing, or for one week, whichever is the lesser. 

30 U.S.C. § 821 (sentence numbers added). 

1494 
administrative law judge originally assigned to hear the case denied the 

UMWA's co~pensation claim. 6 FMSHRC 1782 (July 1984)(ALJ). Despite 

tclking official notice of MSHA's accident investigation report, he 

regarded as decisive MSHA's failure to actually modify the imminent 

danger order to expressly allege a violation of a mandatory standard 

and, accordingly, dismissed the compensation claim. 6 FMSHRC at 1784. 

The Commission granted the UMWA's petition for discretionary review. 

In our decision reversing the judge, we held that: the initial 

section 103(k) control order did not preclude MSHA's subsequent issuance 

of the section 107(a) i1TII!linent danger withdrawal order and, for purposes 

of section 111 one-week compensation, the mine was closed "by" and the 

miners were idled "due to" the imminent danger order; an imminent danger 

order need not itself allege a violation of a mandatory standard in 

order to trigger entitlement to one-week compensation; and allegations 

of violations cited subsequently by MSHA in section 104 citations or 

orders may supply the required nexus between the imminent danger order 

and a violation of a mandatory standard. 8 FMSHRC at 1313-14. We noted 

that Clinchf ield had not contested the subsequently issued section 

104(d)(l) citation and withdrawal orders and that the UMWA had asserted 

that the allegations of violation contained therein provided the 

requisite nexus. 8 FMSHRC at 1314. We remanded for a determination 

whether such nexus existed and, if so, for award of the specific sums of 

compensation due the miners idled by the imminent danger order. 

Id. '];/ 

In subsequent proceedings before Judge Melick, the parties 

stipulated that "a causal nexus existed between the 107(a) order issued 

to Clinchfield's McClure No. 1 Mine ... and a violation of a mandatory 

standard in the ... Mine." 9 FMSHRC at 1277. '}_/ They also stipulated 

to a list of miners on whose behalf the UMWA was seeking compensation, 

their rates of pay as of June 23, 1983, and the amount of compensation 

sought on behalf of each such miner. Id. The UMWA further requested 

interest on the compensation award and-also sought attorney's fees and 

costs. In preservation of its appeal rights, Clinchfield repeated the 

same legal arguments in objection to compensation that it had raised 

before the Commission during the preceding review of the case. 

The judge rejected Clinchfield's objections to compensation as 

having been disposed of by our first decision in this matter. 9 FMSHRC 

at 1277. Based on the parties' stipulations, he found that a causal 

nexus existed between the imminent danger withdrawal order and an 

underlying violation of a mandatory standard. 9 FMSHRC at 1276-77. 

Accordingly, he concluded that the miners on the stipulated list were 

~/ Our Clinchfield decision was one of three similar cases issued the 

same date resolving significant compensation issues. The other two 

decisions were Loe. U. 1889, UMWA v. Westmoreland Coal Co., 8 FMSHRC 

1317 (September 1986); and Loe. U. 1609, UMWA v. Greenwich Collieries, 

Div. of Penn. Mines Corp., 8 FMSHRC 1302 (September 1986). 

ll Because the judge who had originally heard the case had retired 

from the Commission, the case was reassigned on remand. 

1495 
entitled to the lost wages set forth in the list. Citing Peabody Coal 

Co., 1 FMSHRC 1785 (November 1979) and Youngstown Mines Corp., 1 FMSHRC 

990 (August ·1979), cases arising under the Federal Coal Mine Health and 

Safety Act of 1969, 30 U.S.C. § 801 il se_g. (1976)(amended 1977)("the 

1969 Coal Act"), he granted the UMWA's request for prejudgment interest 

on the compensation. Id. He ruled that the interest was to be 

calculated according to the formula established for determining interest 

on back pay awards in discrimination cases set forth in Secretary on 

behalf of Bailey v. Arkansas-Carbona Co., 5 FMSHRC 2042 (December 1983). 

Id. Finally, relying on Alyeska Pipeline Service Co. v. The Wilderness 

Soc., 421 U.S. 240 {1975), he denied the UMWA's claims for attorney's 

fees and costs. Id. 

Before us the UMWA contests the judge's denial of attorney's fees 

and costs. The UMWA additionally requests the Commission to modify the 

methud of calculating interest to accord with the revised back pay 

interest formula of the National Labor Relations Board ("NLRB") 

announced in New Horizons for the Retarded, Inc., 283 NLRB No. 181, 125 

LRRM 1177 (May 28, 1987). Clinchfield reasserts its legal objections to 

awarding compensation in this matter. It also challenges the judge's 

award of interest and, in any event, notes that the NLRB's new method of 

calculating interest has caused the Commission's Arkansas-Carbona 

formula to become outdated. 

II. 

Disposition 

A. Clinchfield's objections to compensation 

Clinchfield has reiterated its basic objections to an award of 

compensation in this case -- that the miners were not idled due to the 

imminent danger order because the mine had been closed initially by the 

section 103(k) control order, and that the imminent danger order cannot 

trigger compensation because it did not allege on its face a violation 

of a mandatory standard. These same points were raised, considered, and 

decided adversely to Clinchfield in our first decision. See 8 FMSHRC at 

1313-14. See also Westmoreland, supra, 8 FMSHRC at 1323-30. However, 

in a letter submitted after its brief and served on all parties in this 

case, Clinchfield asserts that the intervening decision in Int'l U., 

UMWA v. FMSHRC, 840 F.2d 77 (D.C. Cir. 1988), rev'g Loe. 5817, UMWA v. 

Monument Mining Corp., etc., 9 FMSHRC 209 (February 1987), supports its 

argument that an imminent danger order must allege on its face a 

violation of a mandatory standard in or~er to initiate an award of oneweek compensation. We disagree. 

Int'l U., UMWA involved the distinct issue of an owner-operator's 

liability for compensation based upon a withdrawal order issued to an 

independent contractor. In reversing a split opinion by the Commission 

holding that "the 'operator' responsible for the conditions or 

violations underlying the section 111 claim is the sole operator 

responsible for compensating the idled miners" (Monument Mining, supra, 

9 FMSHRC at 212), the Court commented upon one of its prior decisions 

1496 
concerning the compensation provisions of the 1969 Coal Act: 

Some of the language in the ..• [Commission's 

Monument Mining] opinion could be read ... to 

suggest a role for the Administrative Law Judge in 

the section 111 compensation proceeding in 

determining whether the cited operator was alone 

responsible for the underlying violation. Such an 

interpretation would be in tension with this court's 

holding (in a case under the Coal Act) that ~ 

compensation order could be based only on the 

withdrawal order "as issued," and not on the 

underlying facts which might have justified a 

broader order. District 6, UMWA v. Department of 

the Interior Bd. of Mine Operations Appeals, 562 

F.2d 1260, 1263 (D.C. Cir. 1977). 

840 F.2d at 80 n.5 (emphasis added). See also 840 F.2d at 84 n. 14. 

The District 6 decision cited by the court was an opinion under the 1969 

Coal Act affirming Billy F. Hatfield v. Southern Ohio Coal Co., 4 IBMA 

259 (1975), which we discussed and distinguished in our Westmoreland 

compensation decision. 8 FMSHRC at 1328-29 n.5. 

In the District 6 proceedings, the D.C. Circuit and the Interior 

Board of Mine Operations Appeals had rejected the UMWA's claim that it 

should be permitted to allege and prove in a compensation proceeding 

that an imminent danger withdrawal order was actually based on 

conditions that would have justified issuance of a withdrawal order 

pursuant to 30 U.S.C. § 814(c)(1976)(amended 1977), based on an 

operator's "unwarrantable failure" to comply with a mandatory health or 

safety standard. If established, such proof would have supported a 

claim for one-week compensation. See 4 IBMA at 265-69; 562 F.2d at 

1263-68. ~/ As we explained in we;:t;oreland, we believe that the 

holding in District 6 was based on the conclusion that the UMWA's 

attempt to prove unwarrantable failure in pursuit of a larger award of 

compensation improperly usurped the Secretary's enforcement and 

prosecutory role in issuing appropriate withdrawal orders. 8 FMSHRC at 

1328-29 n.5. Here, however, the Secretary as the enforcer of the Act 

has issued the requisite imminent danger order capable of supporting a 

one-week compensation claim under section 111 since such order was 

issued due to Clinchfield 1 s failure to comply with mandatory safety 

standards. The UMWA has not been attempting to prove "underlying facts 

which might have justified a broader order" (Int'! U., UMWA, supra, 840 

F.2d at 80 n.5). A District 6 issue would be posed in this matter if 

the Secretary had issued only the initial section 103(k) control order 

and, absent an imminent danger order or a section 104 withdrawal order, 

~/ Under the Coal Act only a withdrawal order based on the operator's 

unwarrantable failure could trigger entitlement to one-week compensation. See 30 U.S.C. § 820(a)(1976)(amended 1977). In contrast, under 

the third---;;ntence of section 111 of the Mine Act (n.1 supra), one-week 

compensation may be triggered when imminent danger orders are issued 

under section 107 or withdrawal orders are issued under section 104. 

1497 
the UMWA had sought to prove, in pursuit of a one-week compensation 

claim, that the underlying conditions would have justified issuance of 

an imminent danger order or a section 104 withdrawal order. Thus, the 

concerns addressed in District 6, and referred to in passing by the 

court in Int'l U., UMWA, are not present here. ll 

Finally, we reemphasize our view that the argument that a section 

107 imminent danger order must allege a violation on its face in order 

to initiate one-week compensation is at odds with section 111, the 

purposes of the Act, and the last sentence of section 107(a), 30 U.S.C. 

§ 817(a), which expressly permits the subsequent issuance of a citation 

for any violation allegedly involved in the imminent danger. See 

Westmoreland, 8 FMSHRC at 1327-28. As was the case in this matter, 

imminent danger orders are often issued under urgent circumstances. As 

stated in Westmoreland: 

[T]he overriding purpose of an imminent danger order 

is the immediate withdrawal of miners .•.• [D]ue to 

the dangerous conditions giving rise to the order, 

inspection or investigation of the area to determine 

the existence of any underlying violations may be 

delayed necessarily until long after the order was 

issued or until the imminent danger no longer 

exists. 

8 FMSHRC at 1328 (emphasis in original). 

For the foregoing reasons, and as more fully discussed in our 

prior decision, we reaffirm our rejection of Clinchfield's objections to 

one-week compensation in this matter. 

B. Award of attorney's fees and costs 

The UMWA seeks review of the judge's denial of its request for 

attorney's fees and costs. The judge based his denial on Alyeska 

ll In this proceeding we have permitted the UMWA to attempt to 

establish a nexus between the issuance of an imminent danger withdrawal 

order and an underlying violation of a mandatory standard. However, a 

showing of nexus -- since stipulated to by the parties -- does not usurp 

any Secretarial role, because the Secretary fulfilled her role by 

issuing the imminent danger order and a citation and several withdrawal 

orders containing allegations of violations of mandatory standards. 

Section 111 does not require the Secret~~y to set forth compensationrelevant nexus findings in her withdrawal orders or related enforcement 

actions. See Westmoreland, 8 FMSHRC at 1327-30. As we made clear 

recently in a similar context, citations and withdrawal orders issued by 

the Secretary integrally pertain to the Act's enforcement and civil 

penalty scheme, while the nexus concept referred to herein arises solely 

in the compensation sphere. See Loe. U. 2333, UMWA v. Ranger Fuel 

Corp., 10 FMSHRC 612, 620-21 (May 1988). As the D.C. Circuit observed in 

Int'l U., UMWA, the Secretary plays no role in compensation proceedings. 

840 F.2d at 81-82 & n.6. 

1498 
Pipeline, supra, in which the Supreme Court endorsed the "American Rule" 

tl~at atto_rney' s fees are not ordinarily recoverable by the prevailing 

party in federal litigation in the absence of statutory authorization. 

See 421 U.S. at 247-71. In decisions issued one month after the judge's 

decision in this matter, we concluded that private attorney's fees are 

not awardable under the Mine Act to a complainant who retains private 

counsel in a discrimination complaint proceeding brought by the 

Secretary of Labor on the complainant's behalf pursuant to section 

105(c)(2) of the Act, 30 U.S.C. § 815(c)(2). Odell Maggard v. Chaney 

Creek Coal Corp., etc., 9 FMSHRC 1314, 1322-23 (August 1987), pets. for 

review filed, No. 87-1494 (D.C. Cir. September 17 & 21, 1987); John A. 

Gilbert v. Sandy Fork Mining Co., Inc., 9 FMSHRC 1327, 1339 n.6 (August 

1987), pet. for review filed, No. 87-1499 (D.C. Cir. September 21, 

1987). 

We based our attorney's fees holding in Maggard and Gilbert upon 

our acquiescence, absent contrary judicial authority, in the Fourth 

Circuit's decision in Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 

643-44 (4th Cir. 1977), reversing the Commission's former policy 

announced in Secretary on behalf of Robert A. Ribel v. Eastern Assoc. 

Coal Corp., 7 FMSHRC 2015, 2021-27 (December 1985). The Fourth Circuit 

generally founded its rejection of private counsel fees and costs in 

section 105(c)(2) discrimination proceedings upon Alyeska Pipeline's 

affirmation of the "American Rule. 11 813 F.2d at 643. The Fourth 

Circuit discerned no statutory authorization for private counsel fees 

and costs in connection with a discrimination complaint brought by the 

Secretary pursuant to section 105(c)(2), and contrasted that situation 

with section 105(c)'s express allowance of such feas and costs to 

successful complainants in a section 105(c)(3) proceeding. 813 F.2d at 

644. Thus, under the "American Rule" applied to the Mine Act as set 

forth in the Fourth Circuit's Ribel decision, attorney's fees are not 

available to prevailing litigants under the Mine Act, except where the 

Act specifically authorizes such fees. 

Neither section 111 nor any other provision of the Mine Act 

provides for an award of attorney's fees and costs in compensation 

proceedings. The Act's legislative history is silent on this subject. 

In the absence of specific statutory authorization, therefore, we follow 

the "American Rule" in this context and affirm the judge's disallowance 

of attorney's fees and costs. Alyeska Pipeline, supra; Ribel (4th 

Cir.), supra; Maggard, ~ra; and Gilbert, supra. 

C. Interest issues 

Two major interest issues are presented: whether interest is due 

on compensation awards under section 111 and, if so, whether prejudgment 

interest may be allowed; also, if interest is available, how are its 

rate and amount to be calculated? In cases arising under the Coal Act, 

the Commission allowed interest on compensation awards, and we perceive 

no reason to adopt a more restrictive rule under the expanded 

compensation provisions of the Mine Act. 

1. Interest on compensation awards and prejudgment 

interest 

1499 
With respect to the first issue, interest is the compensation 

allowed by law on the use or detention of money (~, 45 Am. Jur. 2d, 

Interest and Usury § 1 (1969)), and reflects the value of money over 

time. Interest is not a penalty but is merely an appropriate recompense 

for the loss over time of the use of money. See, ~' Clark v. Paul 

Revere Life Ins. Co., 417 F.2d 683, 686 (8th Cir. 1969); United States 

v. United Drill & Tool Corp., 183 F.2d 998, 999 (D.C. Cir. 1950). As we 

have analogously determined with regard to the Mine Act's antidiscrimination provisions: 

The miner [who has suffered discrimination] has 

not only lost money when he or she has not been paid 

in violation of section 105(c), but has also lost 

the use of the money. As the NLRB has stated with 

regard to interest on back pay awards under the 

National Labor Relations Act, "[t]he purpose of 

interest is to compensate the discriminatee for the 

loss of the use of his or her money." Florida Steel 

Corp., 231 NLRB 651, 651 (1977). 

Arkansas-Carbona, supra, 5 FMSHRC at 2050. 

Section 111 compensation replaces pay that miners have lost as the 

result of an idlement attributable to the issuance of withdrawal orders 

specified in section 111. See generally Westmoreland, 8 FMSHRC at 1323-

24. See also Int'l U., UMWA, supra, 840 F.2d at 81-82 & n.6; see also 

S. Rep. No. 181, 95th Cong., 1st. Sess. 46-47 (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 634-35 (1978) ("Legis. Hist.") When. miners lose pay because 

of an idling order, they also lose the use of that pay. Thus, interest 

on a section 111 award operates to compensate miners for the loss of use 

of their money over a period of time. 

Section 111, like its predecessor, section llO(a) of the Coal Act, 

30 U.S.C. § 820(a)(l976)(amended 1977), does not expressly provide for 

interest on compensation. However, as we recognized in approving 

interest on compensation awards under the Coal Act, we conclude that 

interest is implied within section lll's remedial pay protection scheme. 

See Youngstown, supra, 1 FMSHRC at 995-96; Peabody, supra, 1 FMSHRC at 

1792. As we observed in Youngstown: "It is well settled that the 

omission of a mention of interest in [federal] statutes which create 

obligations does not show necessarily a Congressional intent to deny 

interest." 1 FMSHRC at 996, quoting Philip Carey Mfg. Co. v. NLRB, 331 

F.2d 720, 729 (6th Cir.), cert. den., 379 U.S. 888 (1964). See also, 

~· Int'! Bhd. of Operative Potters v. NLRB, 320 F.2d 757, 760-61 

(D.C. Cir. 1963); United Drill & Tool Corp., supra, 183 F.2d at 999-

1000. 

The principle that a federal statutory obligation may bear 

interest even though the statute makes no provision for it is rooted in 

Rodgers v. United States, 332 U.S. 371, 373-74 (1947). Under Rodgers, 

interest is awardable in such contexts depending upon the purpose of the 

statute, whether the statutory obligation in question is in the nature 

1500 
of a debt rather than a penalty, and the interplay of the relative 

equities involved. 332 U.S. at 373-74. See also Philip Carey Mfg. Co., 

supra, 331 F.2d at 729-30; United Drill & Tool Corp., 183 F.2d at 999. 

As emphasized already, the purpose of section 111 compensation is 

to replace miners' wages lost as a result of idling orders. 

Accordingly, the obligation to pay this statutory compensation is in the 

nature of a debt owed by the operator to the miner. Plainly, 

compensation under section 111 is not a penalty or fine, upon which an 

~ward of interest would be improper. See Rodgers, supra, 332 U.S. at 

374-76; see also Legis. Hist., supra, at 634-35. Further, during the 

period of time that a miner has not been compensated, the operator has 

retained the use and benefit of that money. As we noted in Youngstown: 

It is recognized under our legal system that wageearners are heavily dependent upon wages, which more 

often than not constitute the sole resource to 

purchase the necessities of life from day to day .... 

Many wage-earners who are deprived of their wages 

doubtlessly find it necessary to borrow money to 

sustain themselves and their families, paying rates 

of interest ... [to do so]. 

1 FMSHRC at 996, quoting Philip Carey Mfg. Co., supra, 331 F.2d at 730. 

Thus, we perceive no inequity in requiring a mine operator, liable for 

section 111 compensation, to repay miners for the time value of their 

compensable pay. Therafore, we conclude in agreement with the judge 

that interest may properly be included in a compensation award. See, 

~·Youngstown, supra; Philip Carey Mfg. Co., supra; Int'l Bhd. of 

Operative Potters, supra; United Drill & Tool Corp., supra. QI 

QI Courts have allowed interest on a wide variety of federal 

statutory obligations even though interest was not mentioned in the 

applicable statutes. For example, such interest has been permitted on: 

back pay awards under the National Labor Relations Act, 29 u.s.c~ § 151 

et seg. (1982)("NLRA"): ~·Philip Carey Mfg. Co., 331 F.2d at 729-31; 

Int'l Bhd. of Operative Potters, 320 F.2d at 760-61; Reserve Supply 

Corp. of L. I. v. NLRB, 317 F.2d 785, 789 (2d Cir. 1963); back pay 

awards under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 

§ 2000e et seg. (1982): ~· EEOC v. Wooster Brush Co. Employees Relief 

Ass'n, 727 F.2d 566, 578-79 (6th Cir. 1984); Pettway v. American Cast 

Iron Pipe Co., 494 F.2d 211, 263 (5th Cir. 1974); awards for wage 

violations of Fair Labor Standards Act, 29 U.S.C. § 201 et seg. (1982): 

~· Marshall v. Hope Garcia Lancarte, 632 F.2d 1196, 1199 (5th Cir. 

1980); Hodgson v. American Can Co., 440 F.2d 916, 921-22 (8th Cir. 

1971); awards to employees for underpayments by contractors under WalshHealey Act, 41 U.S.C. § 35 et seg. (1982): ~· Mitchell v. Riegel 

Textile, Inc., 259 F.2d 954, 956 (D.C. Cir. 1958); and compensation 

awards to returning veterans for wrongful refusals to reemploy under the 

Veterans Reemployment Rights Act, 38 U.S.C. § 2021 et seg. (1982), and 

its statutory predecessors: ~· Hembree v. Georgia Power Co., 637 F.2d 

423, 429-30 (5th Cir. 1981); Travis v. Schwartz Mfg. Co., 216 F.2d 448, 

456 (7th Cir. 1954). 

1501 
We reject Clinchfield's argument that because section 105(c) of 

the Mine Act refers specifically to an award of interest on back pay and 

section 111 does not expressly provide for interest, interest is 

unavailable under the latter provision. In enacting the Mine Act, 

Congress substantially amended the antidiscrimination provisions of the 

Coal Act (30 U.S.C. § 820(b) (1976)(amended 1977)) to increase the 

protection afforded miners and expressly permitted interest on back pay. 

In section 111 of the Mine Act Congress also expanded the compensation 

that had been available under section llO(a) of the Coal Act (see 

Westmoreland, 8 FMSHRC at 1324-25, 1328-29 & n.5). Although it did not 

mention interest in the amended compensation provisions, Congress was 

addressing two discrete areas of concern in making these revisions. The 

fact that interest was included in section 105(c) does not necessarily 

imply its exclusion from section 111 -- particularly in the context of a 

remedial health and safety statute. See, ~··Herman & McLean v. 

Huddleston, 459 U.S. 375, 387 n.23 (1983); Bailey v. Federal 

Intermediate Credit Bk., 788 F.2d 498, 500 (8th Cir. 1986), cert. den., 

U.S. , 55 U.S.L.W. 3287 (U.S. Oct. 20, 1986)(No. 86-318); Car~ v. 

OWCP, 75Y-F.2d 1398, 1401-02 (D.C. Cir. 1985). 

It is beyond dispute that section 111 "is remedial in nature and 

was not intended by Congress to be interpreted and applied narrowly." 

Westmoreland, 8 FMSHRC at 1323. In explicitly recognizing interest on 

back pay awards under section 105(c), Congress was codifying legal and 

equitable principles that otherwise would have been implicit (under the 

Philip Carey line of cases referred to above). It would be perverse to 

conclude that codification of the right to interest in section 105(c) is 

a repudiation rather than an affirmation of these legal and equitable 

principles insofar as section 111 is concerned. See Carter, supra, 751 

F.2d at 1402. Further, we find no express indication in the Mine Act's 

legislative history that Congress considered and intended to exclude 

interest on compensation or to abrogate the settled doctrine of federal 

law that interest may be implied under federal statutory provisions 

dealing with remedial or debtor-creditor relationships. See, ~' Tristate Terminals, Inc. v. Jesse, 596 F.2d 752, 755-56 & n.2 (7th Cir. 

1979). 

In this aspect of its position on review, Clinchfield seeks to 

interpose the maxim of statutory construction that expressio unius est 

exclusio alterius ("the expression of one thing is the exclusion of 

another"). While we agree that this doctrine often plays a useful role 

in determining statutory meaning, it is nevertheless only an aid to 

construction and not an invariable rule of law. See, ~, 2A 

Sutherland Statutory Construction§§ 47.23 & .25 (Sands 4th ed. 1984 

rev.); U.S. Dept. of Justice v. FLRA, 727 F.2d 481, 491 (5th Cir. 1984). 

All the interpretative considerations discussed above supporting our 

recognition of interest in section 111 fairly effectuate the Act. Most 

importantly, we discern in the remedial structure of section 111 a clear 

congressional purpose requiring full compensation to idled miners within 

the framework of that section -- a purpose that outweighs application of 

that particular rule of construction. See, ~' 2A Sutherland, supra, 

§ 47.25; Carter, supra, 751 F.2d at 1401-02; Tri-State Terminals, Inc., 

supra, 596 F.2d at 755-56. 

1502 
The essential reasons underlying our preceding conclusions 

regarding section 111 interest dictate that it take the form of 

prejudgment interest accruing from the date that the compensable pay 

would normally have been paid by the operator until the date that the 

compensation due is actually tendered. Prejudgment interest is not a 

penalty but is a necessary element of complete compensation for withheld 

funds. !.:lt:... Platora Ltd. v. Unidentified Remains, etc., 695 F.2d 893, 

906 (5th Cir.), cert. den., 464 U.S. 818 (1983). Indeed, in the absence 

of compelling equitable considerations to the contrary, prejudgment 

interest is ordinarily the form of interest awarded on monetary 

obligations due. !:..&..:..• Stroh Container Co. v. Delphi Indus., Inc., 783 

F.2d 743, 752 (8th Cir.), cert. den., 476 U.S. 1142 (1986). As the 

Supreme Court has explained: 

Prejudgment interest is an element of complete 

compensation .... 

* * * 

[I]t serves to compensate for the loss of use of 

money due as damages from the time the claim accrues 

until judgment is entered, thereby achieving full 

compensation for the injury those damages are 

intended to redress. 

West Virginia v. United States, supra, 479 U.S. at 310-11 & n. 2. The 

cases cited above in n.6 concerning the implication of interest in 

federal statutes all contemplated generally, or authorized specifically, 

the award of prejudgment interest. See,~· American Can Co., 440 

F.2d at 922; Int'l Bhd. of Operative Potters, 320 F.2d at 760-61; United 

Drill & Tool Corp., 183 F.2d at 999-1000. ZI 

Here, from the time of the issuance of the imminent danger withdrawal order, Clinchfield has had the use of the compensable pay at 

issue. See, e.g., Stroh Container Co., supra, 783 F.2d at 752; American 

Can Co., 440 F.2d at 922. To make the miners whole for the time value 

of their compensable pay, therefore, we hold in affirmance of the judge 

that interest is appropriate on sums of compensation due from the date 

that the compensable pay would have been paid but for the idlement until 

the date that the compensation due is tendered. This result comports 

with the interest approach followed in discrimination cases under 

Arkansas-Carbona. 5 FMSHRC at 2051-53 & n.15. 

We disagree with Clinchfield's argument that this outcome is harsh 

or punitive. Prejudgment interest is an accepted component of just and 

complete compensation. Clinchfield has not demonstrated any special 

equitable considerations that might justify an exception in this 

J_/ We note that 28 U.S.C. § 1961 (1982), authorizing postjudgment 

interest on monetary judgments in federal civil cases, does not purport 

to address the subject of prejudgment interest and does not bar its 

award in appropriate cases. ~. Bricklayers' Pension Trust Fund v. 

Taiariol, 671 F.2d 988, 989 (6th Cir. 1982). 

1503 
proceeding. While, as Clinchfield points out, this litigation has 

followed a protracted course, Clinchfield nevertheless has retained the 

benefit of the money involved throughout that period. Finally, although 

we do not question Clinchfield's good faith, its good faith does not 

preclude assessment of prejudgment interest. :!h..8..:..• Stroh Container Co., 

supra; American Can Co., supra. 

2. Rate and computation of interest 

If interest is to be awarded, both parties urge us to cease 

applying the interest rate formula set forth in Arkansas-Carbona, supra. 

We conclude that there should be one interest rate method of computation 

applicable to both discrimination and compensation cases, and we agree 

that it is appropriate to modify the interest formula of ArkansasCarbona. 

In Arkansas-Carbona, we approved simple interest on back pay 

awards under section 105(c) of the Act to provide miners a "full measure 

of relief" from illegal discrimination or retaliation. 5 FMSHRC at 

2049, 2052. In choosing an appropriate rate of interest, we considered 

"the potential cost to the miner both as a 'creditor' of the operator, 

and as a potential borrower from a lending institution under real 

economic conditions." 5 FMSHRC at 2050. In addition, we endeavored to 

select an interest rate "flexible enough to reflect economic and market 

realities, but not so complex in application as to place an undue burden 

on the parties and on judges •••• " Id. In light of these criteria, we 

adopted in that case the "adjusted prime rate" announced semi-annually 

by the Internal Revenue Service ("IRS") under the then applicable 

version of 26 U.S.C. § 6621 for purposes of fixing interest on 

overpayment and underpayment of taxes. Arkansas-Carbona, 5 FMSHRC at 

2050-51. ~/ In so doing, we followed the practice of the NLRB, which 

applied the adjusted prime rate as the interest rate on back pay awards 

under the NLRA. See Olympia Medical Corp., 250 NLRB 146, 147 (1980); 

Florida Steel Corp., 231 NLRB 651 (1977). At the same time, we adopted 

the "quarterly method" of calculating the amount of back pay and 

interest due. 5 FMSHRC at 2051-54. 

The Tax Reform Act of 1986, Pub. L. 99-514, 100 Stat. 2085 (1986), 

however, changed the method by which the IRS computes interest on 

overpayment and underpayment of taxes, as of January 1, 1987. Use of 

the adjusted prime rate as determined by the Federal Reserve Board was 

abandoned, and the IRS now uses the "short-term Federal rate." 26 

U.S.C.A. § 6621 (Supp. 1988). This rate is determined by the Secretary 

of Treasury based on the average market yield on outstanding marketable 

obligations of the United States with r~maining periods to maturity of 

three years or less. 26 U.S.C.A. § 1274(d)(l)(C)(i) (Supp. 1988). The 

short-term Federal rate is determined for the first month in each 

calendar quarter and applies during the first calendar quarter beginning 

~/ The adjusted prime rate is a percentage of the average predominant 

rates quoted by commercial banks to large businesses as determined by 

the Federal Reserve Board and rounded to the nearest full percent. 

1504 
after such month. 26 U.S.C.A. § 662l(b) (Supp. 1988). 21 These rates 

are rounded to the nearest full percent. 26 U.S.C.A. § 662l(b)(3) 

(Supp. 1988). The overpayment interest rate (paid by the IRS on tax 

refunds) is the short-term Federal rate plus 2 percentage points and the 

underpayment rate (paid by the taxpayer on additional taxes) is the 

short-term Federal rate plus 3 percentage points. 26 U.S.C.A. § 6621(a) 

(Supp. 1988). 

In response to this legislation, the NLRB in May 1987 abandoned 

its use of the adjusted prime rate and chose the underpayment rate of 

short-term Federal interest as its interest rate for back pay awards. 

New Horizons, supra, 283 NLRB No. 181, 125 LRRM 1177. The NLRB 

concluded that the short-term Federal rate corresponds to private 

economic market forces, is subject to periodic adjustment, is relatively 

easy to administer, and, because the rate is determined on a quarterly 

basis, mirrors the quarterly method of back pay calculation. 125 LiffiM 

at 1178. 

We agree and select the short-term Federal rate applicable to 

underpayment of taxes as the interest rate for compensation awards. The 

short-term Federal rate, based on average market yields of marketable 

federal obligations, is influenced by private economic market forces, 

and captures the "economic and market realities" that a remedial 

interest rate should embody. Arkansas-Carbona, 5 FMSHRC at 2050. It is 

periodically adjusted.and responds to changing economic conditions. 

Since the rate is publicly announced well in advance of the effective 

date, it also offers reasonable notice to parties and our judges and 

would be relatively easy to administer. Finally, the underpayment rate 

is reflective of the cost to miners of borrowing money when deprived of 

a paycheck and, therefore, tends to compensate them more fully for their 

potential losses as borrowers. See Arkansas-Carbona, supra; Youngstown 

Mines, 1 FMSHRC at 996. 

We note that these same considerations apply with equal force to 

the award of back pay under section 105(c) of the Act, the context in 

which Arkansas-Carbona was decided. For that reason, and to enhance the 

efficiency of the administration of the remedial aspects of the Act, we 

adopt, for all cases in which decisions are issued after the date of 

this opinion, the short-term Federal underpayment rate as the interest 

rate on both compensation and discrimination awards. Because there 

would have been no major differences between the adjusted prime rate 

approved in Arkansas-Carbona and the short-term Federal underpayment 

rate since January 1987, we exercise our discretion to apply the shortterm rate retroactively to January 1987. Cf. New Horizons, 125 LRRM at 

1178. 

The applicable interest rates with their corresponding daily rates 

for back pay and compensation awards from January 1, 1978, through 

December 31, 1988, are as follows: 

21 For example, the rate determined in April of a given year applies 

to the months of July, August and September of that year. 

1505 
January 1, 1978 to December 31, 1979 •••• 6% (.0001666 per day) 

January 1, 1980 to December 31, 1981 ••. 12% (.0003333 per day) 

January 1, 1982 to December 31, 1982 ••• 20% (.0005555 per day) 

January 1, 1983 to June 30, 1983 ••••••• 16% (.0004444 per day) 

July 1, 1983 to December 31, 1984 •••••• 11% (.0003055 per day) 

January 1, 1985 to June 30, 1985 •.••••• 13% (.0003611 per day) 

July 1, 1985 to December 31, 1985 .•••.• 11% (.0003055 per day) 

January 1, 1986 to June 30, 1986 ••••••• 10% (.0002777 per day) 

July 1, 1986 to September 30, 1987 •••••• 9% (.0002500 per day) 

October 1, 1987 to December 31, 1987 ••• 10% (.0002777 per day) 

January 1, 1988 to March 31, 1988 ••.••• 11% (.0003055 per day) 

April 1, 1988 to September 30, 1988 •••. 10% (.0002777 per day) 

October 1, 1988 to December 31, 1988 ••• 11% (.0003055 per day) 10/ 

As to the computation of interest awards, the Arkansas-Carbona 

quarterly method has stood the test of time since its announcement in 

1983. 5 FMSHRC at 2051-54. Therefore, we retain the quarterly method 

of remedial award computation based on use of the four calendar quarters 

and substitute the short-term Federal underpayment rates for the 

adjusted prime rates.from January 1, 1987, forward. For purposes of 

calculating such awards in the compensation sphere, the explanation and 

computational example provided in Arkansas-Carbona (5 FMSHRC at 2051-54) 

supply the needed guidance and are incorporated herein by reference • .!l/ 

10/ It is necessary to convert the interest rates announced by the IRS 

to daily rates ("daily interest factors") in order to calculate interest 

on periods of less than one year. See Arkansas-Carbona, 5 FMSHRC at 

2051, 2052-53. 

!lf A Federal Register notice summarizing this interest calculation 

holding will be published. In the future the Commission's Executive 

Director will timely forward to the Commission's Chief Administrative 

Law Judge, for dissemination to our judges, appropriate updated lists of 

the applicable interest rates and the daily interest factors. The 

public may also obtain the lists of relevant interest rates by 

submitting written requests addressed to the Commission 1 s Executive· 

Director, 1730 K St., N.W., Washington, D.C. 20006. 

1506 
III. 

Conclusion 

For the foregoing reasons, we affirm the judge's award of 

compensation, his disallowance of. attorney's fees and costs, and his 

award of prejudgment interest on the compensation due. As announced 

herein, however, we modify the Arkansas-Carbona interest computation 

formula by adopting the short-term Federal underpayment rate as the 

interest rate applicable to both compensation and back pay awards, 

effective as of January 1, 1987. Accordingly, Clinchfield is directed 

to pay the complainants the stipulated sums of compensation due bearing 

interest from the stipulated date (9 FMSHRC at 1278-84), as provided_for 

in this decision. 12/ 

J~e, ~!/~ ConuniSSiOr 

~~~ ~ommissioner 

~/Le.~ L. Clair Nelson, Commissioner 

12/ Chairman Ford did not participate in the consideration or 

disposition of this matter. 

1507 
Distribution 

John T. Scott, III, Esq. 

Crowell & Moring 

1001 Pennsylvania Ave., N.W. 

Washington, D.C. 20004 

Edward H. Fitch, Esq. 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Earl R. Pfeffer, Esq. 

UMWA 

900 15th St., N.W. 

Washington, D.C. 20005 

Administrative Law Judge Gary Melick 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

1508 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 2 1988 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

Docket No. CENT 88-26-M 

A.C. No. 16-01068-05504 

v. 

Fleniken Pit 

FLENIKEN'S SAND AND GRAVEL, 

INCORPORATED, 

Appearances: 

Before: 

Respondent 

DECISION 

James A. Wirz, Esq., Office of the Solicitor, 

U.S. Department of Labor, Dallas, Texas, for 

the Petitioner; 

Lyman Fleniken, President, Fleniken's Sand and 

Gravel, Clinton, Louisiana, for the Respondent. 

Judge Koutras 

Statement of the Case 

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

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

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

amount of $46 for an alleged violation of mandatory safety 

standard 30 C.F.R. § 56.15020. The respondent filed a timely 

answer contesting the alleged violation, and a hearing was 

convened in Baton Rouge, Louisiana. The parties waived the 

filing of any posthearing arguments, but I have considered 

their oral arguments made on the hearing record in my adjudication of this matter. 

Issues 

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

conditions or practices cited by the inspector constitute a 

violation of the cited mandatory safety standard, (2) the 

appropriate civil penalty to be assessed for the violation, 

taking into account the statutory civil penalty criteria found 

1 i:::na 
in section llO(i) of the Act, and (3) whether the violation 

was "significant and substantial." Additional issues raised 

by the parties are identified and disposed of in the course of 

this decision. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977; 

Pub. L. 95-164, 30 u.s.c. § 801 et seq. 

2. Section llOCi> of the 1977 Act, 30 u.s.c. § 820(i). 

3. Commission Rules, 29 C.F.R. § 2700.1 et seg. 

Discussion 

Section 104(a) "S&S" Citation No. 2866525, issued by MSHA 

Inspector Kenneth N. McCleary on September 9, 1987, cites a 

violation of mandatory safety standard 30 C.F.R. § 56.15020, 

and the condition or practice is described as follows: 

While talking to the dredge operator and 

loader operator, a life jacket is not worn 

while performing duties on the dredge boat. 

The railing around the perimeter of the boat is 

approximately 36" high, the dredge operator at 

times works in a kneeling position, therefore 

could accidently fall into the water. The 

water is 25-30 ft. deep and approximately 

75 ft. to shore. The dredge boat platform sets 

about 3 or 4 ft. above the water with no hand 

holds to help him get out of the water. The 

dredge operator works alone. 

Petitioner's Testimony and Evidence 

MSHA Inspector Kenneth N. McCleary, Sr., testified as to 

his experience and training, and he confirmed that he 

inspected the respondent's dredge on September 9, 1987, and 

issued the citation in question. The dredge was located 75 to 

100 feet from the shore of a 20-25 foot deep lake where it was 

pumping sand and gravel through a pipeline into a separator 

located on shore. Mr. McCleary stated that he motioned to the 

dredge operator from shore, indicating that he wished to come 

aboard for an inspection. The operator came down out of his 

control tower, put on a life jacket, and got into a rowboat 

and came ashore to pick him up. They went back to the dredge, 

and the operator took off his life jacket and went back up 

into the control tower (Tr. 8-13). 

1510 
Mr. McCleary described the duties of the dredge operator, 

and stat~d that they included the changing of engine oil, turning the engine on and off, and keeping the deck clean. The 

life jacket was kept on a hook at the base of the control 

tower, and the dredge operator advised him that he did not 

wear his life jacket at all times while performing duties on 

the dredge. Mr. McCleary confirmed that his inspection took 

an hour, and during this time, the operator was in the control 

tower and was not wearing the life jacket (Tr. 14-15). 

Mr. McCleary stated that the metal dredge decks become 

slick during the rainy season, and a person could possibly 

fall into the water. If he did, it was doubtful that he could 

get back to shore in time. Mr. McCleary described the dredge, 

and stated that it was rectangular in size, resting on · 

pontoons, with two diesel engines on it for pumping sand and 

gravel. He drew a rough sketch of the dredge, and indicated 

that one engine was located approximately 2 to 3 feet from the 

dredge perimeter, and the second engine was no more than 

3 feet from the perimeter. He also located the position of 

the engine start-stop switches on the dredge, and indicated 

that they were located 3 to 4 feet from the perimeter. There 

was a 36 inch high cable handrail installed around the 

perimeter of the dredge deck, and the dredge was situated 

approximately 3 to.4 feet out of the water, and there were no 

hand holds on the sides (Tr. 15-2, exhibit G-1). 

Mr. McCleary confirmed that the operator performed no 

work on the deck while he was conducting the inspec~ion, but 

advised him that his normal duties included the washing down 

of the deck to remove any excess oil spill, and this would be 

done once or twice a day on some occasions. Although he made 

no determination as to whether or not the operator's duties 

included the changing of engine oil, Mr. McCleary assumed that 

this would be done since most operators assist maintenance 

crews in the changing of oil. He did not determine whether 

the operator in fact changed the oil. The operator would stop 

and start the engines at the beginning and end of the shift. 

Mr. McCleary believed that a wet and slick deck presented 

a strong possibility that the operator could slip on the deck 

while washing it down. If he bumped his head or was possibly 

knocked unconscious, he could fall into the water. He could 

also slip and fall under the handrail and would have nothing 

to hold on to. If the operator were in a kneeling position 

while wiping or cleaning up oil spills, this would expose him 

even more to the possibility of falling into the water. The 

hand rail would not prevent the operator from falling overboard because he could slip under it and could not reach it 

1511 
while slipping into the water. The operator would be positioned between the engines and the dredge perimeter while washing down the deck area around the engines. The barge had no 

hand holds on its sides so that someone who fell into the water 

could grab and possibly get back on to the deck. Mr. McCleary 

confirmed that there are no MSHA standards requiring hand holds 

(Tr. 22-32). 

Mr. McCleary believed that due to the rainy season in 

Louisiana, barge decks become wet and slick, and it was highly 

likely that the dredge operator could fall off the barge and 

into the water, and that his job duties would contribute to a 

greater hazard exposure. In the event the operator struck his 

head on the engine, deck, or handrail support poles, he could 

be knocked unconscious, and without a life jacket on, he would 

probably drown if he fell overboard. A life jacket would keep 

him afloat if he were unconscious. Mr. McCleary confirmed 

that the dredge operator worked alone, and since the engines 

produce quite a bit of noise, he believed that any cries of 

help from the operator would not be heard from the shore CTro 

32-35). Based on all of these considerations, Mr. McCleary 

believed that the violation was "significant and substantial" 

(Tr. 36). 

Mr. McCleary confirmed that he made a finding of "low 

negligence" because the respondent had not previously been 

cited for a violation of section 56.15020, during seven prior 

inspections conducted during the period Oct6ber, 1985 through 

September, 1987 (Tr. 36-37, exhibit G-2). 

On cross-examination, Mr. McCleary confirmed that the 

dredge was clean on the day of his inspection, and he believed 

that the deck was smooth "on the operator's side." He agreed 

that a diagram and sketch made by Mr. Fleniken depicting the 

side view of the dredge, with the positioning of the engines, 

operator's cabin, pump, handrails, and ladder leading to the 

cabin was accurate. Although Mr. McCleary stated that he 

could not recall the positioning of the engines, he had no 

reason to question the sketch, and Mr. Fleniken confirmed that 

all of his dredges are constructed as shown (Tr. 46-48). 

Mr. McCleary confirmed that the dredge operator was in no 

danger of falling into the water while in his control booth, 

and would not be required to wear a life jacket while in the 

booth. Once the operator left the booth and started down the 

ladder, he would not be in danger of falling into the water 

because there was a double handrail on the ladder way. He 

also confirmed that he issued the citation on the basis of 

what the dredge operator told him concerning his work duties, 

1512 
and that the cited standard does not per se require the wearing of a life jacket at all times while work is being performed 

on the dredge. The standard only requires a life jacket where 

there is a danger of falling into the water (Tr. 59-60). 

In response to a question as to the absence of any danger 

of falling while the operator was performing duties on the deck 

of the dredge, Mr. McCleary responded that "the only time that 

there would be a danger of falling would be performing duties 

around the perimeter of the dredge" (Tr. 60). Mr. McCleary did 

not observe the operator walking around the perimeter of the 

dredge while he was there, nor did he observe him checking the 

engines. Mr. McCleary believed that if the operator were walking around the deck inspecting the enginesr he would be 

required to wear a life jacket (Tr. 61-62). 

Respondent's Testimony and Evidence 

Respondent's president, Lyman Fleniken, disputed the location of one of the engines drawn on the sketch by Inspector 

McCleary, and he indicated that it was positioned parallel to 

the perimeter of the dredge, rather than perpendicular as 

shown on the sketch. Mr. Fleniken also stated that the rear 

engine was located 6 feet from the edge. He drew a sketch of 

the dredge, with the equipment in place (exhibit R-1, Tr. 

42-44). Inspector McCleary confirmed that he made no notes or 

diagrams at the time of his inspection (Tr. 42-43). 

Mr. Fleniken stated that the deck of the dredge is constructed of "diamond plate," and that "it's like perforation 

up and down the platform that you use so that you do not have 

a skid. The skid factor is greatly reduced" (Tr. 50). Inspector McCleary confirmed that he could not recall the "diamond 

plating," and indicated that the deck on the operator's control side was a smooth surface. He described this location as 

the area near the ladder leading to the control booth. 

Mr. McCleary also stated that the rest of the deck around the 

dredge perimeter was "probably rigid is the best I can 

remember" (Tr. 52). 

Mr. Fleniken stated that the operator's cabin is enclosed 

with a door, and is equipped with a double guard rail. He 

confirmed that the dredge operator had been instructed to wear 

a life jacket when he comes down the ladder to the lower deck 

to adjust the tail and head rope, but he is not requested to 

wear the jacket while he is involved in duties on the deck 

itself (Tr. 51). He also indicated that depending on the 

amount of diesel fuel in the back engine compartment, the 

dredge would sit deeper in the water. Conceding that someone 

1513 
could slip under the guardrail, Mr. Fleniken believed that if 

someone fell into the water, he would only have to reach up 

2 feet, rather than 4 feet, to grab the edge of the dredge 

(Tr. 50). 

Mr. Fleniken stated that the dredge was built in components, and that the main decking area containing the engines 

and pump is 12 feet wide. Pontoons are located on both sides 

of the decking area, and they are 6 feet wide and 38 feet long. 

The guard rail is positioned all the way around the outside of 

the dredge. Given the width of the pontoons, a person would 

be 6 feet from the edge of the water while at one engine location, and 4 feet from the edge at the other engine location 

(Tr. 53). 

Mr. Fleniken stated that he has been inspected four times 

during the past 2 years and that no other inspector has indicated that he needs an additional guard rail, or that a life 

jacket was required to be worn if one steps outside the guard 

rail. He was told that the operator did not have to wear a 

life jacket while inside the enclosed cabin house (Tr. 51). 

Mr. Fleniken stated that prior to Mr. McCleary 1 s inspection, 

no other inspector requested him to install a mid-rail in 

addition to the existing guardrail, and although Mr. McCleary 

did not require him to install a mid-rail, he told him to 

either install a mid-rail or require the dredge operator to 

wear a life jacket the entire time he is on the lower deck. 

Mr. McCleary confirmed that this was true, and that the citation was abated by requiring the operator.to wear a life 

jacket while performing duties around the deck of the barge 

(Tr. 56). Mr. Fleniken confirmed that he has now instructed 

the operator and maintenance personnel to wear a life jacket 

while on the lower deck hosing it down, changing oil, or performing maintenance and repair work (Tr. 55). 

Inspector McCleary confirmed that in the event the respondent opted to install a mid-rail to the existing hand-rail 

around the perimeter of the dredge, there would be no requirement for the wearing of a life jacket. He also stated that 

"there a.ce no standards regulating mid-rails, but we have 

accepted those in the past" (Tr. 57). Mr. Fleniken believed 

that the installation of a mid-rail would be a foot and 

one-half above the dredge decking, and it would be just as 

likely that someone could slip under that rail (Tr. 58). 

Mr. Fleniken pointed out that contrary to Mr. McCleary's 

sketch, the oil plugs for changing the engine oil are located 

on the inside of the engines as shown on exhibit R-2, rather 

than the outside between the dredge perimeter and engines. 

1514 
Mr. McCleary confirmed that he did not see where the oil plugs 

we~e located (Tr. 53-54). Mr. Fleniken also confirmed that 

the entire dredge deck is diamond plated, even up to the cabin 

house, and that is the way he constructed the dredge (Tr. 54). 

Mr. Fleniken confirmed that the dredge operator's job 

description includes duties such as keeping the decks clean, 

and occasionally helping out in changing oil and performing 

maintenance. He also confirmed that a life jacket was available for the operator, and that he wore it while going back 

and forth from the dredge to shore in a paddle boat (Tr. 

77-78). 

Mr. Fleniken confirmed that he personally constructed the 

dredge approximately 3 or 4 years ago. His employees are·not 

instructed to wear any particular type of shoes while working 

on the dredge, but that most of them wear "work boots." No 

employee has ever informed him that they had ever slipped on 

the dredge, nor have they ever expressed a concern for their 

safety. A water hose is used to wash down the deck, and it 

can reach all areas of the deck, including the engines. He 

conceded that the metal deck of the dredge is slicker when it 

is wet, and that one has to be careful when it is wet. However, he knows of no one slipping or injuring themselves on 

the deck, and no oil spills have ever occurred on the deck. 

Any oil spilled during changes is soaked up by a powder solution, and then hosed down. No one has ever slipped and fallen 

into the water from the dredge. Although people have slipped 

into the water from a boat while connecting the pi~3line 

together, life jackets were always worn in these instances 

(Tr. 85). 

Findings and Conclusions 

Fact of Violation 

The respondent is charged with a violation of mandatory 

safety standard 30 C.F.R. § 56.15020, which requires the wearing of life jackets or belts where there is a danger of falling into water. In order to establish a violation, the 

petitioner has the burden of proof to establish by a preponderance of the credible and probative evidence that the cited 

employee was not wearing a life jacket while performing certain work duties which may have placed him in danger of falling into the water. In this case, the inspector issued the 

violation on the basis of several assumptions and conclusions 

which he made through observations of the barge and its equipment, general weather conditions, and a brief conversation 

w~th the dredge operator, during which the operator informed 

1515 
him that he did not wear a life jacket at all times while 

performing work on the dredge which was located approximately 

100 feet from shore on a 20-25 foot deep lake where the dredge 

was pumping sand and gravel to shore through a pipeline. 

The evidence establishes that the dredge was equipped 

with a life jacket which was hung on a hook at the base of a 

stairway leading to the dredge operator's control booth. The 

operator put the life jacket on when he went ashore with a 

boat to bring the inspector to the dredge so that he could 

inspect it, but took it off and hung it back at the stairway 

location after the inspector came aboard. After a brief 

conversation with the inspector, the operator returned to his 

control booth without the life jacket and remained there until 

the inspector completed his inspection. The dredge operator 

was not called to testify in this case, and the petitioner 

relies on the testimony of the inspector in support of the 

alleged violation. The respondent relies on the testimony of 

its owner and mirie operator who designed and constructed the 

dredge, and who was thoroughly familiar with its operation. 

The inspector confirmed that he made no notes or sketches 

at the time of his inspection. Although he ~onfirmed that he 

could not recall the positioning of the engines on the dredge, 

during the hearing he presented a sketch showing the two 

engines parallel to the handrail which was installed along the 

perimeter of the deck, and he indicated that that the engine 

oil changing plugs were located on the outside of the engines 

4 feet from the handrail. If this were true, it would place 

anyone kneeling and changing oil in the area between the 

engines and the handrail, thus exposing him to a possible 

hazard if he were to slip or fall under the handrail and into 

the water. 

Mr. Fleniken, who designed and constructed the dredge, 

testified that one of the engines was perpendicular to the 

handrail, that the oil change plugs were located to the inside 

of the dredge engines, and that the dredge rested on pontoonS-

(e~hibit R-2). The inspector confirmed that he had no reason 

to question Mr. Fleniken's testimony, which I find to be more 

credible and probative than the inspector's. Mr. Fleniken's 

testimony also refutes the inspector's belief that anyone 

changing the oil would be in danger of falling into the water 

if he were to slip or fall while performing this work. In 

light of the inspector's belief that the only time anyone 

would be in danger of falling would be while working around 

the perimeter of the dredge, I find no basis for concluding 

1516 
that anyone changing or cleaning up oil around the engines 

would be in danger of falling into the water. 

The inspector agreed that the dredge operator would not 

be in any danger of falling into the water while in his control booth, and would not be required to wear a life jacket 

while in the booth. The inspector also agreed that no life 

jacket would be required to be worn when the operator left his 

booth and started down the access ladder to the dredge deck 

because there was a double handrail at that location to prevent him from falling overboard. The inspector was concerned 

about the absence of double, or mid-rails, around the perimeter 

of the dredge to prevent anyone from slipping under the rail 

into the water, and the absence of hand-holds on the side of 

the dredge, which the inspector believed could be grabbed ·by 

anyone falling overboard. However, the inspector conceded that 

MSHA has no standards that require mid-rails or hand-holds to 

be installed on a dredge. In my view, if MSHA believes that 

such safety devices are necessary to prevent persons from falling off a dredge operating over water, it should promulgate 

standards covering this hazard. Requiring a miner operator to 

comply with a safety jacket standard as a matter of expediency 

or convenience in order to address what an inspector may perceive to ·be hazards associated·with the lack of hand-holds or 

mid-rails can only lead to confusing and contradictory enforcement judgments by different inspectors, and gives little guidance or notice to a mine operator as to what may be required 

for compliance. 

In the instant case, the inspector admitted that he 

required the respondent to either install a mid-rail around 

the entire perimeter of the dredge, or to require his employees 

to wear life jackets during the entire time they are on the 

deck of the dredge performing any work. The citation was 

abated after the respondent instructed his employees to wear 

life jackets at all times while working on the deck, notwithstanding the fact that the standard only requires the wearing 

of a life jacket where there is a danger of falling into the 

water. Followed to its logical conclusion, and on the facts 

of this case, it seems obvious to me that the inspector's 

interpretation of section 56.15020, is that life jackets are 

to be worn at all times while an employee is working on a 

dredge deck, regardless of any objective finding as to whether 

or not the employee is in danger of falling into the water. 

I find the inspector's position in this case to be rather 

contradictory. He conceded that he did not observe the dredge 

operator walking around the perimeter of the dredge, and did 

not ob~erve him go near the engines to inspect them, service 

1517 
them, or change the oil. Yet, he concluded that the operator 

would be required to wear a life jacket if he were inspecting 

the engines or changing oil or cleaning up any oil spills, 

even though he believed that the only time there would be a 

danger of falling into the water would be when someone would 

be working around the perimeter of the dredge. In this case, 

the engines were located on the deck some 6 feet from the 

perimeter guarded by a handrail, with pontoons on both sides, 

and with the oil change plugs to the inside of the deck away 

from the perimeter of the deck. 

With regard to the inspector's concern about someone 

slipping on a wet deck during the "rainy season," and possibly 

striking their head and falling into the water, this could 

occur at anytime. However, in this case, there is no evidence 

that the deck was wet or slick at the time of the inspection, 

and in fact the inspector confirmed that it was dry and clean. 

Further, Mr. Fleniken's testimony, which I find credible, 

reflects that the surface of the entire deck was constructed 

of "diamond plate," or perforated materials, so as to the 

reduce the likelihood of any skidding. Mr. Fleniken also indicated that any oil spills are controlled by means of a soaking 

powder, and that the deck is washed down by means of a water 

hose which can reach any surf ace area of the deck. The inspector could not recall the perforated decking material, and 

believed that part of the decking around the operator's compartment was smooth, and that the rest was "rigid." Since the 

inspector took no notes when he inspected the dredge, and was 

unsure as to the construction of the decking, I give more 

credence to Mr. Fleniken's testimony since he designed and 

built the dredge himself and he impressed me as a credible and 

straightforward witness. 

After careful review and consideration of all of the 

testimony and evidence adduced in this case, I cannot conclude 

that the petitioner has established that the prevailing conditions at the time of the inspection presented a hazard to the 

operator falling overboard into the water without a life 

ja.cket. On the facts of this case, it seems clear to me that 

the inspector's conclusion that the operator was in danger of 

falling overboard was based on the inspector's unsupported 

speculations and assumptions that anyone performing any kind 

of work on the deck of the dredge would ipso facto be placed 

in jeopardy of falling overboard. Given the language of the 

standard, I cannot come to this conclusion. In order to establish a violation, I believe it is incumbent on t~e petitioner 

to establish a reasonable credible and probative factual basis 

to support a conclusion that there was a danger of someone 

falling into the water. I find no credible evidentiary basis 

1518 
for such a conclusion in this case. Under the circumstances, 

I conclude and find that the petitioner has failed to establish a violation, and that the citation should be vacated. 

ORDER 

In view of the fo~egoing findings and conclusions, Cita- . tion No. 2866525, September 9, 1987, citing an alleged violation of 30 C.F.R. § 56.150~0, IS VACATED, and the petitioner's 

proposed civil penalty assessment is REJECTED. This case IS 

DISMISSED. 

~1ou~- Administrative Law Judge 

Distribution: 

James A. Wirz, Esq., O~fice of the Solicitor, U.S. Department 

of Labor, 525 South Griffin Street, Suite 501, Dallas, TX 

75202 (Certified ~ail) 

L. L. Fleniken, Jr., ?resident, Fleniken's Sand and Gravel, 

Incorporated, Rt. 1, Box 160, Clinton, LA 70722 , (Certified Mail) 

/f b 

1519 
FEDERAL MINE SAFETY.AND HEALTH REVIEW"coMMISSION . . ·. . . ·... ' 

OFFICE OF ADMINISTRATIVE LAW~ JUDGES 

2 SKYLINE, 10th FLO.OR 

5203 L,E£SBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 2 1988· 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS 

: Docket No. SE 87-116-M 

A.C. No. 40-00049-05508 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petit'ioner 

v. . . 

HOOVER INCORPORATED, 

Respondent 

: Docket No. SE 87-i32-M 

: A.C~ No. 40-00049-05509 

Appearances: 

Before: 

Donelson Pike'Quarry & Mill 

DECISIONS 

Michael L. Roden, Esq., Office of the 

Solicitor, U.S. Departm~nt of Labor, Nashville, 

Tennessee, for the P~titioneri 

James H. Neely, Safety Director, Hoover, Inc., 

Lavergne, Tennessee, for the Respondent. 

Judge Koutras 

Statement of the Proceedings 

These proceedings concern civil penalty proposals filed 

by the petitioner against the respondent pursuant to section 

llOCa> of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 820(a), seeking civil penalty assessments for two 

alleged violations of certain mandatory safety standards found 

in Part 56, Title 30, Code of Feder~l Regulations. The respondent filed timely answers contesting the proposed civil penalties and hearings were held in Nashville, Tennessee. The 

parties waived the filing of posthearing proposed findings and 

conclusions. However, all oral arguments made by the parties 

on the record during the course of the hearings have been considered by me in the adjudication of these cases. 

Issues 

The issues presented in these cases are Cl) whether the 

conditions or practices cited by the inspector constitute a 

violation of the cited mandatory health standards, (2) the 

appropriate civil penalty to be assessed for the violation, 

1520 
taking into account the statutory civil penalty criteria found 

· in·section llOCi> of the Act, and (3) whether the violations 

were "significant and substantial." 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 19771 

Pub. L. 95-164, 30 u.s.c. § 801 et seq. 

2. Section llO(i) of the 1977 Act, 30 u.s.c. § 820Ci). 

3. Commission Rules, 29 C.F.R. § 2700.l et seq. 

Stipulations 

The parties stipulated to the following CTr. 5-81 Pretrial 

Joint Stipulations): 

1. Hoover, Incorporated is a Tennessee 

corporation which is in the business of surf ace 

mining and producing crushed limestone for 

resale in interstate commerce, and thus is 

subject to the jurisdiction of the Federal Mine 

Safety and Health Review Commission and its 

administrative law judges. 

2. As of June 1987, Hoover, Incorporated 

operated the Donelson Pike Quarry and Mill in 

Nashville, Tennessee, which employed 41 men and 

produced approximately 5,331.33 tons of crushed 

limestone per day. On October 2, 1987, Hoover, 

Incorporated closed the Donelson Pike Quarry 

and Mill and is no longer operating at that 

site. All of its operations in the State of 

Tenriessee are now located in Rutherford County. 

From June 1987 through April 1988, Hoover, 

Incorporated overall has employed 181 men and 

produced an average of 9,734.64 tons of crushed 

limestone per day. 

3. Lawson Beech was the superintendent of 

the Donelson Pike Quarry and Mill in June 1987. 

T. s. Hoover was and is the president and 

majority stockholder of Hoover, Incorporated. 

4. The Donelson Pike Quarry and Mill began 

operations in 1957, and remained in active operation until October 1987. 

1521 
5. On June 1, 1987, at approxima~ely 

10:30 a.m., during a regular inspection of the 

quarry site, MSHA Inspector ·Donald Baker 

observed an employee sitting on an "I" beam 

using a hammer to hit a metal chute obstructed 

by crushed limestone. The employee was not 

wearing a safety belt or line while performing 

this task. The beam was approximately 

8-1/2 feet above the level ground. It had been 

raining earlier that morning, and the employee's 

shoes were wet and muddy. 

6. On June 18, 1987, in response to a 

complaint by a former employee, MSHA Inspector 

Lloyd Cloyd tested the brakes of a 35-ton Caterpillar truck, No. 505029, owned by Hoover, 

Incorporated and used at the Donelson Pike 

Quarry and Mill. The brakes were tested on an 

inclined road in the quarry, with the truck 

empty, and the inspector sitting in the seat 

beside the driver. When the brakes were 

applied, the truck did not come to a complete 

stop. The truck was traveling between eight , 

and nine miles per hour when the brakes were 

applied. 

7. The truck was immediately taken to the 

shop for repairs. A new equalizer, or slack 

adjuster, was installed. 

8. Two days earlier, on June 16, 1987, 

the brakes on the truck had been worked on by a 

repairman. 

9. The total penalty assessment for both 

cases of $147.00 would have a negligible effect 

on the ability of Hoover, Incorporated to 

continue in business. 

Discussion 

The contested citations issued in these proceedings are 

as follows: 

Docket No. SE 87-116-M. Section 104Ca) "S&S" Citation 

No. 3052407, issued on June 1, 1987, by MSHA Inspector Donald 

R. Baker, cites a violation of mandatory safety standard 

30 C.F.R. § 56.15005, and the condition or practice is 

described as follows: 

1522 
An employee was observed sitting on an "I" 

beam using a hammer to hit a metal chute that 

was hung-up with crushed limestone. The 

employee wasn't wearing a safety belt and line 

to prevent a fall to ground level if he slipped 

off this "I" beam. The "I" beam was wet and 

muddy. A fall of approximately ten feet to 

ground level exists at this location. This 

work was being performed at the primary crushing and screening plant. 

Petitioner's Testimony and Evidence 

MSHA Inspector Donald R. Baker testified as to his 

experience and training, and he confirmed that he inspected 

the subject mine on June 1, 1987. It had rained earlier that 

morning, and the area around the crusher plant was wet and 

muddy. The respondent's superintendent Lawson Beech, accompanied him during his inspection. They proceeded to the 

secondary crusher plant which was down because a chute was 

"hung up with lime~tone." Mr. Baker identified exhibit G-1 as 

a photograph of the secondary plant and bins with the chute in 

question. As they got out of Mr. Beech's pick-up truck, 

Mr. Baker observed· an employee sitting on an I-beam using a 

small sledgehammer hitting the metal chute to unclog the chute 

and to help the material flow. The employee was seated in 

front of the chute with his legs off to the side, but he was 

not straddling the beam, and his legs were not resting on 

anything. Mr. Baker took it for granted that the individual 

was a maintenance man, and he was not wearing a safety belt. 

He was located approximately 10 feet off the ground, and 

Mr. Baker agreed that it could have been 8-1/2 feet as stipulated to by the parties. A pile of rock was located to one 

side on the ground, and the ground directly under where the 

man was sitting was level (Tr. 10-21). 

Mr. Baker stated that the beam was wet and muddy, but he 

could not tell whether or not the man's shoes were also wet 

and muddy. Mr. Baker's shoes were wet and muddy from walking 

around in the area. Mr. Baker stated that the man used a 

ladder shown in the photograph to reach the beam, and then 

walked out on the beam to reach the chute. Mr. Beech climbed 

the same ladder and went out on the beam to speak with the 

individual in question for a few minutes. Mr. Baker believed 

that Mr. Beech also hit the chute with the hammer while he was 

up on the beam, and then he and the other individual came down. 

Mr. Baker asked Mr. Beech if any safety lines or belts were 

1523 
available, and Mr. Beech replied "we don't have any on the 

property, but I can get some" (Tr. 21-24). 

Mr. Baker believed that the individual on the I-beam 

could have fallen off while seated on the beam, and while walking on it to reach the chute. In the event of a fall to the 

ground, the individual could have suffered broken bones as a 

minimum, or a concussion if he fell on his head. Mr. Baker 

believed that the individual could have tied off on one of the 

beam braces if he had used a safety belt. Mr. Baker confirmed 

that he advised Mr. Beech that he was issuing a citation, and 

served the written citation later (Tr •. 24-26; exhibit G-2). 

Mr. Baker believed that an accident and .injury reasonably 

likely would occur because of the fact that the individual was 

sitting on a wet and slippery beam, and since he needed to 

walk the beam to reach the chute location, there were several 

places where he could have fallen off (Tr. 27). He also 

believed that any injury would be a lost work time injury 

because a broken bone would have required medical attention. 

Under these circumstances, Mr. Baker concluded that the violation was significant and substantial (Tr. 28}. Mr. Baker confirmed that he made a finding of "low negligence" because on 

prior inspections the respondent had a good compliance record, 

and he did not believe the respondent realized what the hazard 

was, and if it did, it would have made a safety belt and line 

available (Tr. 29). 

On cross-examination, Mr. Baker confirmed that he did not 

see how the individual sitting on the beam got there, but he 

did observe Mr. Beech climb on the ladder to the walkway, and 

then cross over the conveyor to the beam CTr. 30). Mr. Baker 

estimated that the individual sitting on the beam was approximately 3 feet from the chute, but he did not measure the distance. Mr. Baker stated that he would not argue with 

Mr. Neely's assertion that the employee was 22 inches from the 

chute, and Mr. Baker indicated that his estimate was based on 

his "eyeballing it" from ground level. The individual was not 

really "stretched out," and he would have been "pretty close" 

to the chute (Tr. 33). Mr. Baker conceded that there could 

have been some "buildup" of crushed stone on the ground under 

the beam, but that "I really never noticed it" (Tr. 37}. He 

confirmed that the distance that the individual had to stretch 

to reach the chute was a consideration as to the danger 

involved because "he's leaning forward using a hammer and if 

he's gong to lose his balance, he could lose his balance that 

way." He also agreed that a 22-inch stretch would have placed 

the individual in a dangerous situation (Tr. 37). 

1524 
Respondent's Testimony and Evidence 

James H. Neely, respondent's safety director, testified 

that he did not believe there was a danger of falling in this 

case because "with all the framework and braces that were 

there, you would have had to have pushed the man off almost, 

tied his hands and pushed him off to have gotten him to fall" 

(Tr. 41). Referring to a photograph, exhibit R-3, similar to 

petitioner's photograph, Mr. Neely explained that one could 

not walk the beam in question without holding on to a beam 

"because there's not that much room" (Tr. 41). 

Mr. Neely stated that his position is that the individual 

could not have fallen to the ground because there was ample 

opportunity for him to grasp the braces and framework of the 

structure shown in the photograph (Tr. 43). He also explained 

that wet rock was being processed on the day in question, and 

that when it "got bridged over" a hammer sometimes has to be 

used to loosen it, but that this does not occur frequently 

(Tr. 44). If it were an everyday occurrence, a walkway and 

handrail would have been constructed to provide working access 

to the chute (Tr. 45). He also believed that tieing off on a 

slick beam would be more difficult than simply sitting on the 

beam with an arm around a beam (Tr. 45). 

On cross-examination, Mr. Neely stated that since the 

steel beams had two quarter-inch flanges, they would provide a 

"hand hold" for anyone to grab if he were falling, and this 

would be true even if the beam were wet. He agreed that any 

fall would occur "suddenly," but he saw no reason for anyone 

falling because of the presence of braces for anyone to grab 

or put their arms around. Referring to photographic exhibit 

G-1, Mr. Neely stated that the individual was sitting on the 

bottom beam as shown in the photograph, and that he could have 

braced his feet against the crusher feed box. However, since 

he did not observe the individual on the beam when the inspector did, Mr. Neely did not know for a fact that his feet were 

braced against the box (Tr. 45-52) • 

. Docket No. SE 87-132-M. Section 104(a) "S&S" Citation 

No. 2862746, issued on June 18, 1987, by MSHA Inspector 

Lloyd w. Cloyd, cites a violation of mandatory safety standard 

30 C.F.R. § 56.9003, and the condition or practice is 

described as follows: 

The 35-ton Caterpillar Truck Co. No. 29 

did not have adequate brakes. The brakes were 

checked on the inclined road in the quarry with 

the truck empty. When the foot brake was 

1525 
applied the truck was going between 8 and 

9 miles per hour and continued to roll for 

severai feet before stopping. This truck was 

immediately taken to the shop for repairs. 

Petitioner's Testimony and Evidence 

In view of the unavailability of MSHA Inspector Lloyd w. 

Cloyd, his pretrial deposition was taken on June 28, 1988, 

with the respondent's representative Neely present, and the 

transcript of Mr. Cloyd' s testimony, -including two photographic 

exhibits, were received as part 0£ the record in this matter 

(Tr. 7; exhibit G-1). 

Inspector Cloyd confirmed that he inspected the cited 

truck on June 18, 1987, and the brakes were tested that day on 

the haulroad with an approximate grade of 15 percent. He was 

seated next to the driver while the truck was driven down the 

road at an approximate speed of 8 or 9 miles per hour, and the 

truck was empty. Prior to the actual test, the driver advised 

him that the truck brakes were "fair," and that the truck would 

stop "sometimes" when the brakes were applied on the incline. 

The driver applied the brakes while the truck was approximately 

two-thirds down the inclined road, or approximately 200 to 

300 feet down the roadway, at the location shown by an "X" mark 

which he placed on a copy of a photograph shown on deposition 

exhibit No. 1. Mr. Cloyd confirmed that he observed the driver 

apply the brakes to the fullest exterit possible by raising up 

off the seat and applying pressure to the brake pedal, and when 

he did, the truck slowed, but continued to roll for approximately 30 to 40 feet before coming to a stop. After it 

stopped, Mr. Cloyd checked the emergency brake, and found that 

it was in working order (Tr. 6-15). 

Mr. Cloyd stated that after completing his inspection of 

the truck, Mr. Neely advised him that work was performed on 

the truck brakes on the Tuesday prior to his inspection on 

Saturday, June 18, 1987, but Mr. Neely did not advise him as 

tq why the brakes needed work and did not identify any particular problem. Mr. Cloyd confirmed that he had received two 

prior complaints about the brakes from the operator who stated 

that "the brakes worked perfect most of the time, but sometimes he would mash on the petal and have nothing" (Tr. 16). 

Mr. Cloyd further confirmed that repair work was done on the 

brakes after the citation was issued, and that the Caterpillar 

Company was immediately called to do the repairs. Mr. Neely 

informed him that a new equalizer or slack adjuster was 

installed on the truck, and that the purpose of the equalizer 

was to provide equal air pressure to all of the wheels, and 

1526 
the lack of such pressure would hinder the brakes from 

stopping the truck. The only reason for replacing the equalizer would be to replace one that is defective (Tr. 15-18). 

Inspector Cloyd stated that he classified the violation 

as "significant and substantial" because of the steepness of 

the inclined roadway, and the fact that there was a 90 degree 

curve at the bottom of the roadway, with a solid limestone 

wall in front of it. He also considered the fact that the 

past history of the cited truck indicated that there had b~~n 

previous problems (Tr. 18-19). Inspector Cloyd confirmed that 

after the truck was repaired, he checked it while it was 

loaded at the dump, and found that the brakes "worked perfect." 

He did not test the truck with a load before repairs were made 

because he saw no reason to load it up with 30 tons of rock, 

and he believed that a load would have further hindered it 

from stopping. Mr. Cloyd confirmed that the citation was 

abated on June 19, 1987, after the repairs were made, rather 

than September 19, as previously noted (Tr. 24). 

At the hearing, petitioner's counsel introduced a copy of 

a work invoice indicating certain work which was done on the 

truck brakes on June 15, 1987, and this work included the 

installation of a hose to the left front wheel, two pistons on 

the slack adjuster. or equalizer, and a diaphragm on the parking brake valve CTr. 11; exhibit G-4). 

Respondent's Testimony and Evidence 

Safety Director James H. Neely, introduced a statement 

executed by William E. Reeves, the mechanic who inspected the 

truck and performed the work on it after it was removed from 

service on June 18, 1987. Mr. Reeves states that the brakes 

"were in good working order," and that "the retarder and parking brake were also working well." Mr. Reeves also stated 

that "I could find no indication that the brakes were unsafe. 

As a preventive maintenance measure, I did replace two pistons 

in the slack adjusted at the time of this brake check (Exhibit 

R-5). 

Mr. Neely asserted that the slack adjuster installed by 

Mr. Reeves was installed "so that we could put the truck back 

in operation, because I wouldn't attempt to take it after the 

inspector would leave--take the truck back down there and put 

it in operation without doing something" (Tr. 13-14). 

Mr. Neely confirmed that shortly after Mr. Reeves arrived to 

inspect the truck, they drove the truck around the shop area, 

checked the hand brakes and retarder, and found that they both 

worked and would stop the truck CTr. 15). 

1527 
Mr. Neely stated that the 30-40 feet within which the 

truck stopped after being tested by Inspector Cloyd was just a 

fraction over the actual length of the truck itself, and an 

unloaded 80,000 ton truck going down a 15-degree grade on a 

loose rock road cannot be expected to stop any quicker than 

that distance. Mr. Neely explained the operation of the compressed air truck brakes, and indicated that the stopping distance of 30-40 feet for the truck when the brakes are applied 

is normal (Tr. 17). Mr. Neely also pointed out that given the 

fact that work started at 6:00 a.m. on the day of the inspection, and the truck was inspected by Mr. Cloyd at 9:00 a.m., 

the truck operator must have made 10 or 12 trips with the 

truck, loaded and unloaded, and did not report any problems 

with the brakes (Tr. 17). 

Mr. Neely stated that mine management was aware of the 

fact that the quarry was 410 feet deep, and presented dangerous conditions, and that was the reason why they had the truck 

repaired. He stated that "we had it fixed at that time 

because it was just too dangerous to take a chance" CTr. 17). 

He confirmed that after the repairs, there was no reason to 

know that there was anything wrong with the brakes, and when 

they were checked, "there wasn't anything wrong with them," 

and all three brake systems were working (Tr. 18). 

On cross-examination, Mr. Neely confirmed that he was not 

at the mine site on June 18, 1987, when Mr. Cloyd conducted 

his inspection. Mr. Neely confirmed' that.when he and 

Mr. Reeves tested the truck after it was cited at the same 

location while travelling 8 to 9 miles an hour, the speed at 

which trucks are allowed to operate on the incline, the truck 

travelled approximately 30 feet afte~ the brakes were applied 

before it stopped. He reiterated that this was the normal 

stopping distance for an empty truck of its size, but if it 

were loaded, it would have rolled for 3 or 4 feet before 

stopping because the added weight would give it more traction 

(Tr. 20-22). 

Mr. Neely confirmed that mechanical problems were 

encountered with the cited truck, as well as the other trucks, 

prior to the inspection by Mr. Cloyd, and that driving up and 

down hills 12 hours a day does wear on the trucks. He also 

confirmed that prior complaints were made about the cited 

truck in question, but they would be taken care of immediately. 

He described the complaints as "the brakes weren't working 

adequate, or maybe the wheels would grab it before the other 

one would." He also confirmed that the complaints indicated 

that "the brakes were erratic and sometimes they would work 

1528 
and sometimes they wouldn't." When asked how long before the 

ins·pection of June 18, the complaints were made, he responded 

"it might be two weeks or it might be six months. You never 

know when those things occur. It's just like any other piece 

of machinery, you don't have any warning." Mr. Neely stated 

that the complaints were not made regularly, and "no more than 

the rest of them were," and since the cited truck was used 

primarily to haul from the quarry to the crusher, "it got more 

wear" than the other trucks which were not using their brakes 

as much CTr. 22-24). 

Mr. Neely stated that although the operable hand brake 

and retarder would have stopped the truck, he conceded that 

they were not the principal means for stopping the truck, and 

that the first thing a driver would do to stop a truck would 

be to apply the foot brakes (Tr. 25). Mr. Neely confirmed 

that he was not with Inspector Cloyd when he tested the truck 

after the brakes were repaired, but it was his recollection 

that the truck was not tested at the same location where it 

was cited or under the same conditions (Tr. 31). 

Mr. Neely stated that management had no knowledge that 

the cited truck had a problem until the morning of June 18, 

when Inspectors Cl9yd and Daugherty came to the mine in 

response to complaint made by an employee who had been discharged. Mr. Neely confirmed that the repairs made on the 

truck on June 15, were made in response to the truck operator's statement that one wheel was locking before the other 

one while going downhill, causing the truck to slide, and the 

operator was concerned that he might "wind up over against the 

buffer over the hill." In light of this, "we took corrective 

action right then" (Tr. 41). 

Mr. Neely stated that his truck maintenance and service 

records would show that similar conditions could be found for 

all of the trucks from time-to-time, and in each instance, the 

repair company would be called to the mine to make the necessary repairs (Tr. 42). In the case at hand, Mr. Neely did not 

believe the citation was justified because all of the information available to management did not indicate any braking 

problems with the cited truck (Tr. 42-43). 

Mr. Neely confirmed that the quarry site where the citation was issued has been shut down and is no longer in operation, and petitioner's counsel agreed that with the exception 

of the citation in issue in this case, the respondent had not 

previously been cited for inadequate braking condition on any 

of its trucks CTr. 44-45). 

1529 
Findings and Conclusions 

Docket No. SE 87-116-M 

Fact of Violation 

In this case the respondent is charged with a violation 

of mandatory safety standard 30 C.F.R. § 56.15005, •hich 

requires the use of safety belts and lines when persons are 

performing work where there is a danger of falling. The 

credible unrebutted testimony of Inspector Baker establishes 

that an employee was sitting on an I-beam approximately 

10 feet off the ground banging on a metal chute with a hammer 

while attempting to free up some material which had clogged 

the chute. The employee was not wearing a safety belt or 

line, nor was he tied off in any manner. He was seated on the 

beam in front of the chute with his legs off to one side, and 

he had to reach approximately 2 to 3 feet to strike the chute 

with his hammer. The inspector was concerned that the 

employee could have fallen from the beam while seated on it 

and striking the chute, or when he walked on the beam to reach 

his work location. 

The respondent agreed that the employee in question was 

not using a safety belt or line, and its defense is based on 

its belief that the employee was in po- danger of falling 

because of the presence of the steel framework of the structure in question. Respondent believed that the employee could 

have grabbed the beam flange as a "hand hold" in the event of 

a fall, and also argued that the employee· could not have 

fallen while walking the beam because he could have held onto 

the steel braces. 

Respondent's Safety Director, James Neely, confirmed that 

he did not observe the employee sitting on the beam without a 

safety belt or line as did the inspector. Based on the credible testimony of the inspector who oonf irmed his observations 

of the employee sitting on the beam and striking the metal 

chute with a hammer, I conclude and find that a violation has 

been established. The position of the employee on the beam 

10 feet off the ground with a hammer in one hand striking the 

metal chute without using a safety belt or otherwise being 

tied off and secured to one of the nearby braces supports a 

reasonable conclusion that he was in a precarious location 

which clearly exposed him to a falling hazard. Such falls are 

usually unexpected and may occur at any time while an employee 

is preoccupied with his work. Mr. Neely conceded that any 

fall could occur suddenly, and the fact that the employee 

could have reacted by attempting to grab part of the structure 

1530 
on which he was seated while performing his work is not in my 

view a reasonable defense to the violation. Under the circumstances, the citation IS AFFIRMED. 

Docket No. SE 87-132-M 

Fact of Violation 

In this case the respondent is charged with a violation 

of mandatory safety standard 30 C.F.R. § 56.9003, for havirJ 

inadequate brakes on one of its haulage trucks. Section 

56.9003 requires powered mobile equipment to be provided with 

adequate brakes. Inspector Cloyd cited the truck after he had 

the foot brakes tested by the driver while the truck was being 

operated downhill and empty on an inclined haul roadway while 

travelling at approximately 8 or 9 miles an hour. The 

inspector was seated next to the driver while the test was 

performed, and his unrebutted testimony reflects that when the 

truck was approxim&tely 200 to 300 feet down the haulroad, the 

driver applied the foot brakes to their fullest possible 

extent by raising up on his seat, but the truck continued to 

roll for approximately 30 to 40 feet before coming to a stop. 

In Mr. Cloyd's opinion, the incline where the truck was tested 

was not such as to present a problem for a truck with brakes 

in proper working order from coming to a complete stop when 

the brakes were applied (Deposition (Tr. 8). Mr. Cloyd also 

believed that an empty truck travelling at 8 or 9 miles an 

hour should have no problem in stopping once the brakes were 

applied, and that the road conditions where the truck was 

tested would not have made stopping the truck a problem (Tr. 

10-11). 

In addition to the actual testing of the brakes, 

Inspector Cloyd confirmed that the driver advised him that the 

brakes were "fair," and that the brakes would stop the truck 

"sometimes" when the boot brakes were applied. Mr. Cloyd also 

confirmed that he had received prior complaints from the truck 

operator who advised him that while the brakes worked most of 

the time, there were times when he applied the brakes and "had 

nothing." Since the driver was not called to testify in this 

case, Inspector Cloyd's testimony regarding the comments of 

the driver are unrebutted. 

The evidence establishes that after the truck was cited, 

it was immediately taken out of service and repairs were made 

by the installation of a brake equalizer or slack adjuster 

which provided equal pressure to all of the truck wheels, and 

Inspector Cloyd confirmed that the only reason for replacing 

the equalizer would be to replace one that was defective. A 

1531 
statement by the mechanic who performed the repair work on 

June 18, 1987, reflects that two pistons in the brake adjuster 

were replaced as "a preventative maintenance measure" (Exhibit 

R-5). 

The respondent asserts that repairs were made on the truck 

brakes prior to the time of the inspection and the issuance of 

the citation, and the record establishes that this was the case. 

In view of these prior repairs, respondent maintains that it 

had no reason to believe that the brakes were in other than 

operable condition, and that when the brakes were t~sted by the 

mechanic after the citation was issued, he found them to be in 

good working order and could find nothing to indicate that they 

were unsafe. 

In defense of the violation, the respondent relies on the 

written statement by the mechanic expressing his opinion that 

the brakes were in good working order and not unsafe. However, 

the mechanic did not testify at the hearing, and neither he nor 

Mr. Neely were present when the inspector had the brakes tested 

in his presence under actual driving conditions. Consequently, 

I have given little weight to the mechanic's statements. 

I take particular note of the fact that the mechanic did 

in fact replace some pistons in the brake slack adjusters, and 

Mr. Cloyd's testimony is that the slack adjusters served as a 

means of providing equal air pressure to all of the truck 

wheels, and would not be replaced if they were not defective. 

Given the fact that the driver had to raise up on his seat 

while applying full foot pressure to the brake pedal while 

they were being tested under actual driving conditions, I 

believe one can reasonably conclude that the failure of the 

truck to stop when the brakes were applied, and its continuing 

to roll, was the result of a lack of· adequate and available 

air pressure on the foot brakes. Although Mr. Neely stated 

that the truck hand brakes and retarder were operable and 

would stop the truck when it was tested by the mechanic, he 

conceded that the retarder and hand prake were not the principql means for stopping the truck, and that the first thing a 

drier would do to stop the truck would be to apply the foot 

brakes. Mr. Neely also conceded that the cited truck was 

subjected to more brake wear than otper trucks, and like other 

pieces of equipment, failures are unpredictable and can occur 

without warning. 

Respondent's second defense is that the 30 to 40 foot 

rolling distance that the truck travelled after the driver 

applied the foot brakes was "normal." However, absent any 

indication that Mr. Neely is a brake expert, and lacking any 

1532 
evidence as to the manufacturer's brake specifications or other 

credible evidence reflecting the actual "normal" stopping distances for an empty truck driving at 8 to 9 miles an hour, I 

find no basis for Mr. Neely's unsup~orted conclusion as to the 

"normal" stopping distance for the truck, and I have given it 

little weight. Further, I reject Mr. Neely's suggestion that 

the repairs made to the brakes after the citation was issued 

were made simply to abate the citation or to facilitate placing 

the truck back into operation. I believe that the repairs were 

made because they were needed, and the mechanic confirmed ~hat 

he replaced the parts as a preventive measure. Inspector Cloyd 

confirmed that once these repairs were made, the brakes "worked 

perfect" when the truck was tested under a load. 

In several reported cases interpreting the meaning of the 

term "adequate brakes," such determinations were made by the 

inspectors through their inspections of the braking systems 

where certain defects were noted, or by tests conducted on the 

trucks by operatin~ them on inclines to determine their braking or stopping capability. 

In Concrete Materials, Inc., 2 FMSHRC 3105 (October 1980), 

and Medusa Cement Company, 2 FMSHRC 819 (April 1980), Judge 

Melick and Judge cook affirmed violations for inadequate brakes 

on haulage trucks based on tests conducted by the drivers by 

driving the trucks on inclines to determine their braking and 

stopping capability. In the Medusa Cement case, an MSHA inspector defined the term "adequate" as "capable of stopping and 

holding a loaded haul unit on any grade on the mine property." 

Judge Cook found that the test conducted by the inspector and 

his interpretation of the results obtained sufficiently established a prima facie case for inadequate brakes. 

In Minerals Exploration Company, 6 FMSHRC 329, 342 

(February 1984), Judge Morris affirmed an "inadequate brake" 

violation based on an inspector's observation that the cited 

water truck was "pulling very hard to the right." Testimony 

by the operator's foreman reflected that the brakes on the 

truck had been relined 2 weeks before the citation was issued. 

In Turner Brothers, Inc., 6 FMSHRC 1219, 1259 (May 1984), 

and 6 FMSHRC 2125, 2134 (September 1984), I affirmed violations 

of section 77.1605(b), for inadequate parking brakes on a coal 

haulage truck and an endloader based on tests which consisted 

of parking the equipment on an incline and setting the brakes 

to determine whether they would hold. In both instances, the 

brakes would not hold the equipment, and I concluded that the 

brakes were inadequate. 

1533 
In Greenville Quarries, Inc., 9 FMSHRC 1390, 1430 (August 

1987), I affirmed a violation for inadequate brakes on two 

haulage trucks based on tests conducted on an incline which 

indicated that the brakes would not hold the truck and that 

they were "slow to stop" when the brakes were applied. Upon 

visual inspection of one of the trucks, the inspector found 

that the rear brake fluid cylinder was empty, and that on a 

second truck, the fluid cylinder was also empty, and the brake 

hoses were disconnected. He also found that 50 percent of the 

rear braking system on one truck was inoperative. 

On the facts of the instant case, while it is true that 

the inspector did not physically inspect the brakes or find 

any specific defects, he nonetheless concluded that the empty 

trucks travelling at a slow rate of speed should have been 

capable of coming to a complete stop without rolling 30 to 

40 feet after the foot brakes were applied by the driver, or 

without the necessity of the driver raising up on his seat to 

apply all of the available foot pressure to the brake pads. 

Coupled with the fact that repairs were made to replace a 

mechanism which controlled the air pressure for the foot 

braking system, and my conclusion that the lack of adequate 

air pressure to the brakes could reasonably have prevented the 

truck from coming to a complete stop sooner than 30 or 40 feet, 

I conclude and find that the petitioner has established by a 

preponderance of the available credible evidence that the cited 

truck foot brakes were in fact inadequate. Accordingly, the 

citation IS AFFIRMED. 

Significant and Substantial Violations 

A "significant and substantial"' violation is described in 

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

nature as could significantly and substantially contribute to 

the cause and effect of a coal or other mine safety or health 

hazard." 30 C.F.R. § 814(d)(l). A violation is properly 

designated significant and substantial "if, based upon the 

particular facts surrounding the violation there exists a 

reasonable likelihood that the hazard contributed to will 

re~ult in an injury or illness of a reasonably serious nature." 

Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 {April 

19 81) • 

In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the 

Commission explained its interpretation of the term "significant and substantial" as follows: 

In order to establish that a violation of 

a mandatory safety standard is significant and 

1534 
substantial under National Gypsum the Secretary 

of Labor must prove: Cl> the underlying violation of a mandatory safety standard; (2) a discrete safety hazard--that is, a measure of 

danger to safety-contributed to by the violation; (3) a reasonable likelihood that the 

hazard contributed to will result in an injury; 

and (4) a reasonable likelihood that the injury 

in question will be of a reasonably serious 

nature. 

In United States Steel Mining Company, Inc., 7 FMSHRC 

1125, 1129, the Commission stated further as follows: 

We have explained further that the third 

element of the Mathies formula "requires that 

the Secretary establish a reasonable likelihood 

that the hazard contributed to will result in 

an event in which there is an injury." U.S. 

Steel Mining Co., 6 FMSHRC 1834, 1836 (August 

1984). We have emphasized that, in a.ccordance 

with the language of section 104Cd)(l), it is 

the contribution of a violation to the cause 

and effect of a hazard that must be significant 

and substantial. U.S. Steel Mining Company, 

Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S. 

'S't'eel Mining Company, Inc., 6 FMSHRC 1573, 

1574-75 (July 1984). 

The question of whether any particular violation is significant and substantial must be based on the particular facts 

surrounding the violation, including the nature of the mine 

involved, Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498 

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

(December 1987). 

With regard to Citation No. 3052407, I conclude and find 

that the failure by the employee sitting on a wet and muddy 

I-beam in question to wear a safety belt or line where there 

was a danger of falling constituted a significant and substantial violation of section 56.15005. In the event of a fall, I 

believe it would be reasonably likely that the employee in 

question would have suffered injuries of a reasonably serious 

nature. I agree with the inspector's finding, and IT IS 

AFFIRMED. 

I also agree with the inspector's significant and substan-

~ial finding with respect to Citation No. 2862746, concerning 

the inadequate brakes on the No. 29 Caterpillar truck. The 

1535 
respondent did not dispute the fact that the inclined baulage 

road over which the truck normally .traveled during the course 

of the working shift had a 90-degree curve at the bottom, with 

a solid wall in front of it. The respondent also did not dispute the fact that the depth of the quarry adjacent to the 

haulage road, as shown in the photograph exhibits G-2 and 

Deposition exhibit No. 1, posed a hazard, and Mr. Neely confirmed that the repairs made on the truck brakes on June 15, 

1987, were in response to the concerns of the driver that one 

wheel was locking while going downhill, causing the truck to 

slide towards the edge of the roadway adjacent to the open pit 

below. 

Given the fact that the inadequate brakes allowed the 

cited truck in question to roll some 30 or 40 feet before 

coming to a stop, I believe that one can reasonably conclude 

that the condition of the brakes posed a discrete hazard of 

the truck colliding with the wall at the foot of the haulage 

road or running off the roadway to the pit below in the event 

the driver applied his brakes while approaching the bottom of 

the hill while making the right turn. Inspector Cloyd confirmed that during the testing of the brakes he had the driver 

apply the brakes before reaching the curve at the bottom of 

the road at a pre-determined location out of concern for the 

curve in the road, as well as the wall, and he did so to allow 

an additional margin of safety in the event the driver was 

unable to completely stop the truck. The inspector confirmed 

that he based his "S&S" finding on the fact that the haulage 

road was steep and the presence of a 90-qegree curve at the 

bottom with a solid limestone wall in front of it. He also 

considered the fact that the cited truck had a history of 

brake problems. Under the circumstances, I conclude and find 

that the inspector's finding was reasonable, and IT IS 

AFFIRMED. 

History of Prior Violations 

An MSHA computer print-out reflects that for the period 

October 1, 1985 through September 30, 1987, the respondent 

paid civil penalty assessments in the amount of $903 for 26 

violations, twenty (20) of which ar~ "single penalty" $20 

assessed violations (exhibit G-3).: For an operation of its 

size, I cannot conclude that the re~pondent's compliance 

record warrants any additional increases in the civil penalty 

assessments which have been made for the violations which have 

been affirmed in these proceedings._ 

1536 
Size of Business and Effect of Civil Penalty Assessments on 

the Respondent's Ability to Continue in Business 

The record reflects that the subject limestone quarry and 

mill operated by the respondent at the time the citations were 

issued is not in operation and was closed on October 2, 1987. 

During its operation, the respondent employed 41 miners at 

that location and the facility produced 5,331.33 tons of 

crushed limestone per day. From J·une 1987 through April 1988, 

the respondent employed 181 miners in all of its operations 

and produced an average of 9,734.64 tons of crushed limestone 

per day. I conclude and find that the respondent is a 

medium-to-large mine operator, and the parties stipulated that 

the payment of the proposed assessed civil penalty assess~ents 

for the violations in question would have a negligible effect 

on the respondent's ability to continue in business. I adopt 

this stipulation as my finding and conclusion on this issue. 

Good Faith Compliance 

The record establishes that the cited truck was immediately taken out of service and taken to the shop for repairs, 

and a new equalizer, or slack adjuster, was installed. With 

regard to the safety belt citation, the record reflects that 

when the employee was observed sitting on the eye beam without 

a safety belt or line; the respondent's quarry superintendent 

spoke to the employee and ordered him off the I-beam, and the 

respondent provided two safety belts and lanyards for use by 

its employees in the primary crusher area. I conclude and 

find that the respondent exercised good faith compliance by 

timely and rapidly abating both of the violations. 

Negligence 

I conclude and find that both of the violations which 

have been affirmed resulted from the respondent's failure to 

exerci~e reasonable care, and the negligence findings made the 

inspector's with respect to both violations, ranging from 

"low" to "moderate," are affirmed. 

Gravity 

On the basis of my findings and conclusions affirming the 

significant and substantial findings made by the inspectors, I 

conclude and find that both of the violations which have been 

affirmed in these proceedings were serious. 

1537 
Civil Penalty Assessments 

On the basis of the foregoing findings and conclusions, 

and taking into account the requirements of section llOCi> of 

the Act, I conclude and find that the following proposed civil 

penalty assessments are reasonable and appropriate for the 

violations which have been affirmed in these proceedings: 

Docket No. SE 87-116-M 

Citation No .• Date 30 C.F.R. Section Assessment 

3052407 06/01/87 56.15005 $ 42 

Docket No. SE 87-132-M 

Ci ta.ti on No. Date 30 C.F.R. S.ection Assessment 

2862746 06/18/87 56.9003 $105 

ORDER· 

The respondent IS ORDERED to pay the civil penalties 

assessed in these proceedings within thirty C30) days of these 

decisions and order. Upon receipt of payment by the petitioner, these cases are dismissed. 

~Koutras. d_.4~ 

Administrative Law Judge 

Distribution: 

Michael L. Roden, Esq., Office of the Solicitor, U.S. 

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

Nashville, TN 37215 (Certified Mail>' 

Mr~ James H. Neely, Safety Director, Hoover, Incorporated, 

1205 Bridgestone Parkway, P.O. Box 1700, Lavergne, TN 

37086-1700 (Certified Mail) 

/fb 

1538 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

November 2, 1988 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

. . 

. . 

: 

. . 

. . 

CIVIL PENALTY PROCEEDING· 

Docket No. WEVA 88-244 

A.C. No. 46-01318-03819 

: Robinson Run No. 95 Mine 

. . 

DECISION 

Appearances: Joseph T. Crawford, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania, for Petitioner; 

Michael R. Peelish, Esq., Consolidation Coal 

Company, Pittsburgh, Pennsylvania, for Respondent. 

Before: Judge Merlin 

This case is a petition for the assessment of three civil 

penalties filed by the Secretary of Labor against Consolidation 

Coal Company. At the hearing, the parties advised that they had 

reached settlements in all three orders and were prepared to make 

their recommendations on the record. As appears herein, this was 

done. This hearing took place at the same time as other cases 

involving the parties were heard on the merits. 

Order No. 2897149 was issued for a violation of 30 C.F.R. 

§ 75.400 because combustible material had accumulated along the 

No. 1 mother belt conveyor and loose coal had accumulated under 

and along the belt at intermittent locations. The original 

assessment was $1100 and the parties recommended a settlement of 

$850. The Solicitor reported at the hearing that negligence was 

not as high as had originally been thought. He stated that at 

the time the order was issued the operator already had 

individuals in the process of cleaning up. There had been an 

intermittent but recurring problem with the belt which was 

constantly being repaired causing spillage to occur. However, 

the operator was attempting to deal with the problem. Operator's 

counsel pointed out that this was a very long belt which could 

become unaligned very quickly and when the operator attempted to 

realign the belt, spillage happened. The violation admittedly 

was serious. I accept the representations of counsel and based 

1539 
thereon approve the recommended settlement which remains a 

substantial amount. 

Order 2897348 was issued for a violation of 30 C.F.R. 

§ 75.1403 because a left track switch had a missing barrel, 

making it unsafe to throw the switch. The order was based upon a 

prior safeguard which required all track switches be provided 

with switch throws, bridle bars and barrels. The original 

assessment was $1000 and the parties recommended a settlement of 

$650. Here again, the Solicitor advised at the hearing that 

negligence was not as high as had originally been thought. · According to the Solicitor, the condition was first observed 

between one a.m. and three a.m. on Sunday morning. The mine was 

idled on the Sunday day shift and there was no repair crew 

available to make the correction on that shift or on the 

subsequent evening shift. The first repair crew did not operate 

until the next morning on the 12 a.m. to 8 a.m. shift. That crew 

was en route on the next morning to repair the missing barrel 

when they found a broken rail which had to be immediately 

replaced. While the crew was repairing the rail, the inspector 

cited the subject condition. In any event, the cited condition 

was corrected within fiftee~ minutes of the time it was 

discovered by the inspector. The crew caught up to the inspector 

and abated the condition forthwith. The violation was serious. 

I accept the representations of counsel and based thereon, 

approve the recommended settlement which remains a substantial 

amount. 

Order 2897200 was issued for a violation of 30 C.F.R. 

§ 75.200 because the approved roof plan was not being met with 

respect to pillar blocks. The plan required that prior approval 

be obtained from the district manager before splitting the pillar 

blocks. The operator failed to obtain approval. The original 

assessment was $700 and the proposed settlement is for this 

amount. The Solicitor represented that although a violation 

existed, it was not significant and substantial because 

occurrence of an adverse event was unlikely. At the hearing I 

rejected this rationale and found that .the violation was serious, 

pointing out that gravity is not synonymous with significant and 

substantial. I approve the recommended settlement because it is 

consonant with a serious violation. 

In light of the foregoing, it is Orde.red that the 

recommended settlements be Approved. 

1540 
It is further Ordered that the operator pay $2200 within 30 

days from the date of this decision. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Joseph T. Crawford, Esq., Office of the Solicitor, U.S. 

Department of Labor, 3535 Market Street, Philadelphia, PA 19104 

(Certified Mail> 

Michael R. Peelish, Esq., Consolidation Coal Company, 1800 

Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

slk 

1541 
FEDERAL MINE SAFETY AND HEALTH REVIEw-·coMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 4 1988 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF DENNIS WAGNER, 

Complainant 

v. 

CLINCHFIELD COAL COMPANY, 

Respondent 

. . DISCRIMINATION PROCEEDING 

Docket No. VA 88-19-D 

NORT CD 87-8 

McClure No. 1 Mine 

ORDER APPROVING SETTLEMENT 

AND DISMISSING PROCEEDING 

Before: Judge Broderick 

On February 12, 1988, the Secretary of Labor (Secretary) 

filed on behalf of Dennis Wagner, a complaint alleging that 

Respondent violated Section 105(c)(l) of the Act, when it 

suspended and discharged Wagner because he reported a safety 

violation to a federal inspector. 

The Secretary sought an order directing Respondent to pay 

interest on lost wages (Wagner was paid the wages he lost as a 

result of an arbitration decision), an order directing Respondent 

to reimburse complainant for private attorney fees incurred as a 

result of the discrimination, an order'.directing Respondent to 

comply with section 105(c), an order assessing a civil penalty, 

and an order directing Respondent to post a notice at the mine 

that it will not violate section 105Cci. 

Complainant Wagner intervened in this proceeding pursuant to 

29 C.F.R. § 2700.4(b}(2}. He also filed a separate proceeding 

against Respondent Clinchf ield, Pittston Coal Group, three 

employees of Clinchfield or Pittston, the Secretary of Labor, the 

Mine Safety and Health Administration (MSHA}, and two employees 

of MSHA. That proceeding was docketed as VA 88-21-D, and is 

presently before the Review Commission wh_ich directed the case 

for interlocutory review. 

On October 17, 1988, the Secretary filed a motion to approve 

a settlement agreed to by the Secretary and Respondent 

Clinchf ield. The settlement provides that Clinchf ield will pay 

complainant Wagner interest at the adjusted prime rate on all 

wages lost as a result of his suspension; that Clinchf ield agrees 

1542
that it will comply with section 105Cc), and will not 

discriminate against Wagner in violation of section 105(c); that 

Clinchf ield agrees that its employees have the right to make 

safety complaints to MSHA, and that it will neither institute nor 

enforce any policy that requires such complaints be first made to 

Respondent; that Clinchf ield will post a notice at the mine 

stating that it will not violate section 105(c) of the Act; that 

Clinchfield will expunge· from its records all adverse statements 

concerning events leading up to, resulting in, or following 

Wagner's June 26, 1987, suspension; that Respondent will pay a 

civil penalty of $700 to MSHA. Respondent does not, by agreeing 

to the settlement, admit that it violated the act. 

The complaint in this case was filed by the Secretary. 

I must determine whether the proposed settlement is in the public 

interest, that is, whether it furthers the purposes of section 

105(c) of the Act. One factor to be considered is whether the 

complainant on whose behalf the case was filed approves the 

settlement. But more important that his approval or disapproval 

is a consideration of what the complaint sought, and a comparison 

of what was sought with the result if the Secretary were to 

prevail in a contested case. 

The settlement proposal achieves all the Secretary's prayer 

for relief except Cl> a finding of discrimination and (2) 

reimbursement of complainant's private attorney's fees. Under 

recent case law, attorneys fees are not authorized in cases where 

the Secretary filed the complaint pursuant to section 105(c)(2). 

Eastern Associated Coal Co. v. FMSHRC, 813 F.2d 639 C4th Cir. 

1987); Maggard v. Chaney Creek, 9 FMSHRC 1314 (1987). 

I conclude that the proposed settlement substantially 

achieves what the complaint sought and is in the public interest. 

Therefore, the settlement agreement is APPROVED, and, 

subject to Respondent carrying out its terms, this proceeding is 

DISMISSED. 

1 . ; .~ 

j A /~ . l. •/) [. /,;1 A! : ~ f . ,_; /// /.'..,,:'!.·(Ji·. vc:./ft-, ftt._;., .. ~ .... .,, ....., 

James A. Broderick 

~ Administrative Law Judge 

1543 
Distribution: 

Craig w. Hukiil, Esq., u .s. Department of t.abor, OJ: flee of the soii~itor; 4015 Wilson Blvd., Rm. 516, Arlington, VA 22203 

(certified Mail> 

Jerry o. T2llton, II, Esq., 222 East Main street, :Frorit Royal, VA 

22630 <certified Maii> 

w. Challen Walling, Esq., Box 2009, Bristol, VA 24203 (Certified 

Mail) 

slk 

1544 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

November 7, 1988 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

COLUMBIA PORTLAND CEM~NT 

COMPANY, 

Respondent 

Docket No. LAKE 88-54-M 

A. C. No. 33-03990-05521 

Jonathan Limestone Mine 

DECISION APPROVING SETTLEMENT 

ORDER TO PAY 

Before: Judge Merlin 

This case is a petition for the imposition of civil penal- ties for 20 violations originally assessed at $20 each for a 

total of $400. The proposed settlements are for the original 

amounts. On June 30, 1988, the Solicitor submitted a motion for 

approval. On September 7, 1988, I issued an order approving one 

settlement (Citation No. 3058715) and disapproving th~ remaining 

nineteen because the motion contained insufficient information. 

On October 18, 1988, the Solicitor submitted an amended motion 

with additional information. · 

Citation No. 3058714 

According to the Solicitor, this citation was issued for a 

violation of 30 C.F.R. § 56.14006, because the guard for the 

self-cleaning tail pulley on the No. 9 auxiliary belt conveyor 

was not securely in place while the machine was in operation. 

I originally disapproved this settlement because the Solicitor 

failed to support his conclusions. In his amended motion the 

Solicitor explains that the probability of contacting the 

unguarded pulley was unlikely since the belt conveyor was not in 

motion. He further advises that the area near the belt conveyor 

was not a regular travelway or walkway. 

Based upon the foregoing additional information, I approve the $20 settlement. 

Citation No. 3059190 

According to the Solicitor, this citation was issued for a 

violation of 30 C.F.~. § 56.12025, because the conduit used as a 

grounding conductor for the stop switch on the No. 9 auxiliary 

1545 
feed belt in the finishing mill was broken in two places. I 

originally disapproved this settlement because the Solicitor 

failed to support his conclusions. In his amended motion the 

Solicitor explains that the probability of a ground fault 

happening was unlikely since it would have to occur on the stop switch or conduit simultaneously with an employee making contact 

with the switch. He further advises that the conduit was in an 

area not readily accessible to employee contact. 

Based upon the foregoing additional information, I approve 

the $20 settlement. 

Citation No. 3059192 

According to the Solicitor, this citation was issued for a 

violation of 30 C.F.R. § 56.12032, because the junction box cover 

for the tailing screw beside the No. 2 elevator in the basement 

of the baghouse was missing, exposing the conductors to damage. 

I originally disapproved this settlement because the Solicitor 

failed to support his conclusions. In his amended motion the 

Solicitor explains that the junction box was in a location that 

was not a regular travelway or walkway. 

Based upon the foregoing additional information, I approve the $20 settlement. 

Citation No. 3Q59193 

According to the Solicitor, this citation was issued for a 

violation of 30 C.F.R. § 56.12025, .because the 120 volt fan 

located at the loading dock door of the bag storage room was not 

equipped with a grounding conductor. I originally disapproved 

this settlement because the Solicitor failed to support his conclusions. In his amended motion the Solicitor explains that the 

probability of a ground fault occu~ring was unlikely since the 

fan was not plugged in. Also, no employees worked in the area. 

Finally, he advises that before an injury could happen, a ground fault would have to occur simultaneously with an employee contacting the fan. 

Based upon the foregoing additional information, l approve the $20 settlement. 

Citation No. 3059194 

According to the Solicitor, t~is citation was issued for a 

violation of 30 C.F.R. § 56.12025, because the conduit on the 

alarm switch at the No. 5 packer station in the baghouse was 

broken. The citation recites that the condition put added strain 

on the connections in the switch •. I originally disapproved this 

settlement because the Solicitor f~iled ·to support his conclusions. In his amended motion the. Solicitor explains that the 

probability of a ground fault occurting:was unlikely since the 

1546 
alarm·switch was not readily accessible to employee contact. He 

further advises that before an injury could happen, a ground fault would have to occur on the alarm and conduit simultaneously 

with an employee making contact with the conduit. 

Based upon the foregoing additional information, I approve 

the $20 settlement. 

Citation No. 3059196 

According to the Solicitor, this citation was issued for a 

violation of 30 C.F.R. § 56.12025, because the conduit holding the light outside the car shop was broken. I originally disapproved this settlement because the Solicitor failed to support his conclusions. In his amended motion the Solicitor explains 

that the probability of a ground fault occurring was unlikely 

since the light was not readily accessible to employee contact. 

He further advises that before an injury could happen, a ground fault would have to occur on the conduit simuitaneously with an 

employee making contact with it. 

Based upon the foregoing additional information, I approve 

the $20 settlement. 

Citation No. 3058720 

According to the Solicitor, this citation was issued for a 

violation of 30 C.F.R. § 56.11001, because a spill of limestone 

had accumulated on the first landing below the top floor of the 

raw mill building. The citation recites that the condition put 

excess weight on the floor. I originally disapproved this settlement because the Solicitor failed to support his conclusions. In 

his amended motion the Solicitor explains that no employees were 

working in the area below the spill of material and that the area 

in question was not a regular travelway. 

Based upon the foregoing additional information, I approve 

the $20 settlement. 

Citation No. 3059385 

According to the Solicitor, this citation was issued for a 

violation of 30 C.F.R. § 56.12028, because the continuity and 

resistance of the grounding system for the plants and mine had 

not been tested on an annual basis. I originally disapproved 

this settlement because the Solicitor failed to support his conclusions. In his amended motion the Solicitor explains that the 

probability of a ground fault occurring was unlikely since the 

grounding system was in good condition at the time of the 

inspection, even though more than one year had passed since the 

last test. 

1547 
Based upon the foregoing additional information, I approve 

the $20 settlement. 

Citation ~o. 3059386 

According to the Solicitor, this citation was issued for a 

violation of 30 C.F.R. § 56.12034, because the 110-volt light 

bulb on the extension light in the machine shop was not guarded. 

I originally disapproved this settlement because the Solicitor 

failed to support his conclusions. Jn his amended motion the 

Solicitor explains that the probabi)ity of an employee contacting 

the light bulb ~as unlikely since no work was being done in the 

area. 

Based upon the foregoing additional information, I approve 

the $20 settlement. 

Citation No. 3059388 

According to the Solicitor, this citation was issued for a 

violation of 30 C.F.R. § 56.12008, because the 440-volt cables 

did not enter the metal frame of the No. 3 motor control center 

through proper bushings and fittings. The motor control center 

was located on the fourth floor of the raw mill. I originally 

disapproved this settlement because: the Solicitor failed to 

support his conclusions. In his amended motion the Solicitor 

explains that the probability of the cables coming loose was unlikely since the motor control center was mounted in a stationary 

position. No strain was being put on the cables and no 

vibrations were noted. 

Based upon the foregoing additional information, I approve 

the $20 settlement. 

Citation No. 3059422 

According to the Solicitor, this citation was issued for a 

violation of 30 C.F.R. § 56.420l(a)(l), because the fire 

extinguishers located in the raw mill ·were not inspected on a 

monthly basis. I originally disapproved this settlement because 

the Solicitor failed to support his conc~usions. In his amended 

motion the Solicitor advises that the extinguishers were found to 

be in working order when tested. 

Based upon the foregoing additional information, I approve the $20 settlement. 

Citation No. 3059392 

According to the Solicitor, t~is citation was issued for a 

violation of 30 C.F.R. § 56.12020, -because an insulation mat was 

not provided for the disconnect switches and breaker contr~ls 

located in the basement of the packhouse. I originally dis1548 
approved this settlement because the Solicitor failed to support 

his conclusions. In his amended motion the Solicitor explains 

that the probability of an injury happening was unlikely since a 

ground fault would have to occur and energize the switches and 

breaker controls simultaneously with an employee making contact 

with the controls. 

Based upon the foregoing additional information, I approve 

the $20 settlement. 

Citation No. 3059393 

According to the Solicitor, this citation was issued for a 

violation of 30 C.F.R. § 56.12034, because guards were not prb- vi ded for two light bulbs in the west tunnel of the packhouse. I 

originally disapproved this settlement because the Solicitor 

failed to support his conclusions. In his amended motion the 

Solicitor explains that the probability of an employee contacting 

the light bulbs was unlikely since the light bulbs were not 

readily accessible to employee contact. 

Based upon the foregoing additional information, I approve 

the $20 settlement. 

Citation No. 3059394 

According to the Solicitor, this citation was issued for a 

violation of 30 C.F.R. § 56.12025, because the grounaing conductor on the motor for the fan in the packhouse was not adequately affixed. I originally disapproved this settlement because the 

Solicitor failed to support his conclusions. In his amended 

motion the Solicitor explains that the probability of an accident 

happening was unlikely since a ground fault would have to occur 

on the motor simultaneously with an employee making contact with 

i t . 

Based upon the foregoing additional information, T approve 

the $20 settlement. 

Citation No. 3059397 

According to the Solicitor, this citation was issued for a 

violation of 30 C.F.R. § 56.12020, because an insulation mat was 

not provided on the concrete floor in the motor control center 

for the precipitator building. I originally disapproved this 

settlement because the Solicitor failed to support his conclusions. In his amended motion the Solicitor explains that the 

probability of an injury happening was unlikely since a ground 

fault would have to occur on the motor simultaneously with an 

employee making contact with it. 

Based upon the foregoing additional information, I approve 

the $20 settlement. 

1549 
Citation No. 3059398 

According to the Solicitor, this citation was issued for a 

violation of 30 C.F.R. § 56.12030, because the cdnduit for the 

motor for the No. 5 side gather up screw conveyor was broken in 

two places. I originally disapproved this settlement because the 

Solicitor failed to support his conclusions. In his amended 

motion the Solicitor explains that the probability of a ground 

fault occurring was unlikely since the screw motor was not 

readily accessible to employee contact. He further advises that 

before an injury could happen, a ground fault would have to occur 

on the motor simultaneously with an employee making contact with 

i t • 

Based upon the foregoing additional information, I approve 

the $20 settlement. 

Citation No. 3059423 

According to the Solicitor, this citation was issued for a 

violation of 30 C.F.R. § 56.4102 because of an accumulation of 

oil on the floor of the compressor room in the basement of the 

packhouse. I originally disapproved this settlement because the 

Solicitor failed to support his conclusions. In his amended 

motion the Solicitor explains that the electrical components were 

some distance off the floor. He furt~er advises that nobody was 

working in the area and that a fire extinguisher and two exits 

were in the area. 

Based upon the foregoing additional information, I approve 

the $20 settlement. 

Citation No. 3059~24 

According to the Solicitor, this citation was issued for a 

violation of 30 C.F.R. § 56.17001, because illumination was not 

sufficient to provide safe working conditions in the east tunnel 

of the packhouse. I originally disapproved this settlement 

because the Solicitor failed to support his conclusions. In his 

amended motion the Solicitor explains ~that no work was being 

conducted in the area at the time in question. 

Based upon the foregoing additional information, I approve 

the $20 settlement. 

Citation No. 3059404 

According to the Solicitor, this :citation was issued for a 

violation of 30 C.F.R. § 56.12032, be~ause the cover plate on the 

junction box at the head pulley of the coal incline belt was 

missing. The citation recites that the condition exposed conductors on the junction box to damage~ I originally disapproved 

1550 
this ·settlement because the Solicitor failed to support his conclusions. In his amended motion the Solicitor explains that the 

probability of damaging the conductors was unlikely since the 

junction box was not readily accessible to employee contact. 

Based upon the foregoing additional information I approve 

the $20 settlement. 

Conclusions and Order 

As set forth above, the proposed settlements for the 

remaining ni~eteen citations in this docket are Approved. 

However, the parties are cautioned that a number of th~ 

citations herein appears to be a rather generous use of the 

single penalty assessment. Also, the parties are reminded that, 

as stated in my prior Order of Disapproval, penalty assessments 

are de novo before the Commission which is not bound by the 

MSHA""IS proposed assessments or penalty regulations. Bearing this 

in mind, in the future before the Solicitor submits any proposed 

settlement, he should review it in light of the statutory 

criteria set forth in section llO(i), 30 U.S.C. § 820(i). 

Finally, it should be a matter of concern to MSHA that within a 

very short period of time this operator was cited for 72 violations. See also Docket ~os. LAKE 88-55-M, LAKE 88-56-M, 

LAKE 88-58-M, LAKE 88-59-M, and LAKE 88-62-M. 

It is further ORDERED that the operator pay $380 within 30 

days from the date of this decision. 

: _ _.,._\ 29. ,J \ 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Christopher J. Carney, Esq., Office of the Solicitor, U. S. Department of Labor, 881 Federal Office Building, 1240 East Ninth 

Street, Cleveland, OH 44199 (Certified Mail) 

Michael M. Roman, Vice President, Industrial Relations, Columbia 

Portland Cement Company, P. 0. Box 1531, Zanesville, OH 43702 

(Certified Mail) 

I g 1 

1551 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

November- 7, 1988 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

COLUMBIA PORTLAND CEMENT 

COMPANY, 

Respondent 

Docket No. LAKE 88-55-M 

A. C. No. 33-03990-05522 

Jonathan Limestone Mine 

DECISION APPROVING SETTLEMENT 

ORDER TO PAY 

Before: Judge Merlin 

This case is a petition for the imposition of civil penal- ties for 20 violations originally assessed at $20 each for a 

total of $400. The proposed settlements are for the original 

amounts. On June 30, 1988, the Solicitqr s~bmitted a motion for 

approval. On September 7, 1988, I i~sued an order approving four 

settlements (Citation Nos. 3059430, 3059431; 3059434, and 

3059439) and disapproving the remaining sixteen because the 

motion contained insufficient information. On October 18, 1988, 

the Solicitor submitted an amended motion with additional 

information. 

Citation No. 3059412 

According to the Solicitor, this citation was issued for a 

violation of 30 C.F.R. § 56.12008, because the feed cable for the 

portable reducing transformer located on the burner floor did not 

enter the metal frame through proper bushings and/or fittings. 

I originally disapproved this settlement because the Solicitor 

failed to support his conclusions. In his amended motion the 

Solicitor explains that the probability of the feed cable coming 

loose was unlikely since the transformer was stationary and not 

vibrating. He further advises that there was no strain on the 

connections. -

Based upon the foregoing additional information, I approve the $20 settlement. 

Ci t at i on No • 3 0 5 9:413 

According to the Solicitor, this citation was issued for a 

violation of 30 C.F.R. § 56.12025, b:ecause the grounding jumper 

1552
around the flexible conduit on the motor of the No. 5 separator in the fi.nishing mill was not connected to the frame of the 

motor. I originally disapproved this settlement because the 

Solicitor failed to support his conclusions. In his amended 

motion the Sqlicitor explains that the probability of a ground 

fault occurring was unlikely since there was limited access to 

the motor. He further advises that before an accident could 

happen, a ground fault would have to occur simultaneously with an 

employee making contact with the motor. 

Based upon the foregoing additional information, I approve 

the $20 ~etttement. 

Citation No. 3059414 

According to the Solicitor, this citation was issued for a 

violation of 30 C.F.R. § 56.12008, because the 440-volt feed 

cable for the portable welder in the car shop did not enter the 

metal frame of the welder through proper fittings and/or 

bushings. I originally disapproved this settlement because the 

Solicitor failed to support his conclusions. In his amended 

motion the Solicitor explains that the probability of the cable 

coming loose was unlikely since the cable was in good condition 

and there was no strain on the connections. 

Ba~ed uqon the foregoing additional information, I approve the $20 settlement. 

Citation No. 3059432 

According to the Solicitor, this citation was issued for a 

violation of 30 C.F.R. § 56.14006, because the guard was not in 

place for the coupling between the motor and chain drive for the 

gyp belt feeder for the No. 7 mill. I originally disapproved 

this settlement because the Solicitor failed to support his conclusions. I,n his amended motion the Solicitor explains that the 

probability of contacting the coupling was unlikely since the 

coupling was not readily accessible to employee contact. He 

further advises that an employee could contact the hazard only 

through an intentional act. 

Based upon the foregoing additional information, I approve 

the $20 settlement. 

Citation No. 3059435 

According to the Solicitor, this citation was issued for a 

violation of 30 C.F.R. § 56.14006, because the guard for the 

sawblade for the electrical saw located in the car shop was not 

in place. I originally disapprdved this settlement because the 

Solicitor failed to support his conclusions. In his amended 

motion the Solicitor explains that the probability of contacting 

1553 
the sawblade was unlikely since the saw:was oat in Gper~tion and· 

no employees .were working in the car shop.·· .:~~ .. ,~ \ . • ;.. •'. ~~ t 

Based upon the foregoing additional informati6n; •1approve 

the $20 settlement. ,; ~'. 

., ... , ' '. - ·, ' ;,,. ,,,._.···.· 

Citation No. 3059418 ~ '! ; . 

. - •' • i.: 

According to the Solicitor, this citation was~issued.for a 

violation of 30 C.F.R. § 56.12020, because the breaker and control box for the pump at the settling pond was not:·prbvtded with 

a dry wooden platform or insulation mat. I origtnallJ~dts~ 

approved this settlement because the Solicitor failed to support 

his conclusions. In his amended motion the Solicitor explains that the probability of a ground fault occtirring was unlikely 

since the area was dry and the controls were·seldom~used~ He 

further advises that no employees were in the area.j, , ;.' ' .. : .. 

Based upon the foregoing additional informati-0n1 .happrove 

the $20 settlement. 

Citation No. 3059436 

According to the Solicitor, this citation was ·issued for a 

violation of 30 C.F.R. § 56.11001, because the ladder used to 

climb in and out of a haulage truck did not constit·ut.e·a· .. safe 

means of access. I originally disapproved this·settlement 

because the Solicitor failed to support his conclusions. In his 

amended motion the Solicitor explains that a ladder was in fact 

provided, but was not positioned on the truck in such a way so as 

to provide the safest means of access into the trwck· ·e;a.ll.· He 

further advises that al though pl aceme.nt of the ladder. was. not the 

best, the probability of an accident happening was wnl·ii<ely even 

the way it was placed. 1 

- ; :~ : .~· -~ .. 

Based upon the foregoing additional information, I" approve 

the $20 settlement. :; 

Citation No. 3059441 .lot • \v 

According to the Solicitor, this citation was issued for a 

violation of 30 C.F.R. § 56.12020, because a woodeni. p.l .. atform or 

insulation mat was not provided for th~ controls at the 3 inch 

water pump. I originally disapproved this settlement because the 

Solicitor failed to support his conclusions. In his amended 

motion the Solicitor explains that the probability of a ground 

fault happening was unlikely since it would have to ~c~~r on the 

c o n t r o 1 p a n e l s i m u l t a n e o u s l y w i t h an em ·p 1 o ye e m a k i n g., co .n t a ct w i t h 

the controls. . . ,,,··. , . 

Based upon the forego i n g add i ti on al i n format i o,n ~ I., a pp _rove 

the $20 settlement. .. . 

1554 
Citation No. 3059442 

According to the Solicitor, this citation was issued for a 

violation of 30 C.F.R. § 56.12025, becaus~ the grounding conductor was not connected to the frame of the portable light located 

in the underground shop. I originally disapproved this settlement because the Solicitor failed to support his conclusions. In 

his amended motion the Solicitor explains that the light was not 

readily accessible to employee contact. He further advises that 

before an accident could happen, a ground fault would have to 

occur on the light frame simultaneously with an employee making 

contact with the light frame. 

Based upon the foregoing additional information, I approve the $20 settlement. 

Citation No. 3059445 

According to the Solicitor, this citation was issued for a 

violation of 30 C.F.R. § 56.12020, because a dry wooden platform 

or insulation mat was not provided for the controls on the #3250 

portable water pump. I originally disapproved this settlement 

because the Solicitor failed to support his conclusions. In his 

amended motion the Solicitor explains that before an accident 

could happen, a ground fault would have to occur on the·control 

panel simultaneously with an employee making contact with the 

panel. 

Based upon the foregoing additional information, I approve 

the $20 settlement. 

Citation No. 3059446 

According to the Solicitor, this citation was issued f6r a 

violation of 30 C.F.R. § 56.12020, because a wooden platform or 

insulation mat was not provided for the controls at the high 

pressure wash bay located at the underground wash station. I 

originally disapproved this settlement because the Solicitor 

failed to s~pport his conclusions. In his amended motion the 

Solicitor explains that before an accident could happen, a ground 

fault would have to occur on the control panel simultaneously with an employee making contact with the panel. 

Based upon the foregoing additional information, I approve 

the $20 settlement. 

Citation No. 3059448 

According to the Solicitor, this citation was issued for a 

violation of 30 C.F.R. § 56.12030, because the 440-volt feed 

cable to the main exhaust fan located at the underground crusher 

station was damaged and had a conductor showing through. I 

originally disapproved this settlement because the Solicitor 

1555 
failed to support his conclusions. tn his amended motion the 

Solicitor ex~lains that the probability of contacting the cable 

was unlikely since the cable was not readily accessible to 

emplpyee contact. He further advises that ~mployees were not in 

the area. 

Based upon the foregoing additional information, I approve 

the $20 settlement. 

Citation No. 3059450 

According t6 the Solicitor, this citation was issued for a 

violation of 30 C.F.R. § 56.12025, because the conduit used as a 

grounding conductor for the 110-volt light in the walkway of the 

underground bin conveyor was broken. I originally disapproved 

this settlement because the Solicitor failed to support his conclusions. In his amended motion the Solicitor explains that the 

probability of~ ground fault occurring was unlikely since the 

light was not readily accessible to employee contact. He further 

advises that before an accident could happen, a ground fault 

would have to occur simultaneously with an employee making 

contact with the light frame. 

Based upon the foregoing additional information, t approve 

the $20 settlement. 

Citation No. 3059452 

According to the Solicitor, this citation was issued for a 

violation of 30 C.F.R. § 56.12025, because the conduit used for a 

grounding conductor for the 110-volt outlet at the top landing for the underground man lift was broken. I originally disapproved this settlement because the Solicitor failed to support 

his conclusions. In his amended motion the Solicitor explains 

that the probability of a ground fault happening was unlikely 

since it would have to occur simultaneously with an employee 

using the outlet. 

Based upon the foregoing additio~al information, I approve the $20 settlement. 

Citation No. 3059453 

According to the Solicitor, this citation was issued for a 

violation of 30 C.F.R. § 56.12020, because the cover plate for 

the junction box located near the walkway for the 4A belt was 

missing, thereby exposing the conductor to damage. I originally 

disapproved this settlement because the Solicitor failed to 

support his conclusions. In his. amended motion the Solicitor 

explains that the probability of a ground fault occurring was 

unlikely since the conductor was not damaged. He further 

advises that before an accident could happen, a ground fauft on 

1556 
the conductor would have to occur simultaneously with an employee making contact with the conductor. 

Based upon the foregoing additional information, I approve 

the $20 settlement. 

Citation No. 3059454 

According to the Solicitor, this citation was issued for a 

violation of 30 C.F.R. § 56.12025, because the conduit used as a 

grounding conductor was broken on the 4A underground belt 

conveyor. I originally disapproved this settlement because the 

Solicitor failed to support his conclusions. In his amended 

motion the Solicitor explains that before an accident could · happen, a ground fault would have to occur on the motor for the 

conveyor simultaneously with an employee making contact with the 

conveyor. 

Based upon the foregoing additional information, I approve 

the $20 settlement. 

Conclusions and Order 

As set forth above, the proposed settlements for the remaining sixteen citations in this docket are Approved. 

However, the parties are cautioned that a number of the citations herein appear to be a rather generous use of the single penalty assessment. Also, the parties are reminded that, as 

stated in my prior Order of Disapproval, penalty assessments are 

de nova before the Commission which is not bound by MSHA's pro- posea-issessments or penalty regulations. Bearing this in mind, 

before the Solicitor submits any proposed settlement, he should 

review it in light of the statutory criteria set forth in section 

llO(i), 30 U.S.C. § 820(i ). Finally, it should be a matter of 

concern to MSHA that within a very short period of time this 

operator was cited for 72 violations. See also Docket Nos. 

LAKE 88-54-M, LAKE 88-56-M, LAKE 88-58-M, LAKE 88-59-M, and 

LAKE 88-62-M. 

It is further ORDERED that the operator pay $320 within 30 

days from the date of this decision 

' 

Paul Merlin 

Chief Administrative Law Judge 

1557 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

November 7; 1988 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

COLUMBIA PORTLAND CEME~T 

COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 88-58-M 

A. C. No. 33-03990-05524 

Jonathan Limestone Mine 

OECISION APPROVING SETTLEMENT 

ORDER TO PAY 

Before: Judge Merlin 

This case is a petition for the· i-mposition of civil penal- ties for 20 citations which were originally assessed at $2,603. 

On June 30, 1988, the Solicitor submitted a motion to approve 

settlements in a reduced total amount of $1,463.80. On 

September 7, 1988, I issued a Decision Disapproving Settlements 

and Order To Submit Information. On October 18, 1988, the 

Solicitor submitted an amended motion to approve settlements. 

The amended motion abandons the attempt to reduce the original 

assessments and instead recommends settlements for these amounts. 

The circumstances of each citation in this case are set 

forth in my decision and order of September 7, 1988. There is no 

need to repeat them here since the amended motion sets forth no 

new facts or considerations, but merely repeats what is in the 

citations and based thereon returns_to th~ original assessments. 

I stated in my prior order that the original assessments are 

modest and upon further examination in light of the amended 

motion, I adhere to that view. However, I conclude that these 

amounts may be approved in this instance. 

The parties are reminded that ftS I previously pointed out, 

penalty assessments are~ nova before the Commission \'1hich is 

not bound by MSHA's proposed assessments, original or otherwise. 

An original assessment may prove too high or too low. Bearing this in mind, before the Solicitor ~ubmits a proposed settlement 

to a Commission administrative law Judge, he should review it in 

light of the statutory criteria ·set forth in section llO(i), 30 

U.S.C. § 820(i), most particularly ~ravity and negligence. 

Finally, it should be a matter of concern to MSHA that within a v~ry short period of time this- operator was cited for 72 

1558 
violations. See also Docket Nos. LAKE 88-54-M, LAKE 88-55-M, 

LAKE 88-56-M, LAKE 88-59-M, and LAKE 88-62-M. 

It is ORDERED that proposed settlements be APPROVED and that 

within 30 days of the date of this decision the operator pay $2,603. 

\ 

\ 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Christopher J. Carney, Esq., Office of the Solicitor, U. S. Department of Labor, 881 Federal Office Building, 1240 East Ninth 

Street, Cleveland, OH 44199 (Certified Mail) 

Michael M. Roman, Vice President, Industrial Relations, Columbia 

Portland Cement Company, P. O. Box 1531, Zanesville, OH 43702 

(Certified Mail) 

/gl 

1559 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR. 

WASHINGTON, D.C. 20006 . 

November 7, 1988 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

COLUMBIA PORTLAND CEMENT 

COMPANY, 

Respondent 

-, CIVIL PENALTY PROCEEDING 

. 0 o c k e t N o • L AK E 8 8-5 9 -M 

A. C. No. 33-039g0-05525 

Jonathan Limestone Mine 

DECISION APPROVING S~TTlEMENT 

ORDER TO .PAY 

Before: Judge Merlin 

This case is a petition for the imposition of civil penal- ties for six citations which were originally assessed at $831. 

On June 30, 1988; the Solicitor submitted a motion to approve settlements in a reduced total amount of $467.50. On 

September 7, 1988, I issued a Decision Disapproving Settlements 

and Order To Submit Information. On October 18, 1988, the Solicitor submitted an amended motion to approve settlements. The 

amended motion abandons the attempt to reduce the original assessments and instead recommends settlements in these amounts. 

The circumstances of each citation in this case are set 

forth in my decision and order of September 7, 1988. There is no 

need to repeat them here since the amended motion sets forth no 

new facts or considerations, but m~rely repeats what is in the 

citations and based thereon returns to the original assessments. 

I stated in my prior order that the original assessments are 

modest and upon further examination in light of the amended 

motion, I adhere to that view. However, I conclude that these 

amounts may be approved in this instance. 

The parties are reminded that. as~I previously pointed out, 

penalty assessments are ~ nova before the Commission which is 

not bound by MSHA's proposed assessments, original or otherwise. 

An original assessment may prove too high or too low. Bearing 

this in mind, before the Solicitor submits a proposed settlement 

to a Commis.sion administrative l·aw juage, he should review it in 

light of the statutory criteria set f~rth in section llO(i), 30 

U.S.C. § 820(i), most particularly gravity and negligence.· 

Finally, it should be a matter of concern to MSHA that within a 

1560 
very short period of time this operator was cited for 72 violation~. See also Docket Nos. LAKE 88-54-M, LAKE 88-55-M, 

LAKE 88-56-M, LAKE 88-58-M, and LAKE 88-62-M. 

It is ORDERED that proposed settlements be APPROVED and that 

within 30 days of the date of this decision the operator pay $831. 

-- Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Christopher J. Carney, Esq., Office of the Solicitor, U. S. Department of labor, 881 Federal Office Building, 1240 East ~inth 

Street, Cleveland~ OH 44199 (Certified Mail) 

Michael M. Roman, Vice President, Industrial Relations, Columbia 

Portland Cement Company, P. 0. Box 1531, Zanesville, OH 43702 

(Certified Mail) 

I gl 

1561 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH. FLOOR 

WASHINGTON, D.C. 20006 

November 7, 1988 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Petitioner· 

v. 

COLUMBIA PORTLAND CEMENT 

COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 88-62-M A~· C. No. 33-03990-05526 

Jo.nathan Limestone Mine 

DECIStON APPROVING SETTLEMENT 

ORDER TO PAY 

Before: Judge Merlin 

This case is a petition for the:imposition of civil penal- ties for five violations. Two of the violations were originally assessed at $20 each and the remaining three violations were 

originally assessed at $371. On June 30, 1988, the Solicitor 

submitted a motion for approval advising that the operator agreed 

to pay the originally assessed amounts for the two $20 violations 

and proposed settling the remaining three violations for $208.70. 

On September 7, 1988, I issued an order approving one of the 

$20 violations (Citation No. 3059478) and disapproving the remaining four violations because the motion contained insufficient 

information. On October 18, 1988, the Solicitor submitted an 

amended motion with additional information with respect to the 

$20 violation. The amended motion also abandons the attempt to 

reduce the original assessments for the other three. 

According to the Solicitor, Citation No. 3060312 was issued 

for a violation of 30 C.F.R. § 56.12025, because the equipment grounding conductor for the west screw in the basement of the 

packhouse was broken off the drive motor. I originally disapproved this settlement because the- Solicitor failed to support his conclusions. In his amended motion the Solicitor explains that before an accident could happen a ground fault on the drive 

motor would have to occur simultaneously with an employee contacting the motor or screw. 

Based upon the foregoing additional information, I approve the $20 settlement. 

1562
The circumstances of the three rema1n1ng citations in this 

case are set forth in my decision and order of September 7, 1988. 

There is no need to repeat them here since the amended motion 

sets forth no new facts or considerations, but merely repeats 

what is in the citations and based thereon returns to the 

original assessments. I stated in my prior order that the 

original assessments are modest and upon further examination in 

light of the amended motion I adhere to that view. However, I 

conclude that these amounts may be approved in this instance. 

The parties are reminded that as I previously pointed out, 

penalty assessments are de nova before the Commission which is 

not bound by MSHA's proposecraS"sessments, original or otherwise. 

An original assessment may prove too high or too low. BeariAg this in mind, before the Solicitor submits any proposed settlement to a Commission administrative law judge, he should review 

it in light of the statutory criteria set forth in section 

llO(i), 30 U.S.C. § 820(i). Finally, it should be a matter of 

concern to MSHA that within a very short period of time this 

operator was cited for 72 violations. See also Docket Nos. LAKE 

88-54-M, LAKE 88-55-M, LAKE 88-56-M, LAKE 88-58-M, and LAKE 

88-59-M. 

It is ORDERED that proposed settlements be APPROVED and that 

within 30 days of the date of this decision the operator pay $391. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Christopher J. Carney, Esq., Office of the Solicitor, U. S. Department of Labor, 881 Federal Office Building, 1240 East Ninth 

Street, Cleveland, OH 44199 (Certified Mail) 

Michael M. Roman, Vice President, Industrial Relations, Columbia 

Portland Cement Company, P. O. Box 1531, Zanesville, OH 43702 

(Certified Mail) 

I g l 

1563 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG ·PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 151988 

SOUTHERN OHIO COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

SOUTHERN OHIO COAL COMPANY, 

Respondent 

. . 

. . 

DECISION 

CONTEST PROCEEDINGS 

Docket No. WEVA 88-6-R 

Order ~o. 2894708; 9/3/87 

Docket No. WEVA 88-7-R 

Order No. 2894711; 9/4/87 

Martinka No. 1 Mine 

Mine ID No. 46-03805 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEVA 88-88 

A. C. No. 46-03805-03831 

Docket No. WEVA 88-104 

A. C. No~ 46-03805-03835 

Martinka No. 1 Mine 

Appearances: David M. Cohen, Esq., Southern Ohio Coal Company, 

Lancaster, Ohio, for the Operator; 

Evert H~ VanWijk, Esq., Office of the Solicitor, 

u. s. Department of Labor, Philadelphia, 

Pennsylvania, for the Secretary. 

Before: Judge Weisberger 

Statement of the Case 

In these consolidated cases, the Operator (Respondent) 

sought to challenge the following Citations/Orders issued to it 

by the Secretary (Petitioner): 

2894708 

2894711 

2894510 

2289 451·8 

alleged violation of 30 C.F.R. § 75.316 

alleged failure to timely abate Citation 2892710 

alleged violation o~ 30 C.F.R. § 77.400Cc) 

alleged violation of 30 C.F.R. § 75.1403. 
The S~cretary sought civil penalties for alleged violations by 

the Operator of the above cited sections except Order No. 2894711. 

On February 22, 1988, Respondent filed a Motion for a Summary 

Decision concerning Docket No. WEVA 88-6-R (Order No. 2894708). 

This Motion was denied by Order dated June 3, 1988. On March 3, 

1988, the Parties were notified that Docket Nos. WEVA 88-88, 

WEVA 88-6-R, and WEVA 88-7-R would be called for hearing on 

March 28, 1988, in Falls Church, Virginia. Subsequently, based 

upon a request from Counsel for both Parties, these cases wer~ 

rescheduled for March 30, 1988, in Pittsburgh, Pennsylvania. On 

March 28, 198~, in a telephone conference call between Counsel for 

both Parties and the undersigned, Counsel for Petitioner requested 

an adjournment on the ground that one of its witnesses had to 

investigate a fire in a mine on the date the hearing was scheduled. 

The hearing set for March 30, 1988, was subsequently rescheduled 

for June 7, 1988, in Pittsburgh, Pennsylvania. On May 17, 1988, 

pursuant to Petitioner's Motion which was not opposed by Respondent, 

Docket No. WEVA 88-104 was consolidated for hearing with Docket Nos. 

WEVA 88-6-R, 88-7-R, and 88-88. Subsequently, pursuant to a request 

by Counsel for both Parties, the above cases scheduled for hearing 

on June 7, 1988, in Pittsburgh, Pennsylvania, were rescheduled and 

heard on that date in Morgantown, West Virginia. Homer W. Delovich, 

Joseph Gary Pastorial, David C. Workman, and James A. Tennant testified for Petitioner. Wesley H. Hough, James w. Latham, III, 

James David Gump, John Metz, Glenn Spitznogle, Ira McDaniel, and 

William Robert Laird testified for Respondent. 

Petitioner filed its Post Hearing Memorandum and Proposed 

Findings of Fact on August 26, 1988, and Respondent filed its 

Post Hearing Briefs on August 25, 1988. A Reply Brief was filed 

by Respondent on October 4, 1988. 

Findings of Fact and Conclusions of Law 

Order No. 2894708 (WEVA 88-6-R) 

On September 3, 1987, MSHA Inspector Homer W. Delovich issued 

a section 104(d)-2 Order alleging that Respondent had not complied 

with its ventilation plan in the D-3 longwall section, alleging, 

as pertinent, "· •. in that a check stopping curtain was not 

installed outby the longwall face at the tailgate entry to deflect 

or direct the air to the bleeder system along the gob and to the 

bleeder tap. • . " 

oelovich testified that, in general, in a longwall mining 

operation, when retreating, the procedure is to knock out the 

stopping between Entries 1 and 2, and then erect a curtain in the 

return entry immediately outby the crosscut in which the stopping 

had been knocked down. He testified, in essence, that when he · 

1565 
inspected the D-3 longwall section of Respondent's Martinka Mine 

No. 1 on s·eptember 3, 1987, he walked down the tailgate Entry 

No. 1 outby the face, and at a crosscut approximately 650 feet 

from the face, observed that there was no stopping between 

Entries 1 and 2. He indicated that no curtain had been installed 

outby this crosscut. He considered this to be a violation of the 

ventilation plan and issued Citation/Order 2894708. In support 

of its position, Petitioner submitted a diagram entitled Typical 

Longwall ventilation, which was indicated to be part of 

Respondent's ventilation plan in effect on September 3, 1987, 

(Government Exhibit 2). This diagram indicates a curtain was 

placed in the No. 1 tailgate entry immediately outby a crosscut 

between Entries No. 1 and 2 without any stopping in the entry. 

Delovich indicated that MSHA had not approved any plans with 

regard to the ventilation of the working face since the last 

inspection in February 1987. Delovich, in essence, testified 

'that prior to inspection, a review of the ventilation plan 

revealed no changes to the ventilation of the D-3 working face. 

Delovich further testified that on September 3, 1987, Respondent's 

Superintendent, Wesley Hough, told him that Respondent had submitted a revised plan for the swag area, but that the plan was not in 

effect as they were not yet in the swag area. 

_ Joseph Gary Pastorial, a union fire boss employed by 

Respondent, indicated that he performs weekly examinations of the 

intake and return entries, and also is Chairman of the Union's 

Health and Safety Committee. He indicated that when the operator 

proposes revisions to a ventilation plan, the Safety Committee is 

notified. He indicated that in appro~imately 1978, the ventilation plan was revised to require that a curtain be built 500 feet 

outby the face, at a point outby a crosscut in which the stopping 

had been knocked down. He said that this revision was made as 

there was a dust problem. He said that this revision was in 

effect on September 3, 1987, and he was not aware of any revision 

to this plan. He said that a revision to the ventilation plan in 

order to cure a geological problem was submitted to him and was 

approved, but was limited to the D-1 and D-2 Sections. 

In contrast, Wesley Hough, who indicated that he is respousibl·e for Respondent• s ventilation plan, testified that he told 

Delovich on September 3, that a revised ventilation plan for the 

D-3 Section had been approved on July 25, 1986. He indicated 

that the revision was submitted because there was a geological 

problem, and thus it superseded the typical longwall ventilation 

diagram (Government Ex. 2) for the D-3 Section. SOCCO Exhibit 1 

documents that, on July 25, 1986, MSHA approved Respondent's 

proposed ventilation plan for longwall Panel D-3 as well as 

D-2 and D-4. Hough further indicated that a diagram of its 

proposed ventilation plan had been submitted to MHSA for its 

approval. This diagram shows the ventilation of the longwall 

1566 
Panel D-3 and does not indicate any curtain in the tailgate Entry 

No. 1 ·outby the crossing between Entries 1 and 2 for which there 

is no stopping. CSOCCO Ex. 2) I find that Petitioner's evidence 

is insufficient to contradict a plain re~ding of SOCCO Exhibits 1 

and 2, that the Phase II Ventilation Plan, including the D-3 

longwall panel, was approved by MSHA on July 25, 1986. I also 

found Hough's testimony to the same effect to be persuasive. 

The diagram of the plan CSOCCO Ex. 2~ does not depict any 

curtain outby a crosscut not containing a stopping. Inasmuch ~s 

SOCCO Exhibit.2 is clearly labeled to pertain to the longwall 

Panel D-3, and had been approved on July 25, 1986, I find that it 

had the effect of amending the typical longwall ventilation 

(Government Ex. 2). As such, I find that on September 3, 1987, 

the approved ventilation plan CSOCCO Ex. 2) did not require the 

placement of a curtain immediately outby the face at the tailgate 

entry as alleged in the citation in issue. Accordingly, I find 

that it had not been established that the ventilation plan was 

not being complied with, and therefore, Citation No. 2894708 

should be vacated, and the Petition of Assessment of Civil 

Penalty CWEVA 88-88) is dismissed. 

Citation No. 2894711 CWEVA 88-7-R) 

On September 3, 1987, at approximately 10:30 a.m., Delovich 

issued Citation No. 2894710 citing Respondent for having black 

coal float dust deposited on the floor of the returr. entry on the 

D-3 longwall section, approximately 600 feet from spad No. 34 + 20 

to 28 + 20. In essence, Delovich said that after issuing the 

Citation, he met with Respondent's employees Hough, Jim Latham, 

Pastorial, Dave Workman, and Rick Flint and told them to abate the 

Citation, that 600 feet needed to be rock dusted by 4:00 p.m. that 

day. Delovich said that when he returned to the section on 

September 4, at 12:30 a.m., he observed that outby the curtain, 

that was being erected at the Entry No. 1 to 28 + 20, the floor 

was still black. Delovich said that he came upon crosscut 34 + 40 

on the section, and asked two men who were building a stopping 

whether they were going to rock dust, and they said "no, we were 

just told to rock dust up to the stopping" CWEVA 88-7-R, Tr. 15). 

Delovich said that no request had been made to extend the time to 

abate the Citation, and he issued Citation No. 2894711 citing the 

Respondent as follows: 

"Little effort was made to abate the Citation 

No. 2894710 statement time was 1600 hours on 09-03-87, 

at 0130 hours on 09-04-87 only 200 feet of the 600 feet 

of coal float dust in the tailgate return of the D-3 

longwall section was abated. The company rock dusted 

200 feet over top the coal float dust outby the tailgate and then build a permanent stopping closing off 

the remaining 400 feet which still existed in the tailgate return." (sic.) 

1567 
James David Gump, Respondent's Assistant Mine Supervisor, 

testified, in essence, that after the original citation had been 

issued, Delovich had indicated that approximately 600 feet had to 

be rock dusted, but that Delovich asked him why Respondent does 

not build a stopping in the entry to cut down the dust. Gump and 

John Metz, Respondent's General Supervisor, testified that after 

discussing the conversation that Gump had with Delovich with 

regard to abatement, the men presently working on the shift were 

told to rock dust as far as they could by the end of the shift, 

and then build a stopping across the entry. 

I find that Delovich had indicated that in order for the 

original citation to be abated, approximately 600 feet would have 

to be rock dusted. The evidence establishes that when observed 

by Delovich at 12:30 a.m. on September 4, 1987, the area outby 

the stopping that was being erected to spad 28 + 20 had not been 

rock dusted. It is clear that abatement was not satisfied by 

erecting a curtain and not rock dusting outby that curtain. In 

this connection, I note that upon cross-examination, Gump agreed 

that Delovich had not said to just rock dust until the stopping. 

Also Metz acknowledged, upon cross-examination, that in the area 

outby the stopping, coal would have been a hazard if it was not 

rock dusted. Metz also indicated that it was intended subsequent 

to installing the curtain to rock dust outby that curtain, but 

that he was concerned with complying with the time limit to abate 

the citation. 

When observed by Delovich on September 4, 1987, the violation 

previously cited on September 3, had. not been totally abated, in 

that the area had not been completely rock dusted as previously 

directed by Delovich. Further, I find that Respondent had not 

requested an extension to fully rock dust the area. Indeed, I 

note that the workers, observed by Delovich on September 4, told 

him that they were just told to rock dust up to the stopping. 

Based on these circumstances, I can not conclude that Delovich 

acted unreasonably in not unilaterally extending the time to abate. 

Accordingly, I conclude that Order No. 2894711 was properly issued 

in that Citation No. 2894710 had not been abated within the time 

limits set in that Citation, and there was no unreasonableness in 

not extending the time to abate. 

Order No.2894510 (WEVA 88-104) 

On September 10, 1987, David c. workman, a Mine Safety and 

Health Administration Inspector, inspected Respondent's Preparation 

Plant at the Martinka No. 1 Mine and cited Respondent for a violation of 30 C.F.R § 77.400(c). Workm~n alleged that "The guard is 

1568 
missi~g off the head drum roller, river side, exposing the head 

roller and belt on the ninth floor of the Preparation Plant." 

Respondent acknowledges that the guard was not in place, but maintains that the violation herein was not the result of its 

unwarrantable failure, nor was it significant and substantial. 

James A. Tennant, Respondent's Preparation Plant Mechanic, 

testified that approximately 1 to 2 weeks prior to the date the 

citation herein was issued on September 10, 1987, he was completing work on the belt brake or back stop which had been 

started the shift before. Tennant indicated, in essence, that 

the guard that had been taken off to perform the repairs was 

leaning against a tank • He was asked whether the guard was in 

plain sight or hidden behind the tank and answered that it was 

out in front between the tank and belt drum (WEVA 88-104, -

Tr. Vol I, P. 41). According to Tennant, before he had an 

opportunity to replace the guard, his foreman, Ira McDaniel, 

ordered him to go to another work assignment. Tennant did not 

indicate to his supervisor that the guard had not yet been 

replaced nor did he later on check to see if it had been replaced. 

Tennant further testified that a day or two before the citation 

was issued, he was in the area and saw the guard still on the 

floor, but did not replace it. Nor did he tell his supervisor 

that it still had not been replaced. David C. Workman, MSHA 

Investigator, entered Respondent's Preparation Plant on 

September 10, 1987, in response to a section 103Cg)(i) complaint 

that various employees of Respondent had mentioned to Respondent's 

managers and supervisors that the guard in question had not been 

replaced. However, there is no documentary evidence or testimony 

which would indicate that any of Respondent's supervisors or 

managers knew that the guard in question was not in place. 

According to Tennant, the belt had to be shut down in order to 

replace the guard, and that shutting down the belt line was the 

responsibility of the supervisor. Glenn Spitznogle, Respondent's 

day shift foreman, and Ira McDaniel, Respondent's foreman, both 

testified that they did not know that the guard in question was 

not in place. 

When Tennant was asked whether it was obvious that the guard 

was missing, he indicated that if one walked through the area and 

saw the guard on the ground "· •• you'd wonder where it went" 

(WEVA 88-104, Tr. Vol I, P. 46). However, Workman indicated that 

it was not obvious to him that the guard belonged where it did on 

the back stop. Although Spitznogle indicated on cross-examination 

that in the 2 years prior to July 1988, possibly he was on the 

9th floor of the olant hundreds of times, ne stated that he is not 

there daily, and ~pecifically did not notice that the guard was 

missing from the cited area. It was McDaniel's testimony, in 

essence, that he never saw the guard up against the tank and did 

not know it belonged at the location from where it was missing. I 

1569 
conclude that neither Spitznogle nor McDaniel actually knew that 

the guard in question was not in place. However, based upon the 

testimony of Tennant, and taking into account the size of the 

guard (estimated by Tennant to be 2-- 2 1/2' X 3' ), I find that 

they each should have observed the guard in the area and should 

have realized that it was not in its proper place. Clearly 

Tennant was remiss in not reporting to his supervisor the fact 

that the guard had not been replaced, especially after he saw it 

again a day to two before the citation was issued, and approximately a week after he performed work on the belt. I find under 

the circumstances of this case, taking into account all the above, 

that Respondent's malfeasance herein amounted to an aggravated 

conduct. As such, I conclude that the violation resulted from 

Respondent's unwarranted failure. (See Emeory Mining Corp., 

9 FMSHRC 1997 (Dec 1987)). 

In essence, it was Workman's testimony that maintenance 

persons or others coming into the area could trip or fall with 

the risk of their hand or other limb being inserted in the area, 

unprotected by the guard, causing the whole body to be dragged in 

or causing the person to suffer bruises and the lost of a finger 

or limb. The unguarded area was located on a platform approximately 2 1/2 feet from the edge of the platform. Spitznogle 

admitted that one could get one's foot caught and trip on the 

edge of the 1 foot high platform. Also the platform is hosed 

daily, and the water is not cleared up as it is allowed to drain 

and evaporate. Spitznogle also indicated that oil has leaked 

from the gear case in the past. However, according to Workman 

there was neither an accumulation of -oil or grease, nor were 

there stumbling hazards in the immediate area. Moreover, it has 

not been established that in the normal operations persons would 

climb up the platform. The only person regularly working on the 

9th floor (the level where the cited condition is found) is a 

plant attendant. The evidence indicates merely that his job is 

to check the equipment, but there is no evidence establishing 

that in the normal course of his duties he would be in close 

proximity to the unguarded area. Nor has it been established 

that one hosing the platform would stand or walk on the platform. 

I further find the following facts, as s~t forth in Respondent's 

Brief at pages 11-12: Cl) people fire boss the area and gas 

checks are needed to be taken somewhere on the 9th floor, but not 

necessarily at the location specified in the Order; (2) once 

every month or two the grease canister needs to be refilled and 

occasionally the oil needs to be changed in a ge2r box, but both 

the grease canister and the gear box are on the opposite side of 

the head roller from the location of the missing guard; (3) 

light bulbs might need to be changed,-but these are not done in 

the immediate vicinity of the location in which the guard was 

missing. 

1570 
Accordingly, I conclude that although there was a possibility 

of the violation herein of an unguarded area contributing to the 

hazard of some one falling or stumbling and being injured, I 

conclude that there was not a reasonable likelihood that the 

hazard contributed to would result in an injury, as it has not 

been established that it was reasonably likely for a hazard to 

occur. As such, the violation herein is not significant and 

substantial. (c.f. Mathies Coal Company 6 FMSHRC 1 (January 

1984). 

I find that Respondent herein was negligent to a high degree 

in that Tennant knew of the missing guard and did not communicate 

this to his supervisor, and that the latter should have known the 

guard was missing. Also I find that the gravity herein was 

moderately serious (although not significant and substantial), as 

in the event of a person inadvertently coming in contact with the 

unguarded portion of the belt, a reasonably serious injury could 

have resulted. Taking into account the remaining factors of 

section llOCi) of the Act, as stipulated to by the Parties, I 

conclude that a penalty herein of $200 is appropriate. 

Order No. 289518 CWEVA 88-104) 

On September 7, 1987, Inspector David Workman was told by 

Miner's Representative Pat Grimes of the existence of a broken 

switch on the 12-left track haulage of the North Mains. Upon 

arriving at the 12-left track, Inspector Workman noted that the 

barrel to the switch was disconnected, the bottom ear of the 

female joint C-bolt was broken, and the connecting bolt was 

lying in the adjacent dirt. Workman opined, in essence, that in 

light of the area being highly traveled by personnel carriers, 

locomotives, and jitneys, it was very likely that with the rail 

not being secured, vibrations could dislodge the alignment 

causing a derailment. 

Workman testified that the miners' representative told him 

that he had reported this condition to three individuals who are 

a part of mine management. Workman said that he talked to two of 

these three individuals. 

William Laird, Respondent's foreman on the midnight shift, 

testified that on October 5, 1987, 2 days before the date of the 

issuance of the Order, he signed a preshift report stating that 

the switch throw was broken and then corrected by installing the 

bolt in the switch barrel. 

Laird said that on October 5, 1987, he also reported to the 

dispatcher the need for new ears or possibly a new barrel, and 

that on October 6, 1987, he repaired the switch. At the time he 

made the repairs, he checked at least five time to see if the 

switch would operate correctly and determined that it did. 

1571 
Laird testified that he had repaired the broken switch by 

placing the bolt back through the barrel and that he did not 

observe a nut to be placed on the bottom of this bolt. It was 

his opinion that most of the track haulage switches do not have 

nuts that go with such bolts, but he conceded that most C-bolts 

do not have a broken c piece. 

On October 7, 1987, workman issued Order No. 2894518 which 

provides that "The 12-left track haulage switch in North Mains 

was found to be disconnected from the barrel, one ear was broken 

off the barrel, and the bolt and nut was found laying down under 

the throw part of the switch • • • " 

This Order essentially was issued based on Safeguard 814335 

dated February 7, 1979, which states as follow: 

The track haulage set out switch for the superintendent's jitney is not properly aligned, causing track 

haulage equipment passing over it to whip sideways. 

This is a notice to provide safeguards requiring that 

all track haulage at this mine shall be properly maintained and aligned. 

Respondent has challenged the validity of the instant safeguard upon which the Citation in question was issued. Respondent 

argues that the safeguard was improperly issued as its requirements should have been the subject of rule making. Subsequent to 

the hearing, the Parties, in a telephone conference call, 

initiated by the undersigned, on September 2, 1988, were allowed 

to file Supplemental Briefs on the applicability to the issues 

herein, of the recent Commission decision in Secretary v. Southern 

Ohio Coal Co, 10 FMSHRC 963, (August 1988). Briefs were filed by 

the Parties. Respondent filed a Reply Brief; none was £iled by 

Petitioner. 

In essence, it is Petitioner's position that the lack of 

maintenance of the equipment in question created a hazard that 

was not covered by mandatory standards, but which is addressed by 

the ~afeguard herein. In contrast, Respondent maintains that the 

safeguard requiring all track haulage to be properly maintained 

is of general applicability, and as such, is invalid as it was 

not promulgated pursuant to section 10l(a) of the Act. 

The Commission in Secretary v. Southern Ohic Coal Co., 

supra, at 967, noted that the Court of Appeals of the District of 

Columbia Circuit in Zeiglar Coal Co. v. Kleppe, 536 F2d 389 

CD.C. Cir. 1976) "has recognized that proof that ventilation 

1572 
requirements are generally applicable, rather than mine-specific, 

may provide the basis for a defense with respect to alleged 

violations of mandatory ventilation plans." The Commission in 

Southern Ohio, supra at 967 further anal~zed Zeigler as follows: 

• [Tlhe court considered the relationship of a 

mine's ventilation plan required under section 303(0) 

of the Act, 30 u.s.c. § 863(0), to mandatory health and 

safety standards promulgated by the Secretary. The 

court explained that the provisions of such a plan cannot "be used to impose general requirements of a 

variety well-suited to all or nearly all coal mines" 

but that as long as the provisions "are limited to 

conditions and requirements made necessary by peculiar 

circumstances of individual mines, they will not 

infringe on subject matter which could have been 

readily dealt with in mandatory standards of universal 

application." 536 F.2d at 407; See also Carbon County 

coal Co., 6 FMSHRC 1123, 1127 (May 1984) (Carbon County 

f); Carbon County Coal Co., 7 FMSHRC 1367, 1370-72 

(September 1985) (Carbon County II). 

In southern Ohio, supra, the Commission did not resolve the 

question of whether a defense to a safeguard may be based on its 

being generally applicable, as it found that there was no 

evidence of whether the safeguard was general or mine-specific. 

In contrast, in the case at bar, I find the following evidence in 

the record, as summarized by Respondent in its Brief at page 3: 

"The inspector estimated that he had been in over 100 underground 

mines and that approximately 80% have tracks and track haulage 

switches. Further, the inspector testified that the problem with 

track haulage switches not being maintained did not pose a greater 

hazard or safety problem in the Martinka Mine than in other mines 

that have track haulage switches, that the associated hazards 

would be the same at other mines as in the Martinka Mine, and that 

there was no reason why the contents of the Safeguard would be 

more applicable to the Martinka No. 1 Mine than to other mine" 

(sic). In contrast, Petitioner did not offer any proof with 

regard to the circumstances under which the safeguard was issued, 

the specific need for the safeguard at the subject mine, or 

whether similar safeguards had been issued for other mines. 

I find that generally, in allocating the burden of proof, 

one factor taken into account is which Party has the best knowledge of the particular disputed facts (Lindahl v. Office of 

Personnel Management 776 F2d 276 (Fed. Cir. 1985). The burden is 

not placed upon a Party to establish facts particularly within 

the knowledge of its adversary. In this connection, it appears 

that Respondent would have particular knowledge as to the circumstances under which the safeguard was issued, and the existence 

1573 
or need of similar safeguards at other mines (See Southern Ohio, 

supra, at 967~968. In addition, it has been held that generally 

MSHA has the burden of putting forth a prima facie case of a 

violation (Miller Mining Co, Inc. v. Federal Mine Safety and 

Health Review commission 713 F2d 487 (9th Cir 1983) See also Old 

Ben Coal Corp. v. IBMA 523 F2d 25, 39 (7th Cir. 1975)). As such, 

it had the burden of establishing all elements of the citation 

including the validity of the underlying safeguard. 

I thus conclude, based on all the above, that Petitioner has 

failed to establish that the safeguard in issue was mine-specific 

to the subject mine. As such, based on the rationale of Zieglar, 

supra, that I find applies with equal force to the case at bar, I 

conclude that because it has not been established that the safeguard was mine-specific, it therefore is invalid as it was not 

promulgated pursuant to the rule making procedures of section 101 

of the Act. Accordingly, I find that the Order herein, should be 

dismissed inasmuch as it was predicated upon an invalid safeguard. · 

ORDER 

It is ORDERED that: 

1. The Notice of Contest, Docket No. WEVA 88-6-R is 

SUSTAINED. 

2. Citation No. 2894708 be VACATED. 

3. Docket No. WEVA 88-88 be DISMISSED. 

4. Order No. 2894710 was properly issued. 

5. Notice of Contest, Docket No. WEVA 88-7-R be 

DISMISSED. 

6. Order No. 2894510 be AMENDED to reflect the fact 

that is is not significant and substa~tial. 

7. Order No. 289518.be VACATED. 

8. Respondent shall pay, within 30 days of this 

Decision, the sum of $200 as a Civil Penalty for the violation 

found herein. 

Avram 

~~ Weisberger 

Administrative Law Judge 

1574 
Distribution: 

David M. Cohen, Esq., Southern Ohio Coal Company, American 

Electric Power Service Corporation, P. O. Box 700, Lancaster, OH 

43130 <Certified Mail> 

Evert H. vanWijk, Esq., Office of the Solicitor, u. S. Department 

of Labor, 14480-Gateway Builqing, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

dcp 

1575 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIV~ LA.W JUDGES 

2 SKYLINE, 10th FLOOR •. · 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 171988 

ROCHESTER & PITTSBURGH COAL 

COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

RpCHESTER & PITTSBURGH COAL 

COMPANY, 

Respondent 

. . 

. . 

. 

. 

. . 

. . 

. . 

. . 

CONTEST PROCEEDINGS 

Docket No. PENN 88-152-R 

Order No. 2885050; 2/25/88 

Docket No. PENN 88-153-R 

Citation No. 2885051; 2/25/88 

Greenwich Collieries No. 2 Mine 

Mine I.D. No. 36-02404 

CIVIL PENALTY PROCEEDINGS 

Docket No. PENN 88-188 

A. C. No. 36-02404-03707 

Docket No. PENN 88-189 

A. C. No. 36-02404-03708 

Greenwich Collieries No. 2 Mine 

DECISION. 

Appearances: James Culp, Esq., Office of the Solicitor, U.S. 

Department of Labor, Philadelphia, Pennsylvania 

for the Secretary of Labor; 

Joseph A. Yuhas, Esq., Pennsylvania Mines 

Corporation, Ebensburg, Pennsylvania for 

Rochester & Pittsburgh Coal Company. 

Before: Judge Melick 

These consolidated cases are before me under section 

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

30 u.s.c. § 801 et seq., the "Act" to challenge five 

citations and one imminent danger withdrawal order issued by 

the Secretary of Labor against the Rochester and Pittsburgh 

Coal Company Cthe Company) and for:review of civil penalties 

proposed by the Secretary for the ~elated violatipns. 
Docket No. PENN 88-188 

Citation No. 2879226 alleges a "significant and 

substantial" violation of the regulatory standard at 

30 C.F.R. § 75.1707 and charges as follows: 

The designated intake escapeways for the Maint, 

T-6, T-4, T-1, and P-9 active working sections were 

not separate from the Main P and Main T belt 

haulage entry. Air readings were taken in the belt 

entries of Main T, T-6, T-4, T-1 and P-9 for a 

total air quantity of 601236 cfm air readings taken 

at the intake regulator 2x-cuts inby the portal 

between the belt and track entry together with an 

air reading take [sic] at the second overcast in 

the belt entry outby the portal resulted in 14,591 

cfm of air available to ventilate the belts. 

Subtracting this total from the total air on the 

belts indicates 45,645 cfm air entering the belt 

entries from the intake escapeways. 

The cited standard provides as follows: 

In the case of all coal mines opened on or after 

March 30, 1970, and in the case of all new working 

sections opened on or after such date in mines 

opened prior to such date, the escapeway required 

by this section to be ventilated with intake air 

shall be separated from the belt and trolley 

haulage entries of the mine for the entire length 

of such entries to the beginning of each working 

section, except that the Secretary or his 

authorized representative may permit such 

separation to be extended for a greater or lesser 

distance so long as such extension does not pose a 

hazard to the miners. 

The parties do not disagree that in the context of the 

above regulatory requirement (that the "intake air shall be 

separated from the belt and trolley haulage entries") it is 

understood in toe mining industry that the separation need 

only be "reasonably airtight" (See Exhibit 0-2 page 2). The 

disagreement in this case concerns the definition of the term 

"reasonably airtight". The Secretary maintains that based 

upon the undisputed volume of air entering the belt entry 

from the intake, calculated by MSHA Inspector and ventilation 

specialist Samuel Brunatti at 45,645 cubic feet per minute 

(cfm), the separation was not "reasonably airtight". The 

Secretary's experts, Brunatii~~n~supervisory MSHA Inspector 

James Biesinger (formerly a venti~ation specialist himself) 

support this view. While the Company does not dispute the 

calculations of air "leakage" it argues that 45,645 cfm of 

1577 
air entering the belt entry from the intake does not prove 

that the separation was not "reasonably airtight". Not 

surprisingly the testimony of its experts, Paul Enedy and 

Michael Ondeco, both graduate mining engineers with 

significant underground mining experience, support the 

Company's view. 

To further muddy the waters, the Secretary acknowledges 

that she has not established any standard of measurement of 

air leakage for determining whether a separation is 

"reasonably airtight". Moreover there is significant 

divergence of opinion, even between the MSHA experts, as to 

the amount of air leakage necessary to show that a separation 

is not reasonably airtight". 

Within this framework it appears that even reasonably 

prudent persons familiar with the mining industry widely 

disagree over what constitutes a "reasonably airtight" 

separation. See Alabama By-Products, 4 FMSHRC 2128 (1982) 

and U.S. Steel Corp., 5 FMSHRC 3 (1983). Accordingly there 

is no standard of air leakage by which a violation herein may 

be measured. I have also observed that none of the 155 

~toppings within the affected area were found not to be 

"reasonably air tight". Indeed the Company had examined each 

of these stoppings applying inspection standards accepted by 

~he Secretary in reaching this conclusion. 

Finally, I note that in abating this citation the 

Company was not required, and did not need, to alter any of 

the stoppings separating the intake and belt entries and 

was permitted to actually increase the "leakage" of air onto 

the belt entry by further opening an air regulator. Under 

all the circumstances I cannot find that the Secretary has 

sustained her burden of proving a violation of the cited 

standara. Citation No. 2879226 is accordingly vacated. 

Citation No. 2885015 was ~he suoject of a Motion for 

Settlement filed in this proceeding in which a reduction in 

penalty from $168 to $120 was proposed. As grounds for the 

reduction the Secretary stated as follows: 

Further investigation has revealed that the 

operator's negligence in this matter should be 

reduced from moderate to low. This bar [for 

deenergizing the motor on a was regularly tested 

during weekly electrical equipment examinations and 

had been tested the previous week. There was no 

indication in the electrical examination books that 

the bar would not deenergize,..the motor. The chief 

electrical engineer h~s explained that the bar did 

1578 
.in fact depress the button (stop switch) which 

would deenergize the motor. Immediately after the 

citation was issued, he depressed the bar and the 

bar hit the button which deenergized the motor. He 

was able to do this without a lot of pressure. It 

is undisputed that in view of the inspector's test, 

that the bar would not hit the button fully when 

hit at certain angles. The bar did have the 

capacity to work, however it is uncertain how often 

it would not fully operate. It appears as though 

there was a judgment call as to the capacity of 

this bar to work. In view of the foregoing the 

operator's negligence should be reduced to very 

low. 

I have considered the representations and documentations 

submitted with respect to this proposed settlement and I 

conclude that it is appropriate under the criteria set forth 

in section llOCi> of the Act. 

Dockets No. PENN 88-189, PENN 88-152-R and PENN 88-153-R 

Citation No. 2885051 alleges a "significant and 

substantial" violation of the standard at 

30 C.F.R. § 75.1722Ca) and charges as follows: 

Observed Robert Coy CUMWA) working under the Main T 

No. 1 belt conveyor Cnear the belt head) along the 

Main T belt/track entry. The belt conveyor was in 

motion exposing Mr. Coy to possible injury if 

contacted in that a guard was not provided for the 

bottom belt conveyor. The clearance between the 

bottom of the belt and the coal accumulation on the 

mine floor is 64 inches. This citation was one of 

the factors that contributed to the issuance of 

Imminent Danger Order No. 2885050 dated 02-25-88; 

therefore, no abatement time was set. 

The cited standard, 30 C.F.R. § 75.1722(a), provides as 

follows: 

Gears; sprockets; chains; drive, head, tail, and 

takeup pulleys; flywheels couplings, shafts; 

sawblades; fan inlets; and similar exposed moving 

machine parts which may be contacted by persons, 

and which may cause injury to persons shall be 

guarded. 

Accordin·g to Gerry Boring·, ag. MSHA coal mine inspector, 

the unguarded moving machin~ p~rt!tiere at issue was the 

1579 
moving belt coal conveyor. Boring was concerned that the 

subje~t miner in proceeding beneath the exposed moving belt 

might be struck if the belt should break or that he might be 

dragged into a roller by a bad splice. The evidence shows 

that this miner was about 67 inches tall and that the belt 

was between 72 to 79 inches above the solid mine floor, 

considering the 8 to 15 inches of wet accumulations on the 

floor beneath the belt and that it was 64 inches from the top 

of these accumulations to the bottom of the belt. 

The Company maintains that the cited conveyor belt 

was not a "similar exposed moving machine part" within the 

meaning of 30 C.F.R. § 75.1722(a) and that therefore there 

was no violation of that standard. In Secretary of Labor v. 

Mathies Coal Co., 5 FMSHRC 300 (1983), the Commission 

observed that this regulatory standard applies to the 

specific machine parts listed plus other exposed moving 

machine parts similar to those listed. In the Mathies case 

the Commission found that an elevator cage did not meet the 

definition of "similar" within the scope of the standard. It 

quoted the definition of the word "similar" as "l} having 

characteristics in common; very much alike ••• 2) alike in 

substance or essentials ••• 3a} having the same shape; 

differing only in size and position •••• " citing Webster's 

Third New International Dictionary at p. 2120 (unabridged 

19 71} . 

Applying this definition to the conveyor belt at issue I 

observe that although a conveyor belt has a common 

characteristic with the enumerated items i.e. motion, it is 

not "very much alike", "alike in substance or essentials" or 

of the "same shape" as the others. Indeed a conveyor belt 

clearly does not resemble, in form. or function, those 

machine parts specifically listed in the standard. Under the 

circwnstances I must agree with the Company that the conveyor 

belt at issue is not a "similar exposed moving machine part" 

under 30 C.F.R. § 75.1722(a} and that therefore there was no 

violation of that standard in this case. The citation is 

aceordingly vacated. 

Related Order of Withdrawal No. 2885050, issued pursuant 

to section 107(a} of the Act, reads as follows: 

Observed Robert Coy CUMWA} standing under the 

operating Main T No. 1 belt conveyor (near the belt 

head}. The clearance between the bottom of the 

belt and the coal accumulation on the mine floor is 

64 inches. Mr. Coy had .. been repairing a water line 

and was retrieving 3 block fi;:.om underneath said 

belt when observed. E~posed!machine parts which 

1580 
. may be contacted by persons, and which may cause 

injury to persons shall be guarded, 30 C.F.R. 

75.1722(a). 

Section 107(a) of the Act provides in part 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 ref erred 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 the imminent danger no 

longer exist. 

Section 3(j) of the Act defines "imminent danger" as 

the existence of any condition or practice in a coal or other 

mine which could reasonably be expected to cause death or 

serious physical harm before such condition or practice can 

be abated." The limited issue herein is whether such a 

condition or practice existed at the time this order was 

issued. 

According to MSHA Inspector Boring, the imminent danger 

order was issued because of a "condition" in which he 

observed coal miner Robert Coy proceed beneath the belt 

conveyor and retrieve a cement block. Inspector Boring 

maintained that this "condition" constituted an "imminent 

danger" because the belt might break and slap the miner, a 

defective splice in the belt might catch the miner and drag 

him into the rollers or belt structure, the miner might 

contact the belt (presumably by extending an arm) and 

break a finger or be knocked against a wall and sustain 

serious eye injuries from debris falling off the belt. While 

there is no evidence in this case that the belt was worn or 

otherwise likely to break or that any of the splices were 

deficient, I nevertheless find that the other hazards were 

such that the cited condition "could reasonably be expected 

to cause serious physical harm" if not discontinued. 

Accordingly I find that there was an imminent danger and 

affirm Order No. 2885050. 

1581 
Citation No. 2885053 alleges a "significant and 

substantial" violation of the standard at 30 C.F.R. § 

75.1713-7(c) and charges as follows: 

The first-aid supplies being maintained along the 

R-1 intake entry near survey station No. Xl710 in 

the active T-4 (011) working section are not being 

kept sanitary, dry and clean. The metal box 

housing the first-aid supplies is wet Cl/4 inch 

deep water near middle with the remainder of the 

floor damp and dirty). 

The cited standard provides that "[a]ll first-aid 

supplies required to be maintained under the provisions of 

paragraphs (a) and (b) of this section 75.1713-7 shall be 

stored in suitable, sanitary, dust tight, moisture proof 

containers and such supplies shall be a.ccessible to the 

miners". 

It is undisputed that splints are first-aid supplies 

under section 75.1713-7(b)(l2). It is also undisputed that 

the cited metal box housing the first-aid supplies had water 

inside and that the inflatable splints inside the box were 

also wet. It may therefore reasonably be inferred that first 

aid supplies required to be maintained by section 

75.1713-7 were not stored in a moisture proof container. The 

violation is accordingly proven as charged. 

The Secretary has failed however to sustain her burden 

of proving that the violation was 11 signif icant and 

substantial". At best Inspector Boring could conclude only 

that the wet splints, if used over an open wound "could have 

led to the possibility of infection". The mere "possibility" 

of infection does not meet the test of reasonable likelihood 

that the wet splints could result in injuries of a reasonably 

serious nature. See Mathies Coal Co., 6 FMSHRC 1 (1984). In 

any event I find it highly unlikely that a splint would be 

applied directly upon an open wound where clean and dry 

banqages are available. Under the circumstances the 

contemplated hazard of infection would be too remote to 

warrant a "significant and substantial" finding herein. 

I also find that the violation was the result of but 

little negligence. Inspector Boring observed that there is 

no regulatory requirement that first-aid supplies be 

regularly examined or inspected and it is not a part of the 

face boss examination to check such supplies. Under the 

circumstances a penalty of $!00 is appropriate. 

1582 
At hearing the parties agreed to a settlement of 

Citation No. 2884901 proposing a reduction in penalty from 

$259 to $205. I have considered the representations and 

documentation subnitted concerning that citation and I 

conclude that the proffered settlement is appropriate under 

the criteria set forth in section llOCi> of the Act. 

ORDER 

Citation No. 2885051 is vacated and Contest Proceeding 

Docket No. PENN 88-152-R is granted. Order No. 2885050 is 

affirmed and Contest Proceeding Docket No. PENN 88-153-R is 

dismissed. Citation No. 2879226 is vacated. Citations 

No. 2885015, 2884901 and 2885053 are affirmed and the 

Rochester and Pittsburgh Coal Company is directed to pay 

civil penalties of $120, $205, and $100 respe ively, for the 

violations charged in those citations within days of the 

date of this decision. 

Distribution: 

Joseph A. Yuhas, Esq., Rochester & Pittsburgh Coal Company, 

P.O. Box 367, Ebensburg, PA 15931 (Certified Mail) 

James E. Culp, Esq., Office of the Solicitor, U.S. Department 

of Labor, Room 14480-Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

nt 

1583 
FEDERAL MINE SAFETY AND HEAL Ti-I REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG· PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 2 31988 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

U.S. STEEL MINING CO., INC., 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 88-193 

A.C. No. 46-05907-03574 

Shawnee Mine 

DECISION 

Appearances: Mark R. Malecki, Esq., Office of the Solicitor, 

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

for the Secretary of Labor {Secretary); 

Billy M. Tennant, Esq., Pittsburgh, Pennsylvania, 

for the Respondent. 

Before: Judge Broderick 

STATEMENT OF THE CASE 

The Secretary seeks civil penalties for two alleged 

violations of the mandatory standard in 30 C.F.R. § 75.1102 which 

requires that underground belt conveyors be equipped with 

sequence switches. It is the Secretary's position that in the 3 

Right Section of the subject mine two sequence switches, one on 

the 8 left belt, the other on the North Mains 3 belt were 

inoperative. Respondent contends that the switches were in fact 

operative, and the Secretary's method for testing the switches 

was faulty. Pursuant to notice, a hearing was held in 

Charleston, West Virginia on October. 18, 1988. Gerald L. Smith 

and Junior Farmer testified on behalf of the Secretary; Peyton 

Lee Hale, Gaines Davis, and Henry Sessions testified on behalf of 

Respondent. Both parties waived the right to file post hearing 

briefs. I have considered the entire record and the contentions 

of the parties, and make the following decision. 

FINDINGS OF FACT 

At all times pertinent hereto, Respondent was the owner and 

operator of an underground coal mine in Wyoming County, West 

Virginia known as the Shawnee Mine. 

1584
On January 27, 1988, Gerald L. Smith, a Federal Coal Mine 

electrical inspector, conducted an electrical spot inspection at 

the subject mine. He was accompanied by regular inspector Junior 

Farmer, and by K.T. Miller, a representative of the United Mine 

workers union. A management repres~ntative did not accompany the 

inspection party. Among other things, inspector Smith inspected 

sequence swit~hes on conveyor belts. Sequence switches are 

designed to cause the shut.ting down of the "inby" belt when the 

"outby" or "mother" belt stops. Their purpose is to avoid coal 

spillage which would necessarily occur if the inby belt continned 

operating after the outby belt stopped. 

In.the subject mine, the belts were shut down every day from 

about 3:30 p.m. until about 5:00 p.m., between shifts. It was 

Respondent's practice to test the switches at that time by 

shutting down the main belt, and to grease the bearings, etc., as 

part of its belt maintenance program. In late 1987 and early 

1988, Respondent's maintenance foreman and chief electrician 

discussed the question of testing sequence switches with 

Inspectors Smith and Farmer. The inspectors requested that 

Respondent fashion a metal plate to insert between the sensor and 

the switch box in accordance with the instruction manual of the 

Appalachian Electronic Company which manufactured the switches: 

according to the manual, the insertion of such a metal plate 

should stop the inby belt if the switch is operating properly. 

The switch operates by means of a sensor which generates a 

magnetic field which in turn produces a pulse, and if the pulse 

is blocked or reduced the controlled device will stop. The 

testing procedure, by interjecting ferrous metal between the 

magnets and the sensor, blocks the entire magnetic field. 

During the January 27, 1988 inspection, Inspector Smith 

tested the sequence switch at the tail of the 8 left belt by 

using the metal plate which Respondent provided. He inserted the 

plate between the sensor and the roller. The 3 right belt (the 

inby belt) did not stop. The switch was a hybrid, however. It 

consisted of a control box manufactured and supplied by 

Appalachian Electronics and a sensor called "Hawkeye" from a 

different supplier, American Mine 'Resources. Henry Sessions, 

Executive Vice President of Appalachian Electronics, who devised 

the testing procedure in Appalachian's manual, testified that he 

could not state whether the hawkeye switch was compatible with 

the Appalachian control box. There were substantial 

accumulations of loose coal, coal dust and float dust on the mine 

floor near the junction of the belts. Inspector Sinith testified 

that these accumulations most likely resulted from the fact that 

the sequence switch did not operate properly, that is, it did not 

stop the 3 right belt when the 8 left belt stopped. There was no 

evidence of other possible causes of the accumulations, such as 

misaligned belts, large pieces of rock on the belts, etc. 

1585 
Inspector Smith then tested the switch at the North Mains No. 3 

belt in the same manner. The 8 left belt Cinby the North Mains 

#3) failed to stop. The entire switch system, including the 

control box and the sensor, was supplied by Appalachian 

Electronics. Again, there were accumulations of loose coal, coal 

dust and float dust on the mine floor. Again, there was no 

evidence of misaligned belts or large rocks on the belt. 

Inspector Farmer testified that the umion representative tested 

the switch by stopping the North Mains No. 3 belt. This resulted 

in the 8 left belt stopping. Inspector Smith denied that such a 

test was made. He stated that after he completed his test using 

the metal plate, he asked the union representative to shut down 

both belts. The union walkaround representative was not called 

to testify at the hearing. I find as a fact that the switch was 

not tested by shutting down the outby belt during this inspection. 

I accept Inspector Smith's testimony, and believe that Inspector 

Farmer's testimony was in error. 

The citation involving the North Mains No. 3 belt switch was 

abated by adjusting the cut out speed in the control box. 

Following this, Inspector Smith tested the switch by inserting 

the metal plate between the sensor and the magnetic wheel, and 

the inby belt began to shut down immediately. Inspector Smith 

was not present when the citation involving the 8 left belt 

switch was abated, but he terminated the citation upon checking 

the switch following the same procedure as on the North Mains No. 

3 belt switch. 

Citations were issued to Respondent for the accumulations 

of loose coal and coal dust described above. They are not part 

of this proceeding. 

ISSUES 

1. Were the cited sequence switches in operable condition 

on January 27, 1988? 

2. If violations were established, were they significant 

and substantial? 

3. If violations were established, what are the approp.riate 

penalties? 

CONCLUSIONS OF LAW 

Respondent is subject to the provisions of the Mine Safety 

Act in the operation of the Shawnee Mine, and I have jurisdiction 

over the parties and subject matter of this proceeding. 

1586 
The Secretary has the burden of establishing that the 

sequence switches were not properly operating on January 27, 

1988, that is, they were not shutting down the inby belt when the 

outby belt stopped operating. There was considerable testimony 

as to the best way to test the ope~ation of the switches. The 

issue, however, is not the proper test, but the functioning of 

the switch. Shutting down the outby belt is a valid, and 

probably the best way to test the switch. However, if the 

manufacturer's instructions concerning testing are properly 

followed a functioning switch should stop the inby belt when tre 

metal plate is inserted between the sensor and the magnetic 

wheel. Therefore, I conclude that the test performed by 

Inspector Smith on the sequence switch on the North Mains No. 3 

belt established that it did not operate properly to stop the 8 

left belt. The citation no. 2736047 is therefore affirmed. 

However, the evidence does not establish that the switch on the 8 

left belt was not operating properly. There is some evidence to 

support such a finding, namely, the existence of coal 

accumulations. The test of the switch, however, based on the 

manufacturer's (Appalachian) suggestion, was not a conclusive 

test since the switch had components from two different 

manufacturers, and there is no evidence as to the validity of the 

test in such a case. I conclude therefore that the Secretary has 

failed to carry her burden of proof with respect to citation no. 

2736042. 

The failure of a sequence switch to operate properly will 

cause coal spillage and ultimately accumulations of loose coal, 

coal dust and float dust. This in turn can result in the danger 

of a mine fire. Shawnee Mine experienced such a fire three or 

four years prior to the citation. I conclude that the violation 

was serious, and was likely to result in serious injury. 

Therefore it was significant and substantial under the 

Commission's test in Cement Division, National Gypsum, 6 FMSHRC 1 

(1984). 

Respondent's witnesses testified that they tested the 

switches daily, when the belts were shut down between the first 

and second shifts. The violation here was cited at 12:07 p.m. I 

conclude that Respondent's testing procedure was a valid one. 

'I'herefore its negligence is reduced. However, the accumulations 

of loose coal on the mine floor around the belt should have 

alerted Respondent to the problem. 

Respondent is a large operator. Its history of prior 

violations was moderate. The abatement of the violation was 

timely and carried out in good faith. I conclude that an 

appropriate penalty for the violation is $50. 

1587 
ORDER 

Based on the above findings of fact and conclusions of law, 

IT IS ORDERED: 

1. Citation 2736042 issuec} January 27, 1988 is VACATED. 

2. Citation 2736047 issued January 27, 1988 is AFFIRMED, 

including the findings that the violation charged is significant 

and substantial. 

3. Respondent shall within 30 days of the date of this 

decision pay a civil penalty in the amount of $50 for the 

violation found herein. 

'/ ~ ,-k- 1' U<:S /~/fvz..,rh i-ic:fl-

~ ~ames A. Broderick L- Administrative Law Judge 

Distribution: 

Mark R. Malecki, Esq., U.S. Department of Labor, Office of the 

Solicitor, 4015 Wilson Blvd., Rm. 516, Arlington, VA 22203 

(Certified Mail) 

Billy Tennant, Esq., 600 Grant Street, Rm. 1580, Pittsburgh, PA 

15219-4776 (Certified Mail) 

slk 

1588 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 2 81988 

MARION DOCKS, INC., 

Contestant 

: CONTEST PROCEEDINGS 

. 

. v. : Docket No. WEVA 88-169-R 

Order No. 2896051; 3/1/88 

SECRETARY OF LABOR, . 

. MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Respondent 

: Docket No. WEVA 88-170-R 

: Citation No. 2896052; 3/1/88 

Appearances: 

Before: 

: Docket No. WEVA 88-171-R 

Citation No. 2896053; 3/1/88 . . 

: Docket No. WEVA 88-172-R 

: order No. 28960541 3/1/88 

. . 

Docket No. WEVA 88-173-R 

Order No. 28960551 3/1/88 

Docket No. WEVA 88-174-R 

: Order No. 28960561 3/1/88 . . Docket No. WEVA 88-175-R 

Order no. 2896057; 3/1/88 

No. 1 Mine 

Mine ID 46-06904 

DECISIONS 

w. Henry Lawrence IV, Esq., Steptoe & Johnson, 

Clarksburg, West Virginia, for the Contestant; 

Joseph T. Crawford, Esq., Office of the 

Solicitor, U.S. Department of Labor, 

Philadelphia, Pennsylvania, for the Respondent. 

Judge Koutras 

Statement of the Proceedings 

These proceedings concern Notices of Contest filed by the 

contest~~t pursuant to section 105Cd> of the Federal Mine 

Safety and Health Act of 1977, challenging the legality of the 

1589 
captioned citations and orders issued p~rsuant to the Act. The 

contestant takes the position that its Marion Docks loading 

facility is not a mine within the stat~tory definition of that 

term as found in 30 U.S.C. § 802(h)(l). ·The record reflects 

that the contestant did not contest or seek review of the civil 

penalty assessments made by MSHA with respect to the contested 

citations and orders. Contestant's counsel confirmed that the 

contests which are the subject of these proceedings are based 

on the contestant's jurisdictional arguments, and assuming an 

adverse decision with respect to this issue, counsel confirmed 

that the contestant will pay the proposed civil penalty assessments and will not contest the fact of each violation or the 

amounts of the civil penalty assessments (Tr. 5-7). 

The respondent filed timely answers to the contests, and 

it takes the position that the loading facility in question is 

a mine within the statutory definition at 30 U.S.C. 

§ 802Ch)(l), and that the contestant is subject to MSHA's 

enforcernent jurisdiction. A hearing was conducted in Fairmont, 

west Virginia, and the contestant has filed .. posthearing arguments in support of its jurisdictional position. The respondent filed no posthearing brief, and relies on its pretrial 

jurisdictional arguments filed in its Memorandum in response to 

the contestant's motion for summary decision, which I previously denied. I have considered all of the arguments made by 

the parties in these proceedings, including those made on the 

record during the course of the hearing. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, 

Pub. L. 95-164, 30 u.s.c. § 801 et seg. 

2. Commission Rules, 29 C.F.R. § 2700.l et seq. 

Issue 

The issue presented in these proceedings is whether or 

nQt the contestant's Marion Docks loading facility is a mine 

subject to MSHA's inspection and enforcement jurisdiction. 

Discussion 

The contested citations and orders, which include "significant and substantial" (S&S) findings, were all issued by MSHA 

Inspector Homer W. Delovich during the course of an inspection 

~hich he conducted on March 1, 1988, and they are as follows: 

1590 
Section 104(d)(2) Order No. 2896051 cites an alleged violation of mandatory safety standard 30 C.F.R. § 77.1102(d), 

and the condition or practice is described as follows: 

At the diesel fuel tank storage, coal and 

coal dust was accumulated and completely 

covered up the backside of the 12 foot tank to 

the top and halfway up both ends. Condition of 

the tank was due to the coal storage pile 

loaded too high and against the tank. Presents 

a fire hazard and hazard to the workmen when 

walking and putting fuel in the tank. Tom 

Visnans, foreman of this shift, and tank stored 

next to the office and weight house where (sic) 

readily visible and condition has existed for a 

period of time. No one working to clean around 

the tank when observed. Tank holds 400 to 500 

gallons of fuel. 

Section 104(a) Citation No. 2896052 cites an alleged violation of mandatory safety standard 30 C.F.R. § 77.1104, and 

the condition or practice is described as follows: "Combustible materials of grease, oil and coal are accumulated on the 

frame, motor housing inside, radiator and sides of the Beckwith 966 Front End Loader. Tom Visnans foreman." 

Section 104(a) Citation No. 2896053 cites an alleged violation of mandatory safety standard 30 C.F.R. § 77.1104, and 

the condition or practice is described as follows: "Combustible materials of grease, oil and coal dust were accumulated in 

the frame, motor housing inside, radiator and sides of the 980 

Front End Loader. Tom Visnans, foreman." 

Section 104(d)(2) Order No. 2896054, cites an alleged 

violation of mandatory safety standard 30 C.F.R. § 77.205(b), 

and the condition or practice is dascribed as follows: 

The walking platform at the outer side and 

front of the slate picker's platfonn and at the 

bottom of the ladder landing to the crusher 

platform and area of between the two ladders 

were obstructed by coal spillage accumulations 

over the toe boards of approximately 12 to 

18 inches in height across the walkway platforms. For a distance of 15 feet at the slate 

picker's platform and 8 feet at the crusher 

platform. Conditions present a trip and stumble hazard. Rick Love-slate picker laborer and 

Tom Visnans foreman. 

1591 
Section 104(d)(2) Order No. 2896055 cites an alleged violation of mandatory safety standard 30 C.F.R. § 77.1104, and 

the condition or practice is described as follows: 

Combustible materials of oil, grease and 

coal dust were accumulated and caked on the 

front, back and sides of the 4 foot x 

6 1/2 foot crusher housing and coal dust was 

covering the floor of the platform housing the 

crusher. Tom Visnans, foreman. Conditions 

present an ignition and fire hazard. 

Section 104(d)(2) Order No. 2896056 cites an alleged violation of mandatory safety standard 30 C.F.R. § 77.205Cb), and 

the condition or practice is described as follows: 

The elevated stacker belt ramp walkway was 

obstructed at the entrance by piles of coal, 

accumulation of coal approximately 2 feet high 

on the ramp at the entrance for approximately 

9 feet and coal lumps inby up the ramp to the 

top. Condition presents a stumbling and 

tripping hazard. Tom Visnans, foreman. 

Section 104(d)(2) Order No. 2896057 cites an alleged violation of mandatory safety stand(3.rd 30 C.F.R. § 77.202, and 

the condition or practice is des.cribed as follows: 

The roller drum and bottom belt for approximately 5 feet were turning and running in 

accumulations of coal dust, the roller drum and 

pillar bearings were completely engulfed in 

coal dust. Condition presents an ignition and 

fire hazard. Tom Visnans, foreman. Conditions 

of coal and coal dust were ~t the roller drum 

and bottom belt of the Stacker Belt. 

~e~pondent's Testimony and Evidence 

MSHA Inspector Homer W. Delovich confirmed that he conducted an inspection of the contestant's dock facility on 

March 1, 1988, and that this was his first inspection there. 

However, from a review of MSHA's "mine profile," which includes 

information concerning past violations, respirable dust and 

noise sampling, training, and the mine legal identification 

information, he learned that the facility had previously been 

inspected by MSHA twice a year since 1985 (Tr. 17-22, exhibits 

R-1 through R-3). Mr. Delovich confirmed that the Mine ID 

1592 
infprmation reflects that the facility is a coal or barge 

loading facility, and he described the operation as follows at 

(Tr. 22-23): 

Q. Well, coal/barge loading facility. What do 

they do there, do you know? 

A. Yes, sir. They load coal, they weigh it, 

they blend it, they crush it, and they convey 

it into barges, across the road to the river. 

They have two draw-off tunnels that we inspect. 

Q. I'm sorry. That was two draw-off what, 

sir? 

A. Draw-off tunnels underneath the coal bins 

when they dump it which we inspect for methane 

and stuff. We have three conveyor belts. We 

have a crusher. We have a weight house. We 

have two endloaders there and, plus, we have 

the fuel tanks and scale house. 

Q. When you conducted your inspection, did you 

have a chance to observe the operation? 

A. Yes·, sir. 

Q. How is the operation performed from the 

time the coal comes in, do you know? 

A. The coal is brought in by a truck and 

weighed at the scale house. That is where the 

foreman has his office. Then it is taken 

either -- if they are dumping into the barges, 

it is taken to the barges by dumping into the 

coal bin. That is if they have barges 

available to load. If they don't, then they 

stock the coal in a pile and blend it that way. 

Mr. Delovich stated that he has observed coal being 

cleaned and crushed, and through conversations with superintendent Frank Miller, Mr. Sorbello., Mr. Bealko, and Mr. John 

Markovich, he learned that coal was also blended at the facility. Mr. Delovich explained that Mr. Sorbello, Mr. Bealko, 

and presumably Mr. Miller, buy coal, and also produce coal 

from mines which they own and operate. He identified them as 

the Deconder Mine, M & J Coal, Wasco Fuels, and a new mine 

which he identified as the Manley Mine, and confirmed that 

they are all located in West Virginia (Tr. 25). Mr. Delovich 

1593 
stated that he met Mr. Miller, Mr. Sorbello, and Mr. Bealko 

through his inspections at the M & J Coal Company. He also 

stated that the coal produced at these m.ines is brought out of 

the mines by conveyor belts, dumped and loaded onto trucks, 

and then transported to the contestant's loading facility. 

Mr. Delovich stated that he has inspected three other 

coal mines which sell or contract ·coal from the Sewickley and 

Pittsburgh seams to Mr. Sorbello, Mr. Bealko, and Mr. Miller, 

and he identified them as "the LaRosa Fuels on the Meredith 

job, the Patterson Brothers, and Thompson, the river mine" 

(Tr. 27). Mr. Delovich explained that the Sewickley coal is 

high in ash and "dirtier coal, 11 and that the Pittsburgh coal 

"is probably the best Pittsburgh coal in the United States as 

far as sulphur content is and the cleanliness of it" (Tr. 27). 

In order to fill its orders, and to keep the coal below a 

certain ash content, lvir. Delovich believed that the contestant 

blended the Pittsburgh low sulphur coal with the Sewickley 

coal, and he confirmed that he learned this through conversations with the company and other inspectors (Tr. 28). 

Mr. Delovich stated that while he was present at the 

M & J Coal Company mine for 10 or 12 days in connection with 

the sealing of a mine fire area, he spoke with Mr. Sorbello, 

Mr. Miller, and Mr. Bealko, and they were concerned that they 

needed to have the mine in operation because the coal was low 

in sulphur and ash and they had to blend it with their other 

coal in order to sell it at the Marion Docks. Mr. Delovich 

confirmed that Mr. Miller is the superintendent at the Marion 

Docks facility (Tr. 29). In response to a question as to 

whether he had ever observed blending being done at the Marion 

Docks, Mr. Delovich responded as ·follows (Tr. 29): 

A. I was talking to Frank Miller and them when 

we was writing their notices and the trucks was 

coming in, and if the truck comes in from one 

company and it is the type of. coal they need to 

put in, you know, they load so much trucks from 

one outfit and then they loaded so much and 

then they dump it in there and they try to 

blend it. When they stock it, they probably 

try to blend it that way. 

Q. But you saw the trucks coming in. 

~. Yes, sir, I saw the trucks coming in. I 

didn't know where they were coming from but 

that is how it was done. 

1594 
· Mr. Delovich confirmed that he has observed coal crushing 

taking place at the Marion Docks facility. He stated that 

crushing was required "because of the large size of coal 

coming through," the need to get rid of the large lumps of 

pyrite coal which will not sell or ruin the crusher. He 

described what he observed as follows (Tr. 30): 

THE WITNESS: The coal is dumped in a bin and 

goes down in the draw-off tunnel and comes up 

the chute where they have a man cleaning and 

picking slate. Then, underneath it, it drops 

into a crusher and then comes out and falls 

onto the belt and it takes it up to another 

pile which goes to another draw-off tunnel and 

to the river barge it is conveyed to. 

Mr. Delovich believed that the coal shipped from the 

Marion Docks facility goes to the Willow Island Electric Power 

Company located at Parkersburg, west Virginia, and that it is 

transported along the Monongahela, Allegheny, and Ohio Rivers. 

The power company burns the coal to furnish electrical power, 

and he learned that Willow Island was one of the contestant's 

customers through conversations with Mr. Miller and Mr. Bealko. 

In addition, one of the employees, John Martin, advised him 

that Willow Island had returned some barges of coal "because 

of dirty coal and that at that time that is why they had to 

watch how they blended their coal" (Tr. 31). He also learned 

this from another company who sells coal to the electrical 

company (Tr. 32). 

Mr. Delovich stated that he observed two endloaders, two 

draw-off tunnels, and three conveyor belts at the Marion Docks 

facility, and he described the function of the draw-off 

tunnels as follows (Tr. 32-33): 

THE WITNESS: Well, we dump coal into a bin on 

the first draw-off tunnel and it goes down 

underneath the ground. Then the belt is down 

there and it dumps onto the belt and it comes 

up where the slate picker is and then it drops 

into the crusher and then the crusher drops it 

out onto a little conveyor belt that takes it 

up and drops it into a pile and then they push 

it into a draw-off tunnel -- again, another 

one -- which goes over across the road and to 

the river to the barges. 

In clarifying his previous testimony that some of the 

coal transported to the facility is trucked and dumped directly 

1595 
into a barge if it were~~eadily available for loading, or stockpiled if there was no barge available, (Tr. 24), Mr. Delovich 

again confirmed that this was the case, but explained that 

"they don't dump it in the barge. They dump it into the coal 

chutes • • • " (Tr. 34). When again asked whether the coal is 

taken directly to the barge, he replied as follows at (Tr. 

34-35): 

THE WITNESS: With the truck. It is taken to 

there and then -- well, I don't know how they 

determine which coal they are blending. Now, 

of course, if it comes from one mine, I know we 

have two trucks coming out of M & J Coal and I 

have talked to those men. When I talked to the 

truck drivers there up at the mine, the M & J, 

they told me they needed the coal real bad. 

And, Mr. Markovich told me he has got to mine 

coal so that they can blend it or they can't 

sell their coal. 

Mr. Delovich identified a copy of the MSHA Mine Identification Number (ID), assigned to the M & J Coal Company, and 

confirmed that it is part of the mine profile maintained in 

MSHA's records for that mine (exhibit R-4, Tr. 37-38). He 

confirmed that Charles Sorbello is listed as the President of 

M & J Coal Company, and that he is also shown as the 

Secretary-Treasurer of Marion Docks in MSHA's legal identification file (Tr. 38, exhibit R-1). 

Mr. Delovich confirmed that he has previously inspected 

the M & J Mine, and he estimated that it is 5 miles from the 

Marion Docks facility. He confirmed that it is still operational, and was operational at the time he inspected Marion 

Docks in March, 1988 (Tr. 40). He also confirmed that Marion 

Docks has never previously questioned MSHA's jurisdiction to 

inspect its facility (Tr. 41). In addition to the M & J Mine, 

Mr. Delovich believed that Mr. Sorbello has an ownership 

interest in the No. 2 Williams M~ne, which he understands 

leases the mine to the "DeConder brothers," who sell the coal 

to Mr. Sorbello. Mr. Delovich also believed that Mr. Sorbello 

has an ownership interest in ~he Wasco Mine, which reclaims 

gob coal through a tipple and ships it to Marion Docks (Tr. 

42-43). Mr. Delovicn did not believe that Wasco Coal was controlled by Marion Docks, but that-Mr. Sorbello is an officer 

in both companies (Tr. 45). Mr. Delovich later stated that he 

has no knowledge that Wasco, which is also known as Wash 

Fossil Fuels, actually sh..i.p3 coal to Marion Docks, but that 

the Williams and M & J mines do (Tr. 47). 

1596 
. Mr. Delovich stated that in his prior conversations with 

Marion Docks superintendent Miller concerning MSHA's enforcement jurisdiction, questions were raised about two other dock 

loading facilities across the river, and he identified them as 

the Seccuro and Agerwald facilities. Mr. Delovich stated that 

Seccuro loads gravel and is under OSHA jurisdiction, and that 

Agerwald was conducting "test trial runs" at its loading facility to determine whether it was working properly (Tr. 41). 

On cross-examination, Mr. Delovich confirmed that therP 

are three other loading facilities operating in the vicinity 

of Marion bocks, and he identified them as Seccuro, Agerwald, 

and Preston Energy. He stated that Seccuro is the only one 

which has not been inspected by MSHA. He explained that · 

although Seccuro loads coal at its dock, it also loads gravel, 

and that MSHA's legal identification information for that 

facility reflects that it is under OSHA enforcement jurisdiction and is inspected by that agency and not by MSHA (Tr. 49). 

Although Seccuro has one conveyor belt and one loading bin for 

loading coal on barges, since it also loads other rock 

minerals, the jurisdictional interpretation communicated to 

him (Delovich), is that Seccuro is subject to OSHA, rather 

than MSHA, jurisdiction (Tr. 50). Mr. Delovich confirmed that 

he has never inspected the Seccuro facility, although he has 

visited the site to observe the operation, and he stated that 

"from what I understand, they load rock too. I have no 

jurisdiction" (Tr. 50). 

With regard to the Agerwald loading facility, Mr. Delovich 

stated that when he visited that site to conduct an inspection, 

he was informed that coal was being loaded "for a trial run." 

Upon return to his office after that visit, Mr. Delovich stated 

that Agerwald apparently called the MSHA district office, and 

that off ice advised him (Delovich) that "they said something 

about a trial run and that he was not under our jurisdiction 

and that in all probability he wouldn't be under our jurisdiction because he did not fit into the guidelines of what a barge 

loading facility would be" (Tr. 52). When asked about any MSHA 

guidelines concerning jurisdiction, Mr. Delovich responded "If 

they are loading other things such as rock or anything or don't 

own a mine" (Tr. 52). He confirmed that the Marion Docks facility loads only coal, while Agerwald loads coal, rock, and lime, 

and other minerals. When asked whether the kinds of minerals 

which are loaded is the determining factor as to whether OSHA 

or MSHA jurisdiction applies, Mr. Delovich responded" •.. it 

is not for me to determine. I question it too" (Tr. 53). He 

also stated that" .•. we are told that if they size the coal, 

blend the coal or clean the coal--that is under our 

jurisdiction" (Tr. 54 >. 

1597 
In response to a bench inquiry of MSHA' s counsel .as to 

any applicable MSHA guidelines for determining jurisdiction, 

counsel responded as follows (Tr. 53): 

MR. C"RAWFORD: No, there were no guidelines 

other than the case law, Your Honor, but it has 

been my understanding that because there were 

other facilities and they were loading lime and 

other materials, it was felt that they didn't 

fall under the jurisdiction, plus they were not 

treating in the same manner. 

Mr. Delovich stated. that it was his understanding that 

MSHA Inspector Ron Myer was dispatched to the Agerwald loading 

facility to obtain the information for a determination of 

jurisdiction, and that the information was taken back to the 

MSHA district off ice for a determination by district manager 

Ron Keaton (Tr. 55). Mr. Delovich confirmed that he has never 

discussed the Marion Docks case with Mr. Keaton, and that he 

did not report the fact that Marion Docks was loading coal to 

Mr. Keaton. Mr. Delovich did not know who may have made such 

a report. Mr. Delovich identified his supervisor as Steve 

Kuretza, from MSHA's Fairmont field office, and confirmed that 

he has never discussed the jurisdictional question concerning 

Marion Docks with Mr. Kuretza (Tr. 57). He also confirmed 

that he has never seen a copy of a March 9, 1988, letter from 

Marion Docks counsel Lawrence to Mr. Kuretza questioning 

MSHA's enforcement jurisdiction (Tr. 57). Mr. Delovich stated 

that since the issuance of the contested orders of March 1, 

1988, he has inspected the Marion Docks facility for respirable. 

dust compliance and has done so as part of his regular inspection assignments by Mr. Kuretza (Tr •. 58 >. 

Mr. Delovich could not identify by name the trucking 

companies which have transported coal to the Marion Docks 

facility, and he surmised that they were independent trucking 

companies. He confirmed that he has inspected these trucks 

for brakes and back-up horns once they enter the Marion Docks 

property, but has no jurisdiction to inspect them while on the 

highway in transit (Tr. 60). He also confirmed that MSHA has 

inspected Marion Docks since it first started its operation in 

1985, and that the mine ID information for that facility was 

filed with MSHA by Marion Docks. Mariah Docks also filed its 

training program information with MSHA (Tr. 61-62). 

1598 
Contestant's Testimony and Evidence 

Kevin J. Bealko, President, Marion Docks, testified that 

his company is a coal loading facility which was constructed 

"to tipple coal for various producers here in Marion County 

because the main reason being that the B & O Railroad was 

putting us out of business up here and we wanted to get on the 

river and stay active in the coal fields" (Tr. 74). He confirmed that the corporate officers consist of himself as 

president and one-third owner, and co-owners Charles Sorbello 

and Frank Miller. He stated that the dock is used solely as a 

means of accommodating 15 different mine operators that haul 

coal to the facility for the purpose of selling it. Marion 

Docks does not take title to the coal, has no direct sales. 

contracts with any of the utility companies, and all of the 

sales are handled through brokers. Marion Docks owns no coal 

mines or coal reserves, conducts no mining operations, and has 

no connection with any mines. Its sole occupation is that of 

a dock facility (Tr. 75-76). 

Mr. Bealko stated that Marion Docks does not purchase the 

coal that is shipped to the dock by the producers, but does 

have an "agent account" whereby brokers act as agents for 

Marion Docks for the purpose of handling the coal for the utility customers who purchase it from the brokers. Marion Docks 

has no direct sales contracts with any utility customers, but 

it does have sales agreements with brokers who in turn have 

utility sales contracts. In further explanation of these 

broker-customer arrangements, Mr. Bealko stated as follows 

(Tr. 76-77): 

Q. Okay. So, then is it correct that the 

broker has the contract with the utility or 

with the customer, the ultimate customer? 

A. Right, correct. They order up our barges 

and they tell us what spec as you have to hit 

in any coal that you load at any place, whether 

you are Consol or little Marion Docks. You 

have to hit a certain specification. That may 

be size or that may be ash or that may be 

sulphur or it may be all three. Our brokers 

notify us when the barges are coming and what 

specification we have to meet on those barges, 

as anyone does, like Consol or Island Creek or 

Peabody or no matter who you are, or Seccuro or 

Agerwald. They have got a spec they have to 

hit. That is just the nature of the coal 

business. You just don't load a coal from a 

1599 
particular job that hits that spec. It is a 

spec that may fit one job but when you are 

loadi~g three different types of orders that we 

have, you have got to do it over a period of 15 

jobs to make it all work through the course of 

a month. 

Mr. Bealko confirmed that upon arrival of the coal at its 

site, it is weighed, and if it is oversized and does not meet 

the broker's specifications, it is processed and crushed 

through belt hoppers and bar grizzlies that take out all of 

the coal fines. Approximately 10 percent of the larger coal 

of more than 4 inches goes to picking tables and crushers. He 

confirmed that the larger coal sizes cannot pass through the 

tipple or the bucket unloaders at the utility power plants, 

and that the utilities do not like any coal sized larger than 

"four by zero" (Tr. 78). 

Mr. Bealko also confirmed that his facility receives coal 

which is already sized at "four by zero." This coal, which 

amounts to 10 percent of each load, is taken directly to the 

surge hopper without crushing, and is dumped into the barges 

by means of conveyor belts. The coal under 4 inches never 

crosses the picking table or the crusher (Tr. 79). No coal 

washing or cleaning takes place, and only 4 percent of the 

coal ever "gets picked" at the picking table, and most of it 

goes to the crusher (Tr. 80). 

Mr. Bealko stated that his facility uses equipment such 

as belt conveyors and front-end loaders, but it does not have 

cyclones, washer plants, or scalpers to remove different 

pyritic impurities, and he described the equipment which is 

used as follows (Tr. 80-81): 

A. We have two high-lifts. We have the 

facility itself which is two bins that goes 

onto a belt that goes up to this bar grizzly 

that takes the fines away and that goes up to a 

radial stacker that drops into this surge 

hopper that goes over to the barges. The other 

part is the product that doesn't cross the 

grizzly that goes on to the picking table and 

goes into the crusher and at that point it 

winds up on the radial stacker and it goes up 

into the stockpile to the surge hopper that 

goes into the barges. 

Mr. Bealko confirmed that his company does not own the 

barges that transport the coal from his facility, or the 

1600 
~rucks that haul coal to the site. The truckers are independent contractors who "order up their trucks depending on what 

coal they have to haul" (Tr. 82). With regard to the inspector's reference to the Willow Island power plant, Mr. Bealko 

denied that his company has ever shipped coal to that utility. 

He confirmed that it does load coal for the Pleasants power 

plant, and other plants as determined by the coal brokers (Tr. 

83). 

Mr. Bealko confirmed that Mr. Sorbello owns one-half of 

the M & J Coal Company, a deep coal mine producing low sulphur 

coal, and that the majority of that coal comes to Marion 

Docks, and constitutes one-sixth of all coal production that 

comes to the dock from all mines. Mr. Markovich is also an 

owner of that mine. Mr. Bealko stated that he and Mr. Miller 

have no ownership interest in any coal mines, either as stockholders or corporate officers (Tr. 84). 

Mr. Bealko stated that prior to the design and construction of the Marion Docks facility, he operated tipples on the 

B & O railroad. The Bell Mining Company and other coal 

companies loaded coal at that facility, and he was aware of 

the fact that since coal was tippled at this facility, it was 

subject to MSHA's jurisdiction. Since his Marion Docks plant 

was the "same type of plant" as Bell Mining Company, and since 

MSHA inspectors advised him that Marion Docks would be 

inspected when it became operational, he took great pains to 

insure that his facility would be approved by MSHA and stay in 

compliance with MSHA's safety requirements. For these reasons, he filed for an MSHA mine ID number and operated for 

2-1/2 years loading coal and being inspected by MSHA. However, when he learned from MSHA inspectors that three other 

docking facilities in 'his area who operated facilities similar 

to his were not being inspected by MSHA, he then began to 

question MSHA's jurisdiction over his facility because "our 

identity and our dock is no different from any identity over 

any of the other docks up in our area (Tr. 85-86). 

Mr. Bealko indicated that #ith the exception of the 

Seccuro Dock, which also loads stone, the other docks do 

precisely what his does. He stated that the R. P. Agerwald 

Dock only crushes and loads coal from independent coal producers, and "comingles it to hit certain specs just like we 

have to do, and he puts it in barges which are ordered up from 

brokers just like we have to do" (Tr. 87). 

Mr. Bealko explained that the operator of the Agerwald 

Dock retained an attorney who contacted Inspector Delovich's 

supervisor, Mr. Kuretza. As a result of this, Inspector 

1601 
Delovich inspected the Agerwald operation arid reported to 

Mr. Kuretza "that there were many problems with that facility 

as far as cbming under MSHA to be approved, and Mr. Kuretza 

said, hey, leave it alone; we got a phone call from their 

attorney that says they are not ander our jurisdiction~ they 

are under OSHA, which I know is not pertinent to our situation 

but maybe it is because he is right across the river from us 

tippling coal just like we are" (Tr. 89). 

on cross-examination, Mr. Bealko stated that the coal 

broker is the customer who provides the coal specifications to 

Marion Docks, and Marion Docks provides the coal according to 

those specifications. He confirmed that Marion Docks has 

never had any of the coal which it has loaded for shipment 

ever rejected because it did not meet the required specif ications. He indicated that the "specifications" concern the 

size of the coal for unloading purposes, as well as the 

quality of the coal in terms of ash and low and high sulphur 

content, "as all specifications do," and that Marion Docks 

brings in coal to meet those specifications (Tr. 93-94). 

Mr. Bealko stated that "the broker kind of orders the 

coal from the mine. All we do is wait for the coal to show up 

on the dock and then we put that coal in the barges for those 

producers" (Tr. 94). Marion Docks knows that the coal which 

is shipped meets the required specification, and it receives 

payment from the broker and not the utility, and the broker 

takes title to the coal when it is shipped from the dock. 

Marion Docks is aware of the locations where the coal is 

shipped to in accordance with the specifications from the 

brokers who ordered the barges, and Mr. Bealko stated that "we 

have to in order to, you know, hit that specification that 

they are calling for." The receiving plant transmits its 

required specifications through the broker to the coal producer, and Marion Docks handles the coal at the dock for the 

producer so that it meets the specifications before it leaves 

the dock (Tr. 95). 

Mr. Bealko confirmed that Mr. Sorbello, one of his partners in Marion Docks, is the only shareholder who holds an 

ownership interest in the M & J Coal Company and the Bell Mining Company, a soft surface mine. Mr. Bealko also confirmed 

that Marion Docks accepts coal fo~ shipment from the M & J 

mine, and at times from the Bell mine (Tr. 96-97). 

Mr. Bealko confirmed that only 10 percent of the coal 

received at the Marion Docks for shipment goes to a picking 

table, and only 3 or 4 percent of tha~ ever gets picked. 

Picking is done to prevent big rocks and roof bolts from 

1602 
accidentally reaching and ruining the crusher, or causing 

problems .when it is off-loaded at a plant (Tr. 97). In the 

event the specifications call for the crushing of the coal, it 

is crushed by Marion Docks, but only 10 percent of the coal 

that reaches the picking table is crushed. The reason for the 

crushing is to meet a particular specification or to insure 

that it can be loaded in the barge and off-loaded at the plant. 

He further explained as follows (Tr. 99-100): 

A. Well, specifications are one thing. That 

is an analytical point of view on moisture, 

ash, sulphur, BTU. Sizing is something else. 

That is a whole separate specification, if you 

want to call it. It is a sizing specification 

versus an analytical specification. 

Q. Do you have to consider both when you load? 

A. For particular orders, yes. Some yes and 

some no. 

JUDGE KOUTRAS: Well, he has got to consider 

what the broker orders up, don't you? 

THE WITNESS: Exactly. 

JUDGE KOUTRAS: If a broker orders up all 

·crushed coal, fines, from a customer, then you 

are going to have to ship it, aren't you? 

THE WITNESS: Well, like I say --

JUDGE KOUTRAS: Or else reject the broker and 

tell the broker to find some other shipper. 

THE WITNESS: Somebody else to load it, right. 

But most of our coal is a four by zero product 

for our particular plants that our coal winds 

up to. 

JUDGE KOUTRAS: But the point is that you have 

to deliver and load coal that is specifically 

to the specifications of the customer who goes 

to the broker who, in turn, tells you, hey, 

this is the coal that has to go to customer 

"A" isn't that true? 

THE WITNESS: Correct. 

1603 
Mr. Bealko confirmed that Marion Docks ships coal from 15 

different coal producers who truck coal to the facility, and 

in response to a question as to whether or not he tests the 

coal for BTU, ash, and sulphur content, or rejects any coal 

and sends it back to the producers, Mr. Bealko stated as 

follows (Tr. 102-103): 

A. We have a general understanding of what 

mines are corning in. The broker takes most of 

the samples out in the field at the mines prior 

to coming into the loading facility. We know 

at that point what coal goes on what order 

because the broker is more or less handling the 

sample. They have their own lab and everything. 

As far as Marion Docks actually doing any of 

the sampling, it is out of our hands because 

the broker handles most of that. What we Know 

is that coal company "A" is hauling in and it 

is at a certain spec and that is what it is 

supposed to hit. We put it into the barge. 

You know, it is up to the broker and the 

pr.oducer to make sure that that happens. All 

we are doing is sizing the coal and putting it 

into the barge. 

And, at (Tr. 120-122): 

A. The broker organizes the sampling of the 

coal as it goes into the barges. 

Q. Well, he organizes, but where is it done 

physically? Where is the sampling done? Is it 

done there at the dock? 

A. It is done at the plant but they do a 

preliminary sampling when the coal is being 

loaded into the barges periodically to make 

sure the coal is being.loaded, you know, prior 

to going to the customer correctly. 

Q. What plant are you talking about? 

A. The power plant. In other words, the coal 

gets sampled at the plant. It is done through 

an automatic sampler. 

Q. Okay. 

1604 
A. On occasion, most brokers will spot check 

the coal being loaded at the docks. 

Q. Okay. 

A. So, they will come in with an independent 

lab that goes in and samples the barges prior 

to it being shipped down river so they know the 

specification of the coal prior to it going to 

the plant, so they can represent to their 

customer that here is what we have loaded and 

here is what is coming to you. 

Q. And, Marion Docks is not involved in that 

at all. 

A. No, no, we leave that strictly up to the 

broker. That is their connection with the 

plant. All we do is, like I say, the handling 

of the coal that goes into that barge. 

Mr. Bealko confirmed that all of the coal shipped from 

Marion Docks goes to utility companies in the "tri-state 

area," and in some circumstances the coal is shipped out of 

state (Tr. 105). In the event barges are unavailable for a 

shipment of coal which has been ordered to a particular specification, the coal is stock piled at Marion Docks. If a barge 

is available, the coal is processed through the facility, and 

is sized. If it is already sized, it is taken to a surge 

hopper, dumped in a bin, and transported by a conveyor belt to 

the barge. Some of the coal which has been previously sized, 

screened, or washed at the mine, goes directly to the barge 

(Tr. 107). In response to a question as to what would occur 

if coal is trucked to Marion Docks from different coal producers and no barges are readily available for immediate shipment, Mr. Bealko responded as follows (Tr. 108-110): 

JUDGE KOUTRAS: And, what happens to them? Are 

they stockpiled in 15 different piles? 

THE WITNESS: No. Normally in our plant right 

there, we can crush coal or size coal or stockpile coal ahead of the barges getting there. 

JUDGE KOU'rRAS: Okay. Knowing what the 

customer's needs are. 

THE. WI'rNESS: Exactly. we will know from the 

broker which barge is ordered up, and we can go 

1605 
ahead and crush or size or just place coal over 

the bin on five to six barges prior to the 

barges showing up. 

JUDGE KOUTRAS: So, you do, in fact, then, if 

you pardon the expression, and it might bring a 

twinge to counsel over there at the table, 

Mr. Lawrence, but you do custom blending, don't 

you, loosely stated? 

THE WITNESS: Or we use one particular coal for 

one order and one particular -coal for another 

order and some of it gets stockpiled and some 

of it gets processed for the barges coming in. 

JUDGE KOUTRAS: But depending on what the 

broker tells you, theoretically you could 

THE WITNESS: Load what -- there is not one 

particular coal for a particular order that 

comes in down there. 

JUDGE KOUTRAS: That's what I'm saying. So, 

you crush and blend and size and stockpile 

awaiting the barge to the specification of the 

customer, of a customer; isn't that true? 

THE WITNESS: In most circumstances. 

* * * * * * 

THE WI'rNESS: We are just more or less the 

loader. 

* 

JUDGE KOUTRAS: I know but in order for you to 

ship the right coal, the right blend of coal --

THE WITNESS: Oh, we have to know the 

specifications. 

JUDGE KOUTRAS: -- you have to know the specs, 

don't you? 

THE WITNESS: Exactly. 

JUDGE KOUTRAS: And, you do, in fact, do the 

blending process, don't you? 

1606 
THE WITNESS: If the coal needs to be blended, 

we do it. 

JUDGE KOUTRAS: If it needs to be done, you do 

it. 

THE WITNESS: We do it, right. 

JUDGE KOUTRAS: And, if it doesn't 

THE WITNESS: Right. 

JUDGE KOUTRAS: In other words, if all of this 

was done prior to coming to Marion Docks, all 

of the sizing and the blending and the washing, 

and it is just ready to be shipped, then it 

will simply go from the mine, already 

processed, to truck and to the barge, right? 

THE WITNESS: Exactly. 

JUDGE KOUTRAS: There wouldn't be any need to 

go through this intermediary stop. 

THE WITNESS: Exactly. 

In support of its motion for summary decision, the contestant submitted the affidavit of Charles J. Sorbello, Marion 

Docks Vice-President, and it states in relevant part as 

follows: 

1. Marion Docks is a privately-owned 

West Virginia corporation. It is not a 

subsidiary or division of any other corporation, nor is it the parent or holding company 

for any corporation. 

2. Marion Docks owns and operates a coal 

loading facility and dock located on the 

Monongahela River in Fairmont, West Virginia. 

It does not own or lease any other real 

property. 

3. At this loading facility, Marion Docks 

receives coal which is trucked on to its site 

and loads such coal onto river barges. The 

coal that is received at the site is transported from deep and surface mines not owned or 

leased by Marion Docks. When the coal arrives 

1607 
at the Marion Docks' site, it is dumped and 

stockpiled on pads. The coal is then loaded 

into a tipple where the coal is crushed and 

then loaded into river barges. Marion Docks 

does not own or operate a washing or preparation plant, nor does it blend the coal before 

loading it onto barges. 

4. Marion Docks does not own the coal 

which it receives for shipment. 

5. Marion Docks' facility is not located 

on land from which minerals are extracted, nor 

is it appurtenant to such a mining area. 

6. Marion Docks' facility is not a 

facility used in conjunction with the work of 

extracting minerals from the ground. 

Contestant's Arguments 

In support of its assertion that its Marion Docks loading 

facility is not a mining operation within th6 meaning of the 

Act, the contestant advanced the follcwing factual and legal 

arguments. · 

Marion Docks is a privately-owned West Virginia corporation. It is not a subsidiary or a division of any other 

corporation, nor is it the parent or holding company for any 

corporation. Marion Docks owns and operates a coal loading 

facility and dock located on the Monongahela River in 

Fairmont, West Virginia. It does not own or lease any other 

real property. 

At its loading facility, Marion Docks receives coal which 

is trucked on to this site. The coal which is received at the 

site is transported from deep and surface mines not owned or 

leased by Marion Docks. The coal is hauled by independent 

operators, not employed by Marion Docks. In addition, the 

trucks driven by such operators are not owned or leased by 

Marion Docks. 

When the coal arrives at the barge loading facility, it 

is dumped and stockpiled on loading pads. The coal is then 

loaded into a tipple where it is loaded into river barges. 

Marion Docks does not own or operate a washing or preparation 

plant nor does it blend the coal before loading it onto barges. 

Marion Docks does not take title to the coal which it receives 

for shipment. 

1608 
The Marion Docks facility is not located on land from 

which minerals are extracted nor it is appurtenant to such a 

mining area. Marion Docks' facility is not a facility used in 

conjunction with the work of extracting minerals from the 

ground. 

Marion Docks owns no coal reserves or coal leases. 

Marion Docks' customer is a coal broker with a contract for 

supplying coal to a utility located along the Ohio River. The 

broker is a separate corporate entity unrelated to Marion 

Docks. Neither the broker, nor Marion Docks, share common 

officers, shareholders, or directors. The broker orders the 

coal directly from one of a dozen mines which ship coal to 

Marion Docks. The broker also schedules delivery and arrival 

of the coal trucks to Marion Docks. The coal broker also 

arranges for arrival of river coal hauling barges at the 

Marion Docks facility. The broker is aware of the mineral and 

Btu qualities of the coal produced by each of the mines trucking coal to the Marion Docks facility. Marion Docks does not 

conduct tests to determine the specifications of any coal 

delivered to it. The broker either checks the specifications 

at the mine or at the Marion Docks facility. 

The loading facility used by Marion Docks consists of a 

tipple facility comprised of moving conveyor belts. In the 

tippling process, the coal is crushed to pieces smaller than 

4 inches square for ease of loading and unloading onto the 

river barges. In addition, the coal is passed over sizing 

screens thereby allowing all coal of the proper dim2nsions to 

pass onto a conveyor belt for direct loading onto the barges. 

Approximately 10 percent of the material does not drop through 

the sizing screens but is conveyed onward to a picking table 

for removal of rocks, bolts, other metal, and oversize chunks. 

This function serves a dual role of protecting the loading and 

unloading equipment and removal from the coal of nonspecific 

materials. 

Inspector Delovich testified that he is informed by his 

superiors that a loading facility is subject to MSHA jurisdiction if it sizes, blends or cleans coal. He believed that 

Marion Docks sized and blended coal at its loading facility, 

although he agreed that the coal was not cleaned at the facility. Inspector Delovich also indica~ed that he has been 

instructed that if a loading dock is engaged in the loading of 

materials other than coal <~·~· gravel) then that facility is 

not subject to MSHA jurisdiction. He referred to a loading 

facility located adjacent to the Marion Docks facility which 

1609 
loaded both coal and gravel and indicated that to his knowledge MSHA had not exercised jurisdiction over that facility 

because of the gravel loading operations. 

Contestant concludes that its Marion Docks facility does 

not fall within the statutory definition of the term "coal or 

other mine" because it is not "an area of land from which 

minerals are extracted" nor is it the "private ways and roads 

appurtenant to such areas" as provided for in the geographic 

parameters of a mine as defined in 30 U.S.C. § 820(h)(l). 

With regard to the functional definition of a mine facility 

used in the extraction or preparation of coal, contestant 

asserts that it is the term "work of preparing the coal" as 

defined in 30 U.S.C. § 802(i) which provides that Marion Docks 

is not subject to the jurisdiction of the Act. Contestant 

points out that this definition defines coal preparation as 

"the breaking, crushing, sizing, cleaning, washing, drying, 

mixing, storing, and loading of bituminous coal, lignite, or 

anthracite, and such other work of preparing such coal as is 

usually done by the operator of the coal mine." (Emphasis 

added.) 

In support of its argument that it is not subject to 

MSHA's enforcement jurisdiction, contestant cites the case of 

Secretary of Labor v. Oliver Elam, Jr., Company, Inc., 

4 FMSHRC 15 (1982), a case in which the Commission affirmed a 

Judge's decision that Elam's loading facility was not a "mine" 

subject to the Act. Contestant points out that in Elam the 

Commission indicated that the proper inquiry should focus on 

the nature of the operation and not solely upon whether or not 

one or more of the activities listed in section 802(i) of the 

Act was performed. Contestant argues that the Commission 

focused on several factors which are also present in its case, 

including the fact that the loading dock did not contract with 

either the mine operators from whom it received the coal nor 

with its customers to whom it delivered the coal, and concluded that although the coal was loaded through a tipple 

facility which included a hopper, crusher and conveyor belts, 

those facilities were used for loading the coal rather than 

for preparing it to meet market specifications. 

In addition to the Elam case, contestant cites a decision 

by the United States District Court for the Southern District 

of Indiana, Donovan v. Inland Terminals, Inc., 3 MSHC 1893 

(March 1985), in which the court found that MSHA lacked 

enforcement jurisdiction over a loading facility whose operator had no contracts directly with the coal operators from 

whom it received the coal nor with the customers who used the 

1610 
coai, and where the breaking, crushing and loading of coal was 

done to facilitate the loading operation. 

Contestant maintains that its case is similar to the Elam 

and Inland Terminals cases, and dissimilar from the cases 

cited by MSHA in support of its jurisdictional argument, 

namely, Little Sandy Coal Sales, Inc. v. Secretary of Labor, 

7 FMSHRC 891 (June 1985), and Secretary of Labor v. Mineral 

Coal Sales, Inc, 7 FMSHRC 615 (May 1985). In Little Sandy 

Coal Sales, Inc., the Commission found jurisdiction because 

the facility purchased raw coal from local mines, custom processed it, sized it to meet market specifications depending 

upon customer demands, and then loaded it onto barges for 

delivery to users. In Mineral Coal Sales, the Commission _ 

affirmed my jurisdictional finding that the "operation carried 

out by Mineral includes the custom blending and loading of 

coal to meet the • • • specifications and needs of its brokers 

and customers," and found that the various operations taking 

place at the Mineral Sales single site, when viewed as a 

collective whole, indicated that the facility was a mine. In 

essence, the Commission found no distinction between the 

loading facility and the broker who arranged such shipments 

and sales, and oversaw the custom blending. Contestant views 

this fact as a critical distinction from its case "where the 

Marion Docks facility is owned and operated primarily by Kevin 

Bealko, who has no interest in either the broker or any of the 

mines which ship coal through the facility." 

Findings and Conclusions 

The Jurisdictional Question 

Section 4 of the 1977 Mine Act, 30 U.S.C. § 803, states: 

"Each coal or other mine, the products of which enter 

commerce • • • shall be subject to the provisions of this 

Act." 

Section 3(h)Cl> of the Act, 30 u.s.c. § 802Ch)(l)CC), 

defines "coal or other mine" in relevant part as: "CC) lands, 

••• structures, facilities, equipment, machines, tools, or 

other property .•• used in, or to be used in, or resulting 

from ..• the work of preparing coal or other minerals, and 

includes custom coal preparation facilities." 

Section 3(i) of the Act, 30 U.S.C. § 802Ci), defines the 

term "Work of preparing the coal" as follows: "'[W]ork of 

pceparing the coal' means the breaking, crushing, sizing, 

cleaning, washing, drying, mixing, storing, and loading of 

bituminous coal, lignite, or anthracite, and such other work 

1611 
of preparing such coal as is usually done by the operator of 

the coal mine." 

The critical issues in this case are whether or not the 

loading operations taking place at the Marion Docks facility 

involve the "work of preparing the coal," and whether or not 

that facility is a "mine" subject to MSHA's inspection and 

enforcement jurisdiction. Contestant relies on the decisions 

in Secretary of Labor v. Oliver Elam, Jr., Company Inc., 

4 FMSHRC 5 (January 1982), and Donovan v. Inland Terminals, 

Inc., 3 MSHC 1893 (March 1985), in support of its argument 

that MSHA lacks jurisdiction in this case. MSHA relies on the 

decisions in Little Sandy Coal Sales, Inc., v. Secretary of 

Labor, 7 FMSHRC 891 (June 1985), and Secretary of Labor v. 

Mineral Coal Sales, Inc., 7 FMSHRC 615 (May 1985), in support 

of its argument that MSHA has jurisdiction in this case. An 

examination of these precedent decisions involving coal loading and preparation facilities engaged in activities similar 

to those by Marion Docks follows below. 

The Elam case concerned a commercial dock operator whose 

loading facility loaded steel, ingot cars, pipe, tar pitch, 

and coal onto barges. Approximately 40 to 60 percent of the 

tonnage loaded at the dock was attributable to coal which was 

shipped to the customers of coal brokers who paid Elam to load 

the coal for shipment to customers designated by the brokers. 

Elam also owned construction equipment such as cranes, trucks, 

and bulldozers which it leased to others, and its employees 

were used interchangeably in its dock and equipment rental 

operations. The coal which was crushed by Elam was essentially 

crushed to one size solely to facilitate the barge loading 

process, and Elam did not prepare coal to market specifications 

or for any particular use, nor did it separate waste from coal 

or add any material to it. 

In Elam, the Commission held that inherent in any determination--as-to whether an operation is properly classified as 

"mining" is an inquiry not only into whether the operation 

performs one or more of the activities listed in section 3(i) 

of the Act, but also into the nature of the activity performing such activities. Upon examination of F.lam's activities 

with respect to its "work of preparirig the coal" to make it 

"suitable for a particular use or to meet market specif ications," the Commission concluded that Elam's handling of the 

coal, which included storing, breaking, crushing, and loading, 

was done solely to facilitate its loading business and not to 

meet customer's specifications or to render the coal fit for 

any particular use. 4 FMSHRC, at 7-8 (January 1982). 

1612 
· The Inland Terminals case was before the Court on a 

motion by the Secretary of Labor for a preliminary injunction 

enjoining Inland from denying entry to MSHA inspectors who 

sought to inspect Inland's operations. The facts in that case, 

as found by the court, reflect that Inland was a commercial 

dock operator who in addition to loading coal onto barges for 

its coal broker customers, also engaged in the business of 

repairing, rigging, and cleaning barges for any customers 

requiring such services. Upon instructions from its coal 

broker customers, to load a certain amount and type of coal, 

Inland ran the coal through its crushers, and occasionally 

blended different types of coal based upon the specifications 

which the broker customers found necessary to fulfill its 

contracts. Of the four crushers used by Inland to facilitate 

its loading operation, only one had the capability to separate 

coal from rock or other waste materials, and approximately 

10 percent of the coal loaded bypassed the crushers and was 

loaded directly onto the barges. Notwithstanding the fact that 

Inland on occasion blended coal to customer specifications, the 

Court, relying on the Commission's Elam decision, found that 

Inland was not a mine covered by the Act, and stated as follows 

at 3 MSHC 1895: 

The Court recognizes that certain factors 

in this case are distinguishable from the facts 

in Elam. However, based upon the facts presented at the hearing the Court concludes that, 

like Elam, the nature of Inland's operation 

militates more strongly toward a finding that 

Inland is a shipping or loading facility that 

handles coal and is not a "mine." 

In the Mineral Coal Sales, Inc., case, the cited operator 

owned a facility known as Mineral Siding, which handled solely 

coal, and the facility consisted of a railroad siding, a 

storage yard, and a trailer that housed laboratory equipment 

for testing coal. Equipment at the site included a truck 

scale, a mobile tipple that crushed coal and conveyed it to 

railroad cars, a stationary tipple, grading tipple, and 

front-end loaders used to transfer coal from various stockpiles to the tipples. Mineral Coal Sales extracted no coal 

itself and was not affiliated with any producing mine or 

transportation company. The coal handled at its facility was 

purchased by coal brokers from producing mines or independent 

truckers. The brokers arranged for delivery of coal by truck 

to Mineral Siding and, after loading, for delivery by rail 

to the various customers of the brokers. Mineral Coal Sales 

charged the brokers a flat rate per ton of coal loaded onto 

the railroad cars. 

1613 
Coal trucked to Mineral Siding was weighed on a truck 

scale by an employee of Hubbard Enterprises, a coal broker 

operating at Mineral Siding. Coal of substantially the same 

quality was stockpiled together, and once the coal was stockpiled, Hubbard tested it to determine BTU, ash, and sulphur 

content, and its free swelling index. When coal was ready to 

be loaded for shipment to a customer, Hubbard informed Mineral 

Sales as to how many scoops of coal should be taken from 

particular stockpiles in order to fill the appropriate number 

of railroad cars comprising the order. Mineral Sales would 

then draw off the proper nllinber of scoops from the stockpiles 

and dumped them into the hopper of the mobile tipple. A 

Mineral Sales employee operated the tipple and oversaw the 

loading of the railroad cars. The coal passed from the tipple 

hopper into a crusher unit where it was crushed to a uniform 

size. The coal then traveled on the tipple conveyor belt for 

loading into the railroad car. Once the car was loaded, 

Hubbard again sampled and tested the coal to ensure that the 

load met the specifications of the respective order. A 

stationary grading tipple was also present at the Mineral 

Siding facility. Coal passed over various sizing screens to 

separate "lump," "egg," and "stoker" coal, and the tipple was 

used primarily to produce coal for domestic ~onsumption. 

In contesting MSHA's enforcement jurisdiction, Mineral 

Coal Sales maintained that it was not a mine operator and that 

its Mineral Siding facility was not a mine. In my decision at 

6 FMSHRC 809 (April 1984), I rejected both arguments, and 

found that unlike the operation involved in the Elam case, the 

coal loading process carried out at the Mineral Siding facility included a procedure and practice whereby the coal which 

was ultimately loaded and shipped to the customers of the 

broker (Hubbard) was mixed to their specifications and standards. I further found that the operation carried out by 

Mineral Coal Sales included the custom blending and loading of 

coal to meet the specifications and needs of h~bbard's 

customers. 6 FMSHRC at 840. 

Upon review of my decision, the Commission affirmed my 

jurisdictional findings and conclusions, and stated as follows 

at 7 FMSHRC 620: 

[W]e have no difficulty concluding that the 

business engaged in at Mineral Siding constitutes "mining" under the Act. At this facility 

coal is stored, mixed, crushed, sized, and 

1614 
loaded--all activities included in the statutory definition of coal preparation. Furthermore, an examination of the nature of the 

Mineral Siding operation reveals that, unlike 

the commercial loading dock in Elam at which 

was coal crushed merely to facilitate loading 

and transportation on barges, at Mineral Siding 

all of the above listed work activities are 

performed on the coal to make it "suitable for 

a particular use or to meet market specif ications." ••• Thus, coal preparation occurs 

at Mineral Siding and MSHA properly asserted 

its inspection authority over the facility. 

In response to Mineral Sales' contention that its 

employees at the Mineral Siding facility merely loaded coal 

from two or three different stockpiles under the direction and 

control of the broker Hubbard, a separate entity, the 

Commission ruled thc.t the operations taking place at a single 

site must be viewed as a collective whole. Given the active 

presence and control exercised by Mineral Sales at the site, 

including the intermingling of personnel and functions among 

the various entities at the site, and the operation and supervision of the site by Mineral Sales after it terminated the 

various lease arrangements, the Commission concluded that 

Mineral Sales was properly found to be the operator of the 

mine. 

Little Sandy Coal Sales, Inc. concerned a coal processing 

plant which purchased coal from local mines and processed it 

for household and commercial sales. Judge Melick relied on 

the Mineral Coal Sales decision in finding jurisdiction, and 

concluded that the storing, mixing, crushing, sizing, and loading of coal by Little Sandy to make it "suitable for a particular use or to meet market specifications," constituted a mining 

operation, and that MSHA properly asserted its inspection 

authority over the facility. 

The facts in this case show that the contestant operates 

a coal loading tipple facility which loads and ships coal by 

river barges to several utility customers who purchase the 

coal from brokers. The brokers arrange for the purchase and 

sale of the coal which is produced at several mines and then 

shipped to Marion Docks by independent truckers. The contestant's president, Kevin Bealko, confirmed that he had previously operated coal tipple facilities on the B & 0 Railroad, 

and that he loaded and shipped coal produced at several local 

mines from that facility. Upon cot1struction of the Marion 

Docks facility, which Mr. Bealko characterized as the "same 

1615 
type of plant" as the previous tipple facility, and believing 

that MSHA would begin inspecting the new facility "just like 

any other ti~ple that they inspected," the contestant filed 

for and received an MSHA Mine ID number. The facility was 

then inspected on a regular basis by MSHA for a period of 

2-1/2 years, and the inspections have continued to the present. 

Mr. Bealko confirmed that his jurisdictional question was 

raised when he recently learned that other similar dock 

facilities in close proximity to his are not inspected by MSHA. 

Mr. Bealko identified one in particular, the R. P. Agerwald 

Dock, and he claimed that it is identical to his operation, 

but is not inspected by MSHA because of an asserted lack of 

jurisdiction. 

The evidence adduced in this case establishes that the 

Marion Docks facility handles and processes coal which is 

trucked there from approximately 15 producing mines. The 

facility is equipped with a scale house, endloaders, hoppers, 

crushers, conveyor belts, chutes, draw-off tunnels, picking 

tables, bar grizzlies, stackers, bins, and hi-lifts, all of 

which are used to process and prepare coal for loading and 

shipment to utility customers. Although the coal is not 

washed, some of it is conveyed to picking tables where slate 

and other debris is "picked" from the coal. Some of the coal 

which has been sized or crushed at less than 4 inches before 

its arrival at the facility may be taken directly to a barge 

for loading, if one is readily available. If not, the coal is 

stockpiled. Coal which is larger than 4 inches and cannot 

pass through the loading tipple or the bucket loaders which 

receive it at the utility is conveyed to the crushers and picking tables, and coal which does not meet the broker's specifications is processed through hoppers and bar grizzlies which 

remove all of the coal fines. 

The thrust of the contestant's jurisdictional argument is 

that it has no ownership interest or connection with any of 

the producing mines which ships coal to its facility, has no 

connection with the coal brokers, and that the coal processed 

through its facility is processed solely for the purpose of 

facilitating the loading of the coal at the dock, and the 

unloading of the coal at the point of destination. The contestant denies that it is engaged in any "custom coal blending," 

and it takes the position t~at none of its activities in 

connection with the "work of preparing the coal" involves the 

preparation of coal to meet customer market specifications. 

While it is true that there is no evidence that the contestant, as a corporate entity, has any ownership interest in any 

of the producing mines which ship coal to its facility, one of 

1616 
its· corporate officers, Charles Sorbello, has an ownership 

interest. in at least two mines which sells and ships coal 

through the contestant's facility. However, I cannot conclude 

that these facts are particularly critical to any jurisdictional determination in this case. The fact that a coal 

preparation facility may have no connection with the coal 

extraction process or the mine operators who extract the coal 

is irrelevant to the question of whether or not jurisdiction 

attaches under the Act. See,~-~·' Marshall v. Stoudt's Ferry 

Preparation Co., 602 F.2d 589 (3d Cir. 1979), cert. denied, 

444 U.S. 1015 (1980}; Marshall v. Tacoma Fuel co:-; 

No. 77-0104-B (W.D. Va. June 29, 1981}; Secretary v. Carolina 

Stalite Company, 6 FMSHRC 2518 (Nov. 1984}; Secretary v. 

Alexander Brothers, Inc., 4 FMSHRC 541 (April 1982}. 

With regard to the question as to whether or not the contestant's coal processing activities include custom blending 

of coal to meet customer or market specifications, I take note 

of Mr. Sorbello's affidavit in which he denies that any coal 

blending is done before the coal is loaded for shipment. I 

also take note of the fact that Mr. Sorbello did not testify 

in this case, and that Mr. Bealko was the only witness called 

by the contestant in support of its case. 

Inspector Delovich testified that he observed coal being 

weighed, cleaned, crushed, stockpiled, and loaded at the 

Marion Docks facility. Although he observed no blending 

taking place, Mr. Delovich stated that in conversations with 

Mr. Bealko, Mr. Sorbello, Mr. Markovich, and other inspectors, 

he learned that blending was done at the facility. 

Mr. Delovich believed that low sulphur Pittsburgh coal was 

being blended with the high ash Sewickley coal, and that this 

was done as it was dwnped and stockpiled. Mr. Delovich testified that during an inspection at the M & J Coal Company mine 

in connection with a mine fire, Mr. Bealko, Mr. Sorbello, and 

Marion Docks superintendent Frank Miller all expressed their 

concern in keeping the mine open because of the need to blend 

its low sulphur and ash coal with the other coal handled at 

the facility in order to sell it. 

During a bench colloquy with the contestant's counsel 

regarding his motion for summary decision at the close of 

Mr. Delovich's testimony, counsel conceded that the contestant 

engaged in some of the activities connected with the breaking, 

crushing, sizing, cleaning, washing, drying, mixing, storing, 

and loading of coal (Tr. 70). Except for the washing and 

drying of coal, it seems clear to me that the evidence in this 

case supports a conclusion that the contestant's facility 

engaged in the other enumerated activities. 

1617 
With regard to any custom coal mixing or blending 

activities,_ contestant's counsel agreed that Mr. Delovich's 

testimony reflects that the coal processed at the facility is 

subjected to some kind of a mixing process before it is loaded 

for shipment. In the context of coal blending, counsel stated 

that "I think it is nothing more than taking a scoop from one 

pile and a scoop from another. To the extent that the loading 

facility does something other than that, there has been no 

testimony to that" (Tr. 69). 

Mr. Bealko testified that all of the coal handled and 

processed at the Marion Docks facility must meet the customer's 

specifications before it is loaded for shipment. At several 

points during the course of his testimony, Mr. Bealko alluded 

to the fact that his facility does mix and blend coal to meet 

the specifications of a particular customer. For example, he 

stated that any coal which arrives at the facility which does 

not meet the broker's specifications is crushed and processed 

in order to meet those specifications (Tr. 78). Brokers who 

"order up barges" also inform Marion Docks as to the particular 

coal specifications which must be met before the coal is loaded 

for shipment, and these specifications may include the size of 

the coal, and its ash or sulphur content (Tr. 77). Marion 

Docks must insure that the coal meets the customer's specifications before it leaves the dock (Tr. 95). Although crushing 

and sizing may be done to meet the customer's coal size specification to facilitate the loading and unloading of the coal, 

some particular customer orders include analytical specif ications to insure that proper moisture, ash, sulphur, and BTU 

content are met (Tr. 99). 

Conceding that MSHA had jurisdiction over a prior coal 

tipple loading operation which he operated prior to the construction of his Marion Docks facility, Mr. Bealko characterized his prior operation as the "same type of plant" as the 

Marion Docks facility (Tr. 85). In explaining the coal loading and crushing operation carried out by the R. P. Agerwald 

Dock operating near his facility, Mr. Bealko stated that it 

"comingles it to hit certain specs just like we have to do, 

and he puts it in barges which are ordered up from brokers 

just like we have to do" (Tr. 87) (emphasis added). 

Although Mr. Bealko confirmed that some of the coal which 

is received at the Marion Docks facility is already sized and 

prepared for shipment directly to a customer, he also confirmed that if a barge is not readily available for loading, 

coal is crushed and sized according to the customer's needs 

and then stockpiled while awaiting the arrival of a barge for 
lo~ding (Tr. 108-109). Mr. Bealko candidly admitted that in 

most circumstances, the coal processed at the facility is 

crushed, sized, and blended at that facility in accordance 

with the customer's specifications (Tr. 109). In response to 

a direct question as to whether or not his facility is engaged 

in the blending process, Mr. Bealko responded "if the coal 

needs to be blended, we do it" (Tr. 110) (emphasis added). 

After careful review and consideration of all of the 

testimony and evidence adduced in these proceedings, I conclude and find that the activities carried out at the contestant's Marion Docks facility constitutes "mining" under the 

Act, and that those activities place the contestant within its 

jurisdiction. The evidence establishes that the sole proquct 

handled at the facility in question is coal which is mixed, 

crushed, sized, stored, and loaded. All of these activities 

fall within the statutory definition of "coal preparation," 

and brings the contestant within the Act's jurisdiction. I 

reject the contestant's contention that its handling and processing of coal is merely to facilitate its loading and unloading. To the contrary, while it is true that some of the coal 

is processed for this purpose, the testimony and evidence 

adduced reflects that coal is also in fact custom blended, 

mixed, crushed, and sized at the facility in order to meet a 

particular customer's needs and specifications. 

I reject the contestant's reliance on the Elam and Inland 

Terminals decisions. Those decisions were based on facts which 

indicated that the "work of preparing the coal" was accomplished solely to facilitate the coal loading process, rath~r 

than rendering the coal fit for any particular customer's needs 

or specifications. In my view, the facts presented in the 

instant proceedings are more akin to those presented in Mineral 

Coal Sales, Inc., supra, where my finding of jurisdiction was 

affirmed by the Commission. 

Fact of Violations 

As stated earlier, the contests were filed by the contestant for the purpose of contesting MSHA's jurisdictional 

claims, and the contestant confirmed that in the event of an 

adverse decision and rejection of its jurisdictional arguments, it will not contest the violations further and will pay 

any proposed civil penalty assessments for the violations in 

question. Under the circumstances, and in view of my rejection of its jurisdictional claims, all of the aforementioned 

contested citations and orders issued by Inspector Delovich on 

March 1, 1988, ARE AFFIRMED as issued. 

1619 
ORDER 

In view of the foregoing findings and conclusions, the 

NoticeE; of Contest filed by the contestant ·in these proceedings ARE DENIED AND DISMISSED. The previously filed motions 

by the contestant for summary decisions in its favor ARE 

LIKEWISE DENIED, and the contested citations and orders are 

all AFFIRMED. 

~f ~otL~ strative Law Judge 

Distribution: 

W. Henry Lawrence IV, Esq., Steptoe & Johnson, Union National 

Center East, P.O. Box 2190, Clarksburg, WV 26302-2190 

(Certified Mail> 

Joseph T. Crawford, Esq., Office of the Solicitor, U.S. 

Department of Labor, Room 14480 Gateway Building, 3535 Market 

Street, Philadelphia PA 19104 (Certified Mail) 

/f b 

1620 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 NOV 2 81988 

LOCAL UNION 9958, DISTRICT 22, 

UNITED MINE WORKERS OF 

AMERICA, 

: COMPENSATION PROCEEDING . . 

: Docket No. WEST 87-186-C 

Complainant : 

v. 

KAISER COAL CORPORATION, 

Respondent 

. . 

. . 

. . 

: 

. . 

DECISION 

Sunnyside No. 1 Mine 

Appearances: Brad Rayson, Esq., United Mine Workers of America, 

Denver, Colorado, 

for Complainant; 

John A. Macleod, Esq., Crowell & Moring, 

Washington, o.c., 

for Respondent. 

Before: Judge Cetti 

Introduction 

The United Mine Workers of America, Local 9958, District 22, 

CUMWA) pursuant to Section 111 of the Mine Safety and Health Act 

30 u.s.c. S 821, (Mine Act), filed this action seeking one week 

compensation for miners at Kaiser Coal Corporation's (Kaiser's> 

Sunnyside No. 1 Mine, for the period of time in 1987 during which 

they were idled, allegedly as a result of a Section 104Cd)(l) 

withdrawal order issued on March 27, 1987 (and subsequently 

vacated>, by the Mine Safety and Health Administration CMSHA). 

Issue 

The primary issues are whether all or only some of the 

miners are entitled to compensation and the period of time for 

which the miners are entitled to compensation. 

Conclusion 

After careful consideration of the facts and the law I have 

determined that Cl) all the miners working on the 21st left and 

20th left longwall section were idled as a result of the Section 

104Cd>Cl> Order issued on March 27, 1987; (2) that they are 

entitled to up to a shift and a half of compensation at their 

1621 
regular rate of pay under the first two sentences 1/ of Section 

111 of the Mine Act but are not entitled to a weekTs compensation under the third sentence 2/ of Section 111 because the 

Order never became final. -

STIPULATIONS 

At the hearing the parties entered into stipulations as 

follows: 

1. A closure order was issued under Section 104Cd>Cl> of 

the Mine Act at the Sunnyside mine at 8:00 a.m. on March 27, 1987 

(Ex. 1). 

2. All miners working the day shift at the Sunnyside mine 

on March 27, 1987 were paid for the balance of the shift. The 

shifts at the Sunnyside mine run from 7:00 a.m. to 3:00 p.m.1 

2:00 p.m. to 10:00 p.m. and midnight to 8:00 a.m. 

3. Kaiser contested the closure order under Section 105 of 

the Mine Act. The case was docketed as WEST 87-116-R and 

1/ The first two sentences states: 

If a coal or other mine or area of such mine is closed by an 

order issued under section 103, section 104, or section 107, 

all miners working during the shift when such order was 

issued who are idled by such order shall be entitled, 

regardless of the result of any review of such order, to 

full compensation by the operator at their rates of pay for 

the period they are idled, but for,.not more than the balance 

of such shift. If such order is not terminated prior to 

the next working shift, all miners on that shift who are 

idled by such order shall be entitled to full compensation 

by the operator at their regular rates of pay for the period 

they are idled, but for not more than four hours of such 

shift. 

ll The third sentence of Section 111 provides: 

If a coal or other mine or area of such mine is closed by 

an order issued under section 104 or section 107 of this 

title for a failure of the operator to comply with any 

mandatory health or safety standards, all miners who are 

idled due to such order shall be fully compensated after 

all interested parties are given an opportunity for a public 

hearing, which shall be expedited in such cases, and after 

such order is final, by the operator for lost time at their 

regular rates of pay for such time as the miners are idled 

by such closing, or for one week, whichever is the lesser. 

(emphasis added) 

1622 
assigQed to Administrative Law Judge Melick. The United Mine 

Workers of America intervened in that proceeding. 

4. The closure order was modified by MSHA a number of times 

to allow mining to continue under specified conditions while 

settlement negotiations in the contest proceeding were ensuing 

(Ex. 2). The modifications were issued pursuant to negotiations 

between Kaiser and MSHA. 

5. The contest proceeding was ultimately settled by Kai~~r 

and MSHA by a.Memorandum of Understanding dated April 24, 1987. 

Paragraph four of the Memorandum of Understanding states in part, 

nupon the granting of the petition for modification or the 

completion of the development of the 21st left section which ever 

occurs first, MSHA shall vacate the order under contest in Docket 

No. WEST 87-116-R. Until the order is vacated it shall remain in 

effect subject to the terms of the modification issued by MSHA on 

April 24, 1987, incorporating the requirements set forth in 

attachment A to this agreement.n 

6. Kaiser sought leave to withdraw its notice of contest on 

April 29, 1987. Administrative Law Judge Melick granted leave 

and dismissed the proceeding with prejudice (Ex. 3). 

7. The United Mine workers of America did not seek 

Commission review of Administrative Law Judge Melick's dismissal 

of the contest proceeding. 

8. MSHA subsequently sought to assess a civil penalty 

against Kaiser based on the closure order (Ex. 4). 

9. Kaiser contested the imposition of a civil penalty, 

contending before Administrative Law Judge Merlin in WEST 87-228, 

that since the order was to be vacated, there was no violation to 

which any civil penalty could attach (Ex. 5). 

10. By Order dated October 19, 1987, Administrative Law 

Judge Merlin dismissed the civil penalty proceeding CEx. 6). 

11. The UMWA did not seek Commission review of any of MSHA's 

Orders modifying that closure order of March 27, 1987. 

12. In accordance with the settlement agreement, the closure 

order issued March 27, 1987 was vacated by MSHA. The action 

vacating the Order was taken by MSHA inspector Bruce Andrews at 

8:45 a.m. on February 16, 1987 (Ex. 15). 

13. April 1st (1987) was a contractual holiday and the 

miners were paid for that day. 

1623 
Statement of the case 

Kaiser at its Sunnyside No. 1 Mine was developing the 21st 

left section in the mine to accommodate longwall mining. In this develop~ent Kaiser was driving only two entries and was using one 

of these entries as both a belt haulageway and as an air course. 

On March 27, 1987, at 8:00 a.m., MSHA Inspector Larry Rameriz 

issued a section 104Cd) Cl> Order citing an alleged violation of 

30 C.F.R. § 75.326 because "[t]he belt haulage entry in the 21st 

left section was not separated and was being used as a [sic] 

air course" (Exhibit 1). The Order did not expressly require any 

miners to be withdrawn from the 21st left section or from any 

other part of the mine. The Order by its terms applied only to 

the 21st left conveyor belt. However, since that conveyor belt 

was the only economically feasible means to transport the coal 

mined in the 21st left section to the surface, the Order did 

effectively preclude further developme~t of that section. 

Consequently, after the Order was issued Kaiser withdrew all the 

miners working on the section and directed them to complete their 

shifts working on the surface. 

The only other section that was being mined at the time of 

inspection was the adjacent 20th left section which was being 

mined with longwall equipment. When the March 27, 1987 Order was 

issued Kaiser withdrew the miners on the 20th left longwall 

section and directed them to complete their shifts on the surface. 

Thus, all miners working the day shift.in both sections completed 

their shifts working on the surface and at the end of the day 

shift the miners working on both sections were told to not report 

back to work until the mine reopened. 

When the miners working the afternoon shift reported for 

work on the day the withdrawal order was issued, Kaiser also 

directed the miners working on the 21st left and the 20th left 

longwall section to work on the surface. No one.went underground. 

After working four hours Kaiser sent the miners on the afternoon 

shift home with the same instruction it gave the miners working 

on the day shift. Kaiser told them not to report back to work 

until the mine reopened. 

The miner working on the 21st left and 20th left were idled 

until they returned to work when the mine reopened at 6:23 p.m. 

on April 7, 1987. 

The only reason given to the miners for their idlement was 

the action taken by MSHA on March 27, 1987 when it issued the 

104Cd)Cl) withdrawal order. The testimony presented indicates 

that prior to the issuance of the withdrawal order both sections 

were working 3 shifts a day, six days a week and there had been 

no discussion by the miner's supervisors about curtailing 

operations. They had in fact been talk about expanding the work 

forces and claimant asserts that this· in fact was done after the 

mine resumed operations. 

1624 
Kaiser contends that any compensation awarded under Section 

111 must be limited to those miners who were working on its 21st 

left section. It points out that this withdrawal order by its 

terms applied only to the 21st left section. Kaiser contends 

that its withdrawal of miners working on the 20th left longwall 

section was an independent business decision. In support of its 

contention it offered into evidence the transcribed testimony of 

former Kaiser President, Charles McNeil, given during the contest 

proceeding in Docket No. WEST 87-116-R before Judge Melick. Mr. 

McNeil on direct examination by Kaiser's counsel John A. Mcleod, 

starting on page 108, line 14 of the transcript, testified as 

follows: · 

Q. Now, let me call your attention to the Sunnyside mine, 

Mr. McNeil. How many active sections do you have in the 

Sunnyside mine? 

A. Two sections, a longwall section a continuous miner 

development section. 

Q. What is the designation of the longwall section? 

A. Twentieth left. 

Q. Twentieth left? 

A. Hm-hmm. 

Q. And that is on retreat, is it not? 

A. Yes, it is. 

Q. Taking out the longwall panel? 

A. Yes , it is • 

Q. What is the designation of the development section? 

A. That is 21st left. 

Q. What's the relative proximity of that section to the 

longwall section? 

A. It is one panel down from the 20th left longwall panel. 

And the continuous miner development section, 21st left, 

is developing the adjoining panel for the next longwall 

panel. 

Q. When you say it's developing for the next longwall 

panel, does that mean it's framing out the panel? 

1625 
A. Yes. It's blocking out a block of coal that will be 

roughly 500 foot face and about 5,000 foot long. Roughly 

a mile long. 

Q. As it's doing its development work, what type of mining 

equipment is utilized? 

A. We have a continuous miner with a shuttle car and a 

rough boulder and then, also, belting in that entry, in 

those sections. 

Q. It's a continuous mining operation, driving two entries? 

A. Yes. 

Q. All right. Is coal actually mined in the process of that 

development effort? 

A. Yes, it is. 

x x x x x x x 

Q. Is there a relationship, a timing re:~tionship, between 

the work being done on the development section and the work 

being done in the longwall section? 

A. Yes, we're very critical, right now, in our development 

as far as the fact that we have to retreat-- for every one 

foot of retreat we have to advance our development section 

at 1.7 feet, otherwise we will be at the point where the 

longwall will be completed on its panel and we will have 

not completed development for the next panel and, therefore, 

would not be able to move the longwall and the mine would 

be shut down while we completed development for that next 

panel on 21st left. 

Q. What do your present projections show in terms of when ~he mining of the longwall panel would be completed? 

A. We have roughly 86 days left on the longwall panel. And, 

right now, assuming we can maintain the productivity we 

are projecting them, the development panel, we have 85 days 

to get it completed. 

Q. Mr. McNeil, you are familiar with the Order that's 

involved in this case? 

A. Yes. 

Q. Are you aware, sir, that by its terms, it closes down 

the 21st left section? 

1626 
A. Yes. 

Q. What is the reason that the 20th left section is closed 

down as well? 

A. Right now it's a case of, as I mentioned, we either shut 

down now or shut down later. If we don't keep the development sections advanced at the rate that is of that ratio I 

just mentioned, that the longwall panel will be shut down 

later. We do have adequate inventory, right now, in our 

stockpile, where we can make our shipments during this 

period of time. And later on we will not have that inventory so it's a decision that we're better off to take the 

shut down now because it will occur anyway if you're not 

in the development process. 

Q. Did the timing of miner's vacation enter into that 

decision at all? 

A. Yes, we're trying to structure that around our longwall 

move would coincide with miners' vacation. And the extent 

you run the longwall, again, without continuous development on the development section, we will be in a position 

where we will not be able to move over miners' vacation. 

Q. What is the current bank account that Kaiser enjoys? 

A. Roughly, within Kaiser Coal, we have roughly $3 million. 

Q. And when you're in a situation, with Sunnyside shut down, 

as you have been this past week, what are the costs 

associated with operating the mine? 

A. Right now, in our idled mode, we're running at a cost 

of about $200,000 a week, of the continued monitoring of the 

mine from the fire boxing standpoint, the pumping of the 

mine, the ventilation of the mine, and continuing of our 

salaried work force. 

Q. Mr. McNeil, have you given any thought to the implications of a continuation of the Closure Order that we're 

talking about here in terms of Kaiser's legal status? 

A. Yes, the main concern, as I see it, would be the fact 

that we do run out of cash at a point that in two or three 

months it forced Kaiser Coal into the Chapter 7, which 

would shut the mines down and the Canpany would be liquidated, which would ultimately cause the liquidation of 

Kaiser Steel. 

1627 
THE REQUIRED NEXUS WAS ESTABLISHED 

The evidence presented demonstrates a sufficient causal 

relationship between the issuance of the withdrawal order and the 

idlement of the miners working on the 20th left longwall section 

(as well as on the 21st left section) to constitute the causal 

nexus required to entitle the miners to compensation under the 

first two sentences of Section 111. 

Furthermore, it appears to me that the essential question is 

whether Kaiser would have shut down the 20th left section during 

the week in question but for the issuance of the March 27, 1988 

withdrawal order. The evidence clearly demonstrates that the 

work on both sections of mine would have continued through the 

period of idlement in question but for the 104(d)(l) withdrawal 

order. 

THE WITHDRAWAL ORDER WAS VACATED AND NEVER BECAME FINAL 

Kaiser is correct in its contention that it challenged the 

validity of the withdrawal order and it never became a final 

Order. On March 27, 1987, the same day that the Order was 

issued, Kaiser filed a Notice of Contest and h~quest for 

Expedited Hearing contending that the Order was improper because 

the safety standard cited, 30 C.F.R. § 75.326, was expressly 

inapplicable to Kaiser's Sunnyside No. 1 Mine. After notice to 

the parties there was a hearing on April 7, 1987, before the 

Commission's Administrative Law Judge Melick in Docket No. WE 

87-116-R. The UMWA, represented by Mr. Earl Pfeffer, intervened 

and was a party to that proceeding. There were settlement 

discussions and negotiations. By agreement of the Order was 

modified on April 7, 1987, to permit the 21st left conveyor belt 

to resume operations subject to a number of conditions. 

On April 24, 1987, Kaiser and MSHA entered into an agreement 

to settle the contest proceeding. One aspect of that settlement 

was the express understanding that the Order would be vacated by 

MSHA either when the 20th left section, the longwall, was mined 

out or when Kaiser's then pending Petition for Modification was 

granted, whichever occurred first. Kaiser contends that based 

upon MSHA's commitment to vacate the Order, Kaiser filed a motion 

to withdraw its Notice of Contest. Without objection by the UMWA 

or any other party Judge Melick granted that motion and dismissed 

the proceeding with prejudice on April 29, 1987. 3; The parties 

stipulated that the withdrawal order was vacated by MSHA on 

February 16, 1988 (Ex. 15). 

11 Kaiser also points out that Chief Administrative Law Judge 

Merlin on October 19, 1987, dismissed the related civil penalty 

proceeding in Docket No. WEST 87-228 on the grounds that MSHA's 

decision to vacate the Order eliminated any violation for which a 

penalty could be assessed. · 

1628 
DISCUSSION 

It is a fundamental principle of statutory construction that 

courts must start with the plain language of the statute. Rubin 

v. United States, 449 U.S. 424, 430 Cl981). Where Congress has 

addressed an issue, •the plain meaning of the statute decides the 

issue presented." FERC v. Martin Exploration Management Co., 108 

s. Ct. 1765, 1768 Cl988)Ccitations omitted). 

In this case, Congress has spoken directly to the issue. In 

enacting Section 111, it established a graduated scheme of 

compensation entitlement triggered incrementally by the gravity 

of an operator's conduct. See UMWA v. Westmoreland Coal Co., 8 

FMSHRC 1317. Thus, the first two sentences of Section 111 

provide that miners who are idled by an order are entitled to 

full compensation •for the period they are idled, but not for 

more than the balance of [their] shift ••• [or for] more than 

four hours of [the next working] shift." (Emphasis added.) The 

third sentence, however, is expressly predicated upon the 

existence of an actual violation1 that is, it applies only where, 

after an opportunity for a public hearing, the closure order is 

"final." 

Miners are to be paid up to a shift and a half by an 

operator even where the operator is innocent of wrongdoing1 to 

receive a week's compensation by the operator, however, requires 

a showing of culpability on the operator's part -- a showing, 

after he had an opportunity to defend himself at a public 

hearing, that he had committed a violation which caused the 

miners to be idled. The requirement of a •final order" after an 

"opportunity for a public hearing" plainly confirms Congress' 

intent to limit the availability of third sentence compensation •. 

As a Third Circuit held in Rushton Mining Company v. Morton, 520 

F.2d 716, 720 C3rd Cir. 1975): 

[I]t is clear that in drafting S 820 Ca> [the predecessor 

to Section 111 of the Mine Act] Congress understood the 

difference between an order which is ultimately upheld 

and one which is ultimately vacated, that in [the third 

sentence] Congress intended to compensate miners only 

where the order is ultimately upheld, but that in [the 

first two sentences] ••• Congress intended to compensate 

miners even where the order is ultimately vacated. 

REIMBURSEMENT OF COST, EXTRA EXPENSE 

AND ATTORNEY'S FEES ARE DENIED 

Kaiser contends that the UMWA should be required to pay 

Kaiser its reasonable expenses, including attorney's fees, 

1629 
"occasioned by UMWA's misconduct." This contention is rejected. 

Section 111 does not provide for recovery of costs or attorn~y's 

fees in compensation proceedings and furthermore on review of the 

record as a whole it is determined that: it would be ~njust in 

this case to award Kaiser such expenses under Federal Rule 37. 

Kaiser Motion for reimbursement is denied. 

Likewise Kaiser's motion to dismiss UMWA's claim for lack of 

prosecution and "gross noncompliance with Commission'~ rules is 

denied. 

A third motion taken under submission was Kaiser's motion to 

dismiss UMWA's claim for a week's compensation under the thirq 

sentence of Section 111 of the Mine Act. This motion is moot in 

view of my findings and conclusion of law that the miners are 

entitled to compensation only under the first two sentences of 

Section 111. 

The parties agreed that it would not be necessary to 

indicate in the first instance individual amounts for individual 

miners if the rulings were sufficiently specific to indicate in 

general terms the miners working on which shifts, and in which 

section or sections of the mine are entitled to compensation. If 

there are disagreements over whether individual miners might have 

been scheduled to work, jurisdictio~ is reserved to resolve those 

matters. 

It is concluded that all the miners working both day and 

swing shift on the 21st left and 20th left longwall section of 

Kaiser's Sunnyside No. Mine were idled as a result of the Section 

104Cd)(l) Order (Order No. 3043010) issued March 27, 19871 said 

miners are entitled to compensation at their regular rate of pay 

for the period of time provided in the first two sentences of 

Section 111 of the Mine Act. 

ORDER 

_Kaiser Coal Corporation, if it has not already done so, is 

directed to pay compensation to the mi:ners working the day and 

swing shift on the 20th left and 21st left sections of Kaiser's 

Sunnyside No. Mine, at the miners regular rate of pay for the 

period of their idlement by Withdrawal Order No. 3043010 not to 

exceed the period of time provided by .the first two sentences of 

Section 111 plus interest calculated in accordance with the 

formula set forth in Secretary v. Arkansas Carbona Co., and 

Walker, 5 FMSHRC 2042 (1986), within 30 days of the date of this 

decision. 

~~Cik t F. Cetti 

nistrative Law Judge 

1630 
Distribution: 

Brad Rayson, Esq., United Mine Workers of America, 1563 Gilpin Street, Denver, CO 80218 (Certified Mail) · 

John A. Macleod, Esq., Crowell ' Moring, 1001 Pennsylvania Avenue, N.W., Washington, D.C. 20004-2505 (Certified Mail) 

/bls 

1631 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

·, ·. RQOM 280, 124'1 SP!=ER 801,!LEVARD , 

DENY.ER, CO 8020.4 

ROGER THOMPSON, UNION PRES., 

ON BEHALF OF 

PAUL LUCE, 

Complainant, 

v. 

UNIMIN CORPORATION, 

Respondent 

Before: Judge Lasher 

. . 

. . 

. . 

. . 

DISCRIMINATION PROCEEDING 

Docket No. CENT 88-157-DM 

MD 87-60 

Silica Sand Plant 

DECISION 

By letter dated November 15, 1988, counsel for Complainant, 

Paul Luce, indicated that Mr. Luce "has decided nut to pursue 

the above cause of action." Attached to the letter is a document 

entitled Discontinuance of Discrimination Complaint signed by 

Mr. Luce which is construed to be a withdrawal of the Complaint 

herein. Pursuant to Commission Rule 11 (29 C.F.R. 2700.11) a 

party may withdraw such pleading at any time with the approval 

of the Commission or the Judge. Such approval is here granted 

since it appears that the withdrawal is voluntary. Accordingly, 

this proceeding is dismissed with prejudice. 

~~11¢~if, Michael A. Lasher, .fr. 

Administrative Law Judge 

Distribution: 

Ben Hill Turner, Esq., 2 East Chambers, Cleburne, TX 76031 

(Certified Mail) 

Mr. Paul Luce, 704 South Robinson, Cleburne, TX 76031 (Certified 

Mail) 

George J. Kalapos, Jr., Esq., Unimin Corporation, 258 Elm Street, 

New Canaan, CT 06840 <Certified Mail> 

/ot 

1632 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

November 28 ,. 1988 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

Docket No. WEVA 88-176 

A. C. No. 46-01453-03803 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. Humphrey No. 7 Mine 

CONSOLIDATION COAL COMPANY, 

Respondent 

DECISION 

Appearances: Joseph T. Crawford, Esq., Office of the 

Solicitor, U. S. Department of Labor, 

Philadelphia, Pennsylvania, for Petitioner 

Michael R. Peelish, Esq., Consolidation 

Coal Company, Pittsburgh, Pennsylvania, for 

Respondent. 

Be.fore: Judge Merlin 

Statement of the Case 

This case is a petition for the assessment of a civil 

penalty filed by the Secretary of Labor against Consolidation 

Coal Company for an alleged violation of 30 C.F.R. § 50.10. A 

hearing was held on October 18, 1988. 

The subject citation reads as follows: 

A roof fall accident - unintentional 

fall of ro~f above the anchorage zone of roof 

bolts which interfered with passage of 

persons - occurred at the face of the 2 

southwest longwall section, 043-0 MMU, at 

approximately 2:00 PM on 11-13-87. This 

accident was not reported to MSHA until 

3:58 PM 11-13-87. 

30 C.F.R. § 50.10 provides: 

If an accident occurs, an operator shall 

immediately contact the MSHA District or 

Subdistrict Office having jurisdiction over 

its mine. Jf an operator cannot contact the 

appropriate MSHA District or Subdistrict 

1633 
Office it shall immediately contact the MSHA 

Headquarters Office in Washington, O.C., by tel~phone, toll free at (202) 783-5582. 

30 C.F.R. § 50.2(h) states in pertinent part: 

(h) "Accident" means. 

* * * * 

(8) An unplanned roof fall at or above 

the anchorage zone in active workings where 

roof bolts are in use; or, an unplanned roof 

or rib fall in active workings that impairs ventilation or impedes passage; 

At the hearing the parties agreed to the following 

stipulations: 

(1) the operator is the owner and operator of the subject 

mine; 

(2) the operator of the mine is subject to the Federal Mine 

Safety & Health Act of 1977; 

(3) the administrative law judge has jurisdiction in this 

case; 

(4) the inspector who issued the subject citation was a 

duly authorized representative of the Secretary; 

(5) a true and correct copy of the subject citation was 

properly served; 

(6) copies of the subject citation and termination of the 

violation 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; 

(7) imposition of a penalty will not affect the operator's ability to continue in business; 

(8) the alleged violation was abated in good faith; 

(9) the operator's history of prior violations, as shown on 

the printout which was subsequently admitted as· a government exhibit, is correct; 

(10) the operator's size is large; and 

1634 
c·11> the roof fall which occurred in this case was an 

unplanned ~oof fall within the purview of 30 C.F.R., Section 

50.2(h)(8). 

Discussion and Analysis 

The inspector testified that during his investigation on 

November 16, 1987, the Monday following the accident, the mine 

superintendent told him that at the time of the roof fall in the 

belt entry at the headgate, production was ceased and that the 

miners in the-area were evacuated through the tailgate (Tr. 18). 

The inspector further stated that the superintendent told him the 

normal route of travel through the headgate was blocked 

(Tr. 18-19). The operator's safety supervisor, the company . official responsible for notifying MSHA, acknowledged that at 

2:00 p.m. he was informed of the roof fall and was told that the 

men were retreating through the tailgate (Tr. 32, 35, 53, 55). 

After being so advised, the safety supervisor went underground to investigate (Tr. 35). The safety supervisor explained that the roof had fallen in on the crusher which was located in 

the entry at the headgate (Tr. 44, 48). Immediately behind the 

crusher was the stage loader (Op. Exh. No. 1). There was a 3 1 to 

3! foot clearance on each side of the crusher, but debris 2' to 

2! feet deep had fallen on each side (Tr. 49, 50). The 

supervisor said· that it would have been hard to get through on 

the left side because the roof had fallen down there (Tr. 43). 

The supervisor expressed the opinion that if necessary men could 

crawl over the top of the crusher or over the debris (Tr. 49, 53). 

He further testified that as soon as he arrived on the sc~ne he 

and all others present immediately began timbering the area to 

make it safe (Tr. 40, 42-43). 

The longwall coordinator who had called the accident out to 

the mine superintendent on the surface, testified that he did not 

specifically report passage was impeded, but that he did say the 

men were coming out through the tailgate, that he needed someone 

to give them a ride and that he needed help in timbering the 

headgate side of the fall (Tr. 67). 

The first question to be resolved is whether this roof fall 

constituted an "accident" within the purview of 30 C.F.R. 

§ 50.2(h), quoted supra. 1 conclude it did. The evidence clearly shows that passage was impeded. There is no dispute that 

instead of using the headgate which was the normal route of 

travel, miners in the area exited through the tailgate. The roof 

had fallen in on the crusher and there was debris 2-2! feet high 

on both sides of it. Moreover, after the fall, the remaining 

roof was unsecured and dangerous which was why everyone on the 

scene immediately started timbering. Under these circumstances I 

reject the opinions of the operator's witnesses that men could 

climb over the crusher or the debris. Even assuming this were 

physicallv possible, such action would have been a violation of 

1635 
the man da tor y standards and extreme 1 y dangerous beca'u·s e the men 

would have had to go under unsupported roof. The operator's 

safety supervisor himself stated he would not w~~t t~e ~~n to go under unsupported roof and that for a 11 pr act ica 1 p·urposes 

the h·eadgate was impassable unti 1 the roof was supported (Tr. 54). 

Based up-0n the foregoing, I find passage was imped~d. 

The next issue is whether there was immediat- ftotification. 

The fall occurred at 2:00 p.m. The inspector t~stified that the 

mine foreman became aware of the fall at 2:30 p.~. (Tr. 15, 16). 

However, the safety supervisor who, as already noted~ is t~e 

company official responsible for notifying MSHA testified that he 

first had knowledge of the fall around 2:00 p.m. close to immediately after it happened when he was told by the safety escort. 

He further testified that the safety escort learned of the fall 

from the mine foreman and that he was inform~d of the fall within 

zero to five minutes (Tr. 32, 33). 1/ As already set forth, the 

safety supervisor was told men were-tet~eating through the tailgate (Tr. 35, 53, 55). He then went underground tb investigate 

(Tr. 35). He stated that it is the operator's policy to investigate falls before reporting them to MSHA unless there happens to 

be definite information that passage~is impeded (Tr. 37). Under 

the circumstances of this case I find.the procedures followed by 

the safety supervisor and other management officials failed to 

satisfy the requirements of the regulations. The longwall ·coordi- n~tor advised the mine superintendent that men were exiting through the tailgate which was not the normal route of travel 

(Tr. 67). He also asked for help in.,timbering (Tr. 67). This 

information was sufficient to alert mine management to inquire 

and seek more specifics about the fall. Indeed, no company official above ground in the long chain of communication from the 

mine superintendent, who received the longwall coordinator's 

call, to the safety supervisor, who made the decision when to 

call MSHA, asked those questions which would have enabled them to 

decide whether or not immediate notification of MSHA was required. Although the safety supervisor asked about injuries and whether 

1/ The safety supervisor's statement that he learned of the 

fall almost immediately after it happened is supported by 

his chronology of subsequent events. He stated that it ·took 

him approximately 30 minutes to reach the section (2:30 

p.m.) and an additional three to five minutes to reach the 

fall area (2:35 p.m.) (Tr. 38, 39). He then spent 45 . minutes conducting an investigation of the area (3:20 p.m.) 

and an additional 20 to 25 minutes to return to the surface 

(3:45 p.m.) from where he called MSHA (3:58 p.m.) (Tr. 50 

52). Based upon, these time frames it appears that the ' 

safety supervisor knew of the roof fall at approximately 

2:00 p~m. rather than 2:30 p.m~ as the inspector testified. 

I so f1nd. 

1636 
people were stuck at the face (Tr. 35), he otherwise relied upon 

what he was told him and did not attempt to ascertain the facts 

upon which he could have made an informed decision on immediate 

notification. If the safety supervisor or others had taken the 

moment or two necessary to ask the obvious questions, they would 

have known immediate notification was required and so would have 

called MSHA before going underground. 

I recognize that the fall created a stressful situation for 

all concerned. But the requirements of the regulations are clear 

and mine management must remain sensitive to them even while it 

copes with other aspects of the situation. The time lapse from 

2:00 p.m. (or even 2:30 p.m. under the inspector's version), ~hen 

the supervisor found out about the fall, until 3:58 p.m., when 

the fall was reported, was much too long to constitute immediate 

notification. See Western Fuels-Utah, 10 FMSHRC 832, 842-844 

(June 1988). The argument 1n the operator's brief (p. 7) that 

the operator must have an opportunity to conduct a "reasonable" 

investigation before notification cannot be accepted as a justification for its conduct in this case. Here with minimum effort, 

the facts necessary to determine the propriety of immediate notification would have been readily available to management officials. Adoption of the operator's position in this case 

would mean that instead of being "immediate", notification would 

be- virtually the last thing to be done and accorded little, if 

any, priority. 

In this connection it also must be noted that even after 

his investigation, the operator's safety supervisor waited until 

he was above ground to notify MSHA although he could have 

telephoned MSHA from below ground 20 or 25 minutes earlier 

(Tr. 52, 56). On this basis as well, the regulation was 

violated. 

The inspector testified that the violation was not serious 

(Tr. 19). The Solicitor expressed the same view (Tr. 23). The 

position that this reporting violation is not serious is wholly 

at odds with the views the Secretary expressed in other reporting 

cases involving this operator. In Consolidation Coal Company, g 

FMSHRC 727, 733-734 (April 1987), I accepted the Secretary•s view 

that Part 50 violations are serious, stating: 

" * * *, it is clear that the settlement 

motion is on strong ground in asserting the 

violations involved a high degree of seriousness and negligence. Gravity cannot be 

doubted in view of the fact that Part 50 is 

the cornerstone of enforcement under the Act. 

Since Part 50 statistics provide the basis 

for planning, training and inspection 

1637 
activities, accurate reporting is essential. 

Moreover, failure accurately to report could 

have extremely dangerous consequences by concealing problem areas in a mine which should 

be investigated by MSHA inspectors. In 

short, without proper compliance by -the 

operator under Part 50, the Secretary could 

not know what is going on in the mines and, 

deprived of such information, he would be 

unable to decide how best to meet his 

enforcement responsibilities. * * *" 

The violation in this case was serious. The inspector explained that the purpose of this reporting requirement is to 

afford MSHA the opportunity to send an .inspector to the scene as 

quickly as possible to determine the cause of the roof fall and 

prevent future occurrences (Tr. 20, 21, 25). Failure to 

immediately notify MSHA frustrates this important policy. 

Accordingly, the Secretary's position in this case that the 

violation was not serious, is wrong and negates effective 

enforcement of the reporting regulations. 

I find the operator was guilty of ordinary negligence and 

reject the inspector's finding of high negligence as contrary to 

the evidence. There is nothing in the record indicating recklessne.ss, willfulness or any other such conduct which would justify a 

higher degree of fault. 

I have reviewed the briefs filed by counsel. To the extent 

that the briefs are inconsistent with this decision, they are 

rejected. 

As already noted, the stipulations regarding the remaining criteria under section llO(i) of the Act, have been accepted. 

In light of the foregoing it is ORDERED that a penalty of 

$500 be assessed for this violation. 

It is further ORDERED that the Operator Pay $500 within 30 

days from the date of this decision. 

Paul Merlin 

Chief Administrative Law Judge 

1638 
Distribution: 

Joseph T. Crawford, Esq., Office of the Solicitor, U. S. Department of labor, Room 14480-Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

Michael R. Peelish, Esq., Consolidation Coal Company, 1800 

Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

M~. Larry Hull, Vice President, Consolidation Coal Company, P. O. 

Box 100, Osage, WV 26543 (Certified Mail) 

Michael H. Holland, Esq., UMWA, 900 15th Street, N.W., 

Washington, DC 20005 (Certified Mail) 

/gl 

1639 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA ~2041 

NOV 291988 

GREEN RIVER COAL COMPANY1 

INCORPORATED, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRA.TION (MSHA) 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA) 

Petitioner 

v. 

GREEN RIVER COAL COMPANY, 

INCORPORATED, 

Respondent 

·CONTEST PROCEEDINGS 

: Docket No. KENT 88.;;.13-R 

: Ord.er No. 2836161·1 10/19/87 

Docket No~ KENT 87-243-R 

: Order No. 2835472: 9/2/87 

: Docket No. KENT 87~244~R 

Order No. 2836053) 9/10/87 

. . 

. . 

No. 9 Mine 

CIVIL PENALTY PROCEEDINGS 

Docket No. KENT 88-63 

A. C. No. 15-13469-03635 

Docket No. KENT 88-92-B 

A. ·c. No. 15-13469-03643 

Docket No. KENT 88-98 

A.C. No. 15-13469-03645 

Green River No. 9 Mine 

DECISION 

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

U.S. Department of Labor, Nashville, Tennessee 

for the Secretary of Labor; 

Flem Gordon, Esq., Gordon ~ Gordon, P.S.c., 

Owensboro, Kentucky and· B. R. Paxton, Esq., Paxton 

& Kusch, P.S.C., Central City, Kentucky, on the brief 

for Green River Coal Company, Inc. 

Before: Judge Melick 

These consolidated cases are before me under section 105(d) 

of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 801 et~., the "Act," to challenge citations and 

withdrawal orders issued by the Secr~tary of Labor against the 

Green River Coal Company, Incorporated (Green River) and for 

1 r. .. -
review of civil penalties proposed by the Secretary for the 

related violations. 

Docket No. KENT 88-98 

Order No. 2844181, issued pursuant to section 104(d)(2) of 

the Act, alleges a "significant and substantial" violation of 

the mine operator's roof control plan under the regulatory 

standard at 30 C.F.R. § 75.316 and charges as follows:l/ 

The ventilation system and methane and dust control 

plan was not being followed in the working section in 

entries left off Northwest parallel (No. 1 unit 001) 

in that (1) There was no perceptible movement of air 

reaching the end of the line curtain in No. 6 entry 

(used smoke to determine velocity> (2) Only 675 cubic 

feet of air a minute was reaching the end of the line 

curtain in No. 5 entry (used smoke). Methane was 

detected in the faces of these places. Methane 

content 1.4 percent. The plan requires that at least 

1,200 cubic feet of air be reaching the end of line 

curtain in all faces except those being cut, loaded 

and/or drilled. 

~/ Section 104(d) of the Act provides as follows: 

(1) 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 dause 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 

authoriz.ed 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 ~rea until an 

authorized representative of the Secretary detarmines 

that such violation has been abated. 

1641 
In .relevant part the ventilation. plan <E.X:hibit G~2> 

provides that "all other working faces shall have _a line 

brattice (wing curtain) installed within 15 fe~t df th~ face 

with a minimum of 1,200 c.f .m. when measured at '-the ·~no of the 

wing curtain." 

It is undisputed that Inspector Louis Stanley'of the 

Federal Mine Safety and Health Administration (MSHA> found on 

October 2, 1987, no perceptible aic movement at the end of the 

line curtain at the No. 6 entry and only 675 cubic fee·t per 

minute (cfm) at the end of the line curtain at the No. 5 

entry--locations where 1,200 cfm is required. 1.4 percent 

methane was also found in each of the cited entries and, 

according to Stanley this methane concentration woutd be 

expected to increase without proper ventilation. Stanley also 

observed that the roof bolter was e~pected to operate in the 

cited areas "fairly quickly" in the mining sequence thereby 

providing a potential ignition source for the methane. Under 

these circumstances Stanley opined that a methane explosion was 

"highly likely" and the ten miners working on the section would 

be seriously injured. Within this framework of credible 

evidence I conclude that the violation is proven as charged and 

was "significant and substantial". See Mathies Coal Company, 

6 FMSHRC 1 (1984). 

In order to sustain the order under section 104(d)(2) of 

the Act the Secretary has the burden of proving inter alia that 

the violation charged therein was caused by the "unwarrantable 

failure" of the mine operator to comply with the cited 

standard.fn.l/ supra. "Unwarrantable failure" means aggravated 

conduct constituting more than ordinary negligence, in relation 

to a violation of the Act. Emery Mining Corp., ' FMSHRC 1997 

(1987), appeal filed Janaury 1988 (D.C. Cir. No. 88-1019) In 

the Emery case the Commission compared ordinary negligence as 

f n_!/ 

( 2 ) 

(cont'd) 

If a withdrawal order with respect to any area in a 

coal or other mine has been issued pursuant to 

paragraph Cl), a withdrawal order shall promptly be 

issued by an authorized represeptative of th~­

Secretary who finds upon any subsequent inspection the 

existence in such mine of violations similar to those 

that resulted in the issuance of the withdrawal order 

under paragraph Cl) until such time as an inspection 

of such mine discloses no similar violations. 

Following an inspection of such-mine which discloses 

no similar violations, the provlsions of paragraph Cl> 

shall again be applicable to that mine. 

. .... :~··· 

1642 
conduct that is "inadvertent" "thoughtless", or "inattentive" 

with· conduct constituting an unwarrantable failure, i.e. conduct 

that is "not justifiable" or "inexcusable". According to 

Inspector Stanley the violation at issu~ was the result of "high 

negligence" and, presumably "unwarrantable failure" because the 

section foreman "should have known" of the insufficient air and 

that the foreman was working .in the nearby No. 3 entry. This 

testimony is clearly not sufficient to meet the stringent 

standards for unwarrantibility set forth in the Emery decision. 

In addition Assistant Mine Superintendent and General Mine 

Manager Thomas Morris testified that after the instant order was 

issued he discovered that a root fall in an entry located 20 to 

25 crosscuts from the unit at issue had crushed a stopping 

impeding the air entering the unit. After the stopping was 

repaired and the roof timbered the ventilating air was then 

increased to the required amount. In addition, according to an 

out-of-court statement by Section Foreman Steve Jones, Jones had 

"made his faces" indicating that he had completed his on-shift 

examination before the order was issued. According to that 

statement Jones arrived on the unit at 8:30 a.m. and took an air 

reading at the intake at 8:45 a.m. where he found 12,150 "feet 

of air". According to the statement, Jones found 3,360 "feet of 

air" behind the wing curtain at the face of the No. 4 entry at 

around 9:30 that morning and 3,420 "feet" behind the wing 

curtain of the face at the No. 3 entry at around 9:45 that 

morning. The order at bar was issued at 10:00 a.m. and 

according to Jones' statement he learned that the intake air was 

lost at 9:50 a.m. This undisputed evidence further supports a 

finding that the violation was the result of ordinary negligence 

and not conduct that was "not justifiable" or "inexcusable". 

Accordingly, the order at bar must be modified to a citation 

under 104(a) of the Act. 

Order No. 2844183, also issued pursuant to section 

104(d)(2) of the Act, alleges a violation of the regulatory 

standard at 30 C.F.R § 75.1306 and charges as follows: "[t]he 

magazine used Ear storage of explosives for the working se6tion 

and entries left oEf Northwest parallel (No. 1 Unit 001) was 

sitting [sic] in the No. 1 entry about 20 feet from the face 

with two doors open and two boxes of explosives half in and half 

out of the magazine". 

The cited standard, 30 C.F.R. § 75.1306, provides in 

relevant part that "when supplies of explosives and detonators 

for use in one or more working sections are stored underground, 

they shall be kept in section boxes or magazines of substantial 

construction" 

1643 
It is undisputed that the cited magazine was constructed 

with sliding doors from which 250 pound boxes of explosives were 

protruding "halfway out". The violation has accordingly been 

proven as charged. Inspector Stanley opined that the explosives 

would not likely be run into or set off because there were no 

ignition sources nearby nor traffic in the cited entry. The 

violation was therefore not of high gravity. He believed 

however that the violation was the result of "high negligence" 

and presumably "unwarrantable failure" because the sect.ion 

foreffian "knew or should have known of the location of the 

explosives magazine". Again however the proof does not support 

the allegations. 

The evidence does not show that acts of, or omissions by, 

the section foreman were the re3ult of more than ordinary 

negligence or that they were "not justifiable" or "inexcusable". 

In addition, according to Assistant Safety Director Grover 

Fischbeck, the section foreman first inspects the faces upon 

arriving on the section before directing the miners to their 

duties. Fischbeck th('=oriz~d that th.e foreman may have seen the 

magazine with its doors closed and that later the shot firer may 

have removed some explosives leaving other explosives halfway 

outside. In support 0£ this theory FischbecK noted that the 

"shooter" did in fact have explosives in his possession at the 

time the violation was cited. In any event it is clear that the 

Secretary has not met her burden of proving the high degree of 

negligence required to support a finding of "unwarrantable 

failure". The order must accordingly be vacated and modified to 

a citation under section 104(a) of the Act. 

Order No. 2844182, also issued pursuant to section 

104(d)(2) of the Act alleges a "significant and substantial~ 

violation of the standard 30 C.F.R. § 75.304 and charges as 

follows: 

The on-shift examination for hazardous conditions was 

not adequate on the working section in entries left 

off Northwest parall [sic] (No. 1 unit 001) in that 

Cl) Only 5,760 cubic feet a minute of air was 

present at the last stopping on the intake side of the 

section: (2) Methane at a concentration of 1.2 percent 

to 1.4 percent was detected in all six of the working 

faces: (3) The air volume at the end of the line 

curtain in two of the six workin~ places was less than 

the minimum required by the ventilation system and 

methane and dust control plan. The working section 

had power on equipment and equipment was working in 

the face: (4) The explosive magazine for the working 

section was sitting in the No. 1 entry about 20 feet 

from the face with the doors open and two boxes of 

1644 
explosives half in and half out of the magazine. A 

·sample of the atmosphere at the face of the No. 5 

entry was taken 10 feet from the face 6 feet from the 

rib and 1 foot from the roof. 

The cited standard, 30 C.F.R. § 75.304, provides in part 

that "at least once during each coal producing shift, or more 

often i.E neces:;r.tl'."Y l:oc ,;afety, each working section shall be 

examined for haiacdou::; conditions by certified persons 

designated by the operator to do so". 

Accordirig to Inspector Stanley, the existence of the four 

conditions cited in the order was evidence per se that the 

working section was not being examined sufficiently. According 

to Stanley even though an onshift examination had been performed 

at 8:30 that morning ongoing examinations should have been made 

to discover any violations subsequently occurring. 

While it is not disputed that the conditions existed as 

alleged, it is noted that the two former conditions cited in the 

order were not violations of any statute, regulation or policy. 

The latter two violations charged in the order were identical to 

the violations affirmed in this decision in Order Nos. 2844181 

and 2844183. 

While evidence of the existence of a number of violative 

conditions can raise an inference that a violation of the cited 

standard has occurred, See e.g. Secretary v. Manalapan Mif!in~­

Co., 9 FMSHRC 355 (1987) and Secre~ v. Peab<2_~-~~~~-~o_., 

4 FMSHRC 678 (1982), the evidence in this case does not raise 

such an inference. Two of the four conditions cited in the 

order were admittedly not violations of any regulation or 

statute and the remaining two conditions were found not to be 

the result of significant negligence. These two conditions 

could have arisen rapidly following the onshift examination 

performed by section foreman Jones between 8:30 a.m. and the 

time the section was energized at 9:25 a.m. Indeed the first 

orders citing problems in the section were issued at 10:00 a.m. 

There was also credible evidence that the ventilation problem 

may have arisen suddenly shortly after Jones' onshift 

examination that morning when a stopping became crushed as a 

result of a roof fall short-circuiting the ventilation. Under 

the circumstances I do not find that the Secretary has sustained 

her burden of proof. Accordingly, Order No. 2844182 must be 

vacated. 

Order No. 2836279, also issued pu~sua~t t0 i~ctl~n 

104(d)(2) of the Act alleges a "significant and subatantial~ 

violation of the operator's roof control plan under the 

regulatory standard at 30 C.F.R. § 75.200 and alleges that "the 

1645 
approved roof control plan was not be,ing followed as the No. 5 

entry on the No. 7 unit was 27 feet wide at the third row of 

roof bolts 6utby the face area." The operator's roof control 

plan provides in relevant part that "the eritry width cannot 

exceed 20 feet maximum" (Exhibit B-3). 

As MSHA Inspector Allan Head entered the No. 4 entry on 

December 4, 1987, he observed that ribs had been ~rounded out". 

He measured the width with a 50 foot fiberglass tape and found 

it to be 27 feet to 23 feet wide over 7 to 10 feet linear 

distance. Head concluded that without additional support over 

this span there was the danger of slate falling on miners 

working in the area. Head also concluded that the violation was 

result of high negligence because the condition was "very 

obvious" and that the next cut beyond the widened area was 

"narrower". According to Head, rock from the roof only three 

inches to six inches thick falling upon a miner could cause 

disabling injuries. Head estimated that mining had occurred in 

the entry from 4:00 p.m. until 10:00 p.m. the night before his 

inspection and he opined therefore that the face boss 

should have seen the excessive width. Indeed, according to 

Head, even with the wing curtain on one side of the entry in 

place the entry was "obviously" in excess of the required 20 

foot width. Head acknowledged however that the violation could 

have resulted from "inattentiveness". 

Within this framework of evidence I find that the violation 

is proven as charged. The Secretary has failed however to 

sustain her burden of proving that the violation was 

"significant and substantial" or wa& the tesult of high 

negligence or "unwarrantable failure". Inspector Head conceded 

that the violation may have been the result of mere 

"inattentiveness". See Ei~ery Mini!!_g__co~e-, s11£;:.~. The order is 

therefore modified to a citation under Section 104(a) of the Act. 

ORDER 

Order No. 2844182 is vacated. Order Nos. 2844181, 2844183 

and 2836279 are modified to citations under section 104(a) of 

the Act and Green River Coal Company, Inc., is directed to pay 

civil penalties of $500, ~300, and $200 respectively, within 30 

days of the date of this decision. 

Docket No. KENT 88-63 and KENT 87-244-R 

Order No. 2835472, issued pursuant to section 104(d)(2) of 

the Act, alleges a "significant and ~ubstantial" violation of 

the operacor.'s ventilation plan under the regulatory standard at 

30 C.F.R § 75.316 and charges a8 follows: 

1646 
The old No. 5 unit set up was not being ventilated 

properly as to keep methane from accumulating in the 

old dead end heading. There was 1.3 percent CH4 

present at the last row of roof bolts in the left 

breaks between No. 6 and 5 entries. There was no 

perceptible movement of air at the end of the line 

brattice (curtin) [sic] in this heading when checked 

with a smoke tube. Also the block curtin [sic] 

between No. 6 and 5 entries the second crosscut outby 

the faces was down on the mine floor. 

The ventilation plan provides in relevant part that "all 

dead-end places shall be ventilated, and when practical, 

crosscuts will be provided at or near the face of each entry 

room before the place is abandoned". (Exhibit B-2). 

According to Inspector Head, beginning on August 31, 1987, 

and continuing on September 1, and on September 2, he found 

methane exceeding one percent in the cited area. On the latter 

date and when the order was issued, he discovered 1.3 percent 

methane and found no air movement. According to Head, methane 

could build-up in the cited area and should there be an ignition 

from a roof fall there could be an explosion or fire. The 

explosions or fire could extend the 200 to 300 feet to the 

active sections where eight workers would be exposed to burns 

and "broken ear drums". He observed that the mine was also 

known as a "gassy mine" with two-million c11bic feet of methane 

liberated every 24 hours. He concluded therefore that it was 

likely to have methane build up to explosive levels. 

Head concluded that the violation was the result of high 

negligence because the same type of violation was found for 

three consecutive days. On August 31, and on September 1, he 

had issued section 104(a) citations for the same violation. In 

mitigation Dave Harper testified on behalf of the operator that 

a ventilating curtain was found lying on the mine floor and 

speculated that it may have been dislodged by a scoop cleaning 

up the area. Such speculation can however provide but little 

mitigation under the circumstances of this case. 

Within this framework of evidence I conclude that the 

violation was the result of high negligence and of the 

"unwarrantable failure" of the operator to comply with the cited 

standard. The repeated violation of the same standard at the 

same location for three consecutive days cleacly warrants a 

finding that the violation was a result of conduct that was "not 

justifiable" and "inexcusable". See Youghgiogheny and Ohio Coal 

Co., 9 FMSHRC 2007 (1987). Based on the undisouted evidence of 

Inspector Head I also conclude that the violation was 

"significant and substantial". See Mathies Coal Com~, supra. 

1647 
At hearing the parties agreed to a proposal for settlement 

of Order No. 2836053 in which Green River agreed to pay the 

proposed pen~lty of $600 in full. I have considered the 

documentation and representations in support of the motion and I 

conclude that it comport3 witn the requirements of section 

llOCi> of the Act. Accordingly the motion is accepted. 

ORDER 

Contest proceedings Docket Nos. KENT 87-243-R and 

KENT 87-244-R are denied. Order No. 2835472 is affirmed. Order 

No. 2836053 is also affi-r:med a.nd G-reen River Coal Company, Inc., 

is directed to pay civil penalties of $900 and $600, 

respectively within 30 days of the date of this decision. 

Docket No. KENT 88-92-B 

At hearing the parties move to approve a settlement 

agreement with respect to the two citations at issue in this 

proceeding, Citation Nos. 2836161 and 2836172. Green River has 

agreed to pay the proposed civil penalties of $900 and $800, 

respectively, in full. I have considered the representations 

and documentation submitted in this case and I conclude that the 

proffered settlement is appropriate under the criteria set forth 

in section llOCi> of the Act. 

ORDER 

Green River Coal Company, Inc., is hereby directed to pay 

civil penalties of $1,700 within 30 days of the date of this 

decision. 

Docket No. KENT 88-13-R 

Green River withdrew its contest of this proceeding at 

hearing in conjunction with the proposed settle.aent of the 

citatio~ ~t issue in Civil Penalty Proceeding 

Docket No. KENT 88-92. 

ORD 

Contest Proceeding KENT 88- 3-R is dis issed. 

1648 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

NOV 2'91988 

ERNIE L. BRUNO, 

Complainant 

. . 

. . DISCRIMINATION PROCEEDING 

v. . . 

. . Docket No. WEST 88-157-D 

DENV CD 88-07 

CYPRUS PLATEAU MINING 

CORPORATION, 

Respondent 

: 

. . 

. . Starpoint No. 2 Mine 

DECISION 

Appearances: Gregory J. Sanders, Esq., Kipp & Christian, 

Salt Lake City, Utah, 

for Complainant; 

Kent w. Winterholler, Esq., Parsons, Behle & 

Latimer, Salt Lake City, Utah, 

for Respondent. 

Before: Judge Morris 

This case involves a discrimination complaint filed 

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

30 u.s.c~ S 801, et seg. 

The applicable portion of the Mine Act, Section 105Cc>Cl>, 

in its pertinent portion provides as follows: 

Discrimination or interference prohibited; 

complaint; investigation; determination; hearing 

No person shall discharge or in any manner 

discriminate against or cause to be discharged 

or cause discrimination against or otherwise 

interfere with the exercise of the statutory 

rights of any miner, representative of miners 

or applicant for employment in any coal or 

other mine subject to this [Act] because such 

miner, representative of miners or applicant 

for employment has filed or made a complaint 

under or related to this [Act], including a 

complaint notifying the operator or the operator's agent, or the representative of the 

miners at the coal or other mine of an alleged 

danger or safety or health violation in a coal 

or other mine •4•• 30 u.s.c. S 815Cc)(l). 

1649 
After notice to the parties a hearing on the merits was held 

in Price, Utah_ on September 13, 1988. 

Complainant filed a trial brief and respondent filed a posthearing brief. 

Applicable Case Law 

The general principles of discrimination cases under the 

Mine Act are well settled. In order to establish a prima facie 

case of discrimination under Section 105(c) of the Act, a complaining miner bears the burden of production and proof in 

establishing that (1) he engaged in a protected activity, and 

(2) the adverse action complained of was motivated in any part 

by that particular activity. Secretary on behalf of Pasula 

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

1980), rev'd on other grounds sub !!2!!!· Consolidation Coal Co. 

v. Marshall, 663 F.2d 1211 (3rd Cir. 1981); Secretary on behalf 

of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 

(April 1981). The operator may rebut the prima facie case by 

showing either that no protected activity occurred or that the 

adverse action was in no part motivated by protected activity. 

If an 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. Pasula, supra; Robinette, supra. See also 

Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (4th Cir. 

1987)~ Donovan v. Stafford Construction Co., 732 F.2d 954, 

958-59 CD.C. Cir. 1984)~ Boich v. FMSHRC, 719 F.2d 194, 195-96 

(6th Cir. 1983) (specifically approving the Commission's PasulaRobinette test). Cf. NLRB v. Transportation Management Corp., 

462 U.S. 393, 397-413 (1983) (approving nearly identical test 

under National Labor Relations Act). 

Issues 

The issues are whether the complaint herein was timely 

filed~ whether complainant was engaged in a protected activity 

at the time of the alleged discrimination and whether the 

operator would have taken adverse action in any event against 

complainant irrespective of any protected. activity. 

1650 
Filing of Complaint 

The discharge of Ernie L. Bruno, on December 12, 1983, 

generated two lawsuits. The initial lawsuit was filed in the 

State of Utah District Court some 19 months after the termination. Bruno had instructed his attorney to get his job back 

because "he was judged on a different basis than anyone else". 

Bruno's claim was denied in the Utah trial court as well as on 

appeal (Tr. 43, 44, i6, Ex. R-5). 

After talking to another miner Bruno learned for the first 

time that he had a right to file a complaint with MSHA. Such a 

complaint was filed and after its investigation MSHA concluded 

that no violation of Section 105(c) had occurred. Bruno filed a 

statement disagreeing with MSHA and on March 28, 1988, he filed a 

pro se complaint with the Commission. The basis of his complaint 

was that he had been fired for being in a fight. Specifically, 

he had been treated differently than any other employee. (The 

Judge agrees that fighting may be unsafe, but it is clearly not 

an activity protected under the Act), Hollis v. Consolidation 

Coal Company, 6 FMSHRC 21 (1984). 

Subsequently, on April 18, 1988, Bruno filed additional 

information with the Commission setting forth allegations involving coal float dust and giving this as the real reason for 

his dismissal. Bruno states that if he had known about his 

Section 105(c) rights in 1983, he would have immediately filed 

with MSHA. But he had never seen a poster advising him of such 

rights. 1/ (Tr. 32, 41-42, 46, Ex. R-10). 

Witness Stan Warnick, Manager of Human Resources for Cyprus 

Plateau Mining Company, was not involved in the decision to 

terminate Bruno (Tr. 278-279). Paul Kelley and Bill Bergamo 

investigated a fighting incident between Bruno and Steve Stoker. 

Their decision to terminate was confirmed by their supervisor, 

Larry Rodriguez (Tr. 279-280). The company's investigation revealed that Bruno assaulted Steve Stoker, a fellow worker. The 

assault occurred in the company kitchen. He was discharged for 

that reason (Tr. 281). 

1/ I credit the operator's evidence that there were many MSHA 

posters in prominent places in the mine. If there had not been 

such informational posters, an MSHA inspector would have issued 

a citation to the operator. No such citation was ever issued. 

(Tr. 224-227, 255, R-llA through I). Further, Bruno's witnesses 

Marchello, O'Herron and Lander confirm that the posters were 

present <Tr. 116, 117, 166, 168, 188). 

1651 
Bergamo, the underground superintendent, is no longer with 

the company and lives in California. Kelley is no longer with 

the company and lives in the Salt Lake City area. Rodriguez 

does not have a current position with Cyprus Plateau Mining 

Company and Warnick understood that he was with Texaco (Tr. 281-

283). Warnick did not know how to reach Rodriguez. However, 

he supposed he could find Bergamo but he had not made any atten1pt 

to find Kelley (Tr. 292-293). 

Discussion 

The commission has held that the time limitations contained 

in Section 105(c) of the Act were not intended to be jurisdictional and dismissal of a complaint for late filing is justified 

only if the operator shows a material legal prejudice attributable to the delay. Secretary ex rel. Hale v. 4-A Coal Company, 

Inc., 8 FMSHRC 905 (1986); Herman v. Imco Services, 4 FMSHRC 2135 

(1982). 

In this case such material legal prejudice exists: the 

individuals who investigated and determined that Bruno should 

be fired are no longer with the company. In addition, after 

a delay of over four years, it is questionabl~ whether these 

individuals would have a present recollection of the events surrounding Bruno's alleged discrimination and termination. This is 

particularly true inasmuch as the uncontroverted evidence shows 

that the persons involved in the decision to terminate Bruno for 

fighting had not been advised of any alleged protected activity 

involving the float coal dust. 

For these reasons I conclude that the complaint filed herein, more than four and one-half years after the incident, was not 

timely filed. 

However, it is appropriate to review the case on the merits. 

Protected Activity 

In December 1983, Bruno was working a normal workweek 

running a shuttle car and he was part of a nine-man crew. Roger 

Skaggs was the face foreman. 

Bruno's duties required him to operate his shuttle car in 

an unsafe area. In particular, one of the entries was "clear 

1652 
full" of float coal dust. 2/ Some of it was suspended and about 

a foot deep in some places: This condition plugged up his nose 

and his visibility was impaired (Tr. 25). The first day when he 

started running his car through the area he told Skaggs about it 

(Tr. 45-47). Skaggs said he would check with the material man 

who was responsible for watering down the roadways and maintaining them (Tr. 27). The situation remained the same. When 

Skaggs was again approached on the subject, he explained that 

the material man had not gotten to the problem CTr. 28). After 

five days the condition remained the same, so Bruno shut down his 

buggy and went over and watered down the area. The watering took 

15 to 20 minutes (Tr. 30-31). The same day that he had watered 

the area down, Skaggs asked him if he had shut down the shuttle 

car. When he confirmed that he had shut it down, Skaggs started 

·"screaming and yelling" and told him never to shut down the 

shuttle car. 3/ If he did he would be taken off of the buggy 

(Tr. 31). Bruno replied that he should have the right to shut 

down the shuttle car and water the float coal dust (Tr. 32). 

Several days after the conversation about shutting down the 

shuttle car Skaggs told Bruno that it was Steve Stoker who had 

told him that Bruno had shut down the car. (Stoker had been 

Bruno's helper for many years.) (Tr. 33). When Bruno confronted 

him, Stoker denied having made such a statement. Bruno told 

Stoker not to make any more trouble (Tr. 33-35). 

2/ The Secretary's regulation, 30 C.F.R. § 75.400 provides as 

follows: 

[Statutory Provision] 

Coal dust, including float coal dust deposited on rock-dusted surfaces, loose coal 

and other combustible materials, shall be 

cleaned up and not be permitted to accumulate 

in active workings, or on electric equipment 

therein. 

3/ Skaggs admits he "got on" Bruno for shutting down production 

but not for watering the entry (Tr. 209). A continuous miner 

will not operate without water (Tr. 79)~ 

1653 
Ten days to two weeks later, about December 8, 1983, Bruno 

again became irritated with Stoker. This arose because some 

miners were not wearing safety glasses; Stoker thought the 

company should know about it C Tr. 35-36). 

When Bruno went to lunch that day he was relieved by fellow 

worker Ron Dalton who described Stoker as a "troublemaker". 

Bruno was upset. As he went to the lunchroom he thought about 

Stoker and slowly came to a "boiling point" (Tr. 37). 

Stoker came into the lunchroom. Bruno immediately got up 

and approached him. Bruno said Stoker was nothing but a troublemaker. He then struck him a couple of time. Stoker didn't hit 

back; he had a bloody nose. The incident lasted five or six 

seconds (Tr. 37-38, 104-105). 

Bruno then apologized for hitting him and they talked to 

each other and then went back to work (Tr. 39). Bruno finished 

the shift and went home. He later received a call from Paul 

Kelley, head of the Human Resources Department. At a conference 

with Bruno, Bill Bergamo, and Rulen White, the men asked Bruno 

about the fight and he was asked if he had struck Stoker. When 

he admitted it he was told to call back to learn of the committee's decision. On December 12, 1983, Bruno was told to 

choose between being fired or resigning. Bruno decided to resign 

because he ~as going to be fired (Tr. 40-42, 65, 76, Ex. R-4). 

Bruno instructed his original attorney that he wanted to be 

reinstated (Tr. 72, 73). The float coal dust incident was not 

raised in the earlier State of Utah lawsuit (Tr. 77). 

Discussion 

The threshold matter to consider here is whether Bruno's 

affirmative action of self help in watering down the entry was 

an a~tivity protected under the Act. 

In Robinette, supra, the Commission observed that occasions 

will arise where mere ceasing of work will not eliminate or 

protect against hazards while adjusting or shutting off equipment 

will do so. In such cases such affirmative action may represent 

the safest and most responsible means of dealing with the hazard. 

Robinette, 3 FMSHRC at 808; Wiggins v. Eastern Associated Coal 

Corporation, 7 FMSHRC 1766 (1985). 

It could be argued that Bruno's act of shutting off the 

continuous miner and watering down the entry was not an integral 

part of a protected work refusal. However, on the authority of 

Robinette and Wiggins, I assume that the activities of Bruno in 

shutting down the miner and watering down the entry were protected under the Act. 

1654 
Accordingly, it is necessary to further evaluate the 

evidence. 

The Commission has previously observed that direct evidence of motivation is rarely encountered in a discrimination 

case and that motivation may be drawn from circumstantial 

evidence showing such factors as knowledge of the protected 

activity, coincidence in time between the protected activity 

and the adverse action and disparate treatment. Secretary on 

behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508 (November 

1981), rev'd on other grounds, 709 F.2d 86 CD.C. Cir. 1983)i 

Schulte v. Lizza Industries, Inc., 6 FMSHRC 8 (1984). It i~, 

accordingly, appropriate to analyze the evidence concerning 

these cardinal features. 

Knowledge of Protected Activity 

The face boss, Roger Skaggs, knew Bruno had shut down the 

miner to water the entry. But Skaggs did not relay this information to anyone else. Skaggs' testimony on this point is both 

credible and uncontroverted. Skaggs neither participated in the 

decision to fire Bruno and the float coal dust incident was never 

reported to the committee that considered the discipline for the 

Bruno/Stokes fight (Tr. 206). This view of the evidence is 

further confirmed by Bruno who agrees he didn't have an opportunity to say anything about the float coal dust incident when 

he was fired (Tr. 76). Nor was it raised in the earlier State of 

Utah law suit (Tr. 77). In addition, Bruno admits the ~ompany 

was first made aware of his discrimination claim in June 1988 

(Tr. 84). 

Coincidence in Time 

I do not find any coincidence in time between Bruno's 

protected activity and his discharge. Approximately ten days 

to two weeks elapsed from the protected activity and the fight 

in the lunchroom between Bruno and Stoker. No adverse action was 

taken during this period. On the other hand, it was only a few 

days from the time of the lunchroom fight until Bruno was discharged. This indicates Bruno was fired because of his fight 

with Stoker. 

Disparate Treatment 

A review of the evidence concerning disparate treatment is 

necessary since Bruno claims he received disparate treatment. 

Specifically, other miners had engaged in fights and had not been 

terminated. (This was Bruno's contention when he originally 

filed his case in Utah District court.) 

1655 
The evidence shows that Bruno had observed other fights in 

the mine (Tr. 46). He had observed a fight between Chad Tabor 

and Larry Mardoch (Tr. 50). He was also present on three 

different occasions when altercations occurred. Two of them 

were in the section where he was working and one was in the 

bathhouse (Tr. 50). In addition, fighting has always gone on 

and it was a common occurrence at the mine (Tr. 84). Bruno had 

never had a fight with any supervisory personnel or any other 

fellow employee at the mine (Tr. 105). However, on a previous 

occasion, Bruno admits he was involved in an incident with fellow 

employee, Meade. This occurred when Meade swore at Bruno on two 

different occasions. On the second occasion, Bruno pushed him 

and told him not to talk to him like that (Tr. 109). According 

to Bruno it was not a fight <Tr. 110). However, at the time of 

the termination interview with Bergamo, Bruno was asked about the 

Meade incident (Tr. 111). 

Witness EARL MARCHELLO had observed fighting on the company's premises. Particularly he recalled Bob Bennett and Ben 

Darling (Tr. 117). The Bennett fight occurred underground and it 

was after Bruno had been terminated. Skaggs was a supervisor of 

the crew but did not see the fight (Tr. 117-121). 

Witness IVAN GAGON had seen a fight between Chad Tabor and 

Bud Weaby where blows were exchanged. The men were not terminated for fighting. The witness also heard of other fights 

over the years but was not aware of any employee dismissed for 

fighting (Tr. 128-130). However, both men were called in and 

were "talked to" by Bergamo and Snyder (Tr. 133). 

Witness KEVIN WOODS had seen three or four fights over 

the years at the mine. He had seen a foreman present at those 

fights on two occasions. The witness himself was involved in one 

altercation and received a letter of reprimand from the company 

in May 1984. Woods was not dismissed but he did receive time off 

(Tr .. 137-139). Bruno was the only one terminated for fighting 

(Tr. 140). The witness was not aware of anyone terminated for 

fighting (Tr. 146). 

The witness was involved in a fight in the mine with Daniel 

Gagon (Tr. 148). The fight occurred at the Twenty-Mile Coal Mine 

in Colorado managed by Plateau and still owned by it. A letter 

of reprimand was issued (Tr. 151) (Ex. R-13). As a result of the 

fight Gagon received a similar letter (Tr. 151). Both men were 

suspended for three days (Tr. 152) •. 

1656 
Witness MAYO O'HERRON.had observed four or five fights 

over the years and been involved in fights himself. In 1979 he 

received three days off without pay and he was told if he lost 

his temper again he would be fired (Tr. 163). O'Herron was not 

aware of anyone who had been terminated for fighting in the mine 

(Tr. 164) 

Witness ERNEST PRETTYMAN had a fight about five years ago 

on the mine premises with John Haughter. Prettyman was not 

terminated because the other party "had it coming". PrettymaL 

knew it was against company policy to fight on the premises 

(Tr. 170, 173). 

Witness VOPEL LANDER had seen fights, one involving a 

company official who took off his miner's hat and belt and 

called on the entire crew to fight him. This was in 1981 or 

1982. The company official was Cary Jensen (Tr. 182-183). 

The witness also broke up the fight between Chad and Buddy Weaby. 

The face foreman witne8sed this fight and Weaby quit rather than 

go back into the mine (Tr. 184-185). He also saw a fight between 

Chad Tabor and Randy Mabbutt (Tr. 185). The Tabor-Mabbutt fight 

was in 1977 but no company officials were present (Tr. 186). 

He also heard about Bruno's altercation as well as Prettyman's 

altercation (Tr. 187). 

Respondent's witness ROGER SKAGGS indicated the committee 

stated they had to make an example of Bruno and it was hoped the 

fighting would quit on the property (Tr. 206-207). Bruno was 

terminated for fighting (Tr. 207). 

Witness DAVE DONALDSON, Human Resources Representative for 

the respondent, has been so employed for three and one-half years 

(Tr. 217). In 1983 it was against company policy to fight underground and you could be terminated if you were caught fighting 

(Tr. 219-220). 

The standards of conduct at the Getty Oil Company prohibited 

fighting CTr. 221). 

Donaldson started working at this site in 1981 for the 

then operator, United Nuclear Company. The next owner-operator 

was Getty Oil in 1982 and the subsequent operator Cin 1984) was 

Texaco (Tr. 242-243). Cyprus Minerals Company acquired the 

property in March 1986. Plateau Minerals is the parent company 

of Cyprus Plateau Mining Company (Tr. 244). 

1657 
The Getty booklet contains a prohibition against fighting 

or horseplay. The booklet states that disciplinary action may 

be taken. It may include discharge (~r. 248). 

Witness ARNOLD SHAW, Director of Safety for Plateau Mining, 

described how safety complaints are handled at the company. 

The witness had never had a complaint about float coal dust 

(Tr. 250-254). ~ 

Witness STAN WARNICK, Manager of Human Resources for 

respondent, felt that the discharge of Bruno was consistent 

with company policy concerning assaults or fights. Company 

policy stated that discipline would be invoked if it appeared 

appropriate for the incident CTr. 281). As a result of the 

altercation with Bruno and Stoker, Stoker received a written 

warning that any further involvement would result in further 

discipline. There are two sets of rules relating to fighting: 

one is a safety guideline that prohibits it, and the second is 

Getty's standards of conduct that prohibit it. Both documents 

state that discipline could be imposed depending upon the 

circumstances (Tr. 286). 

According to the company's records three employees have 

been terminated for fighting. One was Bruno and the others 

were Buddy Weaby and Dennis Craig who was terminated in April 

1982 (Tr. 287). There has always been some form of discipline 

when management was aware that the fighting had taken place. 

The company's policy remains the same, (Tr. 288). 

In the witness's view, Bruno was terminated for assaulting 

another employee. An assault is more serious than a fight 

(Tr. 300). However, there is nothing in the company guidelines 

that distinguishes assault from any other kind of a fight 

C Tr. 300-301). 

Evaluation of the Evidence 

In evaluating the evidence concerning disparate treatment 

I credit the operator's evidence. Br.uno's witnesses, as to 

fighting on the premises, would no doubt know the circumstances 

under which a particular fight occurred. However, Warnick, as 

manager of Human Resources would be in a position to know whether 

employees who have engaged in fights known to the company had 

been terminated. He testified that Weaby and Dennis Craig (and 

Bruno) were terminated (Tr. 287, 288). 

1658 
Further, I am not persuaded by Bruno's arguments that he 

received disparate treatment: it is not necessary to distinguish 

whether the Stoker incident was an assault or a fight but, in any 

event, Bruno was clearly the aggressor. In whatever fashion the 

incident is categorized, the Stoker fight was not Bruno's first 

incident. Bruno indicates the event involving Leroy Meade was 

"not a fight" (Tr. 110). However, it was a fact discussed during 

Bruno's termination interview with Bergamo (Tr. 111). 

In sum, if Bruno had established that he was terminated in 

part because of protected activity, I would nevertheless conclude 

that respondent was motivated by unprotected activities and.would 

have taken the adverse action for the unprotected activities 

alone; i.e., Bruno's fight with fellow worker Stoker in the 

lunchroom. 

For the foregoing reasons, I conclude that complainant has 

not established that respondent discharged or otherwise discriminated against him in violation of Section 105Cc) of the Act. 

ORDER 

Based on the above findings of fact and conclusions of law, 

IT IS ORDERED that the complaint and proceedings herein are 

dismissed. 

orris 

rative Law.Judge 

Distribution: 

Gregory J. Sanders, Esq., Kipp & Christian, City Centre I, 1330, 

175 East 400 South, Salt Lake City, UT 84111-2314 (Certified 

Mail) 

Kent W. Winterholler, Esq., James M. Elegante, Esq., Parsons, 

Behle & Latimer, 185 South State Street, Suite 700, P.O. Box 

11898, Salt Lake City, UT 84147-0898 (Certified Mail) 

/ot 

1659 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 2 91988 

SECRETARY OF LABOR, . . CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

ONEIDA COAL COMPANY, INC., 

Respondent 

Docket No. WEVA 88-167 

A.C. No. 46-06557-03539 

Oneida Mine No. 11 

DECISION 

Appearances: Anita D. Eve, Esq., U.S. Department of Labor, 

Office of the Solicitor, Philadelphia, 

Pennsylvania, for the Petitioner; 

w. T. Weber, Jr., Esq., Weston, West Virginia, 

for the Respondent. 

Before: Judge Maurer 

STATEMENT OF THE CASE 

This case is before me upon a petition for assessment of 

civil penalty under section 105Cd) of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801, et seq., th~ "Act," in which 

the Secretary has charged the Oneida Coal Company (Oneida) with 

two violations of the mandatory safety standards. Prior to the 

commencement of taking testimony in this case, however, the 

parties moved to settle that portion of the case concerning 

§ 104Cd)(l) Order No. 2901009, alleging a violation of 30 C.F.R. 

§ 75.400 and proposing a $1000 civil penalty. There was no 

reduction in the assessed penalty proposed and based upon the 

representations made at the hearing and in the record, I conclude 

that-the proffered settlement is appropriate under the criteria 

set forth in section llOCi> of the Act. 

The remaining section 104(d)(l) citation, alleging a 

violation of the mandatory safety standard found at 30 C.F.R. 

§ 75.200 and proposing to assess a civil penalty of $950 was 

tried before me at a scheduled hearing on July 15, 1988, at 

Slatyfork, West Virginia. 

The general issues before me are whether Oneida violated the 

cited regulatory standard, and, if so, whether that violation was 

of such a nature as could significantly and substantially 
contr~bute to the cause and effect of a mine safety or health 

hazard, i.e., whether the violation is "significant and 

substantial." If a violation is found, it will also be necessary 

to determine the appropriate civil penalty to be assessed in 

accordance with section llOCi> of the Act. An additional issue 

in this case is whether the inspect:or's "unwarrantable failure" 

finding should be affirmed. 

DISCUSSION 

Citation No. 2700376 alleges a "significant and substantial" 

violation of the standard at 30 C.F.R. § 75.200 and specifically 

charges as follows: 

There was a violation of the approved roof control 

plan, in that only 5 breaker post and no turn post were 

installed in the Wo. 2 block pillar split, A-5 panel 

section, where coal was being mined by continuous miner. 

Dan Matz, was the Section Foreman. The approved plan 

requires eight (8) breaker post and four (4) turn post 

be installed prior to taking the first cut from the 

pillar split. The Foreman knew or should have known of 

this requirement. 

Oneida does not dispute the factual allegations set forth in 

the citation at bar nor does it dispute that such allegations 

constitute a violation of its roof control plan and therefore the 

cited standard. Oneida maintains, however, that the violation 

was neither "significant and substantial" nor caused by its 

"unwarrantable failure" to comply with its roof control plan. 

Inspector Veith testified that the operator's roof control 

plan required that they have eight breaker posts and four 

turn posts installed prior to starting the pillar split. He 

observed five breaker posts installed and no turn posts. He 

asked the continuous miner operator if he knew what the roof 

control plan required and the miner ostensibly replied that yes, 

he did, but he did not have any posts available. 

The inspector further opined that every time you split a 

pillar block, you increase the chance of a roof fall and 

therefore the chance of serious injury. The risk of serious 

injury in this case being to the miner operator who was right 

beside the machine even though this particular continuous miner 

had r.9Jllote control capability. 

It was also the inspector's opinion that this violation was 

"unwarrantable" because the section foreman knew or should have 

known that this miner operator was going to start mining in the 

1661 
affected area before the roof control plan had been complied with. 

He testified at CTr. 30): 

It's the section foreman's responsibility to see to 

that, and he should have know~. It should have been 

checked to be sure that the proper amount of roof 

support had been installed. That's part of his 

responsibility. 

Mr. Bauer, Director of Safety and Training for Oneida, also 

testified. He stated that he investigated this incident and 

found by interviewing Randell Mullins, the continuous miner 

operator, that he (Mullins) had moved the miner to the number two 

block and was mining there for approximately five to ten minutes 

when the inspector came up and issued the citation. He further 

stated that Danny Matz, the section foreman, knew about the roof 

control plan requirements. 

Danny Matz also testified. He stated that before the 

inspector arrived he personally had checked the area around the 

number two block and at that time all the breaker posts were in 

and standing. Later, he returned to the area with Inspector 

Veith and observed that three of the eight breaker posts had been 

knocked down by falling material. He acknowledged, however, that 

there were no turn posts in number two,- either earlier or when he 

came back with the inspector, which was okay as long as no mining 

was taking place there. 

Forffinan Matz maintains that he did not instruct the miner 

operator to make a pillar split or cut on the number two block 

and he did not know that the-miner ooerator would be mining on 

the number two block without his pri~r approval. He states the 

miner operator should have let him know that there were no 

"timbers" in there prior to starting that pillar cut. However, 

on cross-examination he a~~itted that he would not have routinely 

had to be there for the miner operator ~o start cutting on the 

nwnber two block and he would ordinarily just assume the miner 

operator would put up the required turn posts. 

Significant and Substantial Violation 

A "significant and substantial" vi~lation is described in 

section 104Cd>Cl) of the Mine Act as a violation "of such nature 

as could significantly and su~stantially contribute to the cause 

and effect of a coal or other mine safety or health hazard." 30 

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

significant and substantial "if, based upon the particular facts 

surrounding the violation there exists a reasonable likelihood 

that the hazard contributed to ~ill result in an injury or 

1662 
illness of a reasonably serious nature." Cement Division, 

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

In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the 

Commission explained its interpreta.tion of the term "significant 

and substantial" as follows: 

In order to establish that a violation of a 

mandatory safety standard is significant and 

substantial under National Gypsum the Secretary of 

Labor must prove: Cl) the underlying violation of a 

mandatory safety standard; (2) a discrete safety 

hazard--that is, a measure of danger to 

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

reasonable likelihood that the hazard contributed to 

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

likelihood that the injury in question will be of a 

reasonably serious nature. 

In United States Steel Mining Company, Inc., 7 FMSHRC 1125, 

1129, the Commission stated further as follows: 

We have explained further that the third element 

of the Mathies formula 'requires that the Secretary 

establish a reasonable likelihood that the hazard 

contributed to will result in an event in which there 

is an injury.' U.S. Steel Mining Co., 6 FMSHRC 1834, 

1836 (August 1984). We have emphasized that, in 

accordance with the language of section 104(d){l), it 

is the contribution of a violation to the cause and 

effect of a hazard that must be significant and 

substantial. U.S. Steel Mining Company, Inc., 6 FMSHRC 

1866, 1868 (August 1984); U.S. Steel Mining Company, 

Inc., 6 FMSHRC 1573, 1574-75 (July 1984). 

I conclude and find that a violation of the cited 

standard did occur as alleged in Citation No. 2700376, and 

~s admitted by Oneida. Furthermore, a discrete safety 

hazard in the form of an increased danger of a roof fall was 

contributed to by the violation. Additionally, I accept and 

£ind credible the inspector's opinion that there was a 

reasonable likelihood that the hazard contributed to could 

result in a reason3.bly serious type injury, which is usually 

the case in a roof fall type accident. I therefore conclude 

that the violation was "significant and substantial," and 

serious. 

1663 
The Unwarrantable Failure Issue 

The Secre~ary further urges that this violation was 

caused by the operator's "unwarrantable failure" to comply 

with the mandatory standard, and I ,agree. 

In Zeigler Coal Company, 7 IBMA 280 (1977), the 

Interior Board of Mine Operations Appeals interpreted the 

term "unwarrantable failure" as follows: 

An inspector should find that a violation of any 

mandatory standard was caused by an unwarrantable 

failure to comply with such standard if he determines 

that the operator has failed to abate the conditions or 

practices constituting such violation, conditions or 

practices the operator knew or should have known 

existed or which it failed to abate because of lack of 

due diligence, or because of indifference or lack of 

reasonable care. 

The Commission has concurred with this definition to the 

extent that an unwarrantable failure to comply rr.ay be proven by a 

showing that the violative condition or practi~e was not 

corrected or remedied prior to the issuance of a citation or 

order, because of indifference, willful intent, or serious lack 

of reasonable care. United States Steel_ Corp. v. Secretary of 

Labor, 6 FMSHRC 1423 at 1437 (1984). And more recently, in Emery 

Mining Corp. v. Secretary of Labor, 9 FMSHRC 1997 (1987), the 

Commission stated the rule that "unwarrantable failure" means 

aggravated conduct, constituting more than ordinary negligence, 

by a mine operator in relation to a violation of the Act. 

In this case, Foreman Matz testified and I specifically find 

that testimony to be credible, that when he inspected the area 

all eight of the required breaKer posts were then in place. 

However, none of the required turn posts were installed. At this 

point in time, Matz knew the turn posts were not installed and he 

also knew that the number two block was scheduled to be cut on 

that_shift. Now theoretically, the miner operator was supposed 

to tell Matz that he was going to start cutting on the number two 

block and this would have given Matz the oppotunity to make sure 

the required turn posts were installed, as both he and the 

continuous miner operator knew they should be prior to the start 

of any mining. For whatever reason, this did not happen and as 

Matz candidly admitted, this did not completely surprise him. In 

effect, Matz totally relied on and expected the miner operator to 

install the turn posts before he started cutting. I find this to 

be an abdication ~£ Matz' responsibilities as the section 

f oceman, and a serious lack of reasonable care on his part to see 

that the standard was complied with. This negligence is clearly 

1664 
imputable to the operator. Accordingly, I conclude and find that 

that ·portion of the violation pertaining to the missing turn 

posts was an "unwarrantable failure" to comply with the standard 

cited. With regard to the missing breaker posts, I accept the 

operator's explanation that three of the eight posts had been 

knocked down since Matz had earlier that shift observed them 

standing in place. This last finding is reflected in the civil 

penalty assessed by me for this violation. 

Civil Penalty Assessment 

In assessing a civil penalty concerning this citation, I 

have also considered the foregoing findings and conclusions and 

the requiranents of section llOCi) of the Act, including the fact 

that the operator is small in size and does not have a -

significant history of violations. Under these circumstances, I 

find that a civil penalty of $750 is appropriate. 

ORDER 

Citation No. 2700376 and Order No. 2901009 ARE AFFIRMED, and 

Oneida Coal Company is hereby directed to pay a civil penalty of 

$1750 within 30 days of the date of this decision. 

urer 

rative Law Judge 

Distribution: 

Anita D. Eve, Esq., U.S. Department of Labor, Office of the 

Solicitor, 3535 Market Street, Philadelphia, PA 19104 (Certified 

Mail) 

W. T. Weber, Jr., Esq., 208 Main .Avenue, Weston, WV 26452 

(Certified Mail) 

slk 

1665 

ADMINISTRATIVE LAW JUDGE ORDER 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION . OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

October 4, 1988 

SECRETARY OF LABOR, . . CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MATERIAL SERVICE CORPORATION, 

Respondent 

. . 

. . 

Docket No. LAKE 88-122-M 

A.C. No. 11-00070-05507 

Romeo Quarry 

ORDER DENYING PROPOSED SETTLEMENT 

NOTICE OF HEARING 

On August 11, 1988, the Secretary of Labor filed a 

petition for assessment of a civil penalty before this 

Commission proposing a penalty of $8,000 for one violation of 

the mandatory standard at 30 C.F.R. § 56.9054. The citation 

charges as follows: 

An employee was fatally inju.red on October 27, 1987 

when the Euclid R-50 co.#54-6929 haulage truck he 

was operating went over the edge of the live 

stockpile and fell approximately 50 feet 

overturning and landing upside down on the Quarry 

floor. Berms, bumper blocks, safety locks, or 

similar means to prevent overtravel and overturning 

was not provided at this dumping location at the 

time the incident occurred. 

In a motion to approve settlement filed with this 

Commission on September 12, 1988, the Secretary sought to 

reduce the proposed penalty to $5,000 and, as grounds 

therefore, stated as follows: 

1) A high degree of gravity is involved in the 

present citation because the event that the cited 

standard is trying to prevent actually occurred. 

2) A high degree of negligence is present in this 

citation because the mine operator knew or should 

have known that an adequate berm or a similar type 

of device was required to prevent overtravel and 

overturning at the dumping location. On 

September 2, 1988, the undersigned attorney 

discussed this case with Michael J. Bernardi, 

1666 
.Director of Safety for the Material Service 

Corporation. Mr. Bernardi stated that during .the 

afternoon prior to the date of the accident a berm 

had been constructed at the cited location. 

However, at the time of .the accident the material 

that was removed from the berm had not been totally 

replaced leaving a berm that was not adequate to 

prevent an accident. 

3) The mine operator demonstrated its good faith by 

abating the cited condition within the time granted 

the MSHA inspector. 

4) The mine operator had no assessed violations 

during the 24 month period preceding the issuance 

of the present citation. See copy of Proposed 

Assessment Data Sheet, marked as Exhibit A, 

attached hereto and made a part hereof. 

5) During the calendar year· preceding the issuance 

of the present citation the mine involved in this 

case accumulated a total of 128,522 hours of work 

and the controlling entity had a total of 1,687,359 

hours of work during the same period. 

6) Payment of the penalty agreed to in this 

settlement will not affect the mine operator's 

ability to remain in business. 

Section llO(k) of the Act provides that "no proposed 

penalty which has been contested before the Commission under 

section 105(a) shall be compromised, mitigated, or settled 

except with the approval of the Commission." Penalty 

proceedings before the Commission are de novo. Neither the 

Commission or its Judges are bound by the Secretary's 

proposed penalties. Rather, they must determine the 

appropriate amount of penalty, if any,. in accordance with the 

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

Secretary v. Phelps Dodge Corp., 9 FMSHRC 920 (Chief Judge 

Merlin 1987); Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147 

(7th Cir. 1984). 

The Commission recently reaffirmed these principles in 

Secretary v. Wilmot Mining Co., 9 FMSHRC 684 (1987): 

Settlement of contested issues and Commission 

oversight of that process are integral parts of 

dispute resolution under the Mine Act. 30 

U.S.C. § 820(k); see Pontiki Coal Corporation, 

1667 
8 FMSHRC 668, 674 (May 198'6). 'Th'e Commission has 

held repeatedly that if a Judg·e disagrees with a 

penalty proposed in a settlement he is free to rej_e.~t the settl.ement and direct the matter for 

h.earin-g. See e.g. Kno~ County Stone Compa:n,y, 3 

.FMSHRC 2478, 2480-81 (1981). A judge 1 s oversight 

of the settlement process "is an adjudicative 

function that necessarily involves wide 

discretion." Knox Count¥, 3 FMSHRC at 2479. 

In this case the citation at bar: sets forth a .. serious 

regulatory violation leading to a fatality. The settlement 

motion also confirms that the fatality was the result of a 

"high degree~ of negligen6e and the purported excuse or 

justification for reducing the level of negligence is 

incomprehensible. !rt addition the other grounds advanced 

do not justify the proposed reduction ... !/ 

Accordingly the Motion is denied and this case is set 

for hearing on the merits at 9:00 a.m. on December 13, 1988, 

in St. Louis, Missouri. The specific courtroom in which the 

hearing will be held will be designated at later date. 

I; The Secretary was tunity to supplement her 

Motion in this case to furnish add tiona,l information to 

justify ber proposed redbction in penalty but declined. 

1668