OCTOBER 1987 

COMMISSION DECISIONS 

There were no Commission decisions during October 

ADMINISTRATIVE LAW JUDGE DECISIONS 

10-05-87 

10-05-87 

10-05-87 

10-07-87 

10-08-87 

10-08-87 

10-15-87 

10-15-87 

10-20-87 

10-20-87 

10-20-87 

10-22-87 

10-23-87 

10-23-87 

10-27-87 

10-28-87 

10-29-87 

10-30-87 

10-30-87 

Green River Coal Company, Inc. 

John A. Harris v. Benjamin Coal Co. 

Paramont Coal Corporation 

Charles McGhee & Jackie Lowe v. 

American Standard Coal Sales, etc. 

Local 1248, Dist. 5, UMWA v. U.S. Steel Mining 

Highwire, Incorporated 

Mid-Continent Resources, Inc. 

U.S. Steel Mining Company, Inc. 

Green River Coal Company, Inc. 

Ronald R. Morris v. Dunkard Mining Co. 

Sec. Labor for David Willis & Albert Halstead 

v. Babcock Mining Co., and others 

Local 1261, Dist. 22, UMWA v. Consolidation 

Coal Company 

J.C. London Coal Company, Inc. 

Highwire, Incorporated 

Green River Coal Company, Inc. 

Arnold Sharp v. Big Elk Creek Coal Co. 

Alfred Daniels v. Southwestern Portland Cement 

Thomas W. Godfrey v. Big Elk Creek Coal Co. 

Pioneer Sand & Gravel Company 

KENT 87-99-R Pg. 1715 

PENN 87-72-D Pg. 1718 

VA 86-46 Pg. 1720 

SE 86-98-D Pg. 1753 

SE 86-99-D 

PENN 87-187-C Pg. 1754 

KENT 86-166-R Pg. 1755 

WEST 85-19 Pg. 1757 

PENN 87-37 Pg. 1771 

KENT 86-142 Pg. 1780 

PENN 87-77-D Pg. 1791 

WEVA 87-106-D Pg. 1797 

WEVA 87-107-D 

WEST 86-199-C Pg. 1799 

KENT 86-126 Pg. 1803 

KENT 87-95 Pg. 1812 

KENT 87-13-R Pg. 1815 

KENT 86-149-D Pg. 1822 

LAKE 87-46-DM Pg. 1823 

KENT 87-92-D Pg. 1838 

WEST 87-28-M Pg. 1839 

OCTOBER 1987 

Review was granted in the following cases during the month of October: 

Paula Price v. Monterey Coal Company, Docket No. LAKE 86-45-D. (Judge 

Melick, September 3; 1987). 

Local Union 1810, District 6, UMWA v. NACCO Mining Company, Docket No. 

LAKE 87-19-C. (Judge Fauver, September 18, 1987). 

Secretary of Labor, MSHA v. Freeman United Coal Mining Co., Docket No. 

LAKE 86-67. (Judge Morris, September 21, 1987) 

There was no case filed in which review was denied. 

ADMINISTRATIVE LAW JUDGE DECISION§ 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE. 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH. VIRGINIA 22041 

October 5, 1987 

GREEN RIVER COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

1715 

CONTEST PROCEEDINGS 

Docket No. KENT 87-99-R 

Citation No. 9897101; 2/27/87 

Docket No. KENT 87-100-R 

Citation No, 9897102; 2/27/87 

Docket No. KENT 87-101-R 

Citation No. 9897103; 2/27/87 

Docket No. KENT 87-102-R 

Citation No, 9897104; 2/27/87 

Docket No. KENT 87-103-R 

Citation No. 9897105; 2/27/S7 

Docket No. KENT 87-104-R 

Citation No. 9897106; 2/27/87 

Docket No. KENT 87-105-R 

Citation No. 9897107; 2/27/87 

Docket No. KENT 87-106-R 

Citation No. 9897108; 2/27/87 

Docket No, KENT 87-107-R 

Citation No. 9897109; 2/27/87 

Docket No. KENT 87-108-R 

Citation No. 9897110; 2/27/87 

Docket No. KENT 87-109-R 

citation No. 9897111; 2/27/87 

Docket No. KENT 87-110-R 

Citation No. 9897112; 2/27/87 

Docket No. KENT 87-111-R 

Citation No. 9897113; 2/27/87 

Docket No. KENT 87-112-R 

Citation No. 9897114; 2/27/87 

Docket No. KENT 87-113-R 

Citation No, 9897115; 2/27/87 

Docket No. KENT 87-11.4-R 

citation No. 9897116; 2/27/87 

Docket No. KENT 87-115-R 

Citation No. 9897117; 2/27/87 

Docket No. KENT 87-116-R 

Citation No. 9897118; 2/27/87 

Docket No, KENT 87-117-R 

citation No. 9897119; 2/27/87 

Docket No. KENT 87-118-R 

Citation No. 9897120; 2/27/87 

Docket No. KENT 87-119-R 

Citation No. 9897121; 2/27/87 

Docket No. KENT 87-120-R 

Citation No. 9897122; 2/27/87 

Docket No. KENT 87-121-R 

Citation No. 9897123; 2/27/87 

Docket No. KENT 87-122-R 

Citation No. 98971241 2/27/87 

Docket No. KENT 87-123-R 

Citation No. 98971251 2/27/87 
SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA), 

Petitioner 

v. 

GREEN RIVER COAL COMPANY, 

Respondent 

Docket No. KENT 87-124-R 

Citation No. 98971261 2/27/87 

Docket No. KENT 87-125-R 

Citation No. 98971271 2/27/87 

Docket No. KENT 87-126-R 

Citation No. 9897128; 2/27/87 

Docket No. KENT 87-127-R 

citation No. 9897129; 2/27/87 

Docket No. KENT 87-128-R 

Citation No. 9897130; 2/27/87 

. Docket No. KENT 87-129-R 

Citation No. 98971311 2/27/87 

Docket No. KENT 87-130-R 

Citation No. 9897132; 2/27/87 

Docket No. KENT 87-131-R 

Citation No. 9897133; 2/27/87 

Docket No. KENT 87-132-R 

Citation No. 9897134; 2/27/87 

Docket No. KENT 87-133-R 

Citation No. 9897135; 2/27/87 

Docket No. KENT 87-134-R 

Citation No. 9897136; 2/27/87 

Docket No. KENT 87-135-R 

Citation No. 98971371 2/27/87 

Docket No. KENT 87-136-R 

Citation No. 9897138; 2/27/87 

Docket No. KENT 87-137-R 

Citation No. 9897139: 2/27/87 

CIVIL PENALTY PROCEEDINGS 

Docket No. KENT 87-172 

A. C. No. 15-13469-03602 

Docket No. KEN·r 87-173 

A. C, No. 15-13469-03603 

DECISION APPROVING SETTLEMENT 

AND ORDER OF DISMISSAL 

Before: Judge Weisberger 

These cases are before me based on Notices of Contest filed 

by the Petitionero The Secretary subsequently filed proposals for 

assessments of the Civil Penalties. 

Both Parties filed a Joint Motion to Approve Settlement on 

September 23, 1987. The Motion proposed a reduction in total 

Penalties from $7,800 to $950. I have considered the documentation submitted in these cases, especially the representations of 

mitigating factors contained in paragraph 4. of the Motion and 

paragraphs 5. and 7. of Dave Harper's affidavit. I conclude that 

the proffered penalties agreed upon are appropriate under the 

criteria set forth in Section llOCi) of the Act. 

1716 
The Joint Motion also set forth a settlement agreement that 

20 of the contested citations be vacated on the ground that they 

are not violations of the reporting requirements (30 C.F.R. 

§ 50.20), as they do not meet the definition of a reportable 

"accident", or "occupational injury". I have considered the 

documentation in these cases, especially paragraphs 3. and 5. of 

the Joint Motion, paragraph 6. of Dave Harper's affidavit, and 

Exhibit "A" attached to Dave Harper's affidavit. I conclude that 

it is proper to vacate the 20 citations· referred to in the Motion. 

Wherefore, the Joint Motion to Approve Settlement is GRANTED, 

and it is ORDERED that Petitioner {Operator) pay a penalty of 

$950, within 30 days of this Order. It is further ORDERED that 

the following citations be VACATED: 

9897101 

9897104 

9897112 

9897114 

9897115 

9897117 

9897119 

9897120 

9897122 

9897125 

9897128 

9897129 

9897130 

9897131 

9897133 

9897134 

9897135 

9897137 

9897138 

9897139 

It is further ORDERED that the above captioned Notices of 

Contest be DISMISSED. 

Distribution: 

Avram Weisberger 

Administrative Law Judge 

Mary Sue Rayf Esq.u Office of the Solicitorf Uo S. Department of 

Laboru 2002 Richard Jones Road, Suite B-201, Nashville, TN 37215 

(Certified Mail) 

Mr. Flem Gordon, Green River Coal Company, Inc., R.R. #3, 

Box 284A, Madisonville, KY 42431 (Certified Mail} 

dcp 

1717 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 5 \987 

JOHN A. HARRIS, 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

BENJAMIN COAL COMPANY, 

Respondent 

Docket No. PENN 87-72-D 

MSHA Case No. PITT CD 86-20 

Benjamin No. 1 Strip Mine 

ORDER DISMISSING COMPLAINT 

Before: Judge Koutras 

Statement of the Case 

This proceeding concerns a pro se discrimination complaint 

filed by the complainant John A. Harris against the respondent 

pursuant to section 105(c) of the Federal Mine Safety and 

Health Act of 1977. The pleadings and other information of 

record reflects that Mr. Harris was employed by the respondent 

as a blaster, and that as a result of a shot which he detonated 

a mine foreman was killed by fly rock from the blast. As a 

further result of this incident, Mr. Harris' state blaster's 

license was suspended, and he was subsequently discharged by the 

respondent on August 12, 1986, for violation of company safety 

practices and for "a pattern of disregard" for company safety 

procedures and practices. 

Complainant filed his initial complaint with the Secretary 

of Labor, ~ine Safety and Health Administration (MSHA), and 

after complet~on of its investigation, MSHA advised the complainant that its investigation of his complaint disclosed no 

discrimination against him by the respondent. The basis for the 

subsequent pro se complaint filed with the Commission is the 

assertion by thecomplainant that his termination "was very 

unfair," and he requested reinstatement, back pay, and a 

"clearing of my name by Benjamin Coal Company." 

After review of the complaint and the information submitted 

by the complainant with respect to the circumstances surrounding 

his discharge, I conclude that there was nothing to suggest that 

1718 
his discharge was the result of any rights or protections 

afforded him under section lOS(c) of the Act. In short, I 

concluded that based on the information submitted by the complainant in support of his complaint, there was no claim or 

cause of action for which relief could be granted under 

section lOS(c) of the Act. Under the circumstances, I issued 

an Order to Show Cause on July 13, 1987, directing the complainant to state why his complaint should not be dismissed 

for failure to state a viable claim under section .ios(c) of 

the Act. 

The complainant has not responded to my Order to Show 

Cause. The postal service certified mail receipt reflects 

that he received the Order on August 5, 1987. Under the circumstances, I conclude that this complaint should be dismissed 

for failure to state a cause of action or claim and for the 

failure by the complainant to respond to my Order of July 13, 

1987. 

ORDER 

In view of the foregoing, this complaint IS DISMISSED. 

~~~£~ ~f~ . Koutras 

Admi strative Law Judge 

Distribution: 

Mr" John A. Harrisr RD 1, Box 118, Irvona, PA 16656 

(Certified Mail) 

Mr. John B. Martyak, Manager Personnel/Safety, Benjamin Coal 

Company, Benjamin #1 Strip, RD, LaJose, PA 15753 

(Certified Mail) 

/fb 

1719 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 5 1987 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. VA 86-46 

A.C. No. 44-06112-03507 

v. 

Deep Mine No. 13 

PARAMONT COAL CORPORATION, 

Respondent, 

Appearances: 

Before: 

DECISION 

Page H. Jackson, Esq., Office of the 

Solicitor, U.S. Department of Labor, 

Arlington, Virginia, for the Petitioner1 

Karl K. Kindig, Esq., The Pittston Company, 

Abingdon, Virginia, for the Respondent. 

Judge Koutras 

Statement of the Case 

This proceeding concerns a proposal for assessment of 

civil penalty filed by the petitioner against the respondent 

pursuant to section llO(a) of the Federal Mine Safety and 

Health Act of 1977; 30 U.S.C. § 820(a)v seeking a civil penalty assessment in the amount of $850 for a violation of mandatory safety standard 30 C.F.R. § 75.202, as stated in a 

section 104(d){l) Citation No. 2752968, issued on February 14, 

1986f at the respondent's mine. The respondent filed a timely 

answer contesting the citation and a hearing was held in 

Duffieldv Virginia. The parties filed posthearing briefs, and 

the arguments presented therein have been considered by me in 

the course of my adjudication of this case. I have also considered the oral arguments made by counsel during the course 

of the hearing. 

Issues 

The parties have stipulated as to the fact of violation, 

and they agree that a violation of section 75.202 occurred as 

stated by the inspector in the citation. The parties agree 

1720 
that the only issue presented in this case is whether or not 

the proposed civil penalty assessment based on the inspector's 

finding of "high ne~ligence" was correct (Tr. 5). The parties 

also agreed that the validity of the section 104(d)(l) citation insofar as it alleges an "unwarrantable failure 11 by the 

respondent is not an issue in this civil penalty proceeding 

(Tr. 5) • 

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 ~· 

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

3. Commission Rules, 20 C.F.R. § 2700.1 et seq. 

Stipulations 

The parties stipulated to the following (Tr. 8-9): 

1. The respondent is the owner and operator of the Deep No. 13 Mine, and is subject 

to the jurisdiction of the Act. 

2. The presiding judge has jurisdiction 

to hear and decide this matter. 

3. The inspector who issued the citation 

in question was acting in his capacity as an 

authorized representative of the Secretary of 

Labor" 

4. The citation in question was duly 

served on the respondent, and all witnesses 

testifying in the hearing are accepted 

generally as experts in coal mine health and 

etyo . 

5. The imposition of a civil penalty for 

the violation in question will not adversely 

feet the respondent's ability to continue in 

business. 

6. The respondent is a wholly owned 

subsidiary of Pyxis Resources Company, a 

subsidiary of the Pittston Coal Corporation. 

In 1985, the respondent was a wholly owned 

1721 
subsidiary of a partnership controlled by the 

Hanna Mining Company and w. I. Grace Company. 

7. In 1986, the respondent produced 

approximately 400,000 tons of coal, and it is 

a medium-size coal company. 

8. A violation of mandatory safety 

standard 30 C.F.R. § 75.202, did.in fact occur 

as stated and alleged in the citation which 

was issued in this case. 

9. MSHA's computer print-out concerning 

the respondent's assessed history of prior 

violations as reflected in exhibit G-1 may be 

used in determining an appropriate civil 

penalty assessment. 

10. The violation was abated by the 

respondent within the time fixed by the 

inspector. 

Section 104(dJ(l) "S&S" Citation No. 2752968, issued on 

February 14, 1986, cites a violation of mandatory safety 

standard 30 C.F.R. § 75.202, and the cited conditions or 

practices are described as follows: 

Loose overhanging coal and rock brows and 

fractured coal ribs were present in the Nos. 2, 

3, 4, and 5 entries on the 001 No. 1 active 

working section beginning at the section belt 

feeder and extending inby for approximately 

200 feet including the interconnecting crosscuts left and righto The loose overhanging 

brows and fractured ribs were located in 

regularly traveled haulways and were readily 

visible. The mining height is from 9 to 

10 feet •. The brows were from 3 feet to 8 feet 

long from 2 feet to 4 fto thick and overhanging 

from 10 inches to 3 feet. Also, the belt entry 

from the 3rd interconnecting crosscut outby the 

Noo 2 drive inby to the belt tailpiece. 

The inspector fixed the abatement time as 8:00 a.m., 

February 18, 1986, and on that day another inspector extended 

the abatement time to February 29, 1986, because "a roof fall 

at the mine has stopped all work. Additional time is 

granted." Thereafter, on March 3, 1986, a third inspector 

1722 
extended the abatement time to March 10, 1986, for the 

following reason: 

The operator is in the process of permanently abandoning the mine. However, some of 

the ribs have been taken down and as the mine 

is being pulled out the rest of the areas 

involved will be timbered or taken down. More 

time is granted to complete the work being 

done to correct this citation. 

The citation was terminated on March 7, 1986, and the 

termination notice states that "The overhanging coal and rock 

brows and fractured coal ribs referred to in Citation 

No. 2752968 were either taken down or supported." 

Petitioner's Testimony an~ Evidence 

MSHA Inspector Larry Coeburn confirmed that he issued 

the citation during the course of a spot inspection conducted 

on February 14, 1986, with his supervisor Ewing C. Rines. 

The inspection was in conjunction with a fatal roof fall accident investigation which began that same morning (Tr. 17). 

Mr. Coeburn stated that he observed overhanging brows in at 

least 10 locations, and loose ribs at approximately four locations, and that he recorded these in his notes, and later 

reproduced them on a sketch or map of the area which he prepared for the hearing (exhibit G-3~ Tr. 20-22). He measured 

the brows by means a carpenter's rule and recorded the 

results on the sketch, and confirmed that none of them were 

supported (Tr. 24). Some of the brows were pulled down with 

very little effortv but he did not record these in his notes 

or on the sketch. He was not aware of any brows where 

attempts were made to pull them down, and they did not come 

down. 

With regard to the loose and fractured ribs located on 

the sketchu Mr. Coeburn stated that he observed visible vertical fractures and separations of coal away from the main coal 

pillar, and that some of the ribs had been rock dusted at 

places where the pressure on the pillar "had caused it to 

sort of break outward, ravel, slough" (Tr. 26). 

Mr. Coeburn identified exhibits G-4 through G-8 as 

sketches of the areas where he found he cited rib and brow 

conditions, and he explained the conditions and locations as 

depicted on the sketches (Tr. 26-36). He stated that miners 

would be working in these areas at different times, and he 

observed signs of travel by shuttle cars and scoops in the 

1723 
haulageways and entries <Tr. 39, 42). He confirmed that he 

observed four loose, overhanging coal and rock brows on the 

walkway clearance side of the belt haulageway outby the areas 

depicted on the sketch, exhibit G-3, and confirmed that men 

would normally walk along that walkway. However, he observed 

no loose ribs in this walkway area (Tr. 45). 

Mr. Coeburn confirmed that five people would normally be 

working in the areas where he observea the loose brows and 

fractured ribs, and they would be building stoppiμgs and 

working on the belt. Also, at any given time, one person 

would be present on a piece of equipment along the travelways 

(Tr. 42-43}. Mr. Coeburn believed that it was highly likely 

that a roof fall would occur, and that due to the mining 

height and the size of the overhanging brows and the extent 

of the fractured ribs, if falls occurred, fatal injuries 

would result. Under all of these circumstances, he concluded 

that the cited conditions· constituted a significant and 

substantial violation (Tr. 47-48}. 

Mr. Coeburn stated that the coal brows were "man-made" 

and were created during the mining and removal of coal. They 

were left by the continuous-mining machine that had mined the 

entries up to the roof line. On the ribs and corners, the 

exposed brows were left where the machine had not mined all 

the way up the entry. The machine bit markings were evident 

on the brows (Tr. 43-44). 

In response to a question as to why he made a finding of 11 high negligence" on part II of the citation form, Mr. Coeburn 

responded as follows: 

QQ Now, you checked -- under negligence, Part 

II, you checked high. Why do you believe the 

respondent, Paramont Coal Corporation, demonstrated high negligence in allowing this condition to exist? 

A. The brows were man-made, made with the 

continuous mining machine as mining progressed. 

The conditions -- the overhanging brows and 

loose ribs were very obvious to anyone who 

entered that area. They were very obvious • 

. This mining was -- coal was being mined 

on the section at this time or immediately 

prior to this and had been -- these conditions 

had existed -- in my opinion, the brows had 

existed for some time prior to this taking 

1724 
about the situation" (Tr. 69). He stated that the ribs on 

the top side of the "rock parting" were fractured from the 

No. 3 entry all the way through to the No. 4 entry and had a 

very visible separation. He described the separation as "you 

could see as far as you could see back in there and it was 

sort of on a slip-like plane. It got deeper as it penetrated 

into the coal fractures" in the No. 3 entry going toward the 

No. 4 entry (Tr. 70-71). 

Mr. Rines explained the circumstances and ap~earances of 

the "rock parting" which would give one an indication that 

the rib was beginning to become loose and fractured, including 

pressure breaks which would cause "the coal raveling a little 

bit near the roof line," sloughing of the face of the rib, or 

visible cracks (Tr. 73-74). On the other hand, the rib may 

just "roll immediately" (Tr. 74). 

Mr. Rines was of th~ opinion that the rib conditions 

which he observed "had been in the making for awhile," and 

that "there had been some indicators as far back as a week," 

and his reason for these conclusions were stated as follows 

at (Tr. 74-75): 

A. I would say that there had been some indicators as far back as a week. The reason I 

say that is the fact that they didn't have a 

fractured rib problem or rib problem over the 

entire section. Normally, if you've got rib 

problems, it will start either from the left 

side of the section and go all the way across 

or the right side, all the way across, or go 

from the middlev out too 

But that wasn 1 t true in this situation 

here. This was in this localized area for 

this particular section here even though he 

did have a loose, fractured rib up here, but 

was nothing to the extent that this was 

down here (indicating)o 

* * * * * 

Ao These ribs did not from the day we seen 

them, on the 14th -- this condition didn't 

occur just overnight or over the past three or 

four days. I'm saying there should have been 

some indicators or signs there as far back as 

a week. And the reason I say that is if you 

1725 
had had this kind of relief occurring instantaneously, the ribs would have rolled out and 

filled the entry up. 

* * * * * * * 

Q. Now I want to turn your attention well, 

let me ask you one more question about this 

loose rib condition or all the loose rib conditions on the section. What would Paramont 

have had to do to correct the condition if 

they had noticed it, say, six days before the 

14th? 

A. They could have taken down that portion 

that was fractured. * * * I would like to 

add, too, some people don't like to cut ribs 

down because it exposes more roof, which 

requires additional support. So that is why 

sometimes they set timbers to support. 

Referring again to the sketch, exhibit G-3, Mr. Rines 

described the condition of the brows which existed at the 

locations shown on the sketch, and he explained the existence 

of the brows as follows at (Tr. 79-80): 

A. These brows, since they didn't have any 

sloughing or undercutting of the bottom portion of the coal seam under the rock parting, 

these brows were left there during the continuous mining cycle for whatever time the cycle 

had beeno For what reason, I don't know. 

But the miner, when he was on his mining 

cycle, during the making of these brows, he 

failed to cut that portion, which originally 

was part of the coal face, and he failed to 

cut that.portion of it downo 

* * * * * * * 

Ao Since he didn't get it the first time, he 

definitely -- if they can't get it down no 

other way, you know, they could support it 

temporarily till he gets back on the second 

1726 
cycle, and he should definitely take it and 

cut it down. 

* * * * * * * 

Q. What would, in your opinion, a reasonably 

prudent section foreman do when he observed 

one of these brows after the miner had pulled 

out of an entry, a particular en~ry? 

A. He would make arrangements to either have 

the brow taken down or supported. 

* * * * * * * 

Q. Based upon your experience in the thick 

tiller seam and your knowledge of the conditions in the Deep Number 13 Mine, of the 

mining conditions, do you have any idea, let's 

say, for example, how long the brows that are 

immediately inby the belt feeder may have been 

in existence? 

A. Looking from where the belt feeder is 

located -- and you have an open crosscut 

immediately inby. That is one (1), two (2), 

three (3) -- there is four (4) crosscuts to 

your most inby brow ribs. 

And considering the height of their coal, 

they were high producers, but they probably 

wouldnit have gotten over eight (8) or 

nine (9) at the most, or ten (10) cuts per 

shift, which would have probably averaged 

about eighteen (18) feet per shift). 

So you 1 re talking 

to mine this distance~ 

up to a short distance 

there in the last line 

about several days here 

that is, from the feeder 

of those that are up 

open crosscuts. 

Qo When you say several days, are you 

talking --

A. Well, at least -- from what I'm looking 

here and knowing, you know, the way they mine, 

I'm going to say at least ten days, because 

this is very high coal. 

172.7 
Mr. Rines was of the opinion that the brow conditions 

in the crosscut immediately inby the belt feeder should have 

been apparent to a preshif t or onshif t examiner at least 

10-days prior to the time the citation was issued, and that 

the brow that was left during the mining cycle should have 

been noticed by the next trip of the preshift examiner, as 

well as by the section foreman on his shift (Tr. 82). 

Mr. Rines confirmed that MSHA Inspector Ronald E. Adkins 

works for him, and that he was at the mine on February 10 and 

12, 1986. Mr. Adkins informed him that he had not observed 

the cited rib and brow conditions (Tr. 93-94). The regularly 

assigned inspector, Teddy Phillips, would not have observed 

the cited area during his prior inspection visit on 

January 10, 1986, because mining was going on in another area 

(Tr. 85, 94). Mr. Rines stated that he has had occasion to 

visit a mine and found a readily apparent violation that he 

had missed the day befor~ (Tr. 95). 

On cross-examination, Mr. Rines stated that he discussed 

the cited conditions with Inspector Adkins at length because 

he was concerned that one could be in the area and miss the 

conditions. He confirmed that no disciplinary action was 

taken against Mr. Adkins CTr. 96). 

In response to a question as to whether or not anyone 

walking from inby the belt feeder toward the face in the 

No. 3 entry, past the crosscut which he discussed would have 

occasion to see the cited rib conditions, Mr. Rines responded 

"not if he didn't go in that particular area" and "if he 

hadn't went into the crosscut he would not have seen" (Tr. 

97-98) If one were walking on the right side of the entryv 

he should have at least observed the brow immediately at the 

feederv unless it was hidden by a line curtain. The walkway 

was on the left side of the entry (Tr. 98-99). 

Mro Rines confirmed that he was present on February 14v 

1986v during the accident investigation and heard Mr. Ron 

Hamrick a Virginia State Mine Inspectorv make the following 

statement (Tro 101)~ 

I'll add something to that, E.Co I inspect 

that mine regularly. During an inspection, 

takes me three or four days, I go out on all 

shifts to do it, and they really impress me. 

They watch the ribs. 

But I can go in today and have every rib 

we find pulled down, cut down, try to knock 

1728 
out with scoop or take bar and knock down. I 

go in tonight and find more ribs that have 

loosened up just between one shift to the next. 

I observed this myself. 

Mr. Rines confirmed that he was in the mine on one prior 

occasion several weeks before February 12, 1986, to look at 

some diesel shuttle cars, and while he was in the section 

where.the rib and brow conditions were cited, that particular 

area had not been mined. Although he did walk the air intake 

entry on that occasion, he did not notice any loose.ribs or 

overhanging brows (Tr. 106). 

Mr. Rines confirmed that if someone were walking on the 

left side of the haulway in the No. 3 entry toward the face, 

they could easily walk by the crosscut at the feeder and not 

notice the ribs, but if they travelled into the crosscut, it 

would have been obvious that the ribs were severely fractured 

(Tr. 107). However, there were a minimum of seven people on 

this section every day, including the section foreman. 

Mr. Rines stated that while it was possible for an area where 

fractured and loose ribs and brows were taken down to have 

the same problem the next day, such an area would also have 

serious roof control problems. Shifting roof weight and 

bottom coal sloughing out would result in coal brows other 

than those which are left from mining (Tr. 111). However, he 

saw no such brows on February 14th. Mr. Rines confirmed that 

the cited brow and rib conditions were prevalent down the 

belt entry in question (Tr. 116). However, he disagreed that 

they were prevalent in the working section, but agreed that 

in the belt entry the respondent had set a lot of timbers and 

cribs to try to control rib rolls, and that massive ribs 

rolls existed in that entry (Tro 117)0 

Respondent 1 s Testimony and Evidence 

Mine Foreman Ronald R. Orender described the system of 

mining being used in January and February, 1986, and he confirmed that the rib work and setting of cribs was done during 

the midnight maintenance shift. He stated that the mine had 

some bad bottom conditions and that the ribs were bad (Tr. 

130)" Due to a bad and wet uneven mine bottom, the large 

12-foot wide ram cars would sometimes tear out the rib cribs. 

The ribs would be barred or cut down. The brows in question 

which would be left by the miner were difficult to bolt, and 

sometimes when the miner returned to cut them down it could 

not reach the top, and some brows would be left (Tr. 131). 

1729 
Mr. Orender described the procedures followed for providing protection along the entry as the belt feeder was advanced 

during the mining cycle. He explained that the belt was 

usually moved up for two breaks, sometimes once a week, and 

sometimes it would take 2 weeks to get up far enough to move. 

They would then go back and do the cribbing work outby, especially in the belt line which seemed to be the worst area. He 

explained the problems encountered while attempting to timber, 

crib, .or otherwise support some of the rib rolls. Ribs were 

being pulled inby the belt feeder, and all three ~hifts were 

instructed "to try to pull what we could." Some of the brows 

that could be reached with the miner were pulled, and others 

would stick to the roof and could not be pulled. Attempts 

were made to bolt some of the brows, but the bolter could not 

get close enough to the rib and "some we may have missed." 

Mr. Orender stated further that ribs were constantly being 

pulled in the face areas and that "sometimes you would pull 

and it would leave a brow" (Tr. 132-134}. 

Mr. Orender stated that steps were taken to alert the 

work force about the bad rib conditions and that morning 

safety talks were conducted, and the miners were constantly 

told to watch the ribs and to try to pull down any bad ribs. 

He stated that "sometimes they would and sometimes they 

wouldn't" CTr. 134). He stated further that a lot of the 

ribs which were pulled down would again develop cracks by the 

next day, and some would again develop cracks within 24-hours. 

However, he could not recall pulling any ribs a day or two 

prior to the accident, but knew that some were pulled "over 

that way" (Tr. 135). 

Mr. Orender confirmed that the rib conditions inby the 

belt feed area were particularly bad during January and 

February of 1986, and more problems were encountered within 

the last 300 to 400 feet of mining in that area, but steps 

were taken to protect the miners by installing wire mesh 

around the shuttle cars which were not designed for an 

enclosed canopy (Tr. 136). 

Mr. Orender confirmed that he accompanied the inspectors 

at the time the citation was issued, and they called his 

attention to a rib that had sloughed off in the tailpiece 

area. The crosscut was dangered off, and the next day two 

foremen went in with a miner machine and knocked the ribs 

down and installed crib blocks in the area. No coal was run 

after the accident and hourly miners were not working the 

section. Another fall occurred outby the area, and the conditions worsened. Four to 6 days later the decision was made 

that coal could no longer be mined safely and the mine was 

1730 
closed because of the rib conditions and the outby top, and 

out of concern for the safety of the miners {Tr. 138-139). 

On cross-examination, Mr. Orender stated as follows at 

(Tr. 139-141): 

Q. Now, I believe you testified on direct 

examination in regard to the working places 

that existed on February 14, the-area inby the 

tailpiece, that you didn't recall having any~ 

body pull any ribs for a day or two prior to 

the accident. Isn't that correct? You don't 

recall any ribs being pulled for two days 

prior to the accident? 

A. Not myself personally, no. 

Q. You don't have any knowledge of anybody 

doing it? 

A. I didn't see them. 

Q. Nobody told you they pulled any either, 

did they? 

A. Well, it wasn't a practice to do that. I 

mean, if you seen a bad rib, the worker or the 

foreman, they would pull a rib, you know, without even, you know --

Qo You also talked about you were always telling them to watch the ribs and men were supposed to pull the ribs if they saw a cracked 

or fractured rib. 

A. We tried to, yes. 

Qo You tried too You said sometimes the men 

did not do that? 

Ao I'm sure they did. I'm sure there was 

times they did not pull ribs when they should 

have. 

Q. What was the company's practice when the 

men did not pull a rib they should pull? 

A. We would usually ask them, "why did you go 

by there?" Or something. And a lot of times 

1731 
they would answer, "well, we didn't see it." 

You know, everybody was aware those ribs were 

bad. And we had safety meetings and it was 

put in the preshift books where we did have 

talks with the men about these ribs, that they 

were to be pulled and so forth. 

Q. Mr. Orender, isn't it true that if the men 

themselves didn't pull the ribs,-that management didn't insist those ribs be pulled? 

A. No, sir. You're wrong. No. No, that is 

not true. 

Q. Then why in my prior question didn't you 

tell me that management went and pulled the 

ribs themselves? 

A. Management did pull. we pulled ribs ourself. Everybody worked together in that mines 

to try to pull what we could when we saw them. 

I'm sure we didn't see all of them, you know. 

Mr. Orender stated that the respondent's efforts to 

address the rib and brow problems were not confined totally 

to the maintenance shifts, and that attempts were made to 

take them down during the day and evening production shifts 

(Tr. 152-153). Mr. Orender agreed that the entries and 

crosscuts labeled "hw" on the sketch, exhibit G-3, were the 

haulageways down the belt entry, and that they were used for 

that purpose some of the time but not necessarily all of the 

time. He also agreed that the battery charging station is 

properly located on the sketch and that it would be used to 

charge equipment from one shift to the next. Access to these 

areas by walking was through several possible routes which he 

described (Tr. 155-156). He agreed that none of the brows 

which he observed on February 14, 1986, as marked on the 

sketch, were supported. Some of the brows were taken down 

before the mine was abandoned, and others were not (Tr. 

157-158). 

In response to a question as to how long the cited conditions may have existed before they were found by the inspector on February 14, 1986, Mr. Orender responded as follows at 

(Tr. 158-159): 

A. Your Honor, some of the brows could have 

possibly been there for four or five days, but 

1732 
the rib conditions, like I say, it's hard to 

say. 

Q. Go ahead. 

A. Sometimes you could walk by a corner and 

there wouldn't be a crack and you go by there 

two hours after and the pressure had made a 

crack in it. But some of the brows were 

probably there, yes. 

Q. And you say, the ribs, the conditions 

could exist from day to day. 

A. Yes, sir. They did, definitely, the ribs. 

Q. How about loose ribs. I'm not talking 

about fractured ribs, but what about some of 

the loose ribs. Is there a distinction 

between a loose rib and a fractured rib? Is 

there a difference between those two? 

A. In my opinion, a cracked rib maybe is not 

as dangerous as one that is real loose where 

it could fall. But then sometimes you could 

put a bar on one that you wouldn't think was 

very loose and you take two men and try to 

pull on it and you couldn't pull it down. And 

other times you would touch it and it would 

come down. 

Mr. Orender identified exhibit R-2, as an inspection 

report he signed which indicates that Virginia State Mine 

Inspector Ron Hamrick was in the mine on February 3, 1986, 

conducting an inspection for 4 hours and that he issued no 

violations (Tr. 192-194). 

MSHA Inspector Ronald E. Adkins confirmed that he was 

familiar with the subject mine, had been in it five or Six 

times, and that the sketch depicting the working face areas 

(exhibit G-3), which existed in February, 1986 appears basically accurate (Tr. 161-163). Mr. Adkins confirmed that he 

was underground in the mine on February 10, 1986, for 2 hours, 

and spent the majority of his time in the working faces. He 

reached the working faces by walking up the number three entry 

inby the belt feeder as shown on the sketch, and while he was 

there he observed no overhanging brows or cracked ribs that 

constituted violations of any MSHA regulations. The purpose 

of his mine visit was a "walk and talk inspection" for the 

1733 
purpose of alerting miners as to "what was going on in the 

industry so far as accidents and try to get across to them how 

critical thei~ own initiative so far as their safety was, how 

important it was" (Tr. 165-167). 

on cross-examination, Mr. Adkins stated that the working 

faces on February 10, 1986, were not as depicted on the sketch 

in question, and that they were probably advanced a crosscut 

or more. While he was there, line curtains were hung in all 

working places (Tr. 168). Referring to his notes of his 

February 10, visit, he confirmed several notations indicating 

that he examined each of the six working places as depicted on 

the sketch, and that th~ working practices he observed were 

good. Another notation reflected that 5-foot resin roof bolts 

were being installed in all entries and that the bolting 

pattern was good. He confirmed that the work habits and procedures of the miners at that time were adequate (Tr. 168-169). 

When asked to explain his failure to observe the violative rib and brow conditions in question, Mr. Adkins responded 

as follows at (Tr. 170-171): 

* * * Eighty percent (80%) of the fatalities 

occur within fifty (50) feet of the face, of 

the working faces and, basically, I would say 

I spend ninety percent (90%) of my time there. 

In this situation on the walk and talk 

inspections, we are assigned a group of mines. 

We're given, more or less -- we need to finish 

these in a certain length of time to get back 

to our regular worko I 1 m sure by looking at 

my time sheetsu I was pushed for time on this. 

But it is my personal policy and MSHA's 

District 5 policy 1 too, when we enter a mine, 

we will make the working faces and check for 

imminent.dangers. I'm sure I did that. As 

far as seeing these things outby, I just 

didn 1 t see them. I wasn't in the area. 

Q. You say you weren't in the area. 

A. It's possible I could have walked by one. 

It could have been behind a curtain. I could 

have been talking to someone or something like 

that and not noticed it. 

1734 
Q. Okay. Are you telling me on tnat day you 

didn't go in specifically to check roof conditions or ribs and brows or fractured ribs, 

that sort of thing? 

Q. No, sir. That is always our number one 

priority, but the inspection, the walk and 

talk inspection, is more to make contact with 

the people, to get on a one-to-o~e basis with 

them, talk to them. We talk to them in a 

group, watch them work and discuss their work 

habits. That is basically what I was there 

for that day. 

Ronald Hamrick, State of Virginia Coal Mine Inspector, 

;tated that he has inspected the subject mine since it began 

operating and that he has been in it five or six times. He 

confirmed that he participated in the fatality investigation 

on February 14, 1986, and he identified exhibit R-1 as a 

partial transcript of a statement that he made during the 

course of a conference held on that day with several MSHA 

inspectors in connection with the investigation, and read 

parts of the statement into the record (Tr. 175-177>. 

A. I'll add something to that, E.C. I 

inspect that mine regularly. During an inspection, which takes me three or four days, I go 

out on all shifts to do it, and they really 

impress me. They watch the ribs. 

But I can go in today and have every rib 

we find pulled down, cut down, try to knock it 

out with a scoop or take a bar and knock them 

downo I go back in tonight and find more ribs 

have loosened up just between one shift and 

the nexto 

I observed this myself. And while I'm 

running my big mouth, I would like to add 

something to find a way of preventing this 

accidentF but let 1 s not jump off the deep end 

and come up with some rig that would cause 

these miners to be exposed to more danger than 

what the conditions we already have. 

Ron and I have talked about trying to 

design a protection for rib rolls, but we 

agree, as you said, E.C., rib rolls are not a 

problem right at the immediate face, but 

1735 
actually past them but in behind them, two 

crosscuts back is where the ribs start loosening up and and moves and so on. 

But let's not come up with some 

half-cocked idea that would expose people to 

more hazards. 

Mr. Hamrick confirmed that he was familiar with the mine 

layout as depicted in the sketch, exhibit G-3, anp he confirmed that the rib and brow conditions marked on the sketch 

"probably" existed generally in the area two crosscuts back 

from the face. Other than the rib conditions in the mine, he 

described the general mine conditions as "as average type 

mining" (Tr. 180). He stated that from his experience in the 

mine, everyone, including employees and management, were 

aware of hazardous rib conditions, which he believed were 

inherent in the Clintwood seam, and that all personnel were 

constantly on the alert for these conditions, pulling them 

down when they were discovered. He confirmed that he constantly gave advice to management as to how to guard against 

the rib conditions, and stated that he never previously discussed these conditions with MSHA inspectors Rines, Coeburn, 

or Phillips. Mr. Hamrick also stated as follows at (Tr. 181): 

A. Well, as I say, this is an inherent condition with the Clintwood seam. There isn't 

much you can do to these ribs and brows other 

than watch them, take them down as they're 

discovered and as they loosen up. 

In past experience, I've tried bolting 

ribs. I 1 ve tried putting steel bands around 

ribs to hold them togethero I 1 ve tried 

numerous thingso In some thirty-seven (37) 

yearsu experiencev I never did find anything 

that was actually a way of handling unsafe 

ribs other than watching them, stay away from 

them as much as possible. 

Mr" Hamrick stated that he went over the entire section 

the mine on February 14, 1986, and with respect to the 

brow cond·sions noted on the sketch, exhibit G-3, he confirmed 

that he observed unsupported brows, but could not recollect 

how many he observed and could not remember counting them (Tro 

184). He confirmed that he did observe the ribs between the 

number 3 and 4 entries shown on the sketch, and that he issued 

a citation for those conditions (Tr. 185). He also confirmed 

that the cited rib conditions wer8 also in the area between 

1736 
the belt feeder and the battery charger CTr. 188). However, 

he could not state how long the conditions had existed, and 

stated that such rib conditions "occurred unexpectedly, and 

often, quite frequently" (Tr. 188). He also stated that the 

brow conditions which are outby the face areas were probably 

caused by the coal rolling out from under them, and he doubted 

that they were caused by a continuous miner leaving them on a 

prior shift because "the men at the mine were so particular 

and so self-conscious of the fact that these were hazardous 

they would not leave one" (Tr. 190). However, he. could not 

explain why the cited brow conditions were not taken care of 

prior to February 14th when the MSHA inspectors found them 

(Tr. 190). He also stated that it was entirely possible that 

the brow conditions came about over a short period and possibly a day, but confirmed that he was not with the inspectors 

when they viewed the cited brow conditions and issued the citation (Tr. 191). He confirmed that his citation may have been 

for the same or similar conditions cited by the MSHA inspectors and that he required the ribs or brows to be removed or 

supported (Tr. 191}. 

Mr. Hamrick stated that under state regulations, he does 

not make any negligence findings as part of any citations he 

issues. He confirmed that while he had no idea how long the 

conditions cited by the MSHA inspectors may have existedf 

they may have been there "for hours or days." He further 

explained that "I have observed by going in on one shift and 

following immediately, the next shift, brows have loosened up 

between shifts" (Tr. 192). 

Petitioner's Negligence Arguments 

During oral argument at the close of its case in response 

to the respondentus motion for a summary dismissal of this 

case (which was denied)p petitioner 1 s counsel asserted that 

the testimony of the inspectors makes it clear that the cited 

rib and brow conditions were readily observable for as much as 

a week prior to the February 14u 1986 inspection, and that the 

conditions existed in areas which were regularly travelled and 

required to be examined by onshift and preshift examiners. 

Given these factsf counsel concluded that there is a clear 

inference that the respondent 1 s personnel knew or should have 

known of the conditions for a week or 10-days prior to the 

inspection. Under the circumstances, counsel took the position that the respondent was "very negligent-if not grossly 

negligent" (Tr. 121-122). 

Petitioner's counsel asserted that in addition to the 

testimony of the inspectors, Mine Foreman Orender confirmed 

1737 
that he was aware of brows which were not taken down or 

supported because it was impractical to do so due to the use 

of oversized ram cars which were knocking down the cribs. 

counsel further asserted that the evidence establishes that 

the brows had been in existence since they were created by 

the continuous-mining machine during the normal mining cycle, 

and that Mr. Orender specifically admitted that no ribs had 

been taken down on the section for at least 2-days prior to 

the inspection. Counsel concluded frem this that no brows 

were created by rib rolls for at least 2-days pri9r to the 

inspection, and that they were in fact created by the mining 

machine (Tr. 196-198). 

Petitioner's counsel took the position that mine management had knowledge of the cited conditions, knew what should 

have been done to correct the conditions, but did not take 

the appropriate action mandated by the Act. Counsel asserted 

that "the standard is not· what is reasonably practical in the 

operator's mind, but whether the operator's conduct is reasonable in view of the standard mandated by the Act 11 (Tr. 196). 

Counsel suggested that section 75.202, mandates that loose 

ribs and overhanging brows be immediately taken down or 

supported. He cited Westmoreland Coal Company, 7 FMSHRC 1338 

(September 1985), as an example of a case where a mine operator's negligence was lowered because of evidence that he had 

immediately tried to support or take down overhanging ribs. 

In the instant case, however, counsel asserts that the respondent did not give immediate attention to the cited conditions, 

and that the brows, at least, had been in existence since they 

were created by the continuous miner <Tr. 98}. Conceding that 

the respondent may have taken appropriate action in other mine 

areasp counsel concluded that this was not done in the areas 

which were cited by the inspector (Tr. 210). 

Responding to the respondent's suggestion that the cited 

brow conditions were left after the rib had rolled, counsel 

stated that if this were the case, the respondent should have 

put on some direct evidence to support such a conclusion. 

Counsel took the position that any inferences that the brows 

were left by rib rolls is directly contradicted by the inspectors" observations of teeth marks made by the continuousmining machine at each the brow locations, and that "those 

teeth marks obviously would not be there if the brow was 

created by a rib roll" (Tr. 208). 

Petitioner's counsel filed a written posthearing brief, 

and the arguments advanced are essentially the same as those 

made during the course of the hearing. With regard to the 

1738 
cited conditions, counsel relies on the testimony of Inspectors Coeburn and Rines that all of the brows they observed 

were created by the continuous miner, and Mine Foreman 

Orender's testimony that many of the brows were created by 

the miner. Counsel also relies on the inspectors' testimony 

that the brows may have existed for 6 to 10-days prior to the 

inspection, and Mr. Orender's admission that they may have 

been present for 4 or 5 days. 

With regard to the cited rib conditions, coupsel points 

out that Inspector Rines observed a visible separat~on 

between the loose ribs and the remaining block of coal, and 

was of the opinion that the separation had been apparent for 

about a week, and Mr. Orender's statement that it was hard to 

say how long the ribs had been in that condition. Counsel 

concludes that the violation resulted from the respondent's 

unwarrantable failure to comply with the cited standard. 

Respondent's Negligence Arguments 

Respondent's negligence argument is based on mitigating 

circumstances, and counsel points out that the petitioner had 

people at its disposal who could have testified as to the 

respondent's past practices and mine history, but chose only 

to call people who had no real experience with the mine (Tr. 

124). Counsel states that the respondent was well aware of 

the existing mine conditions, but instructed its employees to 

watch out for the conditions and that it was doing everything 

that was reasonably practical to control the conditions. 

When the respondent concluded that the worsened conditions 

could not be safely controlled, the mine was shut down (Tr. 

195)0 

Taking issue with the petitioner's characterization of 

Mine Foreman Orender's testimony, respondent's counsel asserts 

that Mr. Orender simply stated that he was personally unaware 

of any ribs being taken down for 2-days prior to the inspection. Counsel points out that Mr. Orender also testified that 

because of the instructions given to the miners, they would, 

on their own initiative, routinely take down any loose ribs 

they encountered. Since it was such a common occurrence, they 

would not necessarily report it to the mine foreman (Tr. 205). 

Counsel also points out that in addition to the testimony of 

Mr. Orender, a man with long experience in the mine, the 

respondent also presented the testimony of state mine inspector Hamrick, the only disinterested witness in this case, and 

the testimony of an MSHA inspector who was in the mine 2 to 

4-days prior to the inspection on February 14, 1986, whereas 

1739 
the petitioner has presented testimony from two inspectors who 

were in the mine for a total of 1 or 2 days (Tr. 205-206). 

Referring to the negligence criteria found in Part 100 

of MSHA's civil penalty assessment regulations, 30 C.F.R. 

§ 100.3(d), counsel points out that three of the negligence 

categories, "low," "moderate," and "high," are all based on 

one common factor, namely whether the operator "knew or 

should have known of the violative coadition or practice." 

What distinguishes the three levels is the existence of "considerable mitigating circumstances," "mitigating circumstances," and "no mitigating circumstances" (Tr. 206). 

Counsel asserts that the circumstances relied on by the 

respondent to mitigate its negligence consists of its history 

in dealing with adverse rib and brow conditions, the testimony of state mine inspector Hamrick, who inspected the mine 

on a regular basis and be'lieved that the cited conditions 

could have existed for less than a few hours, and the particular circumstances with the particular coal seam where rib 

rolls occurred either instantaneously or over a very short 

period of time, leaving loose ribs and brows (Tr. 207). 

Counsel maintains that the respondent took significant steps 

to protect its employees from the roof and rib conditions 

present in the mine, including the designing and installation 

of personnel protective devices beyond those mandated by 

MSHA, and the constant reminding of its employees to watch 

the rib conditions (Tr. 134, 136). 

Counsel states that Inspector Coeburn, by his own admis-

~ had no knowledge of the history of the mine, that the 

ioner did not produce Inspector Phillips, the regular 

MSHA inspectorf. and that the petitioner 0 s perception of this 

mine is on a very narrow time frameo On the other hand, 

counsel points out that the respondent has relied on the testimony of its experienced mine foreman, an MSHA roof control 

specialist (Adkins) who was in the mine 2 to 4-days prior to 

the inspection and who did not observe the cited conditions, 

and state inspector who knew the history of the mine and 

who testified that the respondent was actively concerned 

about the cited conditions and was taking all appropriate 

to deal with them (Tro 207)" 

Respondent's counsel filed a written posthearing brief 

and essentially advanced the same arguments made orally during the course of the hearing. Counsel cites a decision by 

Commission Judge Melick in MSHA v. Rushton Mining Company, 

5 FMSHRC 2081 (December 1983), in support of his argument 

1740 
that the failure of MSHA Inspector Adkins to observe the conditions when he was in the mine, coupled with the testimony 

of State Inspector Hamrick, belies the petitioner's assertion 

that the cited rib and brow conditions had existed for at 

least 4-days prior to the date of the citation. Counsel 

cites Judge Melick's observation at 5 FMSHRC 2083-2084: 

It is not disputed that Klemick was indeed 

present in the same mine section~two days 

before, as alleged, but he claims not to hav~ 

noticed the rib conditions because he was concentrating on another violation. I find it 

difficult to believe, however, that an experienced miner and mine safety inspector would be 

so oblivious to conditions he characterized as 

"an imminent danger" if they were as obvious 

and dangerous as he alleges. Thus while there 

is no doubt that overhanging rib conditions 

did exist with detectable fractures, I do not 

find that the conditions were as obvious as 

now alleged by MSHA. Accordingly, while I 

find the operator to have been negligent in 

allowing the cited conditions to exist, I do 

not find it to have been grossly negligent. 

Findings and Conclusions 

Fact of Violation 

The respondent is charged with a violation of mandatory 

safety standard 30 CoFoRo § 75o202u which requires in pertinent part that "Loose roof and overhanging or loose faces and 

ribs shall be taken down or supportedo 11 Although the standard does not specifically refer to "brows," the parties are 

in agreement that a "brow" is akin to an overhanging rib and 

is located in area where the rib ends and the roof starts 

(Tro 197)0 In any event, the respondent has conceded that 

the cited rib.and brow conditions were present, that they 

were not taken down or supported, and that the cited conditions constituted a violation of section 75.202. Accordingly, 

the violation IS AFFIRMED. 

History of Prior Violations 

Exhibit G-1 is an MSHA computer print-out summarizing 

the respondent's compliance record for the period August 1, 

1984 through August 13, 1986. That record reflects that the 

respondent was issued nine section 104(a) citations, and one 

combination section 104{a) - 107(a) citation-order, for which 

1741 
it paid civil penalty assessments totalling $386. Two prior 

section 75.202 roof control violations issued in 1984 were 

assessed a total of $161, and two section 75.200 violations 

issued in 1985 were assessed at a total of $70. For an operation of its size, I conclude and find that the respondent has 

a good compliance record, and I find no basis for otherwise 

increasing the civil penalty assessment for the violation 

which has been affirmed in this case. 

Size of Business and Effect of Civil Penalty on the 

Respondent's Ability to Continue in Business 

The parties have stipulated that the respondent is a 

medium-size coal operator and that a civil penalty assessment 

for the violation in question will not affect its ability to 

continue in business. I adopt this stipulation as my finding 

and conclusion on this issue. 

Good Faith Compliance 

The parties have stipulated that the violation was 

timely abated by the respondent. Inspector Coeburn confirmed 

that after the citation was issued, the respondent dangered 

off the cited area by placing boards and a sign across the 

entry and marked off the affected areas with spray paint (Tr. 

46-47). Under these circumstances, I conclude and find that 

the respondent exercised good faith compliance in timely 

correcting the violative conditions. 

Gravity 

The record in this case establishes that at the time the 

citation issued, the mine was idle due to a fatality which had 

occurred, and that it was subsequently closed when the roof 

conditions worsened. There is no evidence that any normal 

mining activities, other than abatement work, took place subsequent to the issuance of the citationo HoweverF the fact 

remains that the existing loose ribs and overhanging brows, 

which were unsupported, and present on the working section, 

did present a potential hazard to those miners expected to 

travel and work in the affected areas immediately prior to the 

inspection. As a matter of factv the unrebutted testimony of 

Inspector Coeburn reflects that some of the brow conditions 

were present along a belt walkway normally used for travel by 

miners and that the loose ribs which he cited were readily 

barred down with little or no effort. Inspector Coeburn also 

confirmed that the cited rib and brow conditions were present 

along haulageways and entries where miners and equipment would 

be present during normal mining activities, and that given the 

1742 
conditions of the ribs, a scoop or anything coming in contact 

with the ribs could have easily caused them to roll. Further, 

the testimony of Mine Foreman Orender confirms that the rib 

and brow conditions were bad in the affected area in question 

and that oversized mining machines often tore down the cribs 

used to support the ribs. Mr. Orender also confirmed that 

brows which were difficult to bolt or which were inaccessible 

because of their high locations were sometimes left in place. 

Given.all of these circumstances, I cQnclude and find that the 

cited violative rib and brow conditions were serious. ,. 

Significant and Substantial Violation 

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. § 8l~(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 

result in an injury or illness of a reasonably serious 

nature." Cement Division, National Gypsum Co., 3 FMSHRC 822, 

825 (April 1981). 

In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the 

Commission explained its interpretation of the term "significant and substantial" as follows: 

In order to establish that a violation of 

a mandatory safety standard is significant and 

substantial under National Gypsum the Secretary 

of Labor must prove~ (1) the underlying violation of a mandatory safety standard; (2) a discrete safety hazard--that is, a measure of 

danger to safety-contributed to by the violation; (3) a reasonable likelihood that the 

hazard contributed to will result in an injury; 

and (4) a reasonable likelihood that the injury 

in question will be of a reasonably serious 

nature. 

In 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 

1743 
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. 

St'eel Mining Company, Inc., 6 FM5HRC 1573, 

1574-75 (July 1984). · 

Incorporating by reference my gravity findings, and 

applying the principles of a "significant and substantial" 

violation as articulated by the Commission in the aforementioned decisions, I conclude and find that the cited rib and 

brow conditions constituted a significant and substantial 

violation of section 75.202. Although it may be true that no 

coal was being mined at the time the violative conditions 

were observed and cited, and the mine was later closed 

because of adverse roof conditions, in terms of continued 

normal mining operations, the adverse rib and brow conditions 

which were present on the working section presented a real 

hazard and potential for rib rolls and falling brows, and I 

conclude and find that there was a reasonable likelihood that 

the loose overhanging coal and rock brows and fractured ribs 

could contribute to the hazards resulting from the violative 

conditions in question. I further conclude and find that had 

the unsupported ribs or brows rolled or fallen, and struck 

miners on foot or in equipment passing by the areas where 

they were located, injuries of a reasonably serious nature 

would have resultedo Accordingly, the inspector's nsignificant and substantial" finding IS AFFIRMEDo 

Negligence 

In support of Inspector Coeburn's "high negligence" finding, petitioner relies on his testimony, as well as the testimony of Inspector Rines, who was with Mr. Coeburn. Both 

inspectors personally viewed and examined the cited rib and 

brow conditions, and Mr. Coeburn took measurements and counted 

the overhanging brows. Both inspectors were of the opinion 

that the unsupported brows had been created by the continuous 

miner during prior mining cycles. Based on their observations 

of the miner cutting bit marks left in the coal ribs, and the 

advanced mining cuts which had been taken, they believed that 

the brows had existed for at least six to seven production 

shifts, and possibly as long as 10 days. As for the loose and 

fractured rib conditions, both inspectors testified that they 

were readily visible, and that visible separations were 

1744 
readily observable between the loose rib areas and the block 

of coal. Inspector Rines was of the opinion that the separation had been apparent for at least a week, and he discounted 

any notion that the separation had occurred quickly. In his 

view, had the separation occurred quickly, there would have 

been a massive rib roll into the entry. 

Petitioner also relies on the testimony of Mine Foreman 

Orender, and points out that MrG Orender conceded that many of 

the brows were created by the continuous miner and were possibly present for 4 to 5-days prior to the issuance' of the citation. Petitioner also points out that Mr. Orender admitted 

that sometimes brows were left by the miners, that he had no 

knowledge of any rib rolls, or any ribs being pulled, for a 

day or two prior to the day the citation issued, and his admission that it was difficult to say how long the ribs had been 

in a loose and fractured condition. Finally, petitioner 

points out that while res·pondent 1 s representative Gary Sweeney 

accompanied the inspectors and viewed the cited conditions, 

the respondent did not call him to testify in this case. 

In support of its argument for a finding of "low negligence with considerable mitigating circumstances," respondent 

maintains that the violative conditions were constantly being 

created because of the inherrent nature of the mine strata, 

and that it had effective procedures to deal with such conditions as they occurred. Respondent maintains that it took a 

number of steps to protect its work force and that this should 

be considered as mitigating circumstances ia determining the 

appropriate negligence levelo 

With regard to the issue of the length of time that the 

cited conditions actually existedu respondent relies on the 

testimony of State Inspector Hamrick who testified that the 

nature of the mine was such that the cited brow and rib conditions could occur overnight or even between shifts. Respondent also relies on the testimony of MSHA Inspector Adkinsr 

who was in the mine on two occasionsu within 4 days of the 

issuance of the citation, and confirmed that he did not see 

the cited conditions and issued no citations. 

Inspector Hamrick could not recall the date of his last 

visit to the mine prior to the date of the issuance of the 

citation on February 14, 1986. Although a copy of one of his 

inspection reports, exhibit R-2F reflects that he was in the 

mine on February 3, 1986, Mr. Hamrick had no independent 

recollection of that visit. With regard to the rib and brow 

conditions cited by Inspector Coeburn, and detailed in the 

sketch made by Mr. Coeburn from his notes, Mr. Hamrick agreed 

1745 
that the conditions probably existed generally one or two 

crosscuts cutby the face area. Mr. Hamrick confirmed that he 

issued a citation on February 14, 1986, for a violation of 

state law for brows and ribs which were not removed or sup~ 

ported. However, he was not sure whether his citation covered 

the same rib and brow conditions cited by Mr. Coeburn, and he 

explained that he was not with the Federal inspectors when 

Mr. Coeburn issued his citation and did not discuss the conditions ·with them. 

Respondent relies on Mr. Hamrick's testimony concerning 

its practices and efforts at controlling and addressing its 

inherrent adverse rib and brow conditions to mitigate its 

negligence. Mr. Hamrick's unrebutted testimony is that 

respondent's management and employees are constantly on the 

alert for hazardous rib conditions "pulling them down when 

they are discovered." Mr. Hamrick iindicated that anytime he 

was in the mine, overhan~ing brows at the face area were 

always taken down. When asked about the cited areas outby 

the face, Mr. Hamrick surmised that the overhanging brows 

could have been caused by rib rolls. Conceding that the 

brows could have been left by a continuous miner during a 

prior mining cycle, Mr. Hamrick nonetheless believed that 

respondent's responsible miners would not leave them in that 

condition. However, he had no explanation as to why the brow 

and rib conditions which he and the MSHA inspector cited were 

undetected and left unattended other than his speculation 

that they were possibly caused by unexpected rib rolls over a 

short period of time. 

With regard to the question as to how long the particular 

cited brow and rib conditions may have existed prior to the 

date of the issuance of the citation, Mr. Hamrick testified 

that it was entirely possible that they came about over a 

short period of time, even one day. However, he was not sure 

if he observed all of the cited conditions, and he conceded 

that he was not with the MSHA inspectors when they viewed the 

conditions and confirmed that he did not discuss them with the 

inspectorso He also conceded that while he observed unsupported brows on the section, he had no recollection as to how 

many he may have observed and confirmed that he did not count 

them. With regard to the rib and brow conditions which he 

cited, Mr. Hamrick had no knowledge as to how long they may 

have existed prior to the issuance of the citation and indicated that they may have been there "hours or days." 

Although I find Mr. Hamrick's testimony with respect to 

the respondent's general efforts at addressing and controlling 

1746 
adverse rib and brow conditions to be credible, and have considered this as a general mitigating factor, I find it of 

little value in determining respondent's negligence level with 

respect to the specific cited rib and brow conditions which 

formed the basis for the citation issued by Inspector Coeburn 

on February 14, 1986. I take note of the fact that while 

Mr. Hamrick also issued a citation for possibly the same or 

similar rib and brow conditions cited by Mr. Coeburn, 

Mr. Hamrick made no negligence findin~s with respect to his 

citation, and he apparently is not required to do .. so under 

state law. 

With regard to the failure by Inspector Adkins to cite 

any violations during his prior mine visits, although petitioner finds his failure to do so to be inexplicable, it 

points out that the issue here is whether the respondent was 

negligent, not MSHA. Petitioner takes the position that any 

failure by Mr. Adkins to ·act may not excuse or mitigate the 

respondent's negligence (Tr. 12). Respondent's counsel took 

the position that while Mr. Adkins' prior visits may mitigate 

its negligence, his prior presence in the mine, as a factual 

matter, simply indicates that had the cited conditions existed 

when he was there, he would have issued a citation. Counsel 

concluded that the reason Mr. Adkins did not issue a violation 

during his mine visits is that he did not observe the conditions, and that his failure to observe them reflects that they 

did not exist at that time (Tr. 14). 

It is clear that the fact that Inspector Adkins did not 

cite any violative conditions during his prior visit to the 

mine did not preclude Inspector Coeburn from citing violative 

conditions which he personally observed. Midwest Minerals, 

Incov 3 FMSHRC 251 (January 1981)3 Missouri Gravel Co., 

3 FMSHRC 1465 (June 1981); Servtex Materials Company, 5 FMSHRC 

1359(July 1983); Brubaker-Mann Incorporated, 8 FMSHRC 1487 

(September 1986}. In other words, the failure by one inspector to issue a citation for mine conditions which may be later 

viewed as a violation by another inspector may not serve as a 

per se defense to the violation. However, the failure by 

Mr. Adkins to issue a violation when he was in the same section several days earlier may be considered as an evidentiary 

factor in any determination as to whether or not the conditions cited by Mr. Coeburn may have existed or were left 

unattended prior to the time Mr. Coeburn issued his citation 

on February 14, 1986. 

Inspector Adkins testified that he was in the section on 

February 10 and 12, 1986, pursuant to an MSHA roof evaluation 

and accident prevention program, and he characterized his 

1747 
visit as a "walk and talk inspection" with mine personnel for 

the purpose discussing safety and accident prevention. His 

duties included the observation of miner work habits and work 

procedures. He confirmed that he was on the section for 

approximately 2 hours on February 10, and that ventilation 

curtains were hung throughout the section. He confirmed that 

he walked up the No. 3 belt entry, past the belt feeder, went 

directly to the working faces by walking up the belt entry, 

and spent the majority of his time at~the faces. He was sure 

that on February 10, the working faces were not as depicted 

on the map, exhibit G-3, because mining had advanced one or 

more crosscuts by February 14th. Although he was certain 

that he checked the faces for imminent dangers, he did not 

observe any of the cited rib or brow conditions outby the 

faces because he was not in that area. However, he conceded 

that it was possible that he may have walked by some of the 

ribs or brows that could have been behind a curtain, and may 

not have noticed them whtle talking to someone. 

Mr. Adkins testified further that during his prior visits 

on February 10 and 12, 1986, he conducted "safety talks" at 

the dinner hole by the power center in the No. 4 entry as 

shown on exhibit G-3. He was not certain how he would have 

travelled to that location, and indicated that it was possible 

that he walked up the No. 3 entry and across the crosscut 

beyond the feeder in the No. 3 entry and then over to the 

No. 4 entry. From that point, he would have proceeded 

directly to the face area by walking directly up the No. 4 

entry. I take note of the fact that Inspector Coeburn found 

no violative rib or brow conditions in the No. 4 entry near 

the power center, or in the connecting crosscut between the 

No. 3 and No. 4 entries. 

After careful review of the testimony of Inspector 

Adkins, I am not convinced that he actually travelled all of 

the areas where the cited brow and rib conditions were 

observed by Inspectors Coeburn and Rines. Mr. Adkinse travels 

apparently took him directly to the faces along the No. 3 

entry, and along the No. 4 entry and a crosscut where no brow 

or rib conditions were cited. Further, his testimony that 

line curtains were hung throughout the section, thereby possibly obstructing his view, and that he was preoccupied with 

safety talks and his "walk and talk" inspection, and the fact 

that the mining cycle when he was there did not appear as 

advanced as it was on the day the citation was issued, raise 

doubts in my mind that the then prevailing mining conditions 

were the same when Mr. Adkins was in the section several days 

prior to the issuance of the citation. I also doubt that he 

actually travelled all of the same areas where the cited rib 

1748 
and brow conditions existed. Under the circumstances, I 

reject any notion that the testimony by Mr. Adkins reasonably 

supports any conclus~on that the cited rib and brow conditions did not exist during his prior visits to the mine. 

With regard to the Rushton decision cited by the respondent, I take note of the fact that the inspector who Judge 

Melick referred to actually issued the violation which was 

affirmed. Judge Melick simply found that the failure by the 

inspector to previously observe conditions which he characterized as an 11 imminent danger" did not support MSHA·,· s .proposed 

finding of "gross negligence." However, Judge Melick did 

find that the operator was negligent for allowing the cited 

conditions to exist. 

I conclude and find that the cited rib and brow conditions did not occur overnight, as suggested by the respondent, 

or immediately before the· issuance of the citation on 

February 14, 1986. To the contrary, I believe that the testimony of Inspectors Coeburn and Rines, and Mine Foreman 

Orender, which I find credible, supports a conclusion that the 

cited conditions had been created by the continuous-mining 

machine during prior mining shifts and had existed for at 

least 2 days, and possibly longer. I further find and conclude that the failure by the respondent to observe the loose 

ribs and overhanging brows and to take appropriate action to 

either take them down or support them resulted from its negligent failure to exercise reasonable care. 

I have taken into consideration as general mitigating 

circumstances the respondent's past 2-year good compliance 

record~ which includes only four prior violations of the roof 

control requirements of section 75.200, and no prior violations of section 75.202. I have also favorably considered 

the respondent 1 s generally good attitude towards safety, and 

the steps taken to control the apparent inherent adverse roof 

conditions in the mine. However, the fact remains that whi 

the respondent may have generally given timely attention to 

hazardous brow and rib conditions in the mine, I find no 

credible evidence to suggest that it did so with respect to 

the particular brow and rib conditions observed and cited by 

the MSHA inspectors. As a matter of fact, the record here 

shows that State Inspector Hamrick issued a citation the same 

day in the same section for hazardous rib and brow conditions, 

and Mine Foreman Orender admitted that brows were sometimes 

left unattended in high locations, that management sometimes 

would not see all of the brows, and that at times miners would 

not pull down loose ribs. Under all of these circumstances, I 

find no mitigating circumstances warranting a finding that the 

1749 
cited conditions resulted from a low or moderate degree of 

negligence. 

I believe that a reasonable interpretation of section 

75.202 would require mine management to insure that loose 

ribs and overhanging brows be taken down or supported during 

the same working shift if miners are expected to work in those 

areas, or at least during the next working or maintenance 

shift.when miners may be expected to work and may be exposed 

to the hazardous conditions. Since I have found that the 

cited conditions existed during prior mining cycles in areas 

where miners would be working and travelling, it follows that 

the respondent's failure to timely address and correct the 

conditions before they were found by the inspectors supports 

Inspector Coeburn 1 s finding of "high negligence." Accordingly, that finding IS AFFIRMED. 

Petitioner's posthearing assertion that the violation 

resulted from the respondent's "unwarrantable failure" to 

comply with the requirements of the cited standard IS 

REJECTED. This is not a viable issue in a civil penalty 

proceeding. See MSHA v. Black Diamond Coal Mining Company, 

7 FMSHRC 1117 (August 1985); MSHA v. Brown Brothers Sand 

Company, 9 FMSHRC 636 (March 1987). In any event, I find no 

credible testimony or evidence to support a finding of willful intent or reckless disregard for the requirements of the 

cited safety standard. 

Civil Penalty Assessment 

During his opening remarks at the hearing, with respect 

to his suggested $2,000 civil penalty assessment in this 

casev petitioner's counsel asserted that MSHA's Office of 

Assessments was not aware "of the significance and the dangers and the number of violations that actually were written 

up in the one violation. I believe the violations were more 

serious and more negligent than the assessment off ice apparently believed" (Tr. 13). During closing arguments, and in 

further support of his request for a $2,000 civil penalty 

assessment, counsel cited three decisions concerning rib and 

brow violations in which substantial penalties were levied by 

Commission judgesF Westmoreland Coal Company, 7 FMSHRC 1338 

(September 1985); Valley Camp Coal Company, 7 FMSHRC 138 

(January 1985), Jim Walter Resources, Inc., 7 FMSHRC 263 

(February 1985) (Tr. 208-210). 

Westmoreland Coal involved an overhanging rib condition 

which resulted in fatal injuries to a scoop operator. The 

presiding judge found that the violation was the result of an 

1750 
"unwarrantable failure" to comply with section 75.202, because 

of a section foreman's knowledge of the violative condition 

and his failure to take corrective action through indifference 

or lack of reasonable care. The Commission reversed, and 

found that the overwhelming weight of the evidence established 

that repeated efforts to remove the overhanging rib, coupled 

with the good faith belief on the part of miners and others 

during their attempts to bar down the rib and that no hazard 

existed, could not support a finding that the foreman's action 

in allowing work to proceed represented the degre~ of aggravated conduct intended to constitute an unwarrantable failure 

under the Act. 

Valley Camp involved an overhanging rock brow that fell 

and killed a roof bolter. The judge found a violation of 

section 75.202, and affirmed a section 104(d)(2) unwarrantable 

failure withdrawal order, and he did so on the basis of evidence which established that a section foreman was aware that 

the roof had fallen in the accident area immediately prior to 

the brow fall which killed the bolter, but did not take the 

time to thoroughly evaluate the residual roof conditions, and 

allowed production to resume without first examining the work 

place to determine whether any hazards remained. Further, 

mine management had a policy which allowed overhanging brows 

to remain in work areas as long as they were no more than 

2 feet thick. Given these circumstances, the judge found that 

the violation resulted from "gross negligence," an "unwarrantable failure" constituting indifference, willful intent, or a 

serious lack of reasonable care. 

Jim Walter Resources involved a violation of section 

75.202v because of loose hanging roof conditions, broken roof 

bolt plates which allowed loose roof to fall out between the 

broken roof bolts, roof stress requiring additional roof bolting which was not done, and cracks between roof bolts in 

various places& The judge found that the conditions had 

existed for a "substantial period" before the inspection, but 

his decision contains no discussion of the fact used to support that conclusion. The judge found that the violation was 

"unwarrantable" because the operator "knew, or with the exercise of reasonable care should have known, of the hazardous 

roof conditions.n 

Aside from the fact that I am not bound by the prior 

judge's decisions cited by counsel, I take particular note of 

the fact that those decisions were based on the facts there 

presented. In each instance, the judge made his factual findings on the basis of credible evidence indicating egregious 

situations where the mine operator's failure to act was the 

1751 
result of either gross negligence, indifference, or willful 

intent which directly resulted in fatalities in two of the 

cases. I find no such circumstances present in the case at 

hand. 

With regard to counsel's conclusions concerning MSHA's 

assessment off ice evaluation of the negligence and gravity 

connected with the violation, my review of the "Narrative 

Findings" supporting the 11 special 11 civil penalty assessment 

of $850, which is a part of the pleadings, reflects a detailed 

analysis as to the cited conditions, their locations, the 

particular hazards presented by the conditions, and the respondent's negligence. Under the circumstances, I disagree with 

counsel's unsupported conclusions, and find that the assessment off ice adequately evaluated the facts and circumstances 

presented by the violation. Under the circumstances, I conclude and find that the proposed civil penalty assessment of 

$850 is reasonable and appropriate for the violation which has 

been affirmed. 

ORDER 

Respondent IS ORDERED to pay a civil penalty assessment 

in the amount of $850 for the violation in question, and payment is to be made to MSHA within thirty (30) days of the 

date of this decision. Upon receipt of payment, this proceeding is dismissed. 

Distribution: 

{fi!7~ge/A~ tt~~-~~ Koutras 

Administrative Law Judge 

Page H. Jacksonv Esq.u Office of the Solicitor, U.S. 

Department of .Laboru 4015 Wilson Boulevard, Room 1237Au 

Arlingtonv VA 22203 (Certified Mail) 

Karl K. Kindig, Esq.u Paramont Coal Corporation, P.O. 

Box 1357u Abingdonv VA 24210 (Certified Mail) 

/fb 

1752 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 7 1987 

CHARLES McGHEE, DISCRIMINATION PROCEEDINGS 

Complainant 

and Doc~et No. SE 86-98-D 

BARB CD 86-16 

JACKIE LOWE, 

Complainant 

v. 

AMERICAN STANDARD COAL SALES, 

INC., H. CAMERON COAL CO., 

INC. , SCARAB ENERGY CORP·. , 

and WINSTON MEREDITH, 

Respondents 

Docket No. SE 86-99-D 

BARB CD 86-17 

No. 2 Mine 

ORDER OF DISMISSAL 

Before: Judge Maurer 

The Complainants, Charles McGhee and Jackie Lowe, request 

approval to withdraw their complaints in the above-captioned 

cases on the grounds that a mutually agreeable settlement of 

the underlying controversy has been reached. Under the circumstances , permission to withdraw is granted. 29 

C.F.R. § 2700. The cases are therefore dismissed. 

At the st of the parties, the specific terms of the 

settlement are hereby sealed subject to review only 

by order of the Commissionr a Commission judge, or Court having jurisdiction. 

Roy 

~<J/111~ .:r.i Mb,urer 

Admi&trative Law 

Distribution: 

Dorothy B. Stulberg, Esq., Mostoller and Stulberg, 136 South 

Illinois Ave., Suite 104, Oak Ridge, TN 37830 (Certi Mail) 

Philip N. Elbert, Esq., Neal & Harwell, 2000 One Nashvil Place, 

150 Fourth Ave. North, Nashville, TN 37219 (Certi ed Mail) 

J. Michael Winchester, Esq., Lacy & Winchester, P.C., Suite 

2510, Plaza Tower, 800 South Gay St., Knoxville, TN 37929 

(Certified Mail) 

yh 

1753 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 8 1987 

LOCAL UNION 1248, DISTRICT 5 

UNITED MINE WORKERS OF 

AMERICA ( UMWA) , 

Complainant 

v. 

. . 

U. S. STEEL MINING CO., INC.,: 

Respondent 

COMPENSATION PROCEEDINGS 

Docket No. PENN 87-187-C 

Maple Creek Mine 

ORDER· OF DISMISSAL 

Before: Judge Melick 

Complainant requests approval to withdraw its Complaint 

in the captioned case based upon a settlement of the matter 

at issue. Under the 

withdraw is granted. 

therefore dismissed. 

circumstances herein, permission to 

29 C.F.R. 1§ 2~ QO.ll. Thi'~ case ir 

l / \ ./l . \ .·1· ' \ 

~_....., \ /l'\,,. /,. ! \,, 1\ .\ \ '·\1 \ 

. ', \ \ .. ' t .. , "~ ~ 

'-· 

Distribution: 

Gary Melick 

Administrative Law Judge 

(703) 756-6261 

Joyce A. Hanula, Legal Assistant, UMWA, 900 15th St. N.W., 

Washington, DC 20005 (Certified Mail) 

Ed Sullivan, Superintendent, U. s. Steel Mining Co., Inc., 

Maple creek Mine, Valley Shaft, R.D. #2, Eighty-Four, PA 

15330 (Certified Mail) 

npt 

1754 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 8 1987 

HIGHWIRE, INCORPORATED, CONTEST PROCEEDING 

Contestant 

v. Docket No. KENT 86-166-R 

Citation No. 2776209; 8/27/86 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH No. l Mine 

ADMINISTRATION (MSHA) , 

Appearances: 

Before: 

Respondent 

ORDER OF DISMISSAL 

Eugene C. Rice, Esq., Paintsville, Kentucky, 

for Contestant; 

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

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

for Respondent. 

Judge Koutras 

This proceeding was one of eight cases scheduled for 

hearing in Paintsville? Kentucky, during the hearing term 

September 22-23v 19870 When the case was called, contestant 1 s 

counsel advised me that the contestant no longer wished to 

pursue its contest, and requested that it be permitted to withdraw its contest. The request was granted, and this case IS 

DISMISSEDo 

k-K!~ Administrative Law Judge 

1755 
Distribution: 

Eugene c. Rice, Esq., 232 Second Street, Paintsville, KY 41240 

(Certified Mail) 

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

of Labor, 2002 Richard Jones Road, Sui~e B-201, Nashville, TN 

37215 (Certified Mail) 

David O. Williamson .and Gregory Lyons, Esqs., Gardner, Moss & 

Rocovich, P.C., Suite 900, 213 S. Jefferson Street, P.O. 

Box 13606, Roanoke, VA 24035 (Certified Mail) 

S. Howes Johnson, Esq., Johnson & Johnson & Phillips, P.O. 

Box 470, Paintsville, KY 41240 (Certified Mail) 

/fb 

1755 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

OCT 15 1987 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

. . 

: 

MID-CONTINENT RESOURCES, INC.,: 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 85-19 

A.C. No. 05-00301-03551 

Dutch Creek No. 1 Mine 

DECISION 

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

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

for Petitioner; 

Edward Mulhall, Jr., Esq., Delaney & Balcomb, 

Glenwood Springs, Colorado, 

for Respondent. 

Before: Judge Lasher 

This matter was initiated by the filing of a proposal for 

penalty by the Secretary of Labor under the authority of Section 

llO(a) of the Federal Mine Safety and Health Act of 1977, 30 

u.s.c., Section 801 et seq., (1982) (herein the Act). Subsequent 

to the hearing the presiding administrative law judge, John A. 

Carlsonu passed away and this matter has been assigned to me for 

decisiono 

Petitioner originally sought assessment of a penalty ($345) 

for an alleged violation of 30 C.F.R. § 75.1704 which is described in the subject Citation ~o. 2212848 (issued at 1725 hours on 

June 20u 1984u by Inspector Louis Villegos) as follows: 

0

'The designated return escapeway from the 102 longwall 

section was not maintained to insure passage at all times 

due to the following conditions being present. At a 

location 450 feet outby the 101 Longwall face, floor 

material had been pushed up to within 4 feet of the roof 

forming a bank and a impoundment of water and rock up to 

15 inches deep, 6 feet wide and 75 feet in length. No one 

was observed in the area to correct the condition. Men 

were at work at the Longwall face." 

1757 
The alleged violation was designated "Significant and Substantial" on the face of the Citation. 

The subject regulation, § 75.1704, pertaining to "Escapeways" provides: 

"Except as provided in §§ 75.1705 and 75.1706, at least two 

separate and distinct travelable passageways which are 

maintained to insure passage at all times of any person, 

including disabled persons, and which are to be designated 

as escapeways, at least one of which is ventilated with 

intake air, shall be provided from each working section 

continuous to the surface escape drift opening, or continuous to the escape shaft or slope facilities to the 

surface, as appropriate, and shall be maintained in safe 

condition and properly marked. Mine openings shall be adequately protected to prevent the entrance into the underground area of the mine of surface fires, fumes, smoke, 

and floodwater. Escape facilities approved by the Secretary or his authorized representative, properly maintained 

and frequently tested, shall be present at or in each 

escape shaft or slope to allow all persons, including disabled persons, to escape quickly to the surface in the 

event of an emergency." 

Following the issuance of the Section 104(a) Citation on 

June 20, 1984, Inspector Villegos, by extension dated July 5, 

1984, extended the abatement time to July 11, 1984, with the 

following justification for his action: 

"Some progress has been made in the clean-up of the 102 

longwall section returno At this time the 102 longwall 

section is broke down for repairso This would allow ample 

time to clean up the escapeway.• 

On July 11, 1984, the Inspector again extended abatement 

time- to July 20, 1984~ with this justification: 

01 Evidence of work down in the return escapeway shows that 

an additional 100 feet of grading has been done. A continuous miner has been placed to do the grading. At this 

time, the work by this machine should go at a faster pace. 

This extension is based on this accomplishment." 

On July 25, 1984, citing a "Safety" violation of 30 C.F.R. 

§ 75.1704 and under the authority of Section 104Cb) of the Act, 

Supervisory Inspector Lee H. Smith issued Withdrawal Order No. 

2336041 and described the "Condition or Practice" thereon as 

follows: 

1758 
"The designated return air escapeway from the 102 longwall 

active working section is still not being maintained to 

insure passage at all times of any person, including disabled persons. Citation No. 2212848 was issued on 06-20-84 

because of this condition. This Citation has been extended 

twice and at this time travel through the affected area is 

extremely difficult. Passage of a disabled person or one 

being carried on a stretcher cannot be assured. l; 

(emphasis added) -

I note here that inadequate "maintenance" would appear to be 

a "practice" and that obstructed passage would be a "condition". 

Five days later, on July 30, 1984, the Withdrawal Order was 

terminated by the Inspector on this basis: "The return escapeway 

from the 102 longwall working section has been graQed out to a 

height of at least 6 feet and a width of 8 feet." 

Contentions of the Parties 

Following completion of the evidentiary record, counsel for 

the parties presented oral argument in lieu of briefs. 

Respondent contends that the specific obstruction described 

in Citation No. 2212848 was separate and apart from that 

described in the Section 104Cb) Order of July 25 and that the 

Order was improperly issued on the basis of its failing to abate 

the original obstructive condition. Respondent concedes the 

occurrence of the violation charged in the Citation but contends 

that such violation was not "significant and substantial". The 11 significant and substantial" issue, however, was not the subject 

particular focus during the hearingo 

Petitioner contends that the existence of the violative 

condition on June 20, 1984, described in Citation No. 2212848 

was admitted by Respondent (T. 274) and that the "Failure to 

Abate" Withdrawal Order was appropriately issued since the 

escapeway in question was obstructed on July 25 even though the 

obstruction may have been a separate condition in a different 

location. Alternately, Petitioner argues that if the 104(b) 

order is not upheld 0 the violation described therein .occurred and 

should constitute a second violation of the escapeway standard 

1/ Line 13 of the standard form employed for the Withdrawal 

Order-wherein the "Area or Equipment" involved which is to be 

withdrawn from is to be described- was left blank. To correct 

this, on August 1, 1984, a modification of the Order was issued 

stating: 11 0rder No. 2336041 is hereby modified to indicate the 

area that was closed as the 102 longwall active working section." 

1759 
(T. 274-275), calling for modification of the Order to a 104(a) 

Citation. ~/ 

Preliminary Findings 

On June 20, 1984, coal mine Inspector Louis Villegos, during 

an accelerated inspection authorized by section 103Ci) of the Act 

where mines liberate excessive quantities of methane, inspected 

the designated return air escapeway from the 102 longwall active 

working section of the Respondent's Dutch Creek No. 1 Mine CT. 

34, 41, 42). Inspector Villegos was the primary inspector 

conducting such inspections at the mine CT. 42). · 

At all material times the mine operated three shifts per day 

(two production and one maintenance) seven days a week CT. 73). 

At all material times Respondent employed a longwall mining 

system at the subject mine which had two entries-an intake and a 

return entry. 

There were two escapeways from the 102 longwall active 

working section. The primary escapeway was along an intake 

entry, i.e. a material road going into the section CT. 172-173}. 

The second escapeway was a return air course for the longwall CT. 

47) which the Inspector described as follows: "Where the air goes 

up the face and comes out of the return, that is a designated 

return escapeway out of this mine." (Tr. 42). 

On June 20, 1984, the Inspector walked the return entry and 

observed a darn which had been built up by equipment grading which 

was impounding water at a point approximately 450 feet from the 

face (T. 43-44, 92-93, 100-101). The width of the return entry 

this area was 6 feet (Tr. 43-44). The irnpoundment was 15 

inches highu composed of rock and coalu and extended from rib to 

rib (T. 44-45)0 The distance from the top of the impoundment 

itself to the ceiling was 4 feet and the impoundrnent was 75 feet 

in length in addition to being 6 feet wide (T. 45-46, 97, 189). 

2/ Although there was considerable discussion on the record 

~oncerning whether the original Citation was "merged" into the 

subsequent Section 104(b) Withdrawal Order, I am unaware of such 

a legal doctrine and reject this notion to the extent that the 

identity and viability of the 104(a) Citation would be nullified. 

Both the Citation and Withdrawal Order are integral documentary 

components of a continuing mine safety enforcement process and 

the fact that but one penalty is assessed even though there are 

two enforcement papers seems only to reflect the impact of the 

104(b) Withdrawal Order on the penalty assessment determination 

insofar as it directly bears on one of the six mandatory 

assessment criteria provided in Section llO(i) of the Act, i.e., 

"the demonstrated good faith of the person charged in attempting 

to achieve rapid compliance after notification of a violation." 

1760 
The water contained within the impoundment was 3 to 6 inches from 

the top of the impoundment (T. 46) and covered the entire width 

of the entry CT. 98). 

The hazard envisaged by the Inspector which was created by 

this condition was that if a fire occurred anywhere in the 

section, most of the smoke CT. 47, 91, 99, 112) would exit out of 

the return escapeway, creating this problem: 

11 ••• with smoke present in that return air course, the 

smoke does have a tendency to hang to the top. If a 

person was walking out of there and you would -- more or 

less, would want to get out of the smoke if you were 

walking in it. You would want to get your head out of 

the smoke so you would have a tendency to lower your head. 

As you would come out of there, maybe, it would get to a 

point that you would be coming out of there on your hands 

and knees. With this obstruction in there, you would not 

know what was behind it. So, if you wanted to crawl over 

it, how do you know by going over it that the back end is 

clear? CT. 47-48). 

xxxx xx xx xx xx xx xx xx xx 

"He would be faced with when he would get to the impoundment, he couldn't see any further. If he came on 

this impoundment, how would he know that past the impoundment it was clear? Now, if there was no impoundment 

in there, then, he could see ahead of him." CT. 48-49). 

xxxx xxxx xxxx xxxx xx xx 

"I believe his first reaction would be panic." (T. 49). 

The Inspector also pointed out that the location of a fire 

would dictate whether miners would utilize the primary (intake) 

escapeway or the subject return escapeway (T. 103). 

Other hazards contemplated by the Inspector necessitating 

use of the subject escapeway would be roof falls and failure of 

the pack wall CT. 112-113). 

The likelihood of a fire or other hazard occurring was not 

ascertained. Inspector Villegas had never seen a fire in the 

subject mine in 14 years (T. 102, 104). There was one explosion, 

however, which resulted in 15 fatalities not attributable to an 

escapeways problem (105-107, 110). 

The subject Citation was issued at 1725 hours on June 20, 

1984; the time for abatement was set for 2100 hours on the same 

date by Inspector Villegas after Brian Savage, the foreman, 

agreed to such time. The Inspector's return visit was on July 5, 

1984 at which time, according to the Inspector the escapeway had 

1761 
not been cleared of obstacles and that such were the "same 

objects" that he "had observed on the first one" CT. 53). ~/ 

Allyn Davis, mine superintendent, advised the Inspector that they 

"were working on the problem" in explanation as to why abatement 

had not taken place CT. 54). Inspector Villegos sympathized with 

mine management's problem in achieving abatement because there 

existed a continuing and re-occurring "heaving problem" (T. 

54-55, 57, 101) and abatement time was extended to July 11, 1984 

at 8:00 a.m. CT. 56). On July 11, 1984, the abatement period was 

again extended to July 20, 1984 at 8:00 a.m. On this date, July 

11, 1984, the same impoundment observed on June 20, 1984, was 

still in existence CT. 93, 111-112) and the Inspector noted that 

the mine operator had equipment working "right by this area" and 

were working "up to it." CT. 94). 

Inspector Villegos was not in the area of the subject return 

escapeway during the interim periods between the issuance of the 

original Citation and the 2 extensions, i.e., between June 20 and 

July 5, between July 5 and July 11, and between July 11 and July 

20 or July 25, on which latter date the Section 104(b) Withdrawal 

Order was issued by another Inspector (T. 95-96). Whether the 

original (June 20) impoundment was abated-and whether the entire 

escapeway ever came into compliance - during the 2-week period 

July 11-July 25 was not shown in the record (T. 155). 

The Section 104(b) Withdrawal Order was issued during an 

inspection on July 25, 1984, by Supervisory Inspector Lee H. 

Smith after he observed another different impoundment CT. 123, 

140, 154, 155, 165, 169) in the same escapeway. He described the 

condition as follows: 

"From the track slope in to where the water accumulation 

and mud accumulation was, the escapeway was in good 

condition up to that area that was under citation. From 

the water accumulation and mud accumulation in-by to 

within approximately 100 to 150 feet of the face, the 

heaving problem was very evident. The mine floor was within four feet of the mine roof. The area immediately out-by 

where they were grading contained water and mud resembling 

thick soup that was very hard to negotiate. The area where 

the grading had stopped, referred to earlier as an impoundment v the area was very small. The ventilating air current 

had picked up a considerable amount of speed. People 

traveling this area were -- if there was a person in-by or 

3/ A close reading of this segment of the Inspector's testimony 

reveals that such is ambiguous as to whether the obstacle 

observed on July 5 was the same impoundment cited on June 20 CT. 

53}. However, on cross-examination, the Inspector made clear 

that the impoundment he observed on June 20, 1984 when he issued 

the Citation was still in existence when he issued the first and 

second extensions of abatement time on July 5 and July 11, 1984 

respectively CT. 93, 111-112). 

1762 
any amount of dust which was coming off the mine roof or 

off any portion of that entry would result in a type of 

stinging action with the dust particles and the coal 

particles and rock particles would hit a person. It was 

very low." (T. 119). 

Prior to July 25, 1984, it had been "some time" since 

Inspector Smith had been in the 102 longwall return area (T. 141) 

and he was not familiar with conditions in the area between June 

20 and July 25, 1984 CT. 150). 

Inspector Smith indicated that the impoundrnent area he 

observed was approximately 50-70 feet in length by 6 to 8 feet in 

width; that water of a depth of approximately 12 inches had 

accumulated in the impoundment for a distance of at least 20 

feet; that the ungraded mine floor in the area had come within 4 

feet of the ceiling (T. 120-122); and that the water would tend 

to gravitate inby toward the face CT. 147). 

Inspector Smith felt that the grading process was possibly 

causing the impoundment of water, i.e. the "removal of material 

from the mine floor created a backstop against which the water 

could not continue its normal flow into the tail gate area of the 

102 longwall" (T. 128)0 4; The area described in the Withdrawal 

Order was closer to the face than the area described by Inspector 

Villegos in the Citation {T. 123; Ex. R-1>. After determining 

that the escapeway in question was not "suitable according to 

1704", the decision to issue the Withdrawal order was made "to 

insure that the grading process would be completed in a reasonable amount of time." (T. 123)~ 

The Inspector testified that the "heaving" problem- stressed 

by Respondent as one of several problems which made maintenance 

of the escapeway difficult- was "an ongoing condition" in the 

area and that while mine crews were in fact engaged in grading 

the area, after two extensions it was felt that the area "was not 

being cleaned fast enough" and that the hazard, while located in 

a different place than that observed by Inspector Villegas, still 

existed CT. 151)0 

Inspector Smith described the hazard posed by the violative 

condition he observed as follows: 

"Well, I do not believe that an injured man, particularly 

an injured man that would need to be transported on a 

stretcher, would have an easy time while being transported 

through this area. I know it would be extremely difficult. 

ii On cross examination, however, the Inspector attributed the 

impoundment to the continuous miner CT. 146). 

1763 
It was difficult for me to travel through this area and I 

can imagine how hard it would be to have an injured man on 

a stretcher going through it or, perhaps, a person with a 

broken leg or anyibone fracture where a jarring movement 

is quite painful. The stop point of the grading would be 

a drop of approximately two and a half to three, three and 

a half feet into a muddy mess." CT. 129). 

The Inspector also felt that while "a desperate man could 

probably make it through" the condition of the escapeway when he 

observed it would hamper or slow the escape of miners attempting 

to use it (T. 129). Based on this unrebutted testimony, it is 

concluded that this condition also constituted a failure to 

maintain the escapeway in a "safe" condition and thus a violation 

of the regulation. 

Following the issuance of the Withdrawal Order the 

Respondent abated the violative condition in approximately 5 days 

(T. 147-148). 

Of considerable significance to the ultimate determination 

of the abatement question is Inspector's Smith's testimony with 

respect to the condition of the impoundment area cited on June 20 

by Inspector Villegas when he (Smith) observed such area on July 

25. After first testifying that the area described in the June 

20 Citation had not been "completely cleaned up" (T. 154) and 

after ambivalent responses to questions of the trial judge, the 

witness then gave the following testimony: 

Q. All right. Let's address this from a somewhat 

different direction. My understanding was that Mr. Villegas 

indicated that the length of the entry way affected when 

he was there the first time and -- actuallyv the second and 

the third time was about 75 feet. Is that right? Is that 

the way you recall his testimony? 

A. Yes, sir. 

Qo Okayo Nowv can you tell me with a reasonable degree of 

certainty when you were there on the 25th how much of that 

75 feet had been effectively cleared up and how much hadn 1 t 

or don~t you really know? 

Ao Nov sirf I cannot say that with a reacionable degree 

of certainty. 

Q. Can you assure me that all 75 feet hadn't been cleared 

up? 

A. No, sir. 

(T. 155) • 

Respondent's Mine Superintendent, Allyn Davis, testified at 

length concerning various inherent difficulties encountered in 

1764 
the mine in maintaining the escapeway (T. 169-201) and indicated 

that what Inspector Villegas observed on June 20 was "the pile of 

muck that had been rooted up by" a Deisel EIMCO machine (similar 

to a front-end loader) on the previous shift the night before. 

Mr. Davis attributed the impoundment of water to the pile of muck 

CT. 175, 176, 188, 190) and essentially agreed with Inspector 

Villegas' description of it CT. 190). Mr. Davis opined without 

elaboration that the area in question was "passable" (T. 

190-191). 

At the time of the issuance of the Citation, Respondent had 

two EIMCO machines engaged in grading the entire escapeway 2 

shifts per day to keep the subject escapeway clear CT. 201-204, 

211) one of which machines worked in the escapeway exclusively 

(T. 204). After the Citation was issued, no machines or 

personnel were added, nor were any significant changes made in 

the grading program to achieve abatement CT. 204-205, 217, 221) 

nor were any such changes made after issuance of the Withdrawal 

Order on July 25, 1984 CT. 205-206}. Issuance of the Withdrawal 

Order stopped production CT. 205). Mr. Davis pointed out that 

two machines were the maximum which could be employed CT. 211). 

Mr. Davis explained why the Citation was not abated during a 

period of approximately 30 days but that the Order was abated in 

five days as follows: 

Well, when we got the original citation, the -- at that 

point in time, I knew that the job that was ahead of me 

was to grade the entire tail gate not just that particular 

area in question. Because that area, you know -- that 

would just propagate itself. If I cleaned that area up, 

thenv we would find the same thing ahead. So, we started 

grading from both directions and while the original area 

was being extended there was a lot of work being done from 

the in-by end by the face coming back towards that area. 

That was much more productive. And, in fact, we did grade 

most of the tail gate out coming from that direction and 

we had very little luck driving from the out-by end in 

because of the watero So, at the point in time when the 

order was issued, there was, in fact, very little tail gate 

left to be graded out. And, then, the job was finished. 

(Emphasis supplied} CT. 208) 

ULTIMATE FINDINGS AND CONCLUSIONS 

Ao Validity of the Withdrawal Order. 

The question arises whether, following the issuance of the 

initial Citation on June 20, 1984, it was established that the 

secondary escapeway in question did not come into compliance with 

the regulation, § 75.1704, prior to the occurrence of the 

conditions leading to the issuance of the 104(b) Order on July 

25, 1984. This would appear to be a prerequisite element of 

proof to Petitioner's "failure to abate" contention because the 

second violation occurred in a different area of the escapeway. 

1765 
Broken down, the elements of the cited regulation itself are 

that there (1) "at all times" (2) "be at least two separate and 

distinct travelable passageways" which (3} "are maintained to 

insure passage ••• of any person, including disabled persons" 

which (4) "are to be designated as escapeways" ••• and (5) "shall 

be maintained in safe condition" ••• 

Did the dynamics of the type of mining conducted here create 

a continuous violation, that is, one obstruction of the escapeway 

always overlapping the other? The validity of the "failure to 

abate" Order would seem to hinge on an affirmative answer to this 

question. By way of illustration, if at Point A of one of a 

mine's two escapeways a violative obstruction occurs and 

§ 75.1704 violation is cited, and before it is removed, another 

obstruction occurs at Point B, and after A is cleaned up (abated) 

but before B is cleaned up, a third obstruction occurs at Point 

c, it cannot be said that abatement of the original violation at 

Point A occurred, since at no time were there two travelable 

passageways in the mine which were maintained in safe condition. 

In various applications, such as the interpretation of 

whether an imminent danger exists, or whether a violation is 

"significant and substantial", the Commission has analyzed a 

particular mining condition or practice in the perspective of 

"continued mining operations". If, as a result of the dynamics 

of continued mining or any other reason, the subject escapeway 

ter the issuance of the 104(a) Citation on June 20, 1984, never 

came back into compliance with the regulation so as to serve as 

an escapeway, abatement did not occur. Again, when one of the 

two designated escapeways is obstructed to the point of 

non-compliance with the subject regulation (a) at one place or 

another, or Cb) due to one condition or another, or (c) due to a 

particular mining practice or another, if it fails continuously 

to serve as a distinct travelable passageway, etc., following the 

issuance of a Citation and until a "failure to abate" withdrawal 

order is issued, the issuance of such order should be found appropriate under Section 104(b) of the Act. ~/ 

~/ Section 104(b) provides~ 

"(b) If, upon any follow-up inspection of a coal or other 

mine, an authorized representative of the Secretary finds 

(1) that a violation described in a citation issued pursuant 

to subsection (a) has not been totally abated within the 

period of time as originally fixed therein or as subsequently extended, and (2) that the period of time for the 

abatement should not be further extended, he shall determine 

the extent of the area affected by the violation and shall 

promptly issue an order requiring the operator of such mine 

or his agent to immediately cause all persons, except those 

persons referred to in subsection (c), to be withdrawn from, 

and to be prohibited from entering, such area until an 

authorized representative of the Secretary determines that 

such violation has been abated. 

1766 
A violation occurs when one <or both} of the designated 

escapeways fails to adequately function as such. 

The testimony of Petitioner's witnesses was reliable and 

does establish that there were two separate violations of 30 

C.F.R. § 75.1704 one on June 20 and one on July 25, 1984. Other 

than a bald opinion of one of its witnesses to the contrary (T. 

191) Respondent makes no contention that such was not the case. 

Nevertheless, the Petitioner, in these circumstances where the 

situs of the second violation was different than the first, did 

not establish Cl) when the second violation commenced or (2} that 

the first violation was not abated prior to the occurrence of the 

second, that is, there was no showing that the obstructive condition constituting the first violation was in existence when the 

second violation was detected. The record reveals that 

continuous grading efforts were carried on after the Citation's 

second extension was issued on July 11, 1984. There was no 

showing that the secondary (return) escapeway was continuously 

obstructed in one location or another. Even though it is clear 

that the essence of the standard is the having of two escapewaysas contrasted to a focus on the presence of a particular 

condition, obstruction, or impediment to passage at a given place 

in the escapeway- 6; it has not been established that the escapeway did not come into compliance after the first violation and 

before the second (a 14-day period), a prerequisite to the 

conclusion that the mine operator did not abate the first 

violation. 

I thus find insufficient evidence of Petitioner's "failure 

to abate" allegation, not simply because the second (July 25) 

violation occurred in a different area, but because there (a) is 

no reliable evidence as to the condition of the original (June 

20) violation situs after July 11, coupled with the fact (b) that 

there is insufficient evidentiary basis to draw the inference 

that the return escapeway, for one reason or another, at one 

location or another, was not cleaned up, or maintained adequately 

during the period July 11 - July 25 to constitute an abatement at 

some point in time of the original violationo Accordingly 1 it is 

concluded that the 104(b) Withdrawal Order was improperly issued. 

However, since the Order itself specifically cites a violation of 

30 C.F.R. § 75.1704, and the evidence establishes the occurrence 

of such a violation, modification of the Order to a Section 

104(a) Citation is called for within the authority of Section 

105(d) of the ~ct and a separate penalty assessment therefor will 

be made. 

6/ An obstruction, in and of itself, is not a violation of the 

subject standard. 

1767 
B. Significant and Substantial 

With regard to the nsignif icant and substantial" finding of 

the Inspector on the face of Citation No. 2212848, 7; there was 

no specific attention placed on this subject either-during the 

evidentiary hearing or in oral argument. Respondent did 

challenge the "significant and substantial" designation (T. 5). 

A "significant and substantial" violation is described in 

section 104Cd)(l) of the Mine Act as a violation "of such nature 

as could significantly and substantially contribute to the cause 

and effect of a coal or other mine safety or health hazard[.]" 30 

u.s.c. § 814(d)(l). The Commission first interpreted this 

statutory language in Cement Division, National Gypsum Co., 3 

FMSHRC 822 (April 1981}: 

[A] violation is of such nature as could significantly 

and substantially contribute to the cause and effect 

of a mine safety or health hazard, if based upon the 

particular facts surrounding the violation, there exists 

a reasonable likelihood that the hazard contributed to 

will result in an injury or illness of a reasonably 

serious nature. 

3 FMSHRC at 825. In Mathies Coal Co., 6 FMSHRC 1 (January 1984), 

the Commission reaffirmed the analytical approach set forth in 

National Gypsum, and stated: 

In order to establish that a violation of a mandatory 

safety standard is significant and substantial under 

National Gypsum, the Secretary of Labor must prove: Cl) 

the underlying violation of a mandatory safety standard; 

(2) a discrete safety hazard -- that is 11 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 

natureo 

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

Co.v 6 FMSHRC 34, 37 (January 1984). The Commission has 

explained further that the third element of the Mathies formula 

'~requires that the Secretary establish a reasonable likelihood 

that the hazard contributed to will result in an event in which 

there is an injury." U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 

(August 1984). 

7/ No "significant and substantial" designation was made on the 

Withdrawal Order. 

1768 
Suffice it to say that the record does not support a finding 

that there existed a r~asonable likelihood that the hazards 

described which were contributed to by the violation would result 

in an event in which there is an injury, even under the most 

liberal construction of the phrase "reasonable likelihood." 

c. Penalty Assessment 

The Respondent is an underground coal mine operator with a 

history of 231 prior violations during the 2-year period 

preceding the issuance of the first Citation No. 2212848 on June 

20, 1984 (Ex. P-7). Respondent previously had been cited for 

obstructed escapeways which were described as a "recurring 

problem" (T. 57-60). Both violations were obvious CT. 43-47, 

122-129) and were the result of the nature of mining being 

conducted in the context of numerous difficulties encountered by 

Respondent. 8/ It is concluded that the first violation (June 

20) resulted-from ordinary negligence. However, the second violation occurred more than a month after the first and Respondent 

should have been acutely aware of the hazards posed by the 

violation and a high degree of negligence is attributed to it. 

Failure to provide two safe escapeways by its very nature is a 

serious infraction and both violations are found to be moderately 

serious in view of the gravity of the potential injuries posed by 

the hazards. 

In mitigation, Respondent contends, in addition to its 

showing of considerable difficulty in keeping the escapeway 

clear, that it suffered a loss as a result of the inappropriate 

issuance of the Withdrawal Order which closed down production for 

5 days. The vitiation of the "significant and substantial" 

charge Citation Nao 2212848 must so be considered. These 

factors in mitigation serve to reduce the level of penalties 

otherwise called for. Based on the foregoing considerations, a 

penalty of $175.00 for each violation is deemed appropriate and 

is assessed. 

8/ was compliance with the 2 escapeway standard shown to be impossible? Respondent presented at length a variety of geologic, 

equipment, spatialv and time problems which it maintained posed 

difficulties in obtaining compliance, i.e., keeping the secondary 

return escapeway adequately cleared while production was ongoing. 

Nevertheless, the second impoundment was abated in 5 days after 

the Withdrawal Order issued and Inspector Villegos' testimony CT. 

104) that the first violation could have been abated in 6 or 7 

days went unrebutted. I thus conclude that compliance with the 

subject regulation was not impossible. See Sewell Coal Co., 3 

FMSHRC 1380 (1981). 

1769 
ORDER 

(1) Citation No. 2212848 is modified to delete the 

"Significant and Substantial" designation thereon, is otherwise 

affirmed, and a penalty of $175 is assessed therefor. 

(2) Withdrawal Order No. 2336041 issued pursuant to Section 

104(b) of the Act is modified pursuant to Section 105(d) of the 

Act to a Section 104{a) Citation and a penalty of $175 is 

assessed therefor. 

(3) On or before 30 days from the date of this decision 

Respondent shall pay to the Secretary of Labor the penalties 

above assessed in the total sum of $350.00. 

Distribution: 

r:fift'~~-dt ~If, Michael A. Lasher, f;. 

Administrative Law Judge 

James H. Barkley, Esq., Office of the Solicitor, U.S. Department 

of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO 

80294 (Certified Mail) 

Edward Mulhall, Jr., Esq., Delaney & Balcomb, P.O. Drawer 790, 

Glenwood Springs, CO 81602 (Certified Mail) 

/bls 

1770 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

October 15, 1987 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. PENN 87-37 

A. C. No. 36-05018-03629 

v • 

Docket No. PENN 87-38 

U. S. STEEL MINING COMPANY, 

I NC. , 

A. C. No. 36-05018-03630 

Appearances: 

Before: 

Respondent Docket No. PENN 87-127 

A. C. No. 36-05018-03646 

Docket No. PENN 87-157 

A. C. No. 36-05018-03648 

Cumberland Mine 

DECISION 

Susan M. Jordan, Esq., Office of the Solicitor, 

U. S. Department of Labor, Philadelphia, 

Pennsylvania, for Petitioner; 

Billy M. Tennant, Esq., U.S. Steel Mining 

Company, Inc., Pittsburgh, Pennsylvania, for 

Respondent. 

Judge Merlin 

These cases are petitions for the assessment of civil 

penalties filed under the Federal Mine Safety and Health Act 

30 U.S.C. § 801 et seq., by the Secretary of Labor against U. S. 

Steel Mining Compan:V:-Tnc. 

The parties agreed that the issues in these cases are identical. Accordingly, they proposed to try only Docket No. 

PENN 87-37 and have the decision in that case determine the result in the others. I accepted this proposal and consolidated 

the cases for hearing and decision (Tr.4-6). 

The parties agreed to the following stipulations: 

(1) the operator is the owner and operator of the subject mine; 

(2) the operator and the mine are subject to the jurisdiction of the Feder~l Mine Safety and Health Act of 1977; 

1771 
(3) the Administrative Law Judge has jurisdiction over 

these cases; 

(4) the inspector who issued the subject citations was a 

duly authorized representative of the Secretary; 

(5) true and correct copies of the subject citations were 

properly served upon the operator; 

(6) copies of the subject citations and determinations are 

authentic and may be admitted into evidence for the purpose of 

establishing their issuance, but not for the purpose of establishing the truthfulness or relevance 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 is average; 

(10) the operator's size is large. 

PENN 87-37 

The subject citation, dated September 18, 1986, sets forth 

the condition or practice as follows: 

As observed on September 18, 1986 at 9:30 

a.m. the trailing cable receptacles were not 

properly identified or labeled so as to 

identify the electrical equipment plugged 

into the power center receptacles for the 

feeder, roof drill, welder, shuttle car no. 

2, fan no. 2, scoop charger, ram car no. 2. 

Charger and the continuous mining machine in 

the 8 Butt East 009-0. 

Section 306(b) of the Act, 30 IJ.S.C. § 866(b), and section 

75.601 of the mandatory standards, 30 C.F.R. § 75.601, provide: 

Short circuit protection for trailing cables 

shall be provided by an automatic circuit 

breaker or other no less effective device 

approved by the Secretary of adequate 

current-interrupting capacity in each underground conductor. Disconnecting devices uses 

to disconnect power from trailing cables 

shall be plainly marked and identified and 

such devices shall be equipped or designed in 

such manner that it can be determined by 

1772 
visual observation that the power is 

disconnected. 

The MSHA Underground Manual for Inspectors dated March 9, 

1978, provides in pertinent part with respect to section 75.601: 

A visual means of disconnecting power from 

trailing cables shall be provided so that a 

miner can readily determine whether the cable 

is de-energized. Enclosed circuit breakers 

are not acceptable as visible evidence that 

the power is disconnected. Plugs and receptacles located at the circuit breaker are 

acceptable as visible means of disconnecting 

the power. These devices shall be plainly 

marked. For example, the loading machine 

cable disconnecting device shall be plainly 

marked (LOADER), the shuttle car cable disconnecting device shall be plainly marked 

(S.C. No. 1 or S. C. No. 2) or the disconnecting devices shall be readily 

identifiable by other equally effective 

means. 

The MSHA Inspector's Electrical Manual dated June 1, 1983 

sets forth the following regarding section 75.601: 

A visible means of disconnecting power from 

each trailing cable shall be provided so that 

a miner can readily determine whether the 

cable is de-energized. Enclosed circuit 

breakers are not acceptable as visual 

evidence that the power is disconnected. 

Plugs and receptacles located at the circuit 

breaker and trolley nips are acceptable as 

visual means of disconnecting the power. 

These devices shall be plainly marked for 

identification to lessen the chance of 

energizing a cable while repairs are being 

made on the cable. For example, the loading 

machine cable plug shall be plainly marked 11 LO ADER, 11 the sh u t t 1 e car cab l e p 1 u g sh al 1 be 

pl a i n l y marked 11 S . C • N 0. 111 or 11 S . C • NO. 2 • 11 

The proper use of disconnecting devices has a long history 

at the Cumberland Mine. As set forth in an MSHA Investigation 

Report and as described by an MSHA electrical supervisor who had 

partic.ipated in the investigation, a fatality occurred in 1979 

when two shuttle cars were being repaired at the same time 

(Government Exhibit 4, Tr. 144, 152-159, 191). A mechanic working on the first car was electrocuted when a mechanic who had 

finished working on the second car mixed up the cars 1 trailing 

1773 
cables and mistakenly plugged in the cable of the first car, 

electrifying it. The teg and lock out which had originally been 

placed on the first car were subsequently removed by mistake with 

the result that the first car could be energized while it was 

still being repaired. The trailing cable plugs of the shuttle 

cars were not identified to correspond with the receptacles and 

circuit breakers at the load center. The receptacles and circuit 

breakers were marked shuttle car ~o. 1 and shuttle car No. 2, 

while the trailing cable plugs were mar~ed shuttle car No. 105 

and shuttle car No. 106. In addition, the trailing cable marked 

as No. 106 was attached to a shuttle car marked No. 110. Finally, in order to energize the first car, the mechanic manually 

overrode the circuit breakers. As the MSHA electrical supervisor 

explained, the fatality had multiple causes (Tr. 191). One of 

them was the method of labelling. 

Tn 1982, a citation was issued at Cumberland for a violation 

of§ 75.601 due to unmarked trailing cable plugs. The Commission 

affirmed the citation and found the violation was significant and 

substantial. U.S. Steel Mining Company, Inc., 6 FMSHRC 1834 

(1984). 

MSHA's electrical supervisor testified that under the mandatory standards MSHA could require that the tag and receptacle, 

but not the circuit breaker, be identified by reference to the 

piece of equipment (Tr. 136-137, 167, 173-174, 191). The 

witnesses agreed that at the Cumberland Mine from the 1979 fatality up to the end of 1986 trailing cable plugs, receptacles as 

well as circuit breakers were identified in terms of the equipment (Tr. 136-137, 245-246). The system at Cumberland was not 

followed at U. S. Steel 1 s Maple Creek Mine (Tr. 87). The 

electrical supervisor stated that Maple Creek was an isolated 

exception (Tr. 143). Both the supervisor and the MSHA electrical 

specialist who also testified, asserted that the only approved 

oolicy was the one where the plug and receptacle both were tagged 

by specifying the equipment (Tr, 107, 139). In the latter part 

of 1986 the system at Cumberland was changed so that only the 

1 ab el on the plug referred to the equipment (Tr. 245-246, 256). 

Accordingly, when the inspector visited the Cumberland Mine 

o n S e p t em b e r 1 8 , 1 9 8 6 h e f o u n d t h a t t h e t r a i l i n g c a b l e p l u g s iv e r e 

labelled with the name of the piece of equipment to which they 

were attached but that the receptacles which were identified as 

Circuit 1, 2, etc., were not so labelled. Circuit breakers were 

identified in the same way as the receptacles (Joint Exhibit 1, 

Tr. 17-18). 

The Secretary's position is that the plug and the receptacle 

constitute a disconnecting device, whereas the operator maintains 

that only the plug is the disconnecting device. As the parties 

point out in their briefs, the term 11 disconnecting device" is 

neither defined in the Act nor in the regulations. After consideration of the matter, 1 accept the testimony of the MSHA 

1774 
electrical specialist that the plug and receptacle are one thing 

(Tr. 107) and conclude that both together are a disconnecting 

device. Only when one is separated from the other does a 

disconnection occur. Therefore, they both together should be 

viewed as a unit for purposes of the mandatory standard. The 

operator•s brief refers to the testimony of its electrical 

engineer that the reference to disconnecting device in 30 CCF.R. 

§ 75.511 means plug because he would not lock out a receptacle 

(Tr. 218). However, the engineer further noted that he would not 

say that locking out a receptacle is never done and that he knew 

manufacturers make provisions so a lock can be placed on a 

receptacle (Tr. 218-219). Also, although the MSHA electrical 

supervisor testified that disconnecting device as used in 30 

C.F.R. § 75.903 is a plug, he further explained that § 75.903 and 

its subpart, are not concerned with trailing cables and that 

there is a difference (Tr. 175, 177). 

The record demonstrates that the Secretary•s position regarding the labelling of plugs and receptacles measurably advances 

the cause of safety as contemplated and required by the Act. I 

find convincing the testimony of the MSHA electrical supervisor 

that when a miner wants to energize or de-energize a piece of 

equipment he does not look at the plug, but rather goes directly 

to the circuit breaker he believes is being used for the equipment in question (Tr. 147-148). A hazard arises when unbeknownst 

to him someone has changed the plug (Tr. 148). Thus, when 

neither the circuit breaker nor the receptacle is identified in 

·terms of the particular piece of equipment, the miner, merely 

relying upon the fact that a certain circuit and breaker are 

customarily used for a given item of equ{pment, would be in 

danger if the plug were changed without his knowledge. The wrong 

piece of equipment could be energized shocking a miner or there 

could be a delay in de-energizing, thereby prolonging the time of 

exposure to electrical shock (Tr. 29-30, 122). 

These hazards are magnified when more than one piece of 

equipment is being worked on or repaired at the same time. As 

the MSHA electrical specialist explained, cables of machinery 

around the load center resemble spaghetti, the way they are all 

wrapped around each other so that it is difficult to distinguish 

which cable is which (Tr. 115-116). Without a ready 1neans of 

identification, a miner might energize the wrong trailing cable 

leading to a piece of equipment still being worked on, thereby 

causing an accident by shocking a miner (Tr. 116). The Commission has accepted evidence that it would not be unusual for 

two shuttle cars on the same section to be down for repairs at 

the same time~ U. S. Steel, supra, at 1838. And in this case 

the operator•s electrical engineer admitted multiple equipment 

breakdowns and shut-downs are customary (Tr. 239). I accept the 

testimony of the MSHA electrical specialist that labelling the 

plug and the receptacle in the same way, i. e., referring to the 

equipment, sets up a pattern of behavior which individuals will 

memorize through habit (Tr. 114). 

1775 
The view expressed by the operator's witnesses that the best 

system would be one where the miner follows the trailing cable 

back to the piece of equipment is unpersuasive (Tr. 240, 252). 

The equipment could be a substantial distance away so that it 

would take too much time where seconds count to avoid an electrical shock. In addition, it would be impractical to expect miners 

to undertake such a course of conduct. I acknowledge the 

operator 1 s arguments that MSHA's requirements mean less flexibility and convenience (Tr. 222-223, 247). But under the Act 

safety consid~rations are paramount. Indeed, it is the very 

broad flexibility and freedom inherent in the operator's approach 

which create the hazards described herein. 

Finally, I find particularly compelling the fact that the 

Secretary's position in this case is the one he has espoused 

since the law was enacted. The electrical supervisor testified 

that disconnecting devices have always been identified to include 

the plug and receptacle and the policy now is the same as it was 

in 1979 (Tr. 138, 166-167). The 1978 and 1983 manuals provide 

that plugs and receptacles are acceptable as visible means of 

disconnecting power. I do not believe that the 1983 manual 1 s 

reference just to plugs as examples of disconnects signifies any 

cnange in policy. The 1983 examples are illustrative, not exclusive. The general language of the manuals, which identifies both 

items as visible means of disconnecting power, represents MSHA 1 s 

declared policy. Admittedly, the inspector's manual is not 

binding upon the Commission. However, where, as here, the 

manuals have fairly and rationally interpreted the mandatory 

standard since its enactment, they are entitled to weight and 

should be followedo See, Alabama B -Products, 4 FMSHRC 2128, 

2132 (1982). Under sue c rcums ances e erence should be given 

to the interpretation of the Secretary, as the official charged 

with enforcement under the Act. Brock v. Cathedral Bluffs Shale 

Oil Co., 796 F.2d 533 (0. C. Cir. 1986). Although there appears 

o e some conflict on the matter, I accept the testimony of the 

MSHA supervisor already set forth that although this policy was 

not followed at U. S. Steel's Maple Creek Mine, that was an 

isolated exception (Tr. 139). Com are (Tr. 211-214). Therefore, 

this inconsistency in enforcemen s not a basis for disapproving 

MSHA's general position. Southern Ohio, 8 FMSHRC 1231 (1986). 

Moreover, the MSHA supervisor es e that MSHA is awaiting the 

outcome of this case before any action is taken at Maple Creek 

with regard to that mine's labelling system (Tr. 143). Under the 

circumstances, I agree with the Solicitor that estoppel would not 

be appropriate. 

In light of the foregoing, I conclude that a violation of 30 

C.F.R. § 75.601 occurred. It next must be determined whether 

this violation was significant and substantial. 

1776 
The Commission has held that a violation is properly 

designated significant and substantial if, based on the particular facts surrounding that violation, there exists a reasonable 

likelihood that the hazard contributed to will result in an 

injury or illness of a reasonably serious nature. Cement 

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

Mathies Coal Co., 6 FMSHRC 1, 3-4 (1984), the Commission 

explained: 

In order to establish that a violation of 

mandatory safety standard is signi Fi cant and 

substantial under National Gypsum the 

Secretary of Labor must prove: (1) the underlying violation of a mandatory safety 

standard; (2) a discrete safety-hazard--that 

is, a measure of danger to safety--contributed to by the violation; (3) a reasonable 

likelihood that the hazard contributed to 

will result in an injury; and (4) a reasonable likelihood that the injury in question 

will be of a reasonably serious nature. 

The Commission subsequently explained 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 11 U.S. Steel Mining Co., 

6 FMSHRC 1834, (August 1984). 

In the instant case, it is established that a violation 

occurred, and that the violation contributed to a discrete safety hazard~ Le., electrical shock (Tr, 29). As already set forth, 

the evidence of record indicates that multiple equipment 

shut-downs during a shift are customary (Tr. 239) and that it is 

difficult to distinguish between the different cables at the load 

center (Tr. 115-116). Accordingly, I conclude it was reasonably 

likely that the wrong piece of equipment would be energized or 

that delay would occur in de-energizing the correct piece of 

equipment which would cause serious injury to that miner. There 

is no dispute that the resultant injury, which could be a bad 

burn or a fatality, would be of a reasonably serious nature (Tr. 

2 9 ) • 

At the hearing and in its post hearing brief, the operator 

argued that the most readily available and quickest means and of 

de-energizing equipment is the 11 crash 11 button located at the load 

center. The operator further asserts that the use of the crash 

button in an emergency situation eliminates the hazard associated 

with de-energizing equipment. This argument fails. First, when 

a miner resorts to the crash button, the accident has already 

occurred. The crash button does not address the hazard of 

initially turning power on the wrong piece of equipment, but only 

concerns de-energizing equipment (Tr. 95, 238). Second, in the 

context of de-energization, the crash button is not the preferred 

1777 
method of de-energizing quickly. The accepted method is to open 

the circuit breaker (Tr. 125-126). If the crash button is 

utilized, the auxiliary fans would stop functioning which in turn 

would kill the ventilation to the working place (Tr. 100). And 

finally, the crash button controls the outby breaker that feeds 

the power center. Once the crash button is thrown, power to the 

section can be restored only by traveling to the outby breaker 

and manually resetting it. The outby breaker generally is 

located a substantial distance from the power center (Tr. 

123-125). 

In light of the foregoing and for purposes of section llO(i) 

of the Act, 30 U.S.C. § 820(i), I conclude the violation was serious. In addition, I find the operator was guilty of ordinary 

negligence. The operator was aware of MSHA requirements with 

respect to disconnecting devices. The isolated exception at the 

Maple Creek Mine did not relieve the operator of the 

responsibility to comply with the MSHA policies well known to it. 

The post hearing briefs of the parties which were very help- ful, have been reviewed. To the extent they are inconsistent 

with this decision, they are rejected. 

As set forth above, the parties agree that the decision in 

PENN 87-37 will control the other three dockets. The finding of 

a violation and the conclusions regarding the statutory criteria 

for PENN 87-37 are therefore, applicable to the other cases. 

Accordingly, it is ORDERED that all the citations of the 

subject cases are hereby affirmed. 

It is further ORDERED that the following civil penalties are 

assessed: 

Docket No. 

PENN 87-37 

PENN 87-38 

PENN 87-127 

PENN 87-157 

Citation No. 

2678740 

2681964 

2687405 

2687467 

$200 

$200 

$200 

It is ORDERED that the operator pay $800 within 30 days from 

the date of this decision. 

~--'~~~ \ 

Paul 

~ Merlin 

Chief Administrative Law Judge 

1778 
Distribution: 

Susan M. Jordan, Esq., Office of the Solicitor, U. S. Department 

of Labor, Room 14480-Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

Billy M. Tennant, Esq., General Attorney, Employee Relations, 600 

Grant Street, Room 1580, Pittsburgh, PA 15230 (Certified Mail) 

Mr. Samuel L. Cortis, Safety Manager, U. S. Steel Mining Company, 

Inc., 351 West Beau Street, Washington, PA 15301 (Certified 

Mai 1 ) 

Michael H. Holland, Esq., UMWA, 900 15th Street, N.H., 

Washington, DC 20005 (Certified Mail) 

I g 1 

1779 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 2 0 1987 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. KENT 86-142 

A.C. No. 15-13469-03564 

v. 

GREEN RIVER COAL COMPANY, 

Docket No. KENT 87-32 

A.C. No. 15-13469-03575 

INC., 

Appearances: 

Before: 

Respondent Docket No. KENT 87-33 

A.C. No. 15-13469-03579 

Docket No. KENT 87-79 

A.C. No. 15-13469-03588 

Green River No. 9 Mine 

DECISIONS 

Mary Sue Ray, Esq., Office of the Solicitor, 

U.S. Department of Labor, Nashville, 

Tennessee, for the Petitioner~ 

Flem Gordon, Esq., Gordon & Gordon, Owensboro, 

Kentuckyr for the Respondent. 

Judge Koutras 

Statement of the Proceedings 

These proceedings concern proposals for assessment of 

civil penalties filed by the petitioner against the respondent 

pursuant to section llO(a) of the Federal Mine Safety and 

Health Act of 1977r 30 U.S.C. § 820(a), seeking civil penalty 

assessments for 11 alleged violations of certain mandatory 

safety standards found in Part 75, Title 30, Code of Federal 

Regulations, and one alleged violation of the accident reporting requirements of 30 C.F.R. § 50.12. 

The respondent filed timely answers and notices of contests challenging the alleged violations and MSHA's "special 

assessments" which formed the basis for the proposed civil 

1780 
penalty assessments filed by the petitioner in these 

proceedings. 

The respondent's answers also included challenges to the 

merits of a section 107(a) imminent danger order upon which 

three violations in issue were based (KENT 86-142); the 

merits of two section 107(a) imminent danger orders issued in 

conjunction with four section 104(a) citations (KENT 87-79); 

the merits of a section 104Cd)(l) order on which the petitioner's civil penalty proposal is based (KENT 87~32); and 

the merits of a section 104(d)(l) Order No. 2216256, included 

as part of the petitioner's proposals for assessment of civil 

penalties. 

These cases were scheduled for hearings on the merits in 

Owensboro, Kentucky, during the hearing term September 1-3, 

1987. In Docket No. KENT 86-142, the parties filed a pretrial 

motion proposing a settlement disposition of the case pursuant 

to Commission Rule 30, 29 C.F.R. § 2700.30. However, in view 

of the failure by the parties to submit full information 

regarding the six statutory civil penalty assessment criteria 

found in section llOCi) of the Act, a dispositive ruling on 

the motion was held in abeyance, and the parties were afforded 

an opportunity to present the information on the record at the 

hearings. 

With regard to the remaining cases, when the dockets 

were called for trial, respondent's counsel informed me that 

upon further consultation with a representative of the respondent who was present in the courtroom, the respondent decided 

not to go forward with the cases and decided to settle the 

matters with the petitioner. The parties were forded an 

opportunity to present their arguments in support of their 

settlement proposals on the record in each of the cases. The 

violations, initial assessments, and the proposed settlement 

amounts are as follows: 

DOCKET NO. KENT 86-142 

Citation No. 

2214778 

2214779 

2214780 

Date 

04/16/86 

04/16/86 

04/16/86 

30 C.F.R. 

Section 

75.400 

75.1725 

75.1722 

1781 

Assessment 

$ 700 

$ 700 

$ 400 

$1,800 

Settlement 

$ 700 

$ 700 

$ 400 

$1,800 
DOCKET NO. KENT 87-79 

Citation No. Date 

2216502 10/21/86 

2216503 10/21/86 

2216504 10/21/86 

2216514 11/17/86 

DOCKET NO. KENT 87-32 

Order No. Date 

2216241 07/15/86 

DOCKET NO. KENT 87-33 

Citation/ 

Order No. Date 

2216247 07/28/86 

2216814 08/02/86 

2216816 08/02/86 

2216256 08/05/86 

30 C.F.R. 

Section 

75.301 

75.308 

75.403 

75.316 

30 C.F.R. 

Section 

75.400 

30 C.F.R. 

Section 

75.400 

50.12 

75.400 

75.200 

Issues 

Assessment 

$ 800 

$ 800 

$ 600 

$ 600 

$2,800 

Assessment 

$ 800 

Assessment 

$1,000 

$ 100 

$ 700 

$ 600 

$2,400 

Settlement 

$ 500 

$ 500 

$ 500 

$ 500 

$2,000 

Settlement 

$ 800 

Settlement 

$1,000 

$ 50 

$ 700 

$ 600 

$2,350 

The issues presented in these proceedings are whether 

the respondent violated the cited mandatory safety standards 

as stated in the contested citations and orders, and if so, 

the appropriate civil penalty assessments which should be 

assessed for those violations based on the criteria found in 

section llO(i) of the Act. Additional issues raised by the 

parties are discussed and disposed of in the course of these 

decisions" 

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 ~-

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

3. Commission Rules, 20 C.F.R. § 2700.1 et ~· 

1782 
Procedural Rulings 

The parties were advised that the issues raised as part 

of the respondent's answers with respect to the merits of the 

previously mentioned section 107(a) imminent danger orders, 

and the "unwarrantable failure" section 104(d)(l) orders were 

not viable issues in these civil penalty proceedings. The 

parties acknowledged their understanding of my bench ruling, 

and no objections or exceptions were noted. 

With regard to the respondent's challenge to MSHA's 

"special assessment" civil penalty procedures found in 

Part 100, Title 30, Code of Federal Regulations, the parties 

were advised that MSHA's Part 100 civil penalty procedures 

are not controlling in these de novo civil penalty proceedings, and that any civil penalty assessments levied by me 

will be on the basis of the record made in these cases, 

including any credible testimony or evidence presented with 

respect to the alleged violations, and the information and 

evidence presented with respect to the six statutory civil 

penalty assessment criteria set forth in section llO(i) of 

the Act. 

Preliminary Matter 

With regard to Dockets KENT 87-32 and KENT 87-33, the 

parties were advised that according to a memorandum dated 

August 19, 1987, from MSHA's Civil Penalty Compliance Office, 

to the Commission's Docket Office, MSHA's records reflect 

that it has received payment from the respondent for the 

proposed civil penalty assessments made in these two cases. 

Upon consultation with the respondent 1 s assistant Safety 

Director, Grover Fishbeck, who was present at counsel table, 

respondent's counsel confirmed that the respondent had in 

fact tendered payment to MSHA for the civil penalties in 

Dockets KENT 87-32 and KENT 87-33. Counsel asserted that he 

was unaware of the payments 1 that they were made in error, 

and that the mistaken payments should not be construed as a 

waiver of the respondent's rights and intentions to contest 

the violations in question. 

Stipulations 

With regard to Dockets KENT 87-32, KENT 87-33, and 

KENT 87-79, the parties submitted the following written relevant stipulations: 

1783 
1. For the calendar year 1986, respondent 

produced 1.7 million tons of coal. 

2. Respondent currently has 384 

employees. 

3. The proposed civil penalty assessments 

for the violations in question will not 

seriously affect the respondent's ability to 

continue in business. 

4. The respondent acted in good faitn in 

correcting or abating all of the alleged violative conditions. 

The parties also agreed that notwithstanding the settlements which have been approved in all of the cases, all of 

the citations and orders which are the subject of these 

proceedings will stand as issued, including the inspector's 

"S&S", negligence, and gravity findings. They also agreed 

that I may properly consider the information concerning the 

respondent's history of prior violations as reflected in the 

pleadings filed by MSHA, namely the information which appears 

on MSHA's Proposed Assessment Form 100-179, with regard to 

the number of prior assessed violations and the number of 

inspection days during which those violations were issued. 

Discussion 

DOCKET NO. KENT 86-142 

This case concerns three section l04(a) "significant and 

substantial" (S&S) citations issued by MSHA Inspector 

George W. Siria on April 16, 1986. The citations relate to 

the accumulation of loose coal and coal dust, inoperative 

conveyor belt rollers, and an inadequately guarded tail 

roller on the slope belt conveyor of the subject mine. In 

particular, the inspector cited violations of mandatory 

safety standards 30 c.F.R. § 75.400, 75.1725 and 75.1722. He 

also found that the cited conditions, taken collectively, 

constituted an imminent danger, and he issued a section 

107(a) order on April 16, 1986, withdrawing miner's from the 

cited slope belt areas. 

By motion received August 10, 1987v respondent's counsel 

filed a request to dismiss this case on the ground that the 

respondent agreed to pay the proposed civil penalty assessments in full. On August 13, 1987, I issued an order denying 

the motion, and directed the parties to file an appropriate 

1784 
settlement motion pursuant to Commission Rule 30, 29 C.F.R. 

§ 2700.30. 

On August 25, 1987, the parties filed a joint motion for 

approval of a proposed settlement of the case, and the respondent agreed to pay the proposed civil penalty assessments in 

full. The parties stated that the cited conditions were 

corrected and abated at 5:00 p.m., April 17, 1986, and that 

the imminent danger order was lifted at that time. They also 

agreed that the citations should be affirmed witqout further 

modification. 

In view of the fact that the settlement motion failed to 

include any information with respect to the six statutory 

criteria set forth in section llOCi) of the Act, my dispositive ruling was held in abeyance in order to afford the parties an opportunity to present the information on the record 

during the course of the scheduled hearings. 

During the course of the hearings, the parties stipulated 

to the following: 

1. The violations occurred as stated in 

the subject citations. 

2. For the calendar year 1986, the 

respondent produced 1.7 million tons of coal. 

3. For calendar year 1986, the respondent had approximately 384 employees. 

4" The proposed civil penalty assessments will not adversely affect the respondent us ability to continue in business. 

5. The respondent exhibited good faith 

in timely abating the cited conditions. 

Since the parties have agreed that the citation may be 

affirmed as issued, I adopt the inspector's negligence, 

gravity, and "S&S" findings on these issues, and take note of 

the respondent's history of prior violations as stated in the 

petitioner's pleadings ing 127 prior assessed violations during 450 inspection days during the 24-month period 

prior to the issuance of the citations in question. 

1785 
DOCKET NO. KENT 87-79 

This case concerns four section 104(a) "significant and 

substantial" (S&S) citations issued by MSHA Inspector James E. 

Franks on October 21, and November 17, 1986. The three citations issued on October 21, relate to an inadequate quantity 

of air, excessive levels of methane, and inadequate rock dusting. The inspector cited violations of mandatory safety standards 30 C.F.R. § 75.301, 75.308, and .. 75.403. He also found 

that the cited conditions, taken collectively, constituted an 

imminent danger, and he issued a section 107(a) order withdrawing miners from the cited areas. 

The remaining citation issued by the inspector on 

November 17, cites a violation of mandatory safety standard 

30 C.F.R. § 75.316, and relates to a violation of the respondent's approved mine ventilation plan in that the inadequate 

ventilation resulted in the presence of excessive methane 

levels in an abandoned area of the mine. In conjunction with 

this citation, the inspector issued a section 107(a) imminent 

danger order on November 17, ordering the withdrawal of miners 

from the areas where methane was detected. The record 

reflects that the citation was terminated on the same day that 

it was issued after adequate ventilation was restored, and the 

inspector subsequently modified the citation to change the 

number of mine personnel exposed to the hazard from 24 to 12. 

The respondent asserted that the imminent danger order 

issued by the inspector was invalid in that the air bottle 

sample taken by the inspector to support the order, when 

testedv reflected the actual presence of only a maximum of 

103 percent methane, which was well within MSHA 1 s standards. 

Since MSHAis proposed civil penalties for the three citations 

which the inspector believed collectively constituted an imminent danger were "specially assessed" because of the issuance 

of the order, respondent's counsel disputed the validity of 

those assessments based on an "invalid order." 

Petitionervs counsel agreed that the bottle sample 

reflected the presence of 1.33 percent methane in the affected 

areas. In further mitigation of the citations, counsel stated 

that the respondent cooperated fully with the MSHA inspector 

in conducting an evaluation of the ventilation in the affected 

areas. 

With regard to Citation No. 2216514, petitioner's counsel 

introduced a copy of the mine map confirming the fact that the 

methane found in the inadequately ventilated area was in fact 

found in an abandoned area of the mine (exhibit G-1). Counsel 

1786 
also confirmed that no methane accumulations were reaching the 

working face areas of the mine. 

In mitigation, respondent's answer to the petitioner's 

civil penalty proposal includes notes by the respondent's 

Assistant Safety Director Grover Fishbeck reflecting that the 

assistant mine foreman and another employee were in the cited 

area at the beginning of the shift and were attempting to 

deal with the ventilation problem when the inspector arrived 

at the scene, and that a recent fall had blocked ~he air 

course. 

Mr. Fishbeck, who was present in the courtroom, stated 

that the ventilation problem was corrected shortly after the 

citation was issued, and that a telephone call was placed to 

MSHA between 2:30 and 3:00 p.m., that same day, reporting the 

fact that corrective action had been taken to restore the 

ventilation, and requesting that an inspector come to the 

mine to terminate the citation. 

Petitioner's counsel did not refute Mr. Fishbeck's assertions, and the record reflects that the citation was terminated by MSHA Inspector Ronald D. Oglesby at 5:00 p.m., on 

November 17, 1986. 

The parties proposed to settle all of the citations in 

this case, and they agreed that civil penalty assessments of 

$500 for each of the citations was reasonable and appropriate. 

Respondent agreed to pay civil penalty assessments totaling 

$2,000 in satisfaction of the four citations in question. 

DOCKET NO. KENT 87-32 

This case concerns a section 104(d){l) "significant and 

substantial" Order No. 2216241, issued by MSHA Inspector L. 

Cunningham on July 15, 1986, citing a violation of mandatory 

safety standard 30 C.F.R. § 75.400. The inspector issued the 

order ter finding accumulations of loose coal and float 

coal dust alongside and under a belt conveyor in "spot locations" on the mine floor and walkway. He also found float 

coal present in the crosscuts adjacent to the belt, and that 

the belt bottom and rollers were running in the loose coal at 

three locations. He noted that the fire boss records for 

July 12-15, 1987, included notations that certain locations 

along the belt were in need of cleaning and dusting. 

The record reflects that the inspector modified his order 

approximately 3 hours it was issued to allow normal 

production to begin as long as miners were assigned to clean 

1787 
and re-rockdust the cited areas. The record also reflects 

that the order was terminated at 11:30 a.m., on July 17, 1986, 

after the cited areas were cleaned up and re-rockdusted. 

The parties proposed a settlement of this case, and the 

respondent agreed to pay the full amount of the proposed civil 

penalty assessment of $800 for the violation in question. 

DOCKET NO. KENT 87-33 

This case concerns two section 104(d)(l) "significant 

and substantial" (S&S) orders issued at the mine on August 2 

and 5, 1986, one "S&S" section 104(a) citation issued on 

August 2, 1986, and one non-"S&S" section 104(a) citation 

issued on August 2, 1986. The citations and orders relate to 

accumulations of loose coal and float coal dust on the mine 

floor along a belt conveyor, the failure to preserve an "accident site" where a methane ignition occurred, accumulations 

of loose coal and dust along a belt feeder, and a failure to 

follow the roof-control plan with respect to the installation 

of roof timbers. The inspector cited violations of mandatory 

safety standards 30 C.F.R. § 75.400, 50.12, and 75.200. 

The parties agreed to settle all of the violations, and 

the respondent agreed to pay the full amount of the proposed 

civil penalty assessments for three of them. With regard to 

Citation No. 2216814, for a violation of 30 C.F.R. § 50.12, 

the parties agreed that a civil penalty assessment of $50 is 

reasonable and appropriate for the violation, and the respondent agreed to pay that amount. 

Citation No. 2216814, concerns a non-"S&S" violation of 

30 CoF.R" § 50,12. This section prohibits a mine operator 

from altering an "accident site or an accident related area" 

until the completion of an MSHA investigation. The standard 

contains certain exceptions which do not apply in this case. 

The inspector issued the citation after finding that a 

face methane ignition had occurred. Production was stopped, 

but a shot firer shot the area where the purported ignition 

occurred, thereby "altering" the location of the ignition. 

By definition found in section 50.2, an "accident" includes 

an unplanned methane gas ignition, and the parties agreed 

that the purported ignition is within that definition. · 

The parties explained the circumstances connected with 

the incident which resulted in the issuance of the citation. 

They agreed that the section foreman acted properly and in 

good faith by immediately taking appropriate action to report 

1788 
the ignition to MSHA and to preserve the site. However, the 

shot was fired inadvertently before this could occur, and it 

was not the result of any or intent by the respondent to 

avoid compliance with the standard. 

With regard to the coal accumulation violation, 

No. 2216816, the respondent submitted an affidavit from Face 

Boss Robert Sandidge, stating that at the time the violation 

was issued, the unit was idle due to the ignition, and that 

the cited area would have been cleaned during the. normal 

mining cycle but for the ignition. 

With regard to coal accumulation violation No. 2216247, 

the respondent submitted an affidavit from foreman Finis Todd, 

stating that at the time the violation was issued, three men 

were cleaning the belt during all hours of the working shift 

in question. In addition, the respondent's Assistant Safety 

Director Grover Fishbeck, produced copies of certain mine 

records for July 25-28, 1986, supporting the respondent's 

contention that the belt was being cleaned. 

Findings and Conclusions 

After review of the pleadings filed by the parties in 

these proceedings, and upon careful consideration of the arguments advanced in support of the proposed settlement disposition of these cases, I conclude and find that the proposed 

settlements are reasonable and in the public interest. I also 

conclude and find that the parties have presented reasonable 

justifications for the reduction of the civil penalty assessments as noted above. Accordingly, pursuant to 29 C.F.R. 

§ 2700,30u the settlements ARE APPROVED. 

The respondent IS ORDERED to pay civil penalty assessments in the settlement amounts shown above in satisfaction 

of violations in question within thirty (30) days of the 

date these decisions and order, and upon receipt of payment 

by the petitionerv these proceedings are dismissed . 

. 

~Koutras ~·. 4.~ Administrative Law Judge 

1789 
Distribution: 

Mary Sue Ray, Esq., Office of the Solicitor, U.S. Department 

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

TN 37215 (Certified Mail) 

Flem Gordon, Esq., Gordon & Gordon, P.S.C., 1500 Frederica 

Street, P.O. Box 390, Owensboro, KY 42302-0390 

(Certified Mail) 

/fb 

1790 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

RONALD R. MORRIS, 

Complainant 

v. 

DUNKARD MINING CO., 

Respondent 

OCT 201987 

: 

. . 

. . 

. . 

. . 

. . 

. . 

DECISION 

DipCRIMINATION PROCEEDING 

Docket No. PEMN 87-77-D 

PITT CD 86-15 

Appearances: Harold Cancelmi, Esq., Thompson and Baily, 

Waynesburg, Pennsylvania, for Complainant; 

C. Robert McCall, Esq., McCall, Stets & Hardisty, 

Waynesburg, Pennsylvania, for Respondent. 

Before: Judge Weisberger 

Statement of the Case 

Complainant filed a complaint with the Commission under 

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

30 U.S.C. § 815(c) (the Act) alleging, in essence, that he was 

illegally discriminated against in that he made a valid safety 

complaint which caused "the loss of my employment." 

Pursuant to noticeu the case was set for hearing in 

Washingtonu Pennsylvania on March 17, 1987. On March 17, 1987, 

the Complainant and Respondent both appeared, and the Complainant 

was represented by Counsel. The Respondent made a motion to have 

the case adjourned in order to be represented by Counsel. This 

motion was granted, and the case was rescheduled for May 27v 

1987v in Pittsburghv Pennsylvania. At the hearing, on 

May 27 - 28, 1987 1 Ronald D. Morris, Frank Rutherford, and Ann 

Kerr testified for the Complainant. Ernest Sauro, Barbara Smith, 

Barbara Bircherv Harvey Licten, Floyd Jenkins, Karl-Hans Rath, 

Barbara Betchy, and James Earl Mason testified for the Respondent. 

SQbsequent to the hearing, Respondent, on July 7, 1987, requested 

an extension of time until August 4, 1987, to file Posthearing 

Findings oi Fact. On July 30, 1987, Complainant, on behalf of 

ooth Parties, requested a further extension until August 24, 1987. 

On August 26, 1987, Respondent filed its Posthearing Brief and 

Requested Findings of Fact. On August 24, 1987, and September 10, 

1987, Complainant requested further extensions of time to file its 

1791 
brief and Requested Findings of Fact. These requests were granted. 

Complainant filed his Requested Findings Fact and Memorandum Brief 

on October 5, 1987. 

Issues 

1. Whether the Complainant has established that he was 

engaged in an activity protected by. the Act. 

2. If so, whether the Complainant suffered ad~erse action 

as the result of the protected activity. 

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

Findings of Fact 

Complainant and Respondent are protected by, and subject to, 

the provisions of section lbS(c) of the Act. I have jurisdiction 

to decide this case. 

The Complainant, commencing in April 1985, and continuing 

through all dates in question herein, was a truck driver for the 

RMW Trucking Company which had an agreement to haul coal from 

Respondent's mine and dump it at Respondent's processing plant. 

The Complainant, in essence, has alleged that as a consequence of 

safety complaints that he made to Respondent, the Respondent 

"barred" him from entering on Respondent's property and as such, 

according to a complaint filed with the Commission, caused the 

loss of his employment. 

On January 14u 1986, the truck that the Complainant was 

drivingv skidded on the Respondent 1 s haulage road which was snow 

coveredv and had a maximum grade of 20 percent. In this connection I base my finding upon the testimony of Rath as it was 

predicated upon a detailed topographical map, Exhibit 2, rather 

than upon the approximations of Morris and Sauro. 

The testimony was in conflict between Ronald Ro Morris 

(Complainant) on the one hand, and Carl-Hans Rath (Respondentvs 

Vice President) and Ernest Sauro (Respondent's Superintendent), 

on the other hand, with regard to the following: the time the 

incident occurred, whether it was witnessed by Rath, whether the 

Morris' truck skidded down the slope or on a level grade at the 

end of the slope, the order in which Morris and Harvey Litten, 

another truck driver employed by RMW Trucking, arrived at the 

processing plant, and whether, after the incident, Morris drove 

back up the hill or left by another exit. Although the weight of 

the evidence tends to support the version testified to by Rath, 

as it was corroborated by Sauro and Litten, it is not critical to 

these proceedings to reconcile all these conflicts. 

1792 
Morris, on January 14, 1986, after the truck skidding 

incident occurred, did not register any safety complaints about 

the condition of the road with either Sauro or Rath. 

On January 15, 1986, Rath observed that the truck that 

Morris was driving, had coal left in its bed after the rest of 

the load had been dumped. He requested Morris to either clean 

the truck of the remaining coal or get it light weighed. Morris 

testified that he complied with this request. According to the 

testimony of Rath, Morris first responded by telling Rath that he 

(Rath) was not to tell him (Morris) anything. I find that Morris 

did respond as testified to by Rath, as Rath's testimony was not 

rebutted by Morris when he testified in rebuttal. 

According to Morris, he then saw Rath in the weighhouse and 

said that he had done Rath .a favor in light weighing the coal and 

asked Rath to do him a favor in keeping the road clear. He 

testified that he then told Rath about the incident of the truck 

skidding on January 14. Morris testified that Rath did not 

respond. 

Morris testified that later on in the day he was asked by 

the weighmistress to go to the off ice to see Rath. Morris testified that when he saw Rath in the office there was no one else in 

the area and Rath said that he was the boss of the company and 

that he was not going tell his employees to stay late or to pay 

them overtime to clean the haulage road of snow. Morris testified 

that Rath told him that he was not to make complaints about the 

road conditionu 

According to Morris? after he spoke with Rath, he received 

permission from the weighmistress to use the telephone in Respondent~s office, and called his union representative, Frank 

Rutherford, at UMW Headquarters. He testified that he told him 

he had a safety problem and " ••. started to relate to him what 

happeneduoo'u (Tro 60)o Rathu who was in another office, then 

picked up the phone and told Morris, in essence, not to use the 

off ice phoneo 

Morris further testified that at the end of the day he 

returned to the RMW Company and JameB Earl Mason, RMW's owner, 

told him that Rath had called on the telephone and told him that 

he (Morris) is no longer to be allowed on the site. Morris testified that when he asked Mason for the reason, Mason said that he 

understood that Morris had made complaints about the road 

condition. 

1793 
Rath testified, in essence, that after Morris had refused to 

follow instructions to either clean out the truck or get it light 

weighed, he asked Barbara Smith (Respondent's payroll clerk), 

Barbara Bircher (Respondent's bookkeeper and weighmistress), and 

Barbara Betchy (Respondent's office manager) to identify Morris. 

Rath testified that he could not recall who said what, but that 

these employees complained that Morris had dumped coal on 

Taylortown Road, and had sat around for 2 to 3 hours if anything 

was wrong with his truck. He also testified that Smith, Bircher, 

and Betchy had told him that Morris had dumped coal in the wrong 

places and when reminded responded by saying "don't" tell me 

anything." I adopted Rath's testimony as to what was told to him 

as it was essentially corroborated by Bircher and Betchy. 

Subsequently, Rath asked Morris to come to his office. Rath 

told Morris that the women in the off ice had complained about him. 

Rath testified that Morris said that he (Rath) was not his boss. 

Rath said that Morris then ·told him that the road the previous 

night was not in good condition and he requested that an employee 

be on the premises all night to clear the road of snow. I adopt 

Rath's version of this conversation as it was corroborated, in 

the essential parts, by Betchy and Smith. 

After this conversation occurred, Rath testified that he 

called Mason and asked him to replace Morris as the latter was 

not following instructions. Rath further said that later on 

Mason called back to ask him to reconsider and he refused. I 

accept Rath's version of what he told Mason as it was essentially 

corroborated by Masono 

Morris testified that subsequent to January 15, 1986, RMW 

trucking employed him maybe a total of 5 or 6 weeks in 1986 to 

drive a truck at sites other than Respondent's facilities. He 

testified that he did not have any other earnings in 1986, aside 

from unemployment compensation, and that he is presently 

unemployedo 

Discussion 

The Commission, in a recent decision, Goff v. Youghiogheny & 

Ohio Coal Company, 8 FMSHRC 860 (December 1986), reiterated the 

legal standards to be applied in a case where a miner has alleged 

acts of discrimination. The Coinmission, Goff, supra, at 1863, 

stated as follows: ~~ 

A complaining miner establishes a prima f acie case of 

prohibited discrimination under the Mine Act by proving 

that he engaged in protected activity and that the 

adverse action complained of was motivated in any part 

1794 
by that activity. Pasula, 2 FMSHRC at 2797-2800; 

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 not motivated in any part by protected 

activity. Robinette, 3 FMSHRC at 818 n. 20. See also 

Donovan v. Stafford Constr. Co., 732 F.2d 954, 958-59 

(D.C. Cir 1984); Baich v. FMSHRC, ~19 F.2d 194, 195-96 

(6th Cir. 1983) (specifically approving the 

Commission's Pasula-Robinette test). 

Applying the above standards to the case at bar, I find that 

the evidence is uncontradicted that on January 15, 1986, Morris 

voiced his concern about the road conditions at Respondent's 

preparation plant the day before. Further, based on the 20 

percent grade of the haulage road, Morris' testimony that it was 

snow covered, as corroborated by Sauro's comment that it was 

"slick," along with the fact that Morris' truck did skid, whether 

on the level or on a grade, established that Morris had good 

cause in voicing his complaint to Rath about the condition of the 

roadway. Furthermore, the action of Rath in effect telling Mason 

on January 15, 1986v to stop using Morris as a truck driver on 

Respondent's premises, was adverse to Morris, as it, in essence, 

prevented him from working for Ri.">iW Trucking Company on a full 

time bases. Moreover, inasmuch as Rath took this action right 

after Morris had voiced complaints about the road condition, and 

after the latter attempted to contact his union representative, I 

find that the adverse action was motivated in part by Morris' 

protected activity. According, I find that Morris has established a prima facie caseo (Secretary on behalf of Robinette Vo 

United Castle Coal Co.u 3 FMSHRC 803v (April 1981)). 

In analyzing whether Respondent has rebutted the Complainantvs 

prima facie case, I found Rathvs testimony credible as to his motivation in having Morris replaced as a truck driver on Respondent's 

premises. In this connection, I found that Betchy, Smith, and 

Bircher told Rathe on January 15u 1986u that Morris has said "donvt 

tell me anythingu" when reminded that he had dropped coal in the 

wrong places. In addition, I found that, on January 15, 1986, when 

Rath requested Morris early in the day to clean the truck bed or 

light weigh, Morris had told Rath not to tell him anything. Also, I 

found that subsequently on January 15, 1986, when Rath told Morris 

that the women in his off ice had complained about him, Morris had 

said that Rath was not his boss. I find that Morris' comments and 

responses were unprotected activities. 

Based upon the above, I find that when Rath told Mason on 

January 15, 1986, to no longer have Morris sent to Respondent's 

facilities, Rath was motivated by commants made to him by Morris 

1795 
as well as information provided to him by Bircher, Betchy, and 

Smith of Morris' responses to their requests. I therefore conclude that the adverse action taken by Rath would have been taken 

in any event for the unprotected activities alone. Accordingly, 

I find that the Complainant has failed to establish a case of 

prohibited discrimination under the Act. (see, Sedgmer v. 

Consolidation Coal Co., 8 FMSHRC 303, 306 (March 1986)). 

ORDER 

Based upon the above findings of fact and conclusions of law 

it is ORDERED that this proceeding be DISMISSED. 

£~ Avram Weisberger 

Administrative Law Judge 

Distribution: 

Harry J. Cancelmi, Jr., Esq., Thompson and Baily, 52 Church Street, 

Waynesburg, PA 15370 (Certified Mail) 

c. Robert McCall, Esq., McCall, Stets & Hardisty, Fort Jackson 

Building, Waynesburg, PA 15370 (Certified Mail) 

dcp 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 2 0 1987 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINIS·rRATION (MSHA) 

ON BEHALF OF DAVID WILLIS 

Complainant 

v. 

BABCOCK MINING CO.; 

HENRY McCOY, Individually 

and as Operator of Babcock 

Mining Co.; VIRGIL McMILLION, 

Individually and as Operator 

of McMillion Enp., Inc., 

McMILLION ENP., INC., CRAFT 

COAL COMPANY, 

Respondents 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRA·rroN CMSHA), 

ON BEHALF OF ALBER'r HALSTEAD 

Complainant 

v. 

BABCOCK MINING CO.; 

HENRY McCOY Individually 

and as Operator of Babcock 

Mining Co., VIRGIL MCMILLION, 

ENP, INC.1 CRAFT COAL COMPANY,: 

Respondents 

DISCRIMINA'rION PROCEEDING 

Docket No. WEVA 87-106-D 

HOPE CD 86-24 

HOPE CD 87-2 

No. 1 Mine 

DISCRIMINATION PROCEEDING 

Docket No. WEVA 87-107-D 

HOPE CD 87-1 

HOPE CD 87-4 

No. 1 Mine 

DEFAULT DECISION 

Before~ Judge Fauver 

On October 6F 1987u an Order to Respondents to Show Cause 

was issued, allowing Respondents 10 days to show cause why the 

Secretary's Motion for a Default Decision should not be granted 

in each of the above cases. 

Respondents have not responded to the Show Cause Order. The 

Secretary has moved to withdraw Craft Coal Company as a Respondent, 

and asks for a default decision against the other Raspondents. 

1797 
ORDER 

FOR GOOD CAUSE SHOWN IT IS ORDERED: 

1. The Secretary's Motion to Withdraw Craft Coal Company as 

a Respondent is GRANTED, and the above cases are DISMISSED as to 

Craft Coal Company. The hearing scheduled for October 27, 1987,is 

CANCELLED. 

2. The Secretary's Motion for a Default Decision against 

the other Respondents shown above is GRAN'rED in each of the above 

cases. The allegations of the Petition in each case are deemed 

to be true and are incorporated herein as Findings of Fact and 

Conclusions of Law in each case respectively. The Secretary 

shall have 10 days from this date to submit a proposed order for 

reli in each of the above cases. 

3. This Decision shall not operate as a final disposition 

of these cases until an order for relief is entered in each of 

the above cases. 

uJ~-.+(AMv William Fauver~ Administrative Law Judge 

Distribution: 

Carol B. Feinberg, Esq., Office of the Solicitor, u. s. Department 

of Laborv Room 516v 4015 Wilson Boulevard, Arlington, VA 22203 

(Certified Mail) 

1 McMillion, Presidentv McMillion Enp., Inc. 1 Box 13, 

ck, WV 24966 (Certified Mail) 

Ro So Baileyv President, Craft Coal Company, State Route 15, 

Monterville, WV 26282 (Certified Mail) 

Babcock Mining Company, c/o Drew Hunter, Secretary, P. O. 

Box 2057, Ashland, KY 41105 (Certified Mail) 

Henry McCoy, Babcock Mining Company, P. O. Box 2857, Ashland, KY 

41105 (Certified Mail) 

dcp 

1798 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W COLFAX AVENUE. SUITE 400 

DENVER, COLORADO 80204 OCT 2 2 1987 

LOCAL UNION 1261, DISTRICT 22, 

UNITED MINE WORKERS OF 

COMPENSATION PROCEEDING 

AMERICA, 

Complainant 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

Before: Judge Morris 

Docket No. WEST 86-199-C 

Emery Mine 

DECISION 

This is a proceeding for compensation under the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. § 801 et~· (the Act). 

The parties waived their right to a hearing and submitted the 

case for a decision on stipulated facts. Briefs were further submitted by the parties in support of their respective positions. 

ts sue 

The issue is whether the miners are entitled to compensation 

under Section 111 of the Act when they had been withdrawn by the 

operator before MSHA issued an order under § 103(k) of the Act. 

Applicable Statute 

Section 111 of the Act provides as follows~ 

"ENTITLEMENT OF MINERS" 

~sec. 111. 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. 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. 

1799 
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. Whenever an operator violates or 

fails or refuses to comply with any order issued under 

section 103, section 104, or section 107 of this Act, 

all miners employed at the affected mine who would have 

been withdrawn from, or prevented from entering, such 

mine or area thereof as a result of such order shall be 

entitled to full compensation by the operator at their 

regular rates of pay, in addition to pay received for 

work performed after such order was issued, for the 

period beginning when such order was issued and ending 

when such order is complied with, vacated, or terminated. 

The Commission shall have authority to order compensation 

due under this section upon the filing of a complaint by 

a miner or his representative and after opportunity for 

hearing subject to section 554 of title 5, United States 

Code. 

Stipulated Facts 

The parties stipulated as follows~ 

lo The Federal Mine Safety and Health Review Commission has 

jurisdiction over this matter; 

2o The relevant members of Local Union 1261 are underground 

coal miners who are employed at Consolidation Coal Company 1 s 

(Consol) underground Emery Mine. The UMWA is the authorized 

representative of such miners for purposes of this proceeding; 

3o The Emery Mine is a mine whose operations and products 

affect interstate commerce; 

1800 
4. On April 16, 1986 at 7:00 p.m., Consol removed its employees from the Emery Mine to insure their safety because of 

rising gas levels behind the North seals. Consol informed the 

afternoon shift employees that the mine was idled until further 

notice because of the rising gas levels. Consol's office manager 

and foremen called the miners who were scheduled on the next two 

shifts (graveyard and daylight) and told them "the mine is idle 

until further notice. 11 All underground miners who worked on that 

date were paid for the time worked. The day shift employees on 

April 16, 1986, worked a full shift and the afternoon shift employees on that date worked four and one-half C4 1/2) hours; 

5. Concurrent with Consol's management's decision to remove 

its employees from the mine, Consol notified MSHA and the UMWA of 

that action; 

6. MSHA personnel arrived at the mine on the morning of 

April 17, 1986, and conducted an investigation which included 

a review of the air samples taken by Consol. MSHA Inspector 

Donald B. Hanna issued an order under §103 (k) of the Act at 

7:14 a.m. on April 17, 1986; 

7. The § 103 Ck) order states "Based on the results of air 

samples taken by the Company •.• this mine has experienced a 

possible fire, therefore, all persons has (sic) been removed from 

the mine by Company order to insure their safety and no person 

shall enter inby the mine portals without modification of this 

orderf after consultation with appropriate persons selected from 

Company officialsv State officialsu the miners representative 

and other persons" 

8. At the time the §103 Ck) order was issued, no Local 

Union 1261 underground miners were working. After the § 103,(k) 

order was issuedu no miners could enter the mine nor could 

mining activities resume until MSHA modified the order~ 

9, The § 103(k) order never alleged that Consol had committed any violation of a mandatory standard and the order was 

not issued under § 104 or § 107 of the Act; 

lOo Consol did not pay any Local Union 1261 underground 

miners for ~pril 17u 1986; 

11. On April 20, 1986, at 2:36 p.m. the§ lOJ(k) order 

was modified to allow mining to resume, and on May 16, 1986, at 

2:00 p.m. the order was terminated. 

1801 
Discussion 

The miners involved here seek compensation under Section 111 

of the Act. The pivitol stipulated facts establish that MSHA 

issued a § l03(k) order on April 17, 1987. The operator contends 

the miners are not entitled to compensation on that date because 

the company had already voluntarily withdrawn them from the affected area. 

Previous Commission decisions construing this section are 

not factually controlling since they involve the last paragraph 

of the section. Local Union 1609, District 2, United Mine Workers 

of America v. Greenwich Collieries, (Division of Pennsylvania Mines 

Corporation, 8 FMSHRC 1302 (1986); Local Union 2274, District 28, 

United Mine Workers of America v. Clinchfield Coal Company, 8 FMSHRC 

1310 (1986); Local Union 1889, District 17, United Mine Workers v. 

Westmoreland Coal Company, 8 FMSHRC 1317 (1986). 

However, I am persuaded by the reasoning in Mine Workers, 

District 31 v. Clinchfield Coal Company, 1 MSHC 1010 (1971), 

(Interior Board of Mine Operations Appeals); Mine Workers Local 1993 

v. Consolidation Coal Company, 1 MSHC 1668 Cl978)(Broderick, J.); 

and Mine Workers Local 2244 v. Consolidation Coal Company, 1 MSHC 

1674 (Fauver, J.). In sum, these cases hold that an MSHA withdrawal 

order is more extensive in scope than a voluntary withdrawal by the 

operator. Specifically, an MSHA order prohibits reentry until the 

danger no longer exists. Further, regardless of the sequence of 

events or the method by which the miners were originally withdrawn, 

a mine, or section thereof v is officially closed upon the issuance of 

an order under the Acto The miners were thus officially idled by the 

l03(k) order" 

It followsv accordingly, that the miners are entitled to compensation under the Act. 

~~'fC-~.....L~l!!.r ~ r is 

ative Law Judge 

Distribution: 

Joyce Hanula, Legal Assistant, United Mine Workers of America, 

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

Robert M. Vukas, Esq., Consolidation Coal Company, 1800 Washington 

Road, Pittsburgh, PA 15241 (Certified Mail) 

/ot 

1802 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 2 3 1987 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. KENT 86-126 

A.C. No. 15-12295-03533 

v. 

J. C. LONDON COAL COMPANY, 

INC. I 

Docket No. KENT 86-127 

A.C. No. 15-12295-03534 

Appearances: 

Before: 

Respondent No. 1 Mine 

DECISIONS 

G. Elaine Smith, Esq., Office of the 

Solicitor, U.S. Department of Labor, 

Nashville, Tennessee, for the Petitioner. 

Judge Koutras 

Statement of the Proceedings 

These proceedings concern civil penalty proposals filed 

by the petitioner against the respondent pursuant to section 

llO(a) of the Federal Mine Safety and Health Act of 1977u 

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

18 alleged violations of certain mandatory safety and health 

standards found in Pa~ts 70, 75, and 77, Title 30, Code of 

Federal Regulations. 

The respondent contested the proposed civil penalty 

assessmentsv and pursuant to notice served on the parties, a 

hearing was convened in Paintsville, Kentucky, on Thursday, 

September 24ff 1987. The petitioner appeared, but the respondent did not. Under the circumstances, the hearing proceeded 

without the respondent and the petitioner presented testimony 

and evidence with respect to the violations in question. 

Issues 

The issues presented in this proceeding are whether the 

respondent has violated the cited mandatory safety standards, 

and if so, the appropriate civil penalty to be assessed for 

1803 
those violations based on the criteria found in section llO(i) 

of the Act. The matters concerning the respondent's failure 

to appear, and its purported bankruptcy status, are discussed 

in the course of these 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, 20 C.F.R. § 2700.1 et seq. 

Discussion 

Respondent's Failure to Appear at the Hearing 

Respondent, who is pro se, failed to appear at the scheduled hearing. The record reflects that the initial hearing 

notice, and subsequent amendments notifying the parties of the 

time and place of the hearing were duly served on the respondent. The postal service return certified mail receipts 

reflects that each of the notices were served on the respondent's corporate president Harold c. Hale, and Mr. Hale signed 

each of the mailing receipts. 

It seems clear to me that the failure of a partyrespondent to appear at a hearing pursuant to a duly served 

order and notice issued by the judge is sufficient ground for 

the judge to hold the respondent in default and to proceed 

without himu Williams Coal Co., 1 FMSHRC 928 (July 1979); 

White Oak Coal Company, 7 FMSHRC 2039 (December 1985); 

Neibert Coal Companyr Inc.v 7 FMSHRC 887 (June 1985); 

Sand Company, 8 FMSHRC 973 (June 1986). 

The respondent has had an ample opportunity to refute the 

leged violations and proposed civil penalty assessments 

filed by the petitioner. However, since the respondent is no 

longer in business and has previously indicated that it was 

either in bankruptcy or had contemplated filing for bankruptcy, it seems obvious to me that it no longer wishes to 

litigate this matter. Under the circumstances, I find the 

respondent to be in default, and I have considered its failure 

to appear at the hearing as a waiver of its right to be heard 

on the merits of the violations and the proposed civil penalty 

assessments. 

1804 
Respondent's Bankruptcy Status 

In response to an Order to Show Cause issued by Chief 

Judge Paul Merlin, Mr. Hale indicated that he was "in the 

process of going or filing bankruptcy," and he furnished the 

name and address of the attorney who was representing him in 

the bankruptcy proceeding. A subsequent letter of record 

from this attorney reflected that the attorney had done some 

legal work for Mr. Hale in the past, but the attorney clearly 

stated that he was not representing Mr. Hale in the instant 

proceedings. 

During the course of the hearing, petitioner's counsel 

produced a copy of the respondent's 1986 Federal tax return 

{exhibit P-2), furnished by Mr. Hale. Counsel stated that 

based on information furnished by Mr. Hale's former attorney, 

although the respondent had contemplated filing for bankruptcy, it has not done so and no bankruptcy proceeding has 

been formally initiated or finalized. 

In view of the respondent's failure to appear at the 

hearing or to further communicate with petitioner's counsel 

in this matter, no further information has been forthcoming 

with respect to the respondent's bankruptcy status. However, 

the fact that the respondent may be in bankruptcy does not 

divest the Commission or its judges of jurisdiction to proceed 

with the adjudication of these cases. Leon's Coal Company, 

et. al., 4 FMSHRC 572 (April 1982); Oak Mining Company, 

4 FMSHRC 925 (May 1982); Stafford Construction Company, 

6 FMSHRC 2680 (November 1984). Accordingly, I conclude and 

find that I have jurisdiction to adjudicate these matters. 

PetitionerDs Testimony and Evidence 

In support of the violations in question, petitioner 

presented the testimony of MSHA Inspectors John Smallwood and 

Charles Slone. The inspectors testified that Mr. Hale operated the mine for approximately 6 months after purchasing an 

existing coal mining lease on the propertyo The information 

provided by the inspectors reflects that the respondent ceased 

its mining operation in approximately April or May, 1986, and 

that the mine is now idle and all of the equipment had been 

removed from the mine and reclaimed by the company who leased 

it to the respondent. The inspectors confirmed that to their 

knowledge, Mr. Hale is not mining at any other locations 

within their enforcement jurisdiction. 

The record reflects that in Docket No. KENT 86-126, the 

respondent was served with nine section 104(a) citations for 

1805 
violations of certain mandatory safety standards found in 

Parts 75 and 77, Title 30, Code of Federal Regulations. Three 

of the citations were non-significant and substantial CS&S), 

and five were designated as "S&S" violations by the inspectors 

who issued them. 

The record reflects that in Docket No. KENT 86-127, the 

respondent was initially served with eight section 104(a) 

citations for violations of certain mandatory safety and 

health standards found in Parts 70 and 75, Title 30, Code of 

Federal Regulations. An additional section 104Ca) citation 

was issued in conjunction with a section 107(a} imminent danger order. Five of the citations were non-S&S violations, 

and four were issued as S&S violations. Further, the record 

reflects that when the inspector next returned to the mine he 

found no one there, and since the violations had not been 

abated, he issued section 104(b) withdrawal orders for 

non-abatement of the cited conditions. 

Inspectors Smallwood and Slone confirmed that they issued 

the citations and orders in question, and they confirmed that 

they were issued in the course of their regular inspections of 

the mine. The inspectors confirmed that the citations were 

served on a representative of the respondent who was at the 

mine when it was in operation, and they te~tif ied as to the 

conditions or practices which caused them to issue the violations. They also confirmed their negligence and gravity findings as shown on the face of the citations. 

In Docket No. KENT 86-126, the inspectors testified that 

the violations in question were timely abated by the respondent in good faith, and Inspector Smallwood testified that 

th2 respondent was a cooperative mine operator who made a 

good faith effort to comply with MSHA's mandatory safety and 

health standards. 

With regard to Docket No. KENT 86-127, Inspector 

Smallwood confirmed that the section 104(b) orders which were 

issued for eight of the section 104(a) citations were served 

on the respondent by certified mail. Mr. Smallwood explained 

that when he next returned to the mine on May 5, 1986, to 

abate the citations, the mine was idle and no one was there. 

He made several subsequent trips to the mine and attempted to 

contact the respondent by telephone in an effort to ascertain 

whether or not the cited conditions had been abated. 

Mr. Smallwood stated that he was unable to contact the respondent, and that the respondent did not contact him to discuss 

the matter. Under the circumstances, Inspector Smallwood 

issued the section 104(b) withdrawal orders, and he confirmed 

1806 
that this was his normal procedure. He conceded that it was 

possible that the cited conditions were corrected before his 

May 5, 1986, visit to the mine, but since it was idle and he 

could not gain access to the mine, he had no way to confirm 

whether or not the violations had been abated. 

Findings and Conclusions 

Fact of Violations 

Although given an opportunity to rebut the violations, 

the respondent has not done so. Accordingly, on the basis of 

the record in these proceedings, including the testimony of 

the inspectors who issued the citations, I conclude and find 

that the petitioner has established each of the violations, 

and the citations ARE AFFIRMED as issued by the inspectors. 

History of Prior Violations 

The respondent's history of prior violations is reflected 

in an MSHA computer print-out (exhibit P-1). The print-out 

reflects that for the period January 29, 1986 to April 13, 

1986, the respondent was served with 18 violations, 12 of 

which were "significant and substantial" (S&S) violations. 

The respondent paid the civil penalty assessments for six of 

the violations. I cannot conclude that the respondent's past 

compliance record is such as to warrant any additional 

increases in the civil penalty assessments made for the violations which have been affirmed in these proceedings. 

Good Faith Compliance 

In Docket Noo KENT 86-126v the record establishes that 

the respondent timely abated the cited violations in good 

faith. I take note of Inspector Smallwood's testimony that 

the respondent was a cooperative mine operator who attempted 

in good faith to comply with the law, and I have taken this 

into consideration in my adjudication of these caties. 

With regard to Docket No. KENT 86-127, although it is 

true that the inspector issued section 104Cb) withdrawal 

orders for failure by the respondent to abate the conditions, 

I take note of the fact that ~t the time of his abortive 

return visits to the mine, the inspector found that it was 

abandoned and he could find no one to confirm whether or not 

the violations had been corrected. I take note of the fact 

that in one instance (Citation No. 2769497), 2-months passed 

before the inspector next returned to the mine, and in the 

remaining instances, approximately 3-weeks passed before the 

1807 
inspector returned to the mine. I also take note of the fact 

that Inspector Smallwood conceded that it was possible that 

the conditions had been corrected prior to his subsequent 

mine visits, but he simply could not confirm this since he 

was unable to communicate with the respondent, and the respondent did not return his telephone calls. However, based on 

the inspector's credible testimony that he considered the 

respondent cooperative, and the fact that prior citations 

were timely abated, I have given the respondent the benefit 

of the doubt and I cannot conclude that the respqndent acted 

in bad faith in this case. 

Negligence 

The inspectors found moderate or low negligence with 

respect to all of the citations issued in these proceedings. 

Under the circumstances, I conclude and find that all of the 

violations which have been affirmed resulted from the respondent's failure to exercise reasonable care, and that this 

constitutes ordinary negligence. 

Gravity 

Docket No. KENT 86-127 

In this case, the inspector found that Citation Nos. 

2769497, 2769648, 2769649, 2769650, and 2769651 were non-S&S 

and that an injury or illness was unlikely to occur as a 

result of the cited conditions. He also found that the cited 

conditions would not reasonably be expected to result in any 

lost workdays. Under these circumstances, I conclude and 

find that these violations were non-serious. 

With regard to the remaining citations, the inspector 

found that an injury or illness was reasonably likely to 

occuru and in the case of the section 104(a)-107{a) citationimminent danger orderv he found that an injury or illness was 

highly likely to occur. Under these circumstances, I conclude 

and find that the violations were serious. I also affirm the 

inspector 1 s S&S findings with respect to these violations. 

Docket No. KENT 86-126 

In this case, the inspector found that Citation Nos. 

2769641, 2769642, and 2769652 were non-S&S and that an injury 

or illness was unlikely to occur as a result of the cited 

conditions. He also found that the cited conditions would 

not reasonably be expected to result in any lost workdays. 

1808 
Under these circumstances, I conclude and find that these 

violations were non-serious. 

With regard to the remaining citations, the inspector 

found that an injury or illness was reasonably likely to 

occur. Accordingly, I conclude and find that these violations 

were serious. I also affirm the inspector's S&S findings with 

respect to these violations. 

Size of Business and Effect of Civil Penalty Assessments on 

the Respondent's Ability to Remain in Business 

MSHA's proposed civil penalty assessment information 

filed with its pleadings reflects that when the mine was in 

operation it had an annual production of 62,500 tons. The 

information provided by the inspectors who inspected the mine 

and issued the citations in this case reflect that when the 

mine was in operation there were approximately 10 miners working underground, and approximately two or three working on 

the surface. Petitioner's counsel agreed that the mine was a 

small-to-medium sized operation when it was producing coal, 

and I concur in this conclusion. 

It seems clear to me that the respondent is no longer in 

business at the mine in question. Although a copy of the 

respondent's 1986 tax return reflects that the mine operated 

at a loss for that year, the respondent's failure to appear 

at the hearing or to otherwise provide any credible information as to its present financial condition and ability to pay 

the civil penalty assessments for the violations in question 

precludes any finding by me that the respondent is unable to 

pay those penalties. Based on the information of recordr it 

does not appear that the respondent is in bankruptcy or that 

the respondent or Mr. Hale, as its corporate president, is in 

fact bankrupt. Further, I take note of a letter dated 

July 13y 1987~ to Mr. Hale from the petitioner's counsel, 

which is in the official record of this case, indicating that 

Mr. Hale's offer to settle these cases was rejected by the 

petitioner. 

Civil Penalty Assessments 

In view of the foregoing findings and conclusions, I 

believe that the petitioner's proposed civil penalty assessments in Docket No. KENT 86-126 are appropriate and reasonable, and they ARE AFFIRMED. 

With respect to Docket No. KENT 86-127, I take note of 

the fact that in the initial civil penalty assessments levied 

1809 
by the petitioner's Office of Assessments, no consideration 

was given for the respondent's good faith compliance. The 

five non-S&S citations which are normally assessed as "single 

penalty assessments" pursuant to the petitioner's assessment 

regulations, were assessed at higher monetary amounts, and 

the remaining citations were assessed without regard to any 

good-faith compliance. I believe that one can conclude that 

the increased civil penalty assessments resulted from the 

fact that the inspector issued sectio~ 104(b) orders when he 

found that the mine was not in operation, and he could f 1nd 

no one to confirm whether or not the violations had in fact 

been abated. 

It is well-settled that I am not bound by the petitioner's 

proposed civil penalty assessments, nor am I bound by its civil 

penalty assessment regulations found in Part 100, Title 30, 

Code of Federal Regulations. Civil penalty proceedings before 

the Commission and its judges are adjudicated de novo on a 

case-by-case basis, and any civil penalty assessments levied by 

a judge are based on his independent findings and conclusions 

with respect to the particular case. On the facts of this 

case, given my findings with respect to the-respondent's good 

faith compliance, I conclude and find that some reduction with 

respect to the civil penalty assessments proposed by the petitioner in Docket No. KENT 86-127 are reasonable and warranted 

in the circumstances. 

On the basis of the foregoing findings and conclusions, 

and taking into account the requirements of section llO(i) of 

the Act, the following civil penalties are assessed by me for 

the violations which have been affirmed in these proceedings: 

DOCKET NOo KENT 86-126 

Citation NOo Date 30 C.F.R. Section Assessment 

2769641 04/09/86 75.1805 $ 20 

2769642 04/09/86 75.1403 $ 20 

2769684 04/09/86 75.400 $ 50 

2769644 04/10/86 75.604(b) $ 50 

2769645 04/10/86 75.1719-l(d) $ 54 

2769688 04/10/86 75.604 $ 50 

2769689 04/10/86 75.17228 $ 50 

2769652 04/14/86 75.1103-4(a} $ 20 

2769653 04/14/86 77.504 $ 50 

$364 

1810 
DOCKET NO. KENT 86-127 

Citation No. Date 30 C.F.R. Section Assessment 

2769497 02/10/86 75.313 $ 35 

2769686 04/09/86 75.514 $140 

2769646 04/10/86 75.1725 $150 

2769647 04/10/86 75.400 $100 

2769690 04/10/86 70.400 $100 

2769648 04/14/86 75.503 $ 50 

2769649 04/14/86 75.1107-4(a) (2) $ 35 

2769650 04/14/86 75.316 $ 35 

2769651 04/14/86 75.1713-7(b) $ 50 

$695 

ORDER 

The respondent IS ORDERED to pay the civil penalties in 

the amounts shown above within thirty (30) days of the date 

of these decisions. Payment is to be made to MSHA, and upon 

receipt of payment, these proceedings are dismissed. 

• Koutras 

4.~ 

Distribution: 

Go Elaine Smith, Esq., Office of the Solicitor, U.S. 

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

Nashvilleg TN 37215 (Certified Mail) 

MrG Harold C~ Hale, President, J. c. London Coal Company, 

Inc.1 Star Route 1, Box 118, Foster, WV 25081 (Certified 

Mail) 

/fb 

1811 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 2 3 1987 

SECRETARY OF LABOR, CIVIL PENALTY PR0CEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

Docket No. KENT 87-95 

A.C. No. 15-15684-03508 

v. 

HIGHWIRE, INCORPORATED, 

Respondent. 

Docket No. KENT 87-156 

A.C. No. 15-15684-03509 

Appearances: 

Before: 

No. 1 Mine 

DECISIONS 

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

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

for the Petitioner; 

Eugene C. Rice, Esq., Paintsville, Kentucky, 

for the Respondent. 

Judge Koutras 

Statement of the Proceedings 

These proceedings concern proposals for assessment civil 

penalties filed by the petitioner against the respondent pursuant to section llO{a) of the Federal Mine Safety and Health 

Act of 1977, 30 u.s.c. § 820(a), seeking civil penalty assessments for eight alleged violations of certain mandatory safety 

standards found in Part 77, Title 30, Code Federal Regulations. 

These cases were among eight cases scheduled for hearing in 

Paintsville, Kentucky, during the hearing term September 22-23, 

1987. When the cases were called for trial, counsel for the 

parties advised me that the parties agreed to a proposed settlement of the cases, and they were afforded an opportunity to 

present their proposals on the record pursuant to Commission 

Rule 30, 29 C.F.R. § 2700.30. The citations, proposed assessments, 

and the settlement amounts are as follows: 

1812 
Docket No. KENT 87-95 

Citation No. Date 

30 C.F.R. 

Section Assessments Settlements 

2784217 

2784219 

11/13/86 

11/13/86 

Docket No. KENT 87-156 

77.404(a) 

77.410 

$ 63 

$ 63 

$126 

$ 63 

$ 63 

$126 

Citation No. Date 

30 C.F.R. 

Section Assessments Settlements 

2780392 

2780393 

2780394 

2780395 

2780396 

2780397 

03/04/87 

03/04/87 

03/04/87 

03/04/87 

03/05/87 

03/05/87 

77 .1605 (b) 

77.1606(c) 

.77.410 

77.410 

77.1606(c) 

77.1606(c) 

Discussion 

$ 85 

$ 85 

$ 85 

$ 85 

$ 20 

$ 20 

$380 

$ 85 

$ 85 

$ 85 

$ 85 

$ 20 

$ 20 

$380 

In support of the proposed settlement of these cases, the 

parties presented information with respect to the six statutory 

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

Act. The parties incorporated by reference certain stipulations 

entered into in the prior proceedings conducted on September 22, 

1987, and they are as follows: 

lo The respondent is subject to the Act. 

2o The respondent is a small-to-medium sized 

operator engaged in auger and strip coal mining 

activities. During the period November, 1986 

through March, 1987, the respondent employed 

approximately 25-45 employees, with an annual coal 

production of 241,616 tons. 

3. Respondent's history of prior violations 

for the period July 1, 1986 through March 4, 1987, 

reflects that the respondent paid civil penalty 

assessments for 36 violations, all of which were 

issued as section 104(a) citations. 

4. All of the citations in question were 

timely abated by the respondent in good faith. 

1813 
5. Payment of the proposed civil penalty 

assessments will not adversely af the respon-

' s ability to continue in business. 

I note of the fact that the respondent has agreed to 

make payment for the full amount of the proposed civil penalty 

assessments for the violations in question. I note further 

that the inspectors who issued the citations were present in 

the court room, and petitioner's counsel asserted that he 

discus all of the violations with the inspecto~'s and that 

they concurred in the proposed settlement dispositions advanced 

by the s. 

Conclusion 

Upon careful review and consideration the pleadings, and 

the information furnished by the parties in support of the proposed settlement of these.cases, I conclude and find that they 

are reasonable and in the public interest and should be approved. 

Accordingly, pursuant to 29 C.F.R. § 2700.30, the settlements 

ARE APPROVED. 

ORDER 

The respondent IS ORDERED to pay civil penalty assessments 

in the settlement amounts shown above in satisfaction of the 

violations in question within thirty (30) days of the date of 

these sions. Upon receipt of payment by the petitioner, 

these proceedings are dismissed. 

Admini 

h.Ko~~ Law Judge 

stribution: 

Thomas Ao Grooms 1 Esq.v Office of the S tor, U.S. Department 

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

37215 ied Mail) 

232 Second Street, sville, K':'. 41240 

David 0. Williamson and Gregory Lyons, E s., Gardner, Moss & 

Rocovich, P.C., Suite 900, 213 S. ferson Street, P.O. 

Box 13606, Roanoke, VA 24035 (Certified 1) 

S. Howes Johnson, Esq., Johnson & Johnson & Phillips, P.O. 

Box 470, Paintsville, KY 41240 ( Mail) 

/fb 

1814 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

. 2 SKYLINE, lath FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

October 27, 1987 

GREEN RIVER COAL CO., INC. 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

GREEN RIVER COAL CO., INC. 

Respondent 

. . 

: 

. . . 

: 

. . 

. . 

: 

: 

. . 

. . 

: 

CONTEST PROCEEDINGS 

Docket No. KENT 87-13-R 

Citation No. 2216153; 9/18/86 

Docket No. KENT 87-14-R 

Citation No. 2216154; 9/18/86 

Docket No. KENT 87-15-R 

Citation No. 2216740; 9/18/87 

: Docket No. KENT 87-16-R 

: Order No. 2216023; 9/19/86 

: 

. 

. 

: 

: 

. . 

. . 

. . 

. 

. 

. . 

. . 

Green River No. 9 Mine 

CIVIL PENALTY PROCEEDINGS 

Docket No. KENT 87-37 

A. C. No. 15-13469-03581 

Docket No •. KENT 87-67 

A. C. No. 15-13469-03585 

: Green River No. 9 Mine 

DECISION 

Appearances: Flem Gordon, Esq., Gordon, Gordon & Taylor, 

OWensboro, Kentuckyu for the Respondent; 

Mary Sue Rayr Esq.p Office of the Solicitoru U. So 

Department of Labor, Nashville, Tennessee, for the 

Petitioner. 

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): 2216153 <alleged violation of 

30 C.F.R. § 75.400), 2216154 (alleged violation of 30 c.F.R. 

l.815 
§ 75.316), 2216023 (alleged violation of 30 C.F.R. § 75.0303), 

2216024 <alleged violation of 30 C.F.R. § 75.307-1), 2216025 

(alleged violation of 30 C.F.R. § 75.302-1), and 2216740 (alleged 

violation of 30 C.F.R. § 75.0503). The Secretary sought civil 

penalties for alleged violations by the Operator of the above 

cited sections. On August 10, 1987, Respondent filed a Motion to 

Dismiss Order No. 2216023. On August 10, 1987, Respondent filed 

a Motion to Dismiss the Contest Pro9eeding and the Civil Penalty 

Proceeding involving Order No. 2216154 en the ground that it 

tendered payment to the Secretary of the proposed penalty on or 

about August 6,. 1987. ·· 

Pursuant to notice, the remaining cases were scheduled for 

hearing in Nashville, Tennessee, on August 11, 1987. At the hearing, Counsel for both Parties indicated that a settlement had been 

reached in the Civil Penalty Proceeding, Docket No. KENT 87-67 

(Citation Nos. 2216023, 2216024, and 2216025, (Docket No. 

KENT 86-16-R)). At the hearing, after argument, the Motion to 

Dismiss Order No. 216023 was denied. At the hearing, Counsel for 

both Parties indicated, in essence, that an agreement had been 

reached with regard to the relevant facts involved in Docket No. 

KENT 87-15-R, and that the legal issues involved in this case would 

be briefed. The remaining cases, KENT 87-37 and KENT 87-13-R, were 

heard in Nashville, Tennessee, on August 11, 1987. James Franks 

testified for Petitioner, and Grover Fischbeck testified for 

Respondent. Respondent submitted its Posthearing Brief and 

Memorandum of Authority on August 17, 1987, and Petitioner submitted its Post Trial Memorandum on August 31, 1987. On October 1, 

1987r Petitioner filed three stipulations with regard to the 

criteria in Section llO(i) of the Act. 

On August 3lg l987v Respondent filed a Joint Motion to Approve 

Settlement in Docket Noso KENT 87-67 and KENT 87-16-Ro Initially~ 

tne Secretary had proposed the following Civil Penalties for the 

following Citationsg 2216023, $300; 2216024, $500, and 2216025, 

$700. The Parties proposed a settlement of the following Citations 

in the following amounts: 2216023, $100; 2216024, $700, and 

2216025J S700o I considered the representations and documentation 

submitted in these cases, and I conclude that the proffered settle-

!uents are app~opriate under the criteria set forth in Section 

llO(i) of the Acto 

KENT 87-15-R (Citation Noo 2216740) 

On September 18, 1986, Citation No. 2216740 was issued alleging a violation of 30 C.F.R. § 75.503 in that "a violation was 

observed on the long-airdox roof bolter (extra bolter on No. 7 

Unit) in that an opening in excess of .004 inch was present 

between the main breaker box lid and breaker box. Also two bolts 

were missing from the main on and off switch box." 

i816 
35 C.F.R. § 75.503 provides as follows: 

The Operator of each coal mine shall maintain 

in permissible condition all electric face 

equipment required by Sections 75.500, 

75.501, and 75.104 to be permissible which is 

taken into or used inby the last open crosscut of any such mine. 

The Parties stipulated that there was an opening of .004 

inch on the electrical switch box of the bolter in question, and 

that two bolts were missing from the on-off electrical switch box. 

It was further stipulated, that at the time of the alleged violation, the bolter in question was not energized, and was located 

outby the last open crosscut. In its Post Trial Memorandum, the 

Secretary has alleged that the roof bolter in question was operated as an alternate on the No. 7 Section, that it was available 

for use at the face area if one of the face roof bolters was 

inoperative, and that in fact it was intended to be used as a 

backup for the No. 7 Section. However, the record does not contain any evidence to support these allegations of the Secretary. 

Thus, inasmuch as there is no evidence which would tend to 

establish that the Respondent intended to use the bolter in 

question inby the last open crosscut, I conclude that a violation 

of Section 75.503, supra, did not occur (c.f. Secretary v. Solar 

Fuel Company 3 FMSHRC 1384 (June 1981). Hence the Notice of 

Contest is allowed. 

KENT 87-14-R. 

On August lOu 1987v Respondent filed a Motion indicating, in 

essence, that the violation which had been contested in 

KENT 87-14-Ru had in fact occurred, and that Respondent has 

tendered payment of the proposed penalty. Accordingly, Docket 

No. KENT 87-14-R is dismissed. 

KENT 87-37 (KENT 87-13-R, Citation No. 2216153) 

On September 18, 1986, MSHA Inspector James Franks issued 

Citation No. 2216153, alleging a violation of 30 C.F.R. § 75.400, 

and stating as follows~ 

Accumulations of loose coal and coal dust 

(1/2 to 15 inches deep and averaging 15 ft. 

wide) was present around the tail piece long 

the belt and under the belt drive of the 

No. 3 Unit conveyor belt, beginning at the 

tail piece and extending outby approximately 

800 feet. 

1817 
30 C.F.R § 75.400 provides as follows: 

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 an electric 

equipment therein. 

MSHA Inspector James Franks testified that on June 18, 1986, 

when he inspected Respondent's No. 9 Mine, he found coal accumulations that ranged from 1/2 to 15 inches in depth, along and under 

the No. 3 Unit belt, from the tail piece to the belt drive. 

Franks said, in essence, that the accumulations appeared to have 

been in existence for several days, and that the physical appearance of the coal dust was not that of a recent spill. Preshift 

mine examiner's reports indicate that on September 17, in an 

examination, between 9:00 p.m. and 12:00 p.m., it was noted that 

" ••. No. 3 Unit belt need to be cleaned." In an examination on 

September 18, between S:oo- a.m. and 8:00 a.m., it was noted that 

" ••• No. 3 Unit belt needs cleaned (sic) and dusted." 

Franks testified that no one was in the area working on 

cleaning the belt during his inspection. Grover Fischbeck, 

Assistant Safety Director for Green River Coal Company, stated, 

in essence, that he was not present during Franks' inspection, 

but that the foreman and the man who traveled with Franks told 

him that the belt was being cleaned prior to Franks' inspection. 

The latter two personnel were not present at the hearing. Preshift examination records indicate that the area was cleaned 

sometime during the 8:00 a.m. - 4:00 p.m. shift on September 18 0 

19869 howeverv these records do not establish the time of day 

during which the cleaning began. · 

The No. 3 Unit was idle on the shift during which Franks 

conducted his inspection on September 18, 1986. However, 

Fischbeck indicated it had run the preceding shift and the belt 

wa:::; dirty, (Tr.61). 

Franks testified that both the fire suppression spray system 

and the dust-control water spray system were inoperative at· the 

time the violation. (These conditions resulted in citations 

for which civil penalties were paid by the Operator.) Franks 

testi£ied that on September 18, the return air from No. 9 Mine 

had .6 of methane gas, and that " ••• I have reports on at least 

five methane ignitions at the mine." (Tr. 30). He stated that 

in his opinion this indicates that the mine liberates gas. 

Franks testified that this condition could cause or contribute to 

a mine fire or explosion which would result in lost work days or 

a restricted duty accident involving six men working on the No. 3 

Unit. 

1818 
Based on the uncontradicted testimony of Franks, I find that 

on September 18, 1986, there was an accumulation of loose coa.l 

approximately 1/2 to 15 inches in depth from the tail piece to 

the belt drive along and under the No. 3 Unit conveyor belt. 

Section 75.400, supra, provides, in essence, that coal dust and 

loose coal shall be cleaned up and not be permitted to accumulate 

in "active workings." Essentially, it is Respondent's position 

that because the unit was not in op~ration when Franks observed 

the accumulation of coal, that the accumulation can not be considered to have occurred in a "active workings." In this 

connection, it should be noted that 30 C.F.R. § 75.~(g)(4) 

defines "active workings" as " ••• any place in a coal mine where 

miners are normally required to work or travel;". Applying this 

definition to the instant case, it is clear that the belt line at 

the No. 3 Unit is a place where the miners are normally required 

to work or travel. It thus is irrelevant that the unit was not 

in operation when Franks made his inspection and issued the 

citation in question. Thus, I conclude that Respondent did 

violate Section 75.400, supra. 

It is the position of Respondent, as asserted in its Post 

Hearing Brief, that 11 ••• a violation has not occurred as when the 

belt became dirty, no further mining actives were conducted in 

the area." There was no testimony offered by either side as to 

how long the coal accumulation in question had existed before it 

was cleaned by Respondent. However, Respondent's mine examiner's 

reports indicate that on September 17, between 9:00 p.m and 

12:00 p.m., and again September 18, between 5:00 a.m and 8:00 

a.m., it was noted that the belt in question had to be cleaned. 

Further, it does not appear to be contested that the unit was in 

operation the shift immediately proceeding the one in which 

Franks made his inspection. Fischbeck, who was not present at 

the No. 3 Unit when Franks made his inspection, testified that 

the foreman and the man who traveled with Franks told him that 

the belt was being cleaned prior to Franks' arrival at 10:30 in 

the morning. Rather than rely upon the out of court statements 

of two person who were not present to testify, I rely upon the 

testimony of Franks as to what he actually observed. Hence, I 

conclude, that when Franks made his inspection at 10:30 in the 

morning on September 18, the coal accumulation at the No. 3 belt 

line had not been cleaned and was not being cleaned. As such, I 

conclude that violation of Section 75.400, supra, was as the 

result of Respondentvs "unwarrantable failure." (U. S. Steel 

Corporation, 6 FMSHRC 1423 (June 1974)). 

1819 
I find, based upon the testimony of Franks, that there have 

been at least five methane ignitions at the subject mine. In 

addition, I adopt Franks' uncontradicted testimony that both the 

£ire suppression spray system and the dust-control water spray 

system were inoperative at time of the violation. I further 

find, that the accumulation of coal up to 15 inches in depth 

under the belt line, did contribute to the possibility of a mine 

fire or explosion, especially taking into account the above 

factors. I adopt the opinion of Franks ··that such a fire or 

explosion would result in lost work days or restric~ed duty 

involving six men working on the No. 3 shift. In this 

connection, I find, based on Respondent's mine examiner's 

reports, and the testimony of Fishbeck, that the unit in question 

had been in operation the shift prior to Franks' inspection and 

that the belt area had an accumulation of loose coal or coal dust. 

As such, I find that the violation herein was significant and 

substantial (see Mathies Coal Company 6 FMSHRC 1 (January 1984)). 

The Parties have stipulated that the total tonnage at the 

Green River No. 9 Mine is 2,440,390 tons for the year of 1986. I 

thus find that the Operator had a large sized business. Documentary evidence indicates that the condition giving rise to the 

violation herein was cleaned up in the shift in which the violation was first noted. The Order itself was terminated at 9:15 a.m. 

on September 19, 1986, by Franks who noted that the accumulation of 

loose coal and coal dust had been cleaned up and the area was rock 

dusted. Accordingly, I find good faith by the Operator in 

attempting to achieve compliance. Due to the likelihood of an 

explosion, and taking into account the history of methane ignitions 

at the mine as well as the fact that the suppression spray system 

and the dust-control water spray system were inoperative, I find 

that the gravity of the violation to be high. I also find that 

Respondentgs negligence was high as, on two previous shifts, it was 

noted by examiners that the coal in question had to be cleanedo 

Accordingly, taking into account all th~ factors in Section llOCi) 

of the Act, I find that the proposed penalty of $700 is appropriate. 

ORDER 

It is ORDERED that Docket Nos. KENT 87-13-R and 87-14-R be 

DISMISSED. It is ORDERED that the Notice of Contest, KENT 87-15-R 

be allowed, and that Citation No. 2216740 be VACA'rED. It is 

further ORDERED that Ordar No. 2216023 be modified to a Section 

104{a) Citation. As modified the Citation is afficmed. It is 

further ORDERED that the Motion to Approve Settlement in Docket No. 

KEN·r 87-67 is GRAN'rED, and it is ORDERED that Docket No. 

KENT 87-16-R be DISMISSED. 

1820 
It is further ORDERED that the Operator pay the sum of 

$2,200, within 30 days of this Decision, as civil penalties for 

the violations found herein. 

~berg ex 

Administrative Law Judge 

Distribution: 

Flem Gordon, Esq., Gordon & Gordon, P.S.C., 1500 Frederica Street, 

P. o. Box 390, Owensboro, KY 42302-0390 (Certified Mail) 

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

Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 37215 

(Certified Mail) 

dcp 

1821 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

ARNOLD SHARP, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Complainant 

OCT 2·s 1987 

. . DISCRIMINATION PROCEEDING 

Dooket No. KENT 86-149-D 

BIG ELK CREEK COAL CO., INC., 

Respondent 

BARB CD 86-49 

FINAL ORDER 

Appearances: Leon L. Hollon, Esq., Hazard, Kentucky, for the 

Complainant; 

Stephen c. Cawood, Esq., Pineville, Kentucky, 

for the Respondent. 

Before: Judge Fauver 

Counsel for Complainant has moved for an Order awarding an 

attorney's fee, and Respondent has no objection to the proposed 

fee. 

WHEREFORE IT IS ORDERED that: 

1. The Motion for an attorney's fee is GRANTED, and 

Respondent shall pay the attorney's fee of $1,725.00 to Counsel 

for Complainant within 15 days from the date of this Order. 

2o The Decision of July 22u 1987u and the Supplemental 

Decision of September 15u 1987, along with this Order are hereby 

made FINAL and constitute my final disposition of this proceeding 

under section 113Cd)(l) of the Federal Mine Safety and Health Act 

of 1977v 30 U.S.Ce § 801 et~· 

tU~~~Ve./L William Fauver 

Administrative Law Judge 

Distribution: 

Leon L. Hollon, Esq., P. o. Drawer 779, Hazard, KY 41701 

(Certified Mail) 

Stephen c. Cawood, Esq., Cawood & Fowles, P. o. Drawer 280, 

Pineville, KY 40977 (Certified Mail) 

dcp 

1822 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

ALFRED DANIELS, 

Complainant 

v. 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 2 91987 

DISCRIMINATION PROCEEDING 

Docket No. LAKE 87-46-DM 

SOUTHWESTERN POR'rLAND CEMEN·r 

COMPANY, 

Respondent 

DECISION 

Appearances: Mr. William H. Kojola, Kansas City, Kansas, for 

Complainant; John J. Heron, Esq., Dayton, Ohio, 

for Respondent. 

Before: Judge Fauver 

Complainant brought this proceeding under section 105(c) of 

the Federal Mine Safety and Health Act of 1987, 30 C.F.R. § 801 

et~., contending that he was suspended without pay because of 

safety complaints made to Respondent and to the Mine Safety and 

Health Administration, United States Department of Labor. 

Respondent contends that he was suspended for insubordination, 

and not because of safety complaints. 

Based upon the hearing evidence and the record as a whole, I 

find that a preponderance of the substantial, reliable, and 

probative evidence establishes the following: 

FINDINGS OF FACT 

lo At the time of the hearing, Daniels was a general 

equipment operator for Southwestern. He had been employed by 

Southwestern for nine years. 

2o At all relevant times, Daniels has been a member of 

Local Lodge D357, United Cement, Time, Gypsum and Allied Workers 

Union. The collective bargaining agreement between Southwestern 

and Local Lodge D357 expired on September 1, 1985. At that time, 

Southwester~ implemented the terms and conditions of its final 

offer. 

3. Southwestern, at all relevant times, has maintained 

published Plant Rules designed to promote safety and efficiency. 

1823 
Category I, Rule No. 2 of the Rules provides that insubordination 

is a dischargeable offense. 

4. At some point after September 1, 1985, Daniels was 

appointed by the president of Local D357 "to turn in safety 

complaints" in his work area. Daniels was assigned to the North 

Annex area of Southwestern's plant "on and off" for about a year 

before his suspension on October 14, 19~6. 

5. Employee safety complaints and safety suggestions at 

Southwestern are normally submitted to Ted Weatherhead, Safety 

Consultant. Weatherhead investigates the complaint or suggestion 

and, if he deems it appropriate, he prepares a work order for 

corrective action. The necessary work to remedy the complaint or 

suggestion is then completed and the work order returned to 

Weatherhead with a notation that the work has Deen completed. If 

known, the initiating emplo.y~e is then notified that the W'ork has 

been completed. 

6. The safety suggestion or complaint forms, known as 

safety inspection reports, may be filed with the Union or Company 

Safety Committee, or with the respective foreman. The employee 

does not have to include his or her name on the report. 

Southwestern's program is designed to encourage safety 

suggestions or complaints. 

7. Since September 1, 1985, approximately 100 safety 

complaints have been filed at Southwestern's Fairborn plant. 

Daniels has filed more complaints than any other employee, but 

numerous other employees have also filed safety complaints and 

suggestions. Safety complaints are not kept in an employee's 

personnel file. 

8. Many safety complaints by Daniels were responded to and 

remedied by Southwestern. In August 1986, eight work orders 

initiated by Daniels were completed by Southwestern. 

9. At least 43 additional safety work orders were initiated 

by 19 other employees of Southwestern between June and September 

1986, including 14 work orders initiated by David Gullett, 

Vice-President of Local D357. In each caseF the work requested 

was completed by Southwestern. 

10. There has been no contention or evidence that any other 

employee of Southwestern has been disciplined or otherwise 

discriminated against because of the filing of safety complaints 

or suggestions. 

11. Although a new collective bargaining agreement has not 

been reached, Southwestern and Local 0357 have established a 

1824 
Joint Safety and Health Committee for the purpose of jointly 

considering, inspecting, investigating and reviewing health and 

safety conditions and practices. The Committee also 

investigates accidents and recommends corrective measures to 

eliminate unhealthful or unsafe conditions. The Committee meets 

at least once a month. 

12. Daniels has contacted OSHA or MSHA several times 

concerning perceived safety problems. !n August of 1986, Daniels 

made a safety complaint to OSHA regarding alleged hazards at the 

North Annex. Daniels' name does not appear on the complaint 

filed with OSHA. 

13. OSHA transferred the above complaint to MSHA. MSHA 

inspector Tom Kenney conducted an inspection of Southwestern's 

facility on September 8-9, 1986. Four section 104(a) citations 

were issued during that inspection. 

14. On or before December 4, 1986, 14 employees of 

Southwestern filed a wcitten complaint with MSHA requesting an 

inspection of Southwestern because of alleged unsafe and 

hazardous conditions. A copy of this complaint was sent to 

Gary Leasure, Director of Industrial Relations for Southwestern. 

A citation was issued by MSHA on December 4, 1986. On December 

11, 1986, a Company-Union Safety Committee meeting was held to 

discuss and attempt to resolve that citation. None of the 

employees signing that complaint were disciplined because of 

filing the complaint. 

15. For several months before his suspension, Daniels had 

wor in the North Mill area of the plant. On October 13, 1986, 

Danials returned to the North Annex. Glenn Parker was the 

foreman in charge of cleaning the silos in the North Annex. 

Parker had previously worked as a foreman at Southwestern's 

Odessa, Texas facility. On July 8, 1986, he began working as a 

shift supervisor in the North Annex, and became the foreman in 

charge of cleaning the silos in early September. Daniels had not 

worked for Parker before October 13, 1986, and as of that date 

Parker was unaware of any ety complaints filed by Daniels. 

160 Between 7~00 and 7:30 a.m. on October 13, 1986, Parker 

assigned Daniels to work with the maintenance crew on the screw 

conveyor on the north side of the silos. Daniels accepted this 

assignment without questioning Parker's status as his foreman. 

Later in the morning, Parker began to discuss an absenteeism 

problem with a temporary employee, Steve Marshall. Daniels 

interrupted and erroneously informed Marshall that Marshall did 

not have anything to worry about and that temporary employees 

were not subject to the Company's point system for absenteeism. 

1825 
17. Later in the morning, Parker again talked with Marshall 

regarding Marshall's absenteeism. Once again, Daniels intervened 

and incorrectly informed the employee that the point system did 

not apply to temporary employees. At this time, Marshall left 

the area and returned to his job. Parker then approached Daniels 

and inf armed him that he wanted to work together with Daniels and 

"get off to a good start." He did this because Daniels had 

interfered with Parker's supervising of Marshall. Daniels then 

told Parker: 

A. [By Parker] He let me know that he didn't have to 

cooperate with me; that he didn't have to work with me; 

that he was assigned to work for me, not with me. 

I told him we need to work together, because it will 

work better that way. 

Q. Did he use any profanity to you? 

A. Yes, he did. 

Q. What did he way? 

A. He told me he was an asshole and he was a mother-fucker, 

and he was all this stuff, and that he didn't have to work 

with me; and that he would not cooperate with me, and he 

would fuck with me as much as he could. 

Q. What did you do then? 

A. I tried to explain the problem that we had and get it 

straightened outv and I wanted to work things out where we 

could work together and wouldn't have to be at each other's 

throat all the time. 

To no availv he wasn't accepting ito He brought it up 

at that time that he didn't kn:JW who his supervisor waso We 

talked rather loudly I would say. 

(Tr. 13lr 132.] 

180 The only other individual present at the time of this 

conversation was Tom Anderson, who is a bulk loader at 

Southwestern and a union member. Anderson was on his way to the 

pump room when he ran into Parker and Daniels. Anderson's 

testimony and recollection of the conversation between Parker and 

Daniels is entirely consistent with that of Parker. 

19. After this conversation, Parker approached Roy Garman, 

with Daniels, concerning Daniels's allegation that he did not 

1826 
know who his supervisor was. Garman, who was foreman of the pack 

house and Daniels' previous supervisor, informed Daniels that 

Daniels was working for Parker. 

20. At no time during his heated conversation with Parker 

did Daniels raise a safety issue with Parker. Parker had no 

knowledge of Daniels' prior safety complaints. Shortly after 

their exchange, Daniels threatened Parker with filing an unfair 

labor practice charge because temporary· employees were performing 

Daniels' job of pumping cement. Parker indicated that he would 

check on this matter. 

21. Parker then met briefly with Gary Leasure, Director of 

Industrial Relations, and Ted Stute, Plant Manager. Stute told 

Parker to return Daniels to his job of pumping cement, Parker did 

so. No unfair labor practice charge was filed about this issue. 

22. During his meeting with Leasure and Stute, ParKer told 

Leasure and Stute about Daniels' interference with Parker's 

supervision of Marshall and Daniels' abusive language towards 

Parker. Because Leasure and Stute were going to a meeting, 

Leasure told Parker that they would discuss the matter later that 

day. Later that day, Leasure asked Parker to think about the 

events overnight and meet with Leasure the first thing in the 

morning, on October 14, 1986. 

23. At 8:00 a.m. on October 14, 1986, Parker met with 

Leasure and Garman. Parker described in detail what Daniels had 

said and done on October 13th. At that time, Leasure prepared a 

typed statement of the events as described by Parker. Parker 

indicated that he thought disciplinary action should be taken in 

accordance with plant rules. Following Parker's comments and 

Leasure 1 s review of Daniels 1 personnel file, Leasure made the 

decision to suspend Daniels pending discharge. 

24. On October 14, 1986, at about 9:30 a.m., Daniels was 

suspended pending discharge pursuant to Category I, Rule No. 2 

Southwestern°s Plant Rules specifying insubordination as a 

dischargeable offense and pursuant to the mana3e.ment rights 

clause the implemented contract authorizing discipline for 

just cause. 

25. At the time the decision was made, on October 14, 1986, 

to suspend Daniels pending discharge, Leasure and Packer were 

unaware that MSHA 1 s inspection of Southwestern in September was 

the result of an employee complaint. They were also unaware of 

any prior safety complaints by Daniels. 

26. At the time Dani s was informed of his suspension, he 

was given a disciplinary form setting forth the reason for the 

1827 
discipline. Attached was a typed statement prepared by Leasure, 

which had been signed by Parker and Anderson. Under "Employee 

Remarks" Daniels wrote "FYF0, 11 known by employees to mean "fuck 

your final offer." 

27. At the time he was informed of his suspension, Daniels 

wa~ told to leave company property, but he proceeded to Leasure's 

office, attempting to use the telephone and creating a disruption. 

FL:: then slammed the phone on Parker's finger. No disciplinary 

action was taken as a result of this conduct. 

28. On October 15, 1986, Leasure and Stute met with Daniels 

and the Union Committee concerning Daniels' suspension. Daniels 

was given the opportunity to present his side of the story. 

Leasure subsequently interviewed two witnesses identified by 

Daniels and the Union. These interviews were witnessed by Union 

representative R. Lykins. 

29. At no time du~ing Leasure's meetings with Daniels on 

October 14 and 15, 1986, did Daniels make any reference to safety 

complaints, a safety inspection, or MSHA inspection. Leasure, 

who commenced employment at Southwestern on September 15, 1986, 

was unaware of any safety complaints by Daniels until this matter 

was first raised by the Onion in the meeting on October 15, 1986. 

30. On October 22, 1987, Leasure notified Daniels and 

James Cantrell, the president of Local 0357, that Daniels would 

be given a 60-day disciplinary layoff as a result of Daniels' 

violation of the Plant Rules and pursuant to the management 

rights clause of the implemented contract. Leasure indicated 

that threats to and intimidation of a foreman would not be 

tolerated and that Daniels had been previously warned of his poor 

attitudeo The 60-day layoff was the recommendation of Leasure, 

which was accepted by Plant Manager Stute and Division 

Vice-President Strautman. 

316 LeasureYs decision to suspend Daniels for 60 days was 

based on his finding insubordination -- a plant rule violation 

and dischargeable offense -- and Danielsu prior disciplinary 

record as contained in Danielsu personnel file. 

320 Leasure observed the following items in Danielsv 

personnel file when he reviewed the file before deciding to 

suspend him pending discharge: 

(a) a June 24, 1986 memorandum from w. H. Strautman, 

Division Vice-President (Tr. 268), documenting an 

instance in which Strautman and a potential buyer, 

while touring the North Annex, found Daniels eating his 

lunch outside the mill building. When Strautman told 

1828 
Daniels that he was not permitted to leave his post and 

should eat inside where he could observe the control 

panels, Daniels became irritated and stated that he 

didn't want to eat there. After Strautman again 

reminded Daniels of his job responsibility, Daniels 

stated, "It won't do any good; this place is a disaster 

and never will be anything else." The buyer noted 

Daniels' "very poor attitude. 11 Strautman indicated 

that this incident was typical of the attitude 

displayed by Daniels during Strautman's visits· to the 

North Annex during the past month (R-22). 

(b) a July 7, 1986 memorandum from Plant Manager Stute to 

Ken Herr regarding a July 1, 1986, meeting of Stute, Daniels 

and Dave Gullett regarding Daniels' poor attitude. Daniels 

was informed that the Company needed his cooperation and 

would not put up with a poor attitude in the future. Stute 

also indicated-that Daniels would be working with a new 

foreman and that Stute wanted Daniels to get off to a good 

start (R-23) • 

(c) an August 18, 1986 memorandum from Lloyd Steinkamp, 

Daniels' supervisor at the time, detailing Daniels' refusal 

to obey a work order by Steinkamp on that date. Daniels 

responded to the order "do what you have to." Daniels was 

sent home 1for the day as discipline for this misconduct (Tr. 

224, 239; R-17). 

(d) an August 19, 1986 memorandum from Lloyd Steinkamp 

regarding an altercation between Daniels and another 

employee (R-18)o 

33. On October 27, 1986, Daniels filed a charge of 

discrimination with MSHA • On February 18, 1987, following its 

investigation of the charge, MSHA found no violation of section 

105(c) of the Acto 

34. On December 1, 1986, Daniels filed an unrair labor 

practice charge with the National Labor Relations Board alleging 

that his suspension was the result of his union activities and 

the filing safety complaints. On January 5, 1987, following 

its investigation of the charge, the NLRB dismissed the charge. 

1829 
This dismissal was sustained upon Daniels' appeal to the Office 

of the General Counsel, NLRB. 

DISCUSSION WITH FURTHER FINDINGS 

The issue in this proceeding is whether Daniels was 

discriminatorily suspended, contrary to the provisions of section 

105(c) of the Act. _ _!/ 

The burdens and allocations of proof under section 105(c) 

are now well-settled. A complainant bears the initial burden of 

establishing a prima facie case of discrimination. In this 

regard, he bears the burden of production and proof in 

establishing that Cl} he engaged in protected activity and (2) 

the adverse action was motivated in any part by that activity. 

Secretary on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 

2786, 2797-2799 (1980), rev'd on other grounds sub nom., 

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 Cl981). See also: Hall v. Clinchfield 

coal Co., 8 FMSHRC 1624, 1628 (1986)-::---T'he 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 the operator cannot rebut the prima facie 

case in this manner, it may nevertheless affirmatively defend by 

provin3 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. Smith v.Reco, Inc., 9 FMSHRC 

992, 994 (1987); Pasula, 2 FMSHRC at 2799-2800; Robinette, 

!I Section l05(c) providesf in pertinent part: 

(c)(l) 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 " 0 o 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 ••• or because of the exercise by 

such miner, representative of miners or applicant for 

employment on behalf of himself or others of any 

statutory right afforded by this Act. 

1830 
3 FMSHRC at 817-18. See also: Boich v. FMSHRC, 719 F.2d 194, 

195-96 (6th Cir. 1983-)-.- The ultimate burden of persuasion does 

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

n.20; Boich, 719 F.2d at 195-96. Allegations of general 

unfairness, or inequities in the employment are not sufficient 

for relief under the Act. Alexander v. Freeport Gold Co., 9 

FMSHRC 1112, 1121 (1987) (Judge's decision). 

As noted above, an essential element of Daniels' prima facie 

case is that his suspension was motivated in part by his safety 

complaints. Pasula; Robinette. Stated otherwise, a complainant 

must initially establish some nexus between his protected 

activity and the adverse action taken against him. A failure to 

establish such nexus necessarily results in the dismissal of a 

complaint. See ~' Hall, 8 FMSHRC at 1630; Cox v. Parnmlid Coal 

Co., 9 FMSHRC 435, 524-25 (1987) (ALJ), review denied (April 

1987); Holcomb v. Colony Bay Coal Co., 8 FMSHRC 1077, 1080-81 

(1986) (ALJ); Hutchinson v. Ida Carbon Coal Co., 7 FMSHRC 2247, 

2251 (1985) (ALJ). 

In analyzing an operator's motivation with respect to an 

adverse personnel decision, the Commission has noted that "the 

operator's knowledge of the miner's activity is probably the 

single most important aspect of a circumstantial case." 

Secretary ex rel. Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 

2510 (1981), rev'd on other grounds sub nom., Donovan ex rel. 

Chacon v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983). In 

light of the basic underlying issue of motivation, knowledge by 

the relevant decision-makers of the miner's protected activity is 

crucialo 

Complainant has not shown by a preponderance of the evidence 

that his suspension was motivated in any part by protected 

activity -- his safety complaints to the Company or to MSHA. 

Rather, Respondent has shown by a preponderance of the evidence 

that Daniels' suspension was motivated only by his insubordinate 

conduct towards his supervisor, Glenn Parker, and Daniels' prior 

disciplinary record. In this regard, neither of the two 

individuals primarily responsible for the suspension, Parker and 

Gary Leasure, was aware of Daniels 1 prior safety complaints to 

the Company or to MSHA when Daniels was suspended pending 

discharge. 

Southwestern has demonstrated by a preponderance of the 

credible evidence that it would have taken the adverse action 

against Daniels for the unprotected activity alone -- i.e., for 

Daniels' viol::ition of Southwestern's Plant Rules and management 

prerogative clause forbidding insubordination and protecting the 

operator's right to operate its business. 

1831 
In the Hall case, supra, the Commission affirmed the 

Administrative Law Judge's denial of a section lOSCc) claim based 

on the fact that there had been no showing that the adverse 

actions against the miner were motivated in any part by the 

miner's protected activity and, accordingly, no establishment of 

a prima facie case. The Commission noted that: 

With respect to Hall's discharge, the judge found 

that Pendergast [Manager of Industrial Relations] had 

no knowledge of Hall's protected activity [safety 

concerns] at the time he prepared the notice of 

discharge and that he had not consulted with other mine 

officials prior to terminating Hall [citation omitted] 

[8 FMSHRC at 1629.] 

Similarly, in Cantrell v. Gilbert Industrial, 4 FMSHRC 1164 

(1982), Judge Broderick held that the complainant failed to show 

by a preponderance of the evidence that she was laid off due to 

her complaint to MSHA (which resulted in the issuance of a 

citation to the operator). Judge Broderick stated, in pertinent 

part~ 

I accept the evidence that the persons responsible for 

her layoff on May 6, 1981, were unaware of the report 

to MSHA, the inspection, and the subsequent citation. 

There is not evidence linking any adverse action 

against Complainant to her call to MSHA officials. 

Thusv Complainant has failed to establish the basic 

requirement for liability under 105(c)~ a nexus 

between the adverse action and protected activity under 

the Mine Act [citations omitted]. 

[4 FMSHRC at 1166.] 

In Johnson v. Eastern Associated Coal Corp., 4 FMSHRC 398, 

399 (1982), Judge Melick likewise dismissad the§ 105(c) 

complaint where there was not sufficient evidence to prove that 

the individual who made the decision to discharge the complainant 

had any knowledge of the complainant's saf8ty complaints. See 

also~ Paugh Vo Mettiki Coal Corp., 8 FMSHRC 829, 880-81 (1987) 

(no evidence that safety complaints we~e discussed in meeting 

where decision made to discharge miner); Cox v. Pammlid Coal Co., 

supra, at 519-20 (company president had no knowledge of 

complainant's journal of allegedly unsafe conditions and 

violations of law}; Everett v. Industrial Garnet Extractives, 6 

FMSHRC 998, 1001 (1984) (no evidence that foreman who discharged 

complainant had knowledge of complainant's affidavit alleging 

safety violations). 

1832 
In the case at bar, the evidence demonstrates that Glenn 

Parker, Daniels' immediate supervisor on October 13, 1986, and 

Gary Leasure, Director of Industrial Relations, were the 

individuals ultimately responsible for the 60-day suspension of 

Daniels. On October 13, 1986, Parker notified Leasure of 

Daniels' abusive language and insubordinate conduct toward Parker 

earlier that day. CTr. 1162-63, 165-66.) On the morning of 

October 14, 1986, Parker detailed Daniels' actions to Leasure and 

indicated that he believed disciplinary action should be taken in 

accordance with the Plant Rules. (Tr. 172, 251.) After Leasure 

and Parker discussed the matter and Leasure reviewed Daniels' 

personnel file, the decision was made to suspend Daniels pending 

discharge. (Tr. 251.) At approximately 9:30 a.m., on October 

14, 1986, Daniels was notified of his suspension pending 

discharge. (Tr. 19, 251; R-19.) Leasure subsequently 

recommended the decision not to discharge Daniels, but to issue a 

60-day suspension. (Tr. 266-67, 316.) A critical point is that, 

at the time the decision was made to suspend Daniels pending 

discharge, neither Parker nor Leasure was aware of Daniels' prior 

safety complaints to the Company or to MSHA. 

Parker commenced employment at Southwestern's Fairborn 

facility on July 8, 1986. Prior to that time, he had worked as a 

union laborer and foreman at Southwestern Odessa, Texas facility. 

On July 8, 1986, he began as Shift Supervisor of the North Annex; 

at the beginning of September 1986, he became the foreman in 

charge of cleaning the silos in the North Annex. Parker had 

worked with Daniels on only one occasion before October 13, 1986, 

when their respective shifts overlapped. Parker indicated that 

there were no problems at that time. Most significantly, as of 

October 13 and 14v 1986u Parker was unaware of any safety 

complaints by Daniels. Daniels 0 previous supervisor, Lloyd 

Steinkamp, had not mentioned any safety problems with Daniels. 

Steinkamp had commenced employment with Southwestern in June 

1986? and had supervised Daniels from July 1986 to October 1986. 

Although Parker had heard that other supervisors had had problems 

with Dani 9 attitude and poor cooperation, Parker had not been 

informed of any safety grievances or safety complaints by Daniels. 

Moreover, although he was aware of MSHA's inspection in September 

1986, Parker had no knowledge that the inspection was initiated 

by a complainto In fact, Parker had no knowledge of Daniels' 

safety complaints even as of October 22 when the 60-day lay-off 

was issued. 

Gary Leasure, the individual ultimately responsible for the 

60-day suspension of Daniels, had no knowledge of any safety 

complaints by Daniels until after Leasure suspended Daniels 

pending discharge. 

1833 
Leasure commenced his employment with Southwestern as 

Director of Industrial Relations on September 15, 1986 -- less 

than one month before Daniels' suspension. As noted, Leasure 

met with Parker on the morning of October 14, 1986, regarding 

Parker's encounter with Daniels the previous day. Parker 

informed Leasure in detail what had occurred between him and 

Daniels and recommended disciplinary action against Daniels. At 

about 9:30 a.m., on October 14, following Parker's detailed 

explanation of the events of October 13·and Leasure's review of 

Daniels' personnel file, Leasure suspended him pend-ing discharge 

for violation of Category 1, Rule No. 2 of the Plant Rules and 

the management prerogative clause. (Tr. 19, 251; R-19. ) 

Not until the following day, October 15, when Leasure met 

with Daniels and the Union concerning Daniels' suspension pending 

discharge, did Daniels' prior safety complaints arise. Until 

that time, Leasure was unaware of any safety complaints or 

grievances by Daniels, and was unaware of MSHA's inspection on 

September 8 and 9. 

Although insubordination is a dischargeable offense under 

Southwestern's Plant Rules, Leasure recommended only that Daniels 

be suspended for 60 days. This recommendation was accepted by 

the Plant Manager and Division Vice-President. Thus, even after 

the Union informed Leasure of Daniels' prior safety complaints, 

Leasure recommended discipline less severe than that available 

under the Plant Rules. This conduct does not indicate 

discrimination. 

Another sign icant factor to be considered in determining 

whether an adverse employment decision has been motivated in any 

part by protected activity is the operator's hostility -- or lack 

thereof -- toward the protected activity. Chacon, 3 FMSHRC at 

2511~ Haro v. Magma Copper Co., 4 FMSHRC 1948, 1953 (1982) 

(Judge's decision), review denied (January 1983). 

In Harmon v" Consolidation Coal Co., 9 FMSHRC 549 (1987), 

the Commission Judge noted, in the course of concluding that the 

complainant had iled to establiah a nrima facie case, that 

management had attended to the complainant's safety complaints. 

Id. at 573. Likewise, in Brazell v. FMSHRC, 716 F.2d 902 (6th 

r. 1983) (unpublished decision, but reproduced at 3 MSHC 1036 

(BNA)), the Sixth Circuit, in affirming that the miner had not 

established a prima facie case of discrimination, noted, inter 

alia, that the company acted upon the miner's complaint rather 

than reacting with hostility. 

There is abundant evidence that Southwestern has an active 

safety program designed to encourage safety complaints and 

1834 
suggestions and a responsive and cooperative attitude toward them 

rather than a hostile or retaliatory attitude. 

David Gullett, Vice-President and walkaround representative 

of Local D357, called as a witness by Daniels, indicated that he 

was unaware of any other employees of Southwestern who have been 

disciplined or in any way discriminated against because of the 

filing of safety complaints or grievances. Gullett himself 

initiated 14 safety work orders in June·and July of 1986 (R-9B, 

R-9C}. Of record are 43 work orders initiated by employees of 

Southwestern in June through September 1986. In each instance, 

the work order was completed (R-9A, R-9B, R-9C). Also of record 

are many other safety grievances initiated by employees other 

than Daniels. There has been no allegation of any retaliatory or 

adverse action toward any of these employees. 

A written complaint to MSHA was signed by 14 employees of 

Southwestern CR-6). A copy was delivered to Gary Leasure. There 

has been no adverse action taken against any of the employees 

signing this complaint as a result of its filing. 

As noted, as a matter of practice safety complaints and 

suggestions are submitted to Southwestern's Safety Consultant, 

who investigates the complaint or suggestion and prepares an 

appropriate work order. When corrective work is completed the 

work order is returned to the Safety Consultant. The safety 

suggestion slips may be turned into the Union or Company Safety 

Committee, or to the employee's foreman. The employee does not 

have to include his or her name on the slip. Southwestern's 

program is designed to encourage safety suggestions and 

complaints and to take effective action to improve safety. 

Southwestern and Local D357 have established a Joint Safety 

and Health Committee for the purpose of jointly considering, 

inspecting, investigating, and reviewing health and safety 

conditions and practices and investigating accidents, as well as 

making recommendations to eliminate unhealthful or unsafe 

conditions. This Committee meets at least once a month and upon 

Lequest by either the Union or the Company. 

I find that there is no evidence that Respondent had a 

hostile attitude toward the pcotected activity but, on the 

contrary, encouraged safety suggestions or complaints and showed 

a positive attitude toward them. 

Apart om the question of whether or not Complainant made a 

prima facie case of discrimination (and I hold that he did not), 

I conclude that Southwestern affirmatively proved that it would 

have suspended him for insubordin~tion alone even if he had never 

made a safety complaint. 

1835 
The credible evidence shows that on October 13, 1986, 

Daniels on two occasions interrupted his supervisor's (Parker) 

attempts to counsel another employee concerning that employee's 

absenteeism, and Daniels belligerently contradicted Parker's 

statements to that employee and interfered with his supervisory 

duties. (Tr. 128, 130.) When his supervisor took Daniels aside 

and tried to counsel him to cooperate with him, to avoid 

employment problems, Daniels belligerently assaulted him verbally 

in defiant, profane and clearly insubordinate language. During 

the summer before this verbal assault, Daniels (1) was away from 

his post without authorization and informed the Division 

Vice-President, in the presence of a potential customer, that 

"this place is a disaster ~nd never will be anything else" 

(R-22); (2) received a warning regarding his poor attitude 

(R-23); (3) was docked four hours' pay and sent home for his 

refusal to obey an order from his supervisor (Tr. 224, 239; 

R-17); and (4) was in an altercation with another employee (R-18). 

I credit the testimony of Southwestern's Director of 

Industrial Relations that Daniels' 60-day suspension was 

motivated solely by Daniels' insubordination and his prior 

misconduct as reflected in Daniels' personnel file. (Tr. 266-67.) 

As noted in an October 22, 1986, letter from Leasure to the 

president of Local D357, "Daniels blatantly interfered with this 

right of the Company on October 13, 1986 by making repeated 

threats to foreman Parker and by trying to intimidate and 

undermine such foreman to a point of ineffectiveness. Such 

'assaults' and agonistic [sic] behavior on management or any 

other employee cannot and will not be tolerated." (R-21.) 

CONCLUSION OF LAW 

lo The Commission has jurisdiction in this proceeding. 

2o Complainant has failed to meet his burden of proving a 

violation of § 105(c) of the Acto 

ORDER 

WHEREFORE IT IS ORDERED that this proceeding is DISMISSED. 

cJ~ f ww~e-i_ William Fauver 

Administrative Law Judge 

1836 
Distribution: 

William H. Kojola, International Brotherhood of Boilermakers, 

Iron Ship Builders, Blacksmiths, Forgers & Helpers, New 

Brotherhood Building, Kansas City, KS 66101 (Certified Mail) 

John J. Heron, Esq., Porter, Wright, Morris & Arthur, 2100 First 

National Bank Bldg., P.O. Box 1805, Dayton, OH 45401 (Certified 

Mail) . 

slk 

1837 
FEDERAL MINE SAFETY AND HEAL'rH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 301987 

THOMAS W. GODFREY, 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

BIG ELK CREEK COAL COMPANY, 

Respondent 

Docket No. KENT 87-92-D 

BARB CD 87-08 

ORDER OF DISMISSAL 

In a conference call on October 26, 1987, between Complainant, 

Counsel for Respondent, and the undersigned, the Parties indicated 

that the above case has been fully settled and that the Respondent 

is to pay Complainant $25,000 as settlement of his claim. 

Accordingly, the above case is DISMISSED. 

Distribution~ 

~~~ Avram Weisberger 

Administrative Law Judge 

Thomas Wo Godfreyu 1867 White Marsh Roadu Suffolku VA 23434 

(Express Mail) 

Stephen C. Cawood, Esq., Cawood & Fowles, 206 Kentucky Avenue, 

Pinevilleu KY 40977 (Express Mail) 

dcp 

1838 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE lA W JUDGES 

333 W COLFAX AVENUE. 5UITE .400 

DENVER, COLORADO 80204 OCT 301987 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CIVIL PENALTY PROCEEDING 

: Docket No. WEST 87-28-M 

A.C. No. 42-01661-05504 

: Pioneer Sand & Gravel Pit 

PIONEER SAND & GRAVEL COMPANY, : 

Respondent 

DECISION 

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

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

for Petitioner; 

Mr. Ronald Savage, Vice President, Pioneer Sand 

and Gravel Company, 

pro se. 

Before: Judge Cetti 

Statement of the Case 

This civil penalty proceeding arises under the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. § 801 et seg., ("Mine 

Act"). The Secretary of Labor, on behalf of the Mine Safety and 

Health Administration, charges the operator of an open pit mine 

with violating safety standard 30 C.F.R. § 56.11001 which requires that safe means of access must be provided and maintained 

to all working places. The Secretary charges that safe access 

was not provided to the work place under the primary trap where a 

laborer was cleaning up spilled materials while front end loaders 

were dumping material into the trap. 

On July 29 and 3Dv Mr. James SkinnerQ a MSHA mine inspectorQ 

inspected the Pioneer Sand and Gravel Pit. ~s the result of that 

inspection he cited the operator for allegedly violating four 

mandatory safety standards. 

The Secretary of Labor thereafter initiated this proceeding 

with the filing of a petition for assessment of a civil penalty 

pursuant to section llOCa) of the Mine Act. Each citation 

number, date issued, standard alegedly violated, and the Secretary's proposed penalty is as follows: 

Citation No. 

2644264 

2644265 

2644266 

2644267 

Date 

7/30/86 

7/30/86 

7/30/86 

7/30/86 

1839 

30 C.F.R. § 

56.12005 

56.12013 

56 .11001 

56.9006 

Proposed 

Penalty 

$ 74.00 

74.00 

400.00 

20.00 
Pioneer Sand & Gravel Company filed a timely answer 

contesting the existence of all the violations and the amount of 

the related proposed civil penalties. After notice to the 

parties, an evidentiary hearing on the merits was held before me 

on June 11, 1987, at Salt Lake City, Utah. 

At the hearing respondent Pioneer Sand and Gravel Company 

withdrew its notice of contest of three of the four citations and 

the related proposed penalties so as to leave in contest Citation 

No. 2644266 which alleges a violation of § 56.1101 and its 

related proposed civil penalty. 

Issues 

1. Whether or not there was a failure to provide safe 

access to a work place as required by 30 C.F.R. 56~11001. 

2. If a violation of 30 C.F.R. § 56.11001 is found should 

the violation be classified as "significant and substantial." 

3. The amount of the penalties. 

Stipulations 

The parties entered into stipulations as follows: 

1. Pioneer Sand and Gravel Company, respondent, operates 

the sand and gravel pit designated "Pioneer Sand and Gravel 

Pit" located near Kearns, Utah. 

2. The respondent in its operation of the Pioneer Sand and 

Gravel Pit is subject to the provisions of the Mine Act. 

3. As the Administrative Law Judge assigned by the Federal 

Mine Safety and Health Review Commission to hear this case, I 

have jurisdiction to hear and decide this case. 

4. Respondent is a small operator employing approximately 

12 employees. 

5. Respondent exercised good faith in the abatement of the 

violations. 

6. The proposed penalities would not affect the ability of 

respondent to continue in operation. 

7. During the two year period ending June 29, 1986, 

respondent had a total of two violations which had an assessed 

penalty of $20.00 each. 

Citation No. 2644266 

The citation alleges: 

1840 
One of the plant operators was cleaning up material under 

and near the primary trap while two (2) front-end loaders 

were dumping into the trap intake. The employee was subjected to being hit by large falling rocks. Some of the 

rocks were 12 inches in diameter. The employee could be 

fatally injured if hit by one of these rocks. The above 

situation did not provide the employee with a safe access. 

The Regulation 

30 C.F.R. § 56.11001 provides as follows: 

Safe means of access shall be provided and 

maintained to all working places. 

Review of Evidence 

and Discussion 

The Pioneer Sand & Gravel Pit has a primary crushing 

operation and a subsequent wash plant. The plant produces sand 

and aggregate up to two inches in size and sells to both residence and commercial customers. 

At the time of the inspection four employees worked at the 

plant. The employees consisted of two front-end loader operators 

who dump the sand and gravel into a funnel like trap which 

funneled the raw material onto the prime conveyor belt below. 

This belt took the raw material into the plant for processing. 

In addition to the two front-end loader operators there was 

a crusher operator who operates the controls and a laborer. 

The employee who allegedly was exposed to the hazard of 

falling rocks was the laborer who spent 15 to 20 minutes each day 

cleaning up in an area below the trap next to the conveyor. 

Using a shovel he cleaned up the fine material and rocks that 

occasionally spilled off the conveyor belt onto the conveyor's 

platform floor" The conveyor was waist to chest high. The 

laborer shoveled the spilled material back on the conveyor belte 

The entrance to the area under the trap was a corridor two 

or three feet wide. The inspector testified "I couldn't actually 

see him back in under the trap, but he was working back in there 

and then progressing." CT. 35). It appeared to the inspector 

from his point of observation that the laborer did not have safe 

access to the area where the laborer was working. At the time 

the two front-end loaders using an elevated roadway, were dumping 

raw material from the pit into the trap. The inspector stated 

"it appears that while the loaders were dumping he (laborer) 

could have been struck by material had the loader not positioned 

(his load) just right." 

1841 
However, the inspector did not observe any falling material 

of any kind. Other than "occasional dust" no rocks or other 

material spilled over the top rim of the trap. 

The agency records indicate that the company abated the 

alleged violation by instituting a practice of shutting off the 

power to the conveyor and prohibiting the dumping of material 

into the trap while the employee was cleaning the spillage in the 

area below the trap. 

Respondent presented evidence that the trap was 10 feet wide 

and 20 feet long. Half way back it had a solid metal headwall 

that was 8 1/2 feet high. There was a fluorscent red line about 

18 inches below the back side of the trap and the material dumped 

into the trap was kept 18 inches to two feet below the head wall. 

Mr. Savage respondent's vice president testified that it 

would be "virtually impossible" for a rock to ever come over the 

rim of the hopper. He also explained that there was approximately 20 feet (horizontally> from the place where the material was 

being dumped to where the laborer was doing the clean up. In his 

opinion there was no "danger in any way" to the employuee working 

below. 

Employer presented evidence that due to changing conditions 

in the pit the cited practice and the entire trap area was discarded in May of 1987. It was not discarded because of any 

suspected hazard. 

During the five year period preceding this citation MSHA 

inspectors inspected the pit at least twice a year and none noted 

or commented to respondent about any potential hazard involved in 

cited pract 

Although the inspector did not observe any falling material 

other than occasional dust, it was the Secretary's position that 

there was a "possibility that in a moment of mental lapse on the 

part of the operator"of the front-end loader that a load could be 

dumped in such a manner that rocks would come over the headwall 

and down on the laborer as he walked underneath the trap to or 

from a work pointo 

On the basis of the evidence presented I find that there was 

a violation and a remote possibility it could result in an injury. 

However, I find the possibility of such an accident is unlikely 

rather than a reasonable possibility. I therefore find that 

there was a violation of 30 C.F.R § 56.11001 but that the violation was not "significant and substantial". 

Significant and Substantial Violation 

A "significant and substantial" violation is defined in 

section 104(d)(l) of the Mine ~ct as a violation "of such nature 

1842 
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 result in an injury or illness of a reasonably serious nature." Cement Division, National 

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

In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the 

Commission explained its interpretation of the term "significant 

and substantial" as follows: 

In order to establish that a violation of a mandatory 

safety standard is significant and substantial under 

National Gypsum the Secretary of Labor must prove: (1) 

the underlying violation of a mandatory safety standard; 

(2) a discrete safety hazard--that is, a measure of 

danger to safety--contributed to by the violation7 (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: 

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 COou 6 FMSHRC 1834 7 1836 (August 1984_)_o~We 

have emphasized thatu in accordance with the language of 

section 104(d)(l), is the contribution of a violation 

to the cause and effect of a hazard that must be signif icant and substantial. U.S. Steel Mining Company, Inc., 

6 FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining 

Companyu Inc.u 6 FMSHRC 1573, 1574-75 (July 1984) o 

In this case based upon the plantus past history and the 

evidence presented by respondent it is found that it is unlikely 

that the hazard contributed to will result in an event in which 

there is an injuryo I therefore find the violation of 30 C.F.R. 

§ 56.11001 was not significant and substantial. 

The gravity of the violation is high with respect to the 

seriousness of the injury which could result if a rock were to 

fall over the top of the trap and hit an employee. However, the 

likelihood of such an accident is found to be very low. This 

finding is consistent with the 21 year history of no injury from 

falling rocks while using the practice and procedure for which 

the citation was issued. The employer's negligence is evaluated 

1843 
as low. I accept the stipulations of the parties with respect to 

the remaining statutory criteria set forth in section llO(i) of 

the Mine Act. 

I have considered the six statutory penalty criteria set 

forth in Section llOCi) of the Mine Act, and find that the 

appropriate penalty for the violation cited in Citation No. 

2644266 is $75.00, and with respect to Citation Nos. 2644264, 

2644265 and 2644267 the appropriate penalties are the penalties 

proposed by the Secretary, which are $74.00, 74.00 and 20.00 

respectively. 

Based upon the entire record the stipulations and the 

findings made in the narrative portion in this decision the 

following conclusions are entered: 

CONCLUSIONS OF LAW 

1. The Pioneer Sand & Gravel Pit operated by Pioneer Sand & 

Gravel Company is subject to the provisions of the Mine Act. 

2. The Commission has jurisdiction to decide this case. 

3. Respondent violated 30 C.F.R. § 56.11001: the violation 

was not significant and substantial; a civil penalty of $75 is 

assessed. 

4. Respondent violated 30 C.F.R. § 56.12005. 

s. Respondent violated 30 C.F.R. § 56.12013. 

60 Respondent violated 30 C.F.R. § 56.9006. 

7o The Secretaryus proposed penalties for the violations 

found in findings 4v Sv and 6 are appropriate under the criteria 

set forth in section llO(i) of the Act. 

ORDER 

L. Citation Noa 2644266 as modified by deleting the 

characterization of the violation as significant and substantial 

is affirmed. 

2 0 Citation No. 2644264 and the proposed $74 are affirmed. 

3. Citation No. 2644265 and the proposed $74 penalty are 

affirmed. 

4. Citation No~ 2644267 and the proposed $20 penalty are 

affirmed. 

Pioneer Sand and Gravel Company is ordered to pay within 40 

days of the date of this decision a civil penalty of $243.00. 

G_:tr 

Aug 

Administrative Law Judge 

1844 
Distribution: 

James H. Barkley, Esq., Office of the Solicitor, U.S. Department 

of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO 

80294 (Certified Mail) 

Pioneer Sand & Gravel Company, Mr. Ronald Savage, Vice President, 

P.O. Box 18457, Kearns, UT 84118 (Certified Mail) 

/bls 

1845 
1846