APRIL 1989 

COMMISSION DECISIONS 

04-04-89 Sec. Labor for Roger Lee Wayne, Sr. v. Consolidation 

Coal Company 

04-07-89 Camp Fork Fuel Company 

04-07-89 Kenneth Howard v. B & M Trucking 

04-07-89 Coal Junction Coal Company 

04-24-89 Mid-Continent Resources, Inc. 

ADMINISTRATIVE LAW JUDGE DECISIONS 

04-04-89 

04-05-89 

04-06-89 

04-06-89 

04-06-89 

04-06-89 

04-07-89 

04-07-89 

04-'07~89 

04-11-89 

04-12-89 

04-12-89 

04-12-89 

04-14-89 

04-14-89 

04-14-89 

04-17-89 

04-17-89 

04-17-89 

04-20-89 

04-21-89 

04-24-89 

04-24-89 

04-24-89 

04-24-89 

04-26-89 

Urralburu Mining Company 

George H. Adkins v. Bob & Tom Coal, Inc. 

Rushton Mining Company 

Roger L. Stillion v. Quarto Mining Company 

Rodney Chaney v. Johnny Tackett(Gillette Coal Co.) 

Local 1570, Dist. 31, UMWA v. Eastern Associated 

Coal Corporation (not final) 

Donald F. Denu v. Amax Coal Company 

Super Block Coal Corporation 

Pomerleau Brothers, Inc. 

Sterling Energy, Inc. 

Utah Power & Light Company 

Sec. Labor for William J. Keller v. Consolidation 

Coal Company 

Paula L. Price v. Monterey Coal Company 

Martin Marietta Aggregates 

Herbert M. King v. Shamrock Coal Company 

Shamrock Coal Company 

Robert Young v. Lehigh Portland Cement Co. 

B and D Coal Company, Inc. 

Energy Fuels Coal, Inc. 

Moniteau County Commission 

Local 9909, Dist. 31, UMWA v. Cdnsolidation Coal Co. 

LeBlanc's Concrete & Mortar Sand Co. 

Green River Coal Company 

IMC Fertilizer, Inc. 

Utah Power & Light Company 

Associated Electric Cooperative Inc. 

ADMINISTRATIVE LAW JUDGE ORDER 

04-21-89 Calspar Division, Steelhead Resources, Inc. 

WEVA 87-89-D 

KENT 88-178 

KENT 89-2-D 

PENN 88-260 

WEST 85-19 

WEST 88-254-M 

KENT 88-180-D 

PENN 89-82-R 

LAKE 88-91-D 

KENT 88-82.-D 

WEVA 88-227-C 

LAKE 88-123-D 

LAKE 88-79 

YORK 89-8-M 

KENT 88-103 

WEST 89-160-R 

WEVA 88-202-D 

LAKE 86-45-D 

SE 88-87-M 

KENT 88-179-D 

KENT 88-11 

YORK 88-9-DM 

SE 88-·53 

WEST 88-168 

CENT 88-148-M 

WEVA 89-65-C 

CENT 88-106-M 

KENT 88-152 

SE 88-94-M 

WEST 89-161-R 

CENT 88-89 

Pg. 483 

Pg. 496 

Pg. 499 

Pg. 502 

Pg. 505 

Pg. 515 

Pg. 518 

Pg. 519 

Pg. 523 

Pg. 529 

Pg. 531 

Pg. 563 

Pg. 564 

Pg. 569 

Pg. 571 

Pg. 586 

Pg. 607 

Pg. 614 

Pg. 633 

Pg. 638 

Pg. 639 

Pg. 644 

Pg. 651 

Pg. 653 

Pg. 657 

Pg. 659 

Pg. 660 

Pg. 685 

Pg. 706 

Pg. 710 

Pg. 731 

WEST 88-347-M Pg. 743 

APRIL 1989 

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

Kenneth Howard v. B & M Trucking Co., Docket No. KENT 89-2-D. (Judge Melick, 

Dismissal of February 27, 1989) 

Secretary of Labor, MSHA v. Coal Junction Coal Co., Docket No. PENN 88-260. 

(Chief Judge Merlin, Dismissal of February 27, 1989) 

Secretary of Labor, MSHA v. Camp Fork Fuel Company, Docket No. KENT 88-178. 

(Chief Judge Merlin, Settlement of March 15, 1989) 

Cyprus Empire Corporation v. Secretary of Labor, MSHA, Docket No. 

WEST 88-250-R, etc. (Judge Morris, March 20, 1989) 

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

Arnold Sharp v. Big Elk Creek Coal Company, Docket No. KENT 88-165-D. (Judge 

Koutras, March 20, 1989) 

COMMISSION DECISIONS 

FEDERAL MINE SAFEr( AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

on behalf of ROGER LEE 

WAYNE, SR. 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

April 4, 1989 

Docket No. WEVA 87-89-D 

CONSOLIDATION COAL COMPANY 

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

Commissioners 

DECISION 

BY: Backley, Doyle, Lastowka and Nelson, Commissioners 

This proceeding concerns a discrimination complaint filed by the 

Secretary of Labor on behalf of Roger Lee Wayne, Sr., pursuant to the 

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

(1982)(the "Mine Act" or 11Act 11 ). The complaint alleges that 

Consolidation Coal Company ("Consol") violated section 105(c)(l) of the 

Mine Act, 30 U.S.C. § 815(c), when it denied Wayne the opportunity to 

participate in a post-inspection conference without a loss of pay. l/ 

ll Section 105(c)(l) provides: 

No person shall discharge or in any manner 

discriminate against or cause to be discharged or 

cause discrimination against or otherwise interfere 

with the exercise of the statutory rights of any 

miner, representative of miners or applicant for 

employment in any coal or other mine subject to this 

[Act] because such miner, representative of miners 

or applicant for employment has filed or made a 

complaint under or related to this [Act], 'including 

a complaint notifying the operator or the operator's 

4S3 
Commission Administrative Law Judge Avram Weisberger found that Consol 

discriminated against Wayne in violation of section 105(c)(l) and 

ordered Consol to reimburse Wayne for pay that Wayne lost as a result of 

Consol's action. The judge also assessed Consol a civil penalty of $300 

for the violation. 9 FMSHRC 1958 (November 1987)(ALJ). The Commission 

granted Consol's petition for discretionary review. For the reasons 

that follow, we reverse the judge's decision. 

The essential facts are not in dispute. Wayne is a first class 

mechanic employed on the day shift at Consol's Ireland Mine, an 

underground coal mine located in Moundsville, West Virginia; he is a 

member of the United Mine Workers of America ("UMWA" or "union"). At 

the time of the events herein he was a member of the union safety 

committee at the Ireland mine. 

A mandatory safety standard requires that the Secretary approve 

and the operator adopt a ventilation system and methane and dust control 

plan suitable to the conditions and mining system of each underground 

coal mine. 30 C.F.R. § 75.316 specifies that such plan "be reviewed by 

the operator and the Secretary at least every 6 months." In preparation 

for this mandated review, David Wolfe, an inspector and mine ventilation 

specialist of the Department of Labor's Mine Safety and Health 

Administration ("MSHA"), conducted a ventilation inspection at the mine 

from March 3 through March 6, 1986, in order to determine whether the 

mine's approved ventilation system and methane and dust control plan was 

adequate and suitable under existing mining conditions. Following the 

inspection, Wolfe arranged with Consol's superintendent of mines for a 

ventilation plan review meeting to take place at the mine on March 25, 

1986. 

On March 24, 1986, Hestel Riggle, Consol's safety engineer, told 

Wayne that the ventilation plan review meeting would be held on the 

following day. Wayne responded that he would probably go with Riggle to 

the meeting "because it was my shift." Tr. 84. According to Riggle, 

the next day and prior to the commencement of the day shift at 8:00 

a.m., Wayne informed Riggle that he was to be the representative of the 

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 

such miner, representative of miners or applicant 

for employment is the subject of medical evaluations 

and potential transfer under a standard published 

pursuant to section (101] of this [Act] or because 

such miner, representative of miners or applicant 

for employment has instituted or caused to be 

instituted any proceeding under or related to this 

[Act] or has testified or is about to testify in any 

such proceeding, or because of the exercise by such 

miner, representative of miners or applicant for 

e~ployment on behalf of himself or others of any 

statutory right afforded by this [Act]. 

30 U.S.C. § 815(c)(l)~ 

484 
miners at the meeting. Riggle told Wayne that if he was needed as a 

walkaround, he would be called to the meeting. Tr. 138; 9 FMSHRC at 

1960. 

On March 25, Inspector Wolfe arrived at the meeting site at 

8:40 a.m. Wolfe noted that among those present from Consol in addition 

to Riggle were Ray Temley, Mine Foreman; Kye Yavlak, Mine Engineer; 

Steve Perkins, Environmental Control Specialist; Albert Aloio, Assistant 

Mine Superintendent; and George Carter, Supervisor of Industrial and 

Employee Relations. Among those present for the miners were: David 

Shreve, UMWA International Safety Representative, and Bill Wise, Leo 

Conner, and David Miller, members of the union safety connnittee. 

Riggle asked Inspector Wolfe if a walkaround representative was 

needed at the meeting. 1/ Wolfe responded that one was not needed as 

the miners already had sufficient representatives. 9 FMSHRC at 1960. 

2/ The term "walkaround" is used for convenience in reference to the 

;ights granted miners' representatives under section 103(f) of the Mine 

Act, which provides: 

Subject to regulations issued by the Secretary, a 

representative of the operator and a representative 

authorized by his miners shall be given an 

opportunity to accompany the Secretary or his 

authorized representative during the physical 

inspection of any coal or other mine made pursuant 

to the provisions of subsection (a) of this section, 

for the purpose of aiding such inspection and to 

participate in pre- or post-inspection conferences 

held at the mine. Where there is no authorized 

representative, the Secretary or his authorized 

representative shall consult with a reasonable 

number of miners concerning matters of health and 

safety in such mine. Such representative of miners 

who is also an employee of the operator shall suffer 

no loss of pay during the period of his 

participation in the inspection made under this 

subsection. To the extent that the Secretary or 

authorized representative of the Secretary 

determines that more than one representative from 

each party would further aid the inspection, he can 

permit each party to have an equal number of such 

additional representatives. However, only one such 

representative of miners who is an employee of the 

operator shall be entitled to suffer no loss of pay 

during the period of such participation under the 

provisions of this subsection. Compliance with this 

subsection shall not be a jurisdictional prerequisite to the enforcement of any provision of 

this [Act]. 

30 u.s.c. § 813(f). 

485 
Miller then requested of Carter that Wayne attend the meeting as the 

designated representative of the miners. }/ Wolfe said that a 

walkaround was not necessary at the meeting because the meeting was not 

an inspection. Id. Carter then told Miller that Wayne could be brought 

out of the mine but only on "union business."!!_/ Miller then insisted 

that Wayne be notified to attend the meeting and Wayne was so notified. 

Before he could arrive at the meeting site, however, both sides had 

requested and obtained from Wolfe a postponement of the meeting. When 

Wayne arrived at the meeting site, he was told by Carter that because he 

had been called out of the mine on union business, he could not return 

to work. 

When Consol refused to pay Wayne for the remainder of his shift, 

Wayne filed a complaint with the Secretary alleging discrimination under 

section 105(c)(l) of the Act. Following an investigation by MSHA, the 

Secretary filed with the Commission the discrimination complaint on 

Wayne's behalf that is the subject of the present proceeding. The UMWA 

intervened in support of Wayne and after an evidentiary hearing on the 

merits, the judge issued his decision finding a violation by Consol of 

section 105(c). 

The administrative law judge concluded that the ventilation plan 

review meeting was a "post-inspection conference" within the purview of 

section 103(f) of the Act. 9 FMSHRC at 1962. The judge further 

concluded that Wayne was the "authorized representative" of the miners 

for participation in the March 25 conference and that his participation 

in the conference was protected under section 105(c) of the Mine Act. 

The judge noted the parties' stipulation that the safety committeeman 

who was on the shift at the time of the post-inspection conference would 

be the first choice as the authorized representative of the miners on 

that shift; that Wayne, a safety committeeman, was working on the shift 

during which the meeting occurred; and that Miller had requested that 

Wayne be present at the meeting as the designated representative of the 

miners. The judge concluded that although three other safety 

committeeman were already at the meeting, Wayne was the "authorized" 

representative of miners within the purview of section 103(f) of the 

Act. 9 FMSHRC at 1962. 

The judge also found that Wayne's loss of pay constituted an 

adverse action and that Carter's refusal to allow Wayne to return to 

work after the meeting had been postponed was an attempt to punish Wayne 

for attempting to exercise his protected right to attend the meeting. 

Therefore, the judge held that Consol unlawfully discriminated against 

Wayne in violation of section 105(c)(l) of the Act when it refused to 

11 At the hearing, the parties stipulated that a safety committeeman 

working on the shift during which an inspection or conference occurred 

would be the miners' f.irst choice as the authorized representative of 

the miners on that shift. See 9 FMSHRC at 1959. Wise, Conner and 

Miller worked on shifts other than the day shift. 

!!_/ The term "union business" refers to a contractual right to an 

excused, unpaid leave of absence to participate in union activities. 

486 
allow Wayne to return to work or to pay him. 9 FMSHRC at 1962-63. 

On review, Consol raises a number of arguments in support of its 

contention that the judge erred in finding that it unlawfully 

discriminated against Wayne. Consol argues that the March 25 ~eeting 

was not a "post-inspection conference" within the meaning of section 

103(f) and, therefore, Wayne's participation in the meeting was not 

protected activity. Consol also asserts that section 103(f) confers 

upon the Secretary and her authorized representative wide authority and 

discretion in interpreting and implementing walkaround rights, and that 

Inspectcr Wolfe, acting within that authority, excluded Wayne from 

walkaround status when he determined that the miners were already 

adequately represented at the meeting. In this regard, Consol contends 

that its stipulation that an on-shift safety committeeman is the miners' 

first choice as the walkaround representative on that shift does not 

guarantee walkaround status to the on-shift safety committeeman. 

Because Wayne's presence was determined by the inspector to be 

superfluous to the other miner representatives who were also present to 

aid and participate in the six-month ventilation meeting, Wayne was not 

entitled to be paid by Consol for the remainder of the shift after he 

exited the mine on union business. Finally, Consol argues that Wayne's 

right to go on union business and Consol's right to refuse to allow him 

to return to work or to pay him for the remainder of the shift are 

controlled by the 1984 Wage Agreement (the "contract"). 

In response, the Secretary and the UHWA contend that the 

ventilation review meeting was a "post-inspection conference" under 

section 103(f), Wayne was the miners' choice as their authorized 

representative for participating in the conference, the presence at the 

conference of other members of the union safety committee did not negate 

Wayne's right to participate in the March 25 meeting without a loss in 

pay, and that none of Inspector Wolfe's actions can properly deprive 

Wayne or the miners of their rights. 

We conclude the judge erred in finding, under the facts of this 

case, that Consol discriminated against Wayne· in violation of section 

105(c)(l). In reaching this conclusion, we need not resolve whether the 

meeting at issue is a compensable post-inspection conference. Rather, 

assuming the applicability of section 103(f) to a ventilation review 

meeting, we find that, given Inspector Wolfe's exercise of his authority 

under section 103(f), Consol cannot be found to have violated the Act. 

Under the Mine Act, a complaining miner establishes a prima facie 

case of discrimination by proving he engaged in protected activity and 

that the adverse action complained of was motivated in any part by that 

activity. Secretary on behalf of Pasula v. Consolidation Coal Co., 

2 FMSHRC 2786, 2797-2800 (October 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, 817-818 (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. Thus, to prevail bn his complaint, 

Wayne must first show that he had a protected right to attend the 

487 
March 25 meeting. 

Section 103(f) affords both representatives of operators and 

representatives of miners the right to accompany an MSHA inspector 

during a "physical inspection of .[the] ••• mine" and to "participate in 

pre- or post-inspection conferences held at the mine." 30 U.S.C. 

§ 813(f). We have previously emphasized the important function served 

by these rights in enhancing miners' understanding and awareness of the 

health and safety requirements of the Act. Emery Mining Corp., 

10 FMSHRC 276, 289 (March 1988), petition for review filed Nos. 88-1655 

and 1659 (10th Cir. April 27, 1988); Secretary on behalf of Truex v. 

Consolidation Coal Co., 8 FMSHRC 1293 (September 1986); see also Magma 

Copper Co., 1 FMSHRC 1948, 1951-52 (December 1979), aff'd, Magma Copper 

Co. v. FMSHRC, 645 F.2d 694 (9th Cir. 1981), cert. denied, 454 U.S. 940 

(1981). We have further recognized that section 103(f) provides miners, 

rather than mine operators, the right to designate a representative for 

section 103(f) inspections and conferences. Truex, 8 FMSHRC at 1298 .• 

Unlike Truex, however, the controlling question here is not whether the 

operator has a role to play in the selection of a miners' representati~e 

but the extent of the role played by the Secretary's Inspector. 

The right of a miners' representative to accompany an inspector is 

not an unqualified right. Emery, 10 FMSHRC at 289. Section 103(f) 

itself expressly provides that the exercise o~ the right is "[s]ubject 

to regulations issued by the Secretary," requires that a representative 

"be given an opportunity to accompany" the inspector, and grants the 

inspector discretion to permit additional representatives where he 

determines that more than one walkaround representative would aid his 

inspection. 30 U.S.C. § 813(f). See Emery, 10 FMSHRC at 289. 

In exercising the authority granted by section 103(f), the 

Secretary has recognized that the exercise of the walkaround right by 

miners' representatives must be the subject of appropriate qualification 

and she has expressly invested MSHA inspectors with the authority to 

limit the number of miners' representatives participating in an 

inspection, consistent with the primary obligation to carry out 

inspections in a thorough, detailed, and orderly manner. Interpretftive 

Bulletin, 43 Fed. Reg. 17546 (1978). Emery at 289 n. 13. ~/ 

~/ The Secretary's Interpretative Bulletin setting forth guidelines 

for the inspector's interpretation and application of section 113(f), 

provides: 

Considerable discretion must be vested in inspectors 

in dealing with the different situations that can 

occur during an inspection. While every reasonable 

effort will be made in a given situation to provide 

opportunity for full participation in an inspection 

by a representative of miners, it must be borne in 

mind that the inspection itself always takes 

precedence. The inspector's primary duty is to 

carry out a thorough, detailed, and orderly 

inspection. The inspector cannot allow inordinate 

488 
Here, .it is clear that Inspector Wolfe believed that Wayne's 

presence as a walkaround was not required at the meeting because the 

miners already were adequately represented by the three union safety 

committeemen then present. It is undisputed that Wolfe informed the 

representatives of the miners already in attendance, as well as Consol's 

representative, of his position. Consol's safety engineer Riggle 

testified that had Wolfe stated that he required a walkaround for the 

meeting, Consol would have made certain that a walkaround was available 

to the inspector, and the parties do not dispute that Consol's practice 

is to defer to the MSHA inspector's determination regarding walkaround. 

Tr. 144, 154. 

In view of the central role that inspectors play under the statute 

and the Secretary's own guidelines with respect to walkaround representation, we hold that the judge erred when he found "no relevance" in 

Wolfe's "comments" that "a 'walkaround' was not required ••• and that 

the miners were already represented by the three safety committeemen who 

were present." 9 FMSHRC at 1962. In stating to the representatives·of 

the miners and of Consol already present at the meeting that Wayne's 

additional presence was not required, Wolfe exercised the discretionary 

authority accorded him by the Act to determine the composition of the 

group participating in an inspection. Since three other members of the 

union safety committee and one representative of the International UMWA 

were present at the meeting, we cannot say that the inspector acted 

arbitrarily or capriciously in excluding Wayne. 

We have considered the parties' stipulation that the safety 

committeeman working the shift during which an inspection takes place 

would be the "first choice" as miners' representative for an inspection 

occurring during that shift. The statute, however, does not limit 

walkaround participation to only "on-shift" miners. Instead, the 

statute requires only that, if an "on-shift" representative participates 

delays in commencing or conducting an inspection 

because of the unavailability of or confusion 

surrounding the identification or selection of a 

representative of miners. Where necessary in order 

to assure a proper inspection, the inspector may 

limit the number of representatives of the operator 

and miners participating in an inspection. The 

inspector can also require individuals asserting 

conflicting claims regarding their status as 

representatives of miners to reconcile their 

differences among themselves and to select a 

representative. If there is inordinate delay, or if 

the parties cannot resolve conflicting claims, the 

inspector is not required to resolve the conflict 

for the miners and may proceed with the inspection 

without the presence of a representative. 

43 Fed. Reg. at 17546 (emphasis added). 

489 
as the autherized representative, such representative is to be 

compensated by the operator: Here, several representatives of miners 

were present to participate at the meeting and the inspector, acting 

within his authority, determined that an additional miners' 

representative was not needed. In the circumstances of this case, the 

inspector's decision controls. 

Accordingly, we find that the inspector acted within the 

discretion granted him under section 103(f) and the Secretarial 

guidelines in determining that Wayne's presence was not required at the 

meeting. We further find that in relying upon the inspector's 

determination Consol did not violate section 105(c). Therefore, the 

judge's decision is reversed, the discrimination complaint is dismissed, 

and the penalty assessed by the judge is vacated • 

. ~· 

Joyce 

<2~d.~ A. Doyle, CommiSSiOr 

490 
Chairman Ford concurring in result: 

I agree with my colleagu~ in the majority that the decision of the 

judge should be reversed, but I would base the reversal on a more fundamental ground: Mr. Wayne's participation in the ventilation plan review 

meeting of March 25, 1986 was not a statutorily protected activity, the 

denial of which would constitute a violation of section 105(c) of tl:te 

Mine Act. 30 u.s.c. 815(c). To the extent that my colleagues decline 

to reach the issue of whether a miner or miner representative's.participation in such a review meeting lies within the "walkaround" righ~ set forth 

in section 103(f) of the Mine Act, 30 U.S.C. 813(f), I am obliged to file 

this separate opinion. 

It is appropriate to begin an analysis of how this dispute arose by 

recalling what Inspector Wolfe was doing at the Ireiand Mine in March of 

1986. He was there to carry out the Secretary's responsibilities under 

30 C.F.R. 75.316, which requires that coal mine ventilation plans "be 

reviewed by the operator and the Secretary at least every six months" 

(emphasis added). The regulation is drawn verbatim from the Mine Act 

itself. 30 U.S.C. 863(0). There is simply no regulatory or statutory 

authority for participation by miners or their representatives in the 

development, review and approval of mine ventilation plans, however 

appropriate such participation might be. 1./ 

The question then becomes whether, despite this lack of authority for 

miner participation in the plan review and approval process, there exists 

an overriding right of participation derived from section 103(f) of the 

Mine Act. That section provides the miners' representative "an opportunity 

to accompany" the inspector during the physical inspection of the mine and 

"to participate in pre- or post- inspection conferences held at the mine." 

The Secretary argues that Inspector Wolfe's ventilation survey conducted on 

March 3-6, 1986 and the follow-up review meeting held on March 25, 1986 both 

invoke the "walkaround" right of section 103(f). The Secretary's position on 

review, however, conflicts with the delineation of section 103(f) rights set 

forth in the Department of Labor's Interpretative Bulletin (Bulletin) issued 

April 25, 1978, which is the only official Secretarial pronouncement on the 

scope of walkaround participation. 43 Fed. Reg. 17546. ]:_/ 

1./ The standard also provides that plans be initially "adopted" by the 

operator and "approved" by the Secretary. Numerous ventilation standards 

within Part 75, however, do require that records and reports of ventilation examinations conducted to evaluate the effectiveness of the ventilation plan must be made available to "interested persons" which would of 

course include miners. See, e.g., 30 C.F.R. 75.300-4, 75.303, 75.305 and 

75.306. Additionally, 30 C.F.R. 75.1203 requires that a mine map setting 

forth the ventilation system be kept current and made available to miners 

and their representatives. 

2/ The Bulletin does not address a miners' representative's participation in pre-and post-inspection conferences; rather, it deals with various 

mine site "activities" giving rise to miners' participation rights. For 

purposes of analysis here, however, I am assuming that if a right to participate in a particular activity exists, that right extends to any subsequent 

conference held on mine property to discuss specifically the consequences 

of that activity. 

491 
Stating that "the types of activities which give rise to the [miner's] 

participation right under section 103(f) are numerous, but pot unlimited," 

the Bulletin proceeds to distinguish those situations where walkaround 

participation is warranted from those where it is not. Those activities 

giving rise to the right of participation are: (1) "regular inspections", 

i.e., the four underground and two surface mine inspections required 

annually by the Mine Act; (2) "spot inspections", described as inspections 

made for purposes of determining if an imminent danger or a violation 

exists; (3) inspections in response to requests from miners or their representatives, i.e., section 103(g) inspections; (4) inspections at mines 

liberating excessive quantities of methane or other explosive gases, i.e., 

section 103(i) inspections; and (5) inspections in conjunction with accident investigations. 43 Fed. Reg. 17547-48. 

Conversely, activities that do not invoke the right to participation 

include: (1) technical consultations; (2) demonstration of prototype 

equipment; (3) education and training services; (4) safety and health 

research; (5) general information gathering; (6) criminal investigations; 

(7) investigations of discrimination complaints; (8) investigations into 

petitions for variances under section lOl(c); and (9) field certification 

of permissible equipment. 43 Fed. Reg. 17548. 

Viewed against the backdrop provided by these distinctions, I conclude that the activity engaged in by Inspector Wolfe during his visits 

to the mine on March 3-6, 1986 was more in the nature of consultation 

and information gathering in conjunction with the plan review and approval 

process than in the nature of "direct enforcement activity" described by 

the Bulletin as "carried out for the purpose of determining if an imminent 

danger or a violation exists." 43 Fed. Reg., 17547-48. l_/ 

This is not to say that "direct enforcement activity" could not arise 

in the course of an activity that would not otherwise invoke a miner representative's right to participate. In fact, Inspector Wolfe issued two 

3/ Indeed, the inspector's activities throughout March of 1986 are most 

analogous to those carried out during investigations into petitions for 

variance under section lOl(c) (number 8 among the list of activities, supra, 

that do not give rise to miner participation rights). In both cases, the 

ope-rator""S"""past compliance record is reviewed, whether that review covers 

compliance with the current plan or compliance with the standard from which 

a variance is sought. Likewise, in both cases the review covers proposed 

changes in the operator's compliance responsibilities, whether through 

revisions to the plan or through the variance being sought. If, as the 

Secretary argues and the judge found, the discussion of past compliance 

and changes in future compliance responsibilities are the criteria for 

determining whether an activity, i.e., the ventilation review meeting, 

comes within the "purview of section 103(f)", 9 FMSHRC 1962, I fail to 

see why section lOl(c) investigations would not also require walkaround 

participation. 

492 
citations during the March 3-6 survey though neither one related to the 

ventilation standards or the ventilation plan (nor were the two citations 

reviewed at the March 25 meeting). The Bulletin, however, anticipates such 

circumstances by stating that while "enforcement action could result from 

some of those [non-participation] activities ••• [t]he continuing presence 

of a representative of the miners in all phases of the activities "Would not 

necessarily aid the activity" 43 Fed. Reg. 17548. 

Granting appropriate deference to the Secretary as an interpreter of 

the enabling statute, I find no basis in her Interpretive Bulletin for 

considering the mine plan review and approval process as an activity 

giving rise to section 103(f) participation rights for miners or their 

representatives. Indeed, the Bulletin taken as a whole supports an 

opposite view. Nor am I persuaded by the case law advanced by the Secretary in support of her position. In Southern Ohio Coal Co., 8 FMSHRC 

295 (March 1986) miner participation at a post-inspection conference was 

specifically authorized by 30 C.F.R. 100.6 which granted "all parties" 

the opportunity to review each citation and order issued during a regular 

quarterly inspection. Id. 296. In Secretary on behalf of Truex v. 

Consolidation Coal Co., 8 FMSHRC 1293 (March 1988) the operator stipulated 

that a miner representative's attendance at a conference called to discuss 

a hearing conservation program was subject to the walkaround requirements 

of section 103(f). Here, there is neither regulatory authority nor an 

admission by the operator establishing that the ventilation plan review 

meeting of March 25, 1986 was subject to the walkaround rights of section 

103(f). 

In the final analysis the dispute in this case appears to have arisen 

from the inevitable blurring of miner's rights set forth separately in the 

Mine Act and in the National Bituminous Coal Agreement of 1984 and in their 

respective predecessors. Custom and practice at the Ireland Mine have 

obviously led to some confusion as to where statutory rights terminate and 

wage agreement rights commence. 4/ As this Commission has often stated, 

however, "the Mine Act is not an-employment statute." United Mine Workers 

of America on behalf of James Rowe et al. v. Peabody Coal Co., 7 FMSHRC 

1357, 1364 (1985) aff'd 822 F.2d 1134 (D.C. Cir. 1987). Great care must 

therefore be taken by the Secretary and the Commission to keep statutory 

and contractual rights separate and distinct. Here, regardless of what 

rights of participation may or may not lie in contract, it is clear to me 

that neither the Mine Act nor, in particular, standard 30 C.F.R. 75.316 

grants miners or their representatives rights to participate in the review 

and approval of mine ventilation plans. If the Secretary believes that 

4/ See, for instance, Article III, section (d)(7) of the wage agreement 

guaranteeing pay for certain safety committee activities and Article III, 

section (h) setting forth miners' rights to receive in advance and to comment 

upon various plans required to be developed and approved under the Mine Act. 

In fact, the latter provision was invoked by safety committeeman Miller when 

he requested a 10 day postponement of the March 25, 1986 meeting to allow the 

union to consider an MSHA-proposed change in the ventilation plan. Tr. 107, 

109. Although the plan was ultimately approved, the rescheduled meeting was 

never held. Tr. 55. 

493 
such participation is both vital and appropriate (and sound arguments can 

be marshalled ·to support that belief) her recourse is to the rulemaking 

provisions of section 101 of the Act, not to the discrimination provisions 

of section 105(c). ii 

For the reasons set forth above I would reverse the decision of the 

judge and dismiss the complaint. 

~~ Chairman 

5/ In fact, it should be noted that the scope of miner participation in 

the development, approval and periodic review of mine plans is a specific 

consideration in the Secretary's ongoing rulemaking activities. The 

Secretary's relatively recent revision of her roof control standards does 

not provide for the participation of miners or their representatives in 

the development of roof control plans nor in the approval and review 

process. Plans are to be "developed" by the operators, "approved" by 

the MSHA District Managers, and "reviewed" every six months by the 

Secretary's authorized representatives. 30 C.F.R. 75.220, 75.222 and 

75.223. See 53 F.R. 2375, 2378-80 (January 27, 1988). Miner involvement is limited to access to approved plans and instruction in their 

provisions prior to implementation. Id. In her preamble to the 

standards, however, the Secretary deferred the issue of miner participation in the plan approval process to her pending rulemaking proceedings 

on ventilation standards. 53 F.R. 2370. In turn, the Secretary's proposed rule on ventilation provides the miners' representative an opportunity 

to provide written comments on the mine operator's proposed plan and to 

meet with the District Manager to discuss the plan. The proposal is 

silent, however, with respect to walkaround rights. 53 F.R. 2354, 2404, 

2421 (January 27, 1988). 

494 
Distribution 

Colleen A. Geraghty, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Thomas M. Myers, Esq. 

United Mine Workers of America 

56000 Dilles Bottom 

Shadyside, Ohio 43947 

Michael Peelish, Esq. 

Consolidation Coal Company 

1800 Washington Road 

Pittsburgh, PA 15241 

Administrative Law Judge Avram Weisberger 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

495 
FEDERAL MINE SAFE'ey AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

CAMP FORK FUEL COMPANY 

April 7, 1989 

Docket No. KENT 88-178 

BEFORE: Ford, Chairman; Doyle and Lastowka, Commissioners 

DIRECTION FOR REVIEW AND ORDER 

BY THE COMMISSION: 

This civil penalty proceeding arises under the Federal Mine Safety 

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

Commission Chief Administrative Law Judge Paul Merlin issued a Decision 

Approving Penalty and Order of Dismissal on March 15, 1989, approving 

the proposed civil penalty in this matter, stating that it had been paid 

by the operator, and dismissing the proceeding. The judge previously 

received a letter from the operator, filed in response to the judge's 

earlier show cause order, in which the operator asserts that it had paid 

the proposed civil penalty in issue. Counsel for the Secretary of Labor 

has filed with the Commission a Motion for Reconsideration, stating that 

the Secretary has been unable to locate any record indicating that the 

civil penalty has, in fact, been paid and requesting reopening of the 

proceeding. For the reasons discussed below, we deem the Secretary's 

motion to constitute a timely petition for discretionary review, which 

we grant. We vacate the dismissal order and remand to the judge for 

appropriate proceedings. 

On May 3, 1988, an inspector of the Department Labor's Mine Safety 

and Health Administration issued to Camp Fork Fuel Company ("Camp 

Fork"), at its No. 4 Shelby Gap mine, a citation pursuant to section 

104(a) of the Mine Act, 30 U.S.C. 814(a), alleging a violation of 30 

C.F.R. § 75.206 for excessive width of mining entries. The citation was 

not contested by the operator. Subsequently, the Secretary notified 

Camp Fork of a proposed civil penalty of $295 for the alleged violation, 

and the operator filed a "Blue Card" request for a hearing. 

496 
On August 22, 1988, the Secretary filed a Proposal for Assessment 

of Civil Penalty. Camp Fork did not file an answer to the proposal, as 

it was required to do in order to maintain its contest. See 29 C.F.R. 

§ 2700.28. Accord~ngly, on December 22, 1988, Judge Merlin issued an 

Order to Respondent to Show Cause, explaining the requirements for 

filing an answer and directing the operator to file its answer or show 

good reason for not doing so within 30 days of the order. By 

handwritten letter dated January 23, 1989, from Camp Fork's bookkeeper, 

the operator stated that it disagreed with the citation but felt that it 

was cheaper to pay the proposed penalty than to litigate over it. Camp 

Fork asserted that it had paid the penalty by check #12087 on October 9, 

1988. There is no indication in the record that a copy of this letter 

was served upon the Secretary as required, and no response to it from 

the Secretary appears in the record. 

On March 15, 1989, Judge Merlin issued his dismissal order. He 

approved the $295 proposed penalty assessment as. being consistent with 

the Mine Act, noted that the operator had paid the proposed penalty, and 

dismissed the proceeding. On March 24, 1989, counsel for the Secretary 

filed with the Commission a Motion for Reconsideration, in which counsel 

states that the Secretary cannot locate any record reflecting payment of 

the civil penalty. The Secretary seeks reopening of the proceeding and 

requests that the judge issue an order directing payment of the penalty 

or submission of proof of payment. ·· 

Judge Merlin's jurisdiction in this matter terminated when his 

dismissal order issued on March 15, 1989. 29 C.F.R. § 2700.65(c). 

Under the Mine Act and the Commission's procedural rules, once a judge's 

decision has issued, relief from the decision may be sought by filing 

with the Commission a petition for discretionary review within 30 days 

of the decision. 30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.70. Here, the 

Secretary's motion is a request for relief from the judge's decision and 

we will treat it as a timely petition for discretionary review. ~' 

~' Secretary on behalf of DeLisio v. Mathies Coal Co., 9 FMSHRC 193, 

194 (February 1987). 

An operator's payment of a civil penalty extinguishes its right to 

contest the penalty and the underlying alleged violation, except where 

payment has been made by genuine mistake. Old Ben Coal Co., 7 FMSHRC 

205, 207-10 (February 1985). Such payment would afford a proper basis 

for dismissal of this proceeding. The Secretary's motion, however, 

questions the basis upon which the judge's dismissal order rests. 

497 
Accordingly, we grant the Secretary's petition for discretionary 

review, vacate the dismissal order, and remand this matter to the judge 

for further appropriate proceedings. ll 

R.-~ FordB. ~ 

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

have designated ourselves a panel of three members to exercise the 

powers of the Commission in this matter. 

498 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

KENNETH HOWARD 

v. 

B & M TRUCKING 

.1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

April 7, 1989 

Docket No. KENT 89-2-D 

BEFORE: Ford, Chairman; Doyle and Lastowka, Commissioners 

DIRECTION FOR REVIEW AND ORDER 

BY THE COMMISSION: 

In this discrimination proceeding arising under the Federal Mine 

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

Act"), Commission Administrative Law Judge Gary Melick issued an Order 

of Dismissal on February 27, 1989, finding that complainant Kenneth 

Howard had failed to respond to an earlier Order to Show Cause and 

dismissing Howard's discrimination complaint. Subsequently, the 

Commission received from the attorney representing Howard a Motion to 

Reinstate, asserting that the failure to respond to the show cause order 

was due to counsel's misunderstanding of that order. Under the 

circumstances presented, we deem this motion to constitute a timely 

petition for discretionary review, which we grant. We vacate the 

judge's dismissal order, and remand for further proceedings. 

On October 3, 1988, Howard, by counsel, filed with the Commission 

a discrimination complaint alleging that he had been discriminatorily 

discharged by B&M Trucking ("B&M") in violation of section lOS(c) of the 

Mine Act. 30 U.S.C. § 815(c). 1/ The complaint, as supplemented on 

October 7, 1988, alleges that Howard, a truck driver, was discharged 

because he had objected on safety grounds to operating a front end 

loader that he had not been trained to operate. The complaint requests 

backpay, reinstatement, punitive damages, and attorney's fees and costs. 

1/ Under Commission Procedural Rule 40(b), 29 C.F.R. § 2700.40(b), as 

amended (52 Fed. Reg. 44882 (November 23, 1987)), a miner may file his 

own section 105(c)(3) complaint of discrimination for alleged violation 

of section 105(c) of the Mine Act only if the Secretary of Labor has 

made a prior determination that no violation of the Act has occurred. 

See also 30 U.S.C. §§ 815(c)(2) & (3). 

499 
In an Order to Show Cause dated December 2, 1988, Commission Chief 

Administrative Law Judge Paul Merlin observed that Howard had not shown 

compliance with the Commission's requirements for filing a 

discrimination complaint pursuant to section 105(c)(3) of the Mine Act 

and ordered the complainant to file with the Commission a copy of a 

certified mail return receipt showing delivery of the discrimination 

complaint to the operator and a copy of the determination letter from 

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

finding that a violation of the Mine Act had not occurred. The order 

directed Howard to send the complaint to the operator, if he had not 

already done so, along with a note to the operator stating that 

complainant disagreed with MSHA's determination and was requesting 

review and relief by the Commission. Howard was ordered to comply with 

the above requirements within 30 days of the date of the order or to 

show good reason for failure to do so. 

On February 27, 1989, Judge Melick, to whom the matter had been 

assigned, issued an Order of Dismissal in which he found that 

complainant had failed to respond to the show cause order. Accordingly, 

the judge dismissed the discrimination complaint. On March 13, 1989, 

the attorney for Howard filed with Judge Melick ~ Motion to Reinstate 

the discrimination complaint. 

Because Judge Melick's jurisdiction in this matter terminated when 

his dismissal order issued on February 27, 1989, 29 C.F.R. § 2700.65(c), 

he forwarded the Motion to Reinstate to the Commission's Docket Office, 

where it was received on March 14, 1989. B&M has not filed a response 

to this motion. Under the Mine Act and the Commission's procedural 

rules, once a judge's decision has issued, relief from the decision may 

be sought by filing with the Commission a petition for discretionary 

review within 30 days of the decision. 30 U.S.C. § 823(d)(2); 29 C.F.R. 

§ 2700.70. Here, the Motion to Reinstate is a request fot relief from 

the judge's decision and, under the circumstances presented, we will 

treat it as a timely-filed petition for discretionary review. See, 

~' Middle States Resources, Inc., 10 FMSHRC 1130 (September 1988). 

Judge Melick's dismissal of the complaint was based on 

complainant's default in not responding to the show cause order. The 

Commission has stated that "in general, if a defaulting party can make a 

showing of adequate or good cause for the failure to respond to an 

order, the failure may be excused and appropriate proceedings on the 

merits permitted." M.M. Sundt Construction Co., 8 FMSHRC 1269, 1271 

(September 1986), citing Valley Camp Coal Co., 1 FMSHRC 791, 792 (July 

1979). In assessing the existence of adequate cause, explanatory 

factors akin to those mentioned in Fed. R. Civ. P. 60(b)(l) -- mistake, 

inadvertence, surprise, or excusable neglect -- may be relevant. Valley 

Camp, supra, 1 FMSHRC at 792 & n. 3. The absence of bad faith on the 

part of the defaulting party is also a relevant concern. Easton Constr. 

Co., 3 FMSHRC 314, 315 (February 1981). An attempt to comply at least 

partially with the order in question may be a mitigating factor as well. 

Sigler Mining Co., 3 FMSHRC 30 (January 1981). 

In this case, Howard's counsel states that the failure to comply 

with the show cause order was due to her own misunderstanding of the 

500 
judge's ord~r. The Motion to Reinstate alleges that the complaint was 

served on B&M within the period required by the show cause order, and 

the certified mail return receipt is attached to the motion. The 

complaint also outlines the relief requested. Thus, there is some 

indication on the record of complainant's attempts to comply with 

requisite filing requirements and with the show cause order. We are 

reluctant to impose default by attributing to a party the non-willful 

errors of its counsel. See, ~· Jackson v. Beech, 636 F.2d 831, 835-

37 (D.C. Cir. 1980). 

Although there is not sufficient information on the record to 

permit us to rule finally on the substantive merits of Howard's motion 

at this time, we conclude that in the interest of justice, complainant 

should have the opportunity to present his position to the judge, who 

shall determine whether final relief from the default order is 

warranted. See Kelley Trucking Co., 8 FMSHRC 1867, 1869 (December 

1986). In connection with further proceedings before the judge, we note 

that Howard's attorney has not furnished the Commission with a copy of 

the letter from MSHA indicating its determination that no violation of 

the Act occurred, or with proof that Howard's supplemental statement 

filed on October 7, 1988, has been served on the operator. 

Accordingly, review of the judge's order of dismissal is hereby 

.granted, the order is vacated, and this matter is remanded for further 

appropriate proceedings. ~/ 

'?~ 1QYce:DOY1e, tl 

CommissiQitier ~7.Lc_ 

James A. Lastowka, Commissioner 

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

have designated ourselves a panel of three members to exercise the 

powers of the Commission in this matter. 

501 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

April 7, 1989 

Docket No. PENN 88-260 

COAL JUNCTION COAL COMPANY 

BEFORE: Ford, Chairman; Doyle and Lastowka, Commissioners 

DIRECTION FOR REVIEW AND ORDER 

BY THE COMMISSION: 

In this civil penalty proceeding arising under the .Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 801 et seg.=(1982)("Mine 

Act"), Commission Chief Administrative Law Judge Paul Merlin issued an 

Order of Dismissal on February 27, 1989, stating that the Commission has 

been informed by the Secretary of Labor that the proposed civil 

penalties had been paid by Coal Junction Coal Company ("Coal Junction").· 

However, in a letter to Judge Merlin dated March 3, 1989, and received 

by the Commission on March 6, 1989, Coal Junction submitted an Answer to 

the Secretary's Petition for Assessment of Civil Penalty, which had been 

filed in August 1988. The Answer indicates that Coal Junction wishes to 

pursue its contest in this matter. Under the circumstances presented, 

we deem Coal Junction's Answer to constitute, in effect, a petition for 

discretionary review, which we grant. The judge's dismissal order is 

vacated and this matter is remanded for further proceedings. 

On April 25 and 26, 1988, an inspector of the Department of 

Labor's Mine Safety and Health Administration ("MSHA") issued to Coal 

Junction, at its surface. coal mine in Pennsylvania, a number of 

citations for alleged violations of mandatory standards. Coal Junction 

did not immediately contest the citations. In June 1988, MSHA notified 

Coal Junction that it proposed civil penalties of $407 for the alleged 

violations. In response to this notification, Coal Junction filed with 

the Commission a "Blue Card" request for a hearing. On August 22, 1988, 

502 
the Secretary filed with the Commission a Petition for Assessment of 

Civil Penalty, and certified that a copy of the petition had been mailed 

to Coal Junction. 

Coal Junction did not file an answer to the Secretary's petition 

within 30 days, as it was required to do in order to maintain its 

contest. See 29 C.F.R. § 2700.28. Accordingly, on December 5, 1988, 

Judge Merlin issued to Coal Junction an Order to Show Cause explaining 

the requirements for filing an answer to a civil penalty proposal and 

ordering the operator to file its answer within 30 days or be found in 

default. No answer or other response to the show cause order was 

received by the Commission within that time. 

On February 9, 1989, MSHA transmitted to the Commission's Docket 

Off ice a memorandum indicating, in relevant part, that the proposed 

civil penalties in this proceeding had been paid by the operator. On 

February 27, 1989, Judge Merlin issued his dismissal order, based on the 

information that the civil penalties had been paid. By letter dated 

March 3, 1989, the attorney for Coal Junction transmitted to the 

Commission an answer stating that Coal Junction wishes to contest the 

alleged violations. (The operator's papers do not refer to Judge 

Merlin's show cause or dismissal orders, do not mention the apparent 

payment of proposed civil penalties, and do not explain the late filing 

of the answer.) 

The judge's jurisdiction in this matter terminated upon issuance 

of his dismissal order. 29 C.F.R. § 2700.65(c). Under the Mine Act and 

the Commission's procedural rules, relief from a judge's decision may be 

sought by filing with the Commission a petition for discretionary review 

within 30 days of the decision. 30 U.S.C. § 823(d)(2); 29 C.F.R. 

§ 2700.70. Here, we deem Coal Junction's answer to constitute, in 

effect, a timely petition for discretionary review of the judge's 

dismissal order. See,~' Middle States Resources, Inc., 10 FMSHRC 

1130 (September 1988). 

An operator's payment of a civil penalty extinguishes its right to 

contest the penalty and the underlying violation, except where payment 

has been made by genuine mistake. Old Ben Coal Co., 7 FMSHRC 205, 207-

10 (February 1985). The filing of Coal Junction's answer, albeit late, 

suggests that, in the interest of justice, the operator should be heard 

with respect to MSHA's assertion that the penalties have been paid. 

503 
Accordingly, we grant the operator's petition for discretionary 

review, vacate the dismissal order, and remand this matter to the 

judge for further appropriate proceedings. l_/ 

~.# ·/ /j° /( / 

Ve~/r-<-- t( , ~-~L<:_ Joy~ A. IfOYle: Commissioner 

!/ Pursuant to section 113(c) of the Mine Act, 30 U.S.C. 

§ 823 (c) ,. we have designated ourselves a panel of three members to 

exercise the powers of the Commission in this matter. 

504 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR. 

WASHINGTON, D.C. 20006 

April 24, 1989 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. Docket No. WEST 85-19 

MID-CONTINENT RESOURCES, INC. 

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

Conunissioners 

DECISION 

BY: Ford, Backley, Lastowka and Nelson 

The issue in this proceeding arising under the Federal Mine Safety 

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

whether the Secretary of Labor ("Secretary") proved the validity of a 

withdrawal order issued pursuant to section 104(b) of the Mine Act, 

30 U.S.C. § 814(b). l/ The withdrawal order alleges that Mid-Continent 

ll Section 104(b) states: 

If, upon any follow-up inspection of a •.. mine, 

an authorized representative of the Secretary finds 

(1) that a violation described in a citation issued 

pursuant to [section 104) ••• 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) of this section, to be withdrawn 

from, and to be prohibited from entering, such area 

until an authorized representative of the Secretary 

505 
Resources, Inc. ("Mid-Continent") failed to abate a violation of 

30 C.F.R. § 75.1704 within the prescribed period of time. 2/ Commission 

Administrative Law Judge Michael A. Lasher found that the Secretary did 

not prove that.Mid-Continent failed to abate the violation, and he 

vacated the section 104(b) withdrawal order. 9 FMSHRC 1757 (October 

1987)(ALJ). We granted the Secretary's petition for discretionary 

review challenging the judge's finding. For the reasons that follow, we 

affirm. 

The events leading to the issuance of the contested withdrawal 

order occurred in the designated return air escapeway of the 102 Long 

Wall Panel at Mid-Continent's Dutch Creek No. 1 Mine, an underground 

coal mine, located at Carbondale, Pitkin County, Colorado. The mine 

lies under 2000 to 3000 feet of overburden. As a result of pressure 

from the overburden, the mine has an ongoing problem with floor heave 

and deterioration of the ribs of mine entries. Man-made pack walls, 

composed of cement and crushed rock or a crushed limestone mixture, 

provide support in the entries, including entries serving as 

escapeways. 11 Pressure from the overburden causes the pack walls to 

deteriorate and to buckle. Also, water continually seeps into the mine. 

As a result, impoundments of water in the escapeways can occur. 

On June 20, 1984, Mine Safety and Health Administration ("MSHA") 

Inspector Louis Villegas inspected the designated return air escapeway 

of the 102 Long Wall Panel. As Villegas walked the escapeway he saw 

that the floor had heaved and that a dam composed of rock and mud mixed 

determines that such violation has been abated. 

30 u.s.c. § 814(b). 

~/ 30 C.F.R. § 75.1704, the mandatory underground coal mine 

escapeways standard, provides in part: 

[A]t 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 surf ace escape drift 

opening, or continuous to the escape shaft or slope 

facilities to the surf ace, as appropriate, and shall 

be maintained in safe condition and properly 

marked •••• 

Section 75.1704 essentially restates section 317(f)(l) of the Mine Act, 

30 u.s.c. § 877(f)(l). 

11 A "pack wall" is "a dry-stone wall built along the edge of a 

roadway of a coal ••• mine. The wall helps to support the roof and also 

to retain the packing material and prevent it spreading onto the 

roadway." Bureau of Mines, U.S. Department of Interior, A Dictionary of 

Mining, Mineral, and Related Terms 787 (1968). 

506 
with coal had built up to a height of 15 inches. The dam was impounding 

water at a point approximately 450 feet from the .face. The water was up 

to 12 inches deep and covered the width of the entry. 9 FMSHRC 1760-61. 

Because the inspector believed that the impoundment obstructed the 

escapeway to the extent that passage through the escapeway could not be 

insured at all times, he issued a citation pursuant to section 104(a) of 

the Act alleging a violation of section 75.1704, supra. The citation 

states: 

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 102 

Longwall face, floor material had been pushed up to 

within 4 feet of the roof forming a bank and a[n] 

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. 

Exh. P-1. (emphasis added). 

Inspector Villegos issued the citation at 5:15 p.m. on June 20. 

In the citation he fixed the time for abatement of the violation as 

9:00 p.m. the same day. Villegos subsequently twice extended the time 

for abatement, to July 11, 1984, and to July 20, .1984. 

Between June 20 and July 25 mining had advanced in the 102 Long 

Wall Panel. On July 25, 1984, MSHA Inspector Lee H. Smith inspected the 

same escapeway with MSHA Supervisory Inspector Clarence Daniels and Mine 

Superintendent Allyn Davis. Smith had discussed the section 104(a) 

citation with Villegos. Tr. 126-127. Smith was aware that the time had 

passed for abatement of the violation but had not previously seen the 

conditions for which the citation was issued. 

During inspection of the escapeway Smith observed an impoundment 

backing up water. In addition, portions of the pack walls in the area 

of this impoundment had fallen into the escapeway and the mine floor had 

heaved to within four feet of the roof. Water and mud had accumulated 

in the impoundment, which was approximately 50 to 70 feet in length by 

six to 8 feet in width. Smith testified that the water was about 12 

inches deep for a distance of at least 20 feet and the heaving problem 

existed from the water and mud accumulation to within 100 to 150 feet of 

the ~ace~~ Tr. 119, 120-22, 154-55. Smith believed that the obstruction 

in the escapeway represented '"'an ongoing condition in the area," and 

that afte~-two extensions of the period of time fixed to abate the 

violation that the area "was not being cleaned fast enough." Tr. 151. 

Smith, after discussions with Daniels and Davis, believed that the 

obstructed area of the escapeway was the :same area cited by Villegos on 

June 20. Tr. 126. However, at the hearing on the matter, Smith 

unequivocally testified that in fact the area was not the same. 

507 
Tr. 122-23, 140-141, 150-151, 154. ~/ 

Smith issued to Mid-Continent a section 104(b) withdrawal order 

stating in part: 

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 •••. 

Exh. P-4. On July 30, 1984, Mid-Continent abated the condition leading 

to issuance of the withdrawal order by grading the entire escapeway to a 

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

At the hearing, Mid-Continent conceded that the conditions cited 

by Villegas violated section 75.1704. Mid~Continent argued, however, 

that because the obstruction cited by Smith in the withdrawal order was 

different from the obstruction cited in the citation, the section 104(b) 

order was improperly issued on the basis of its failure to abate the 

violation alleged in the citation. The Secretary argued that because the 

escapeway was obstructed on July 25, Mid-Continent had not abated the 

violation within the period of time as subsequently extended. 

Alternatively, the Secretary argued that the conditions observed by 

Smith constituted a separate violation of section 75.1704 and that the 

contested withdrawal order should be modified to a section 104(a) 

citation. ~/ 9 FMSHRC 1759-60 (Tr. 114, 274-75). 

In his decision the judge followed the alternative course argued 

for by the Secretary. He found that the Secretary had proved two 

separate violations of section 75.1704 -- one on June 20, 1984, and one 

on July 25, 1984 -- but concluded that the Secretary had not proved that 

Mid-Continent failed to abate the first cited violation. Therefore, the 

judge held that the order of withdrawal was invalid, and he modified it 

to a section 104(a) citation. 9 FMSHRC at 1766-67. 

In considering the validity of the withdrawal order the judge 

stated: 

~/ The judge found that "[t]he area described in the withdrawal order 

was closer to the face than the area described by Inspector Villegas in 

the citat:ion •••. " 9 FMSHRC at 1763. On review it is undisputed that 

the· sites of the violation cit"ed in the citation and the withdrawal 

order were-:-Oif ferent. 

~/ Although Mid-Continent did not file a notice of contest pursuant 

to section 105(d) of the Act, 30 U.S.C. § 815(d), challenging the 

issuance of the section 104(b) withdrawai: order, the propriety of its 

first time challenge to the merits of the withdrawal order in this civil 

penalty proceeding was not argued to the judge or raised on review and 

therefore is not at issue. 

508 
I .;. find insufficient evidence of [the 

Secretary'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 violation. 

Accordingly, it is concluded that the 104(b) 

Withdrawal Order was improperly issued. 

9 FMSHRC at 1766-67. 

On review, the Secretary argues that the judge erred in finding 

that the section 104(b) order was invalid because the Secretary had not 

proved that the violative condition existed continuously from the time 

the condition was originally cited until the time the order was issued. 

In the Secretary's view, if, during a follow-up inspection, an inspector 

finds that the operator is not in compliance with the standard cited in 

a prior section 104(a) citation, a section 104(b) order may validly 

issue. Because on July 24 Mid-Continent was not in compliance with 

section 75.1704, the Secretary contends that the section 104(b) 

withdrawal order was valid. 

We conclude that to the extent the ju~ge's decision can be read as 

holding that to establish the validity of a: section 104(b) withdrawal 

order the Secretary must prove the violative condition continuously 

existed from the time when the condition was cited until the order was 

issued, the judge erred. Requiring the Secretary to prove the 

violation's continuous existence would compel the Secretary to 

constantly monitor the operator's abatement activities, an unrealistic 

burden not contemplated by the Act. Moreover, it is the operator who is 

in the best position to know and prove precisely what has been done to 

abate the underlying violation. 

Nonetheless, when the validity of a section 104(b) order is 

challenged by an operator, it is the Secretary, as the proponent of the 

order, who bears the burden of proving that the violation described in 

the underlying citation has not been abated within the time period 

origi_nalLy fixed or as subsequently extended. We hold, therefore, that 

the-Secretary establishes a prima facie case that a section 104(b) order 

is valid by.proving by a preponderance of the evidence that the 

violation described in the underlying section 104(a) citation existed at 

the time the section. 104(b) withdrawal order was issued. The operator 

may rebut the prima facie case by showing, for example, that the 

violative condition described in the sect:ion 104(a) citation had been 

abated within the time period fixed iri the citation, but had recurred. 

We now turn to the merits of the failure to abate order at issue. 

509 
Under section 104(b) of the Act it is the operator's duty to abate the 

"violation described in [the] citation issued pursuant to [section 

104(a)]. 11 When issuing a section 104(a) citation the inspector must 

"describe with particularity the nature of the violation11 as well as 

"fix a reasonable time for the abatement of the violation." 30 U.S.C. 

§ 814(a). £/ Section 104(a) thus mandates that the operator be given 

fair notice in the citation of the violation that it is required to 

correct. See Eastern Associated Coal Corp., 1 IBMA 233, 235 (December 

1972). Furthermore, in fixing a reasonable time for abatement, the 

inspector necessarily must specify the violative conditions found and 

determine the time reasonably required for abatement of the specified 

conditions. Subsequent violative conditions, not described in the 

original citation, may be subject to separate enforcement actions by the 

Secretary, but are not properly grandfathered into the abatement duties 

imposed upon the operator as a result of the original citation. 

Therefore, the initial question before us in considering the 

validity of the section 104(b) withdrawal order at issue is whether the 

Secretary proved that the violative conditions identified in the 

underlying section 104(a) citation were present at the time of issuance 

of the section 104(b) withdrawal order. Accordingly, we must look to 

the underlying section 104(a) citation issued by Inspector Villegos and 

relevant testimony to determine the conditions that Mid-Continent was 

required to correct in order to abate the cited violation of section 

75.1704. The specific conditions in the escapeway for which Villegos 

cited Mid-Continent were conditions 11 450 feet outby the 102 longwall 

face" where "floor material had been pushed up to within 4 feet of the 

roof forming a bank and an impoundment of water and rock up to 15 inches 

deep and 75 feet in length. 11 Exh. P-1. The fact that these were the 

violative conditions for which Mid-Continent was cited is underscored by 

the fact that Villegas initially fixed only 3 hours and 45 minutes for 

abatement of the conditions. 

The Secretary did not prove that the same violative conditions 

cited by Inspector Villegos were present on July 25, 1984. Inspector 

Smith could not state that the specific conditions cited in the June 20 

section 104(a) citation had not been remedied. Tr. 155; 9 FMSHRC at 

1764. While on both June 20 and July 25 a dam and an impoundment of 

water were found to obstruct the escapeway, it was not proven to the 

judge that the obstructions were the same. In fact, as the judge noted, 

Smith's testimony established that the situs of the obstructive 

conditions on July 25 was different from the situs of the obstructive 

£/ Section 104(a) of the Mine Act states in part: 

-Each citation shall be in writing and shall describe 

with particularity the nature of the violation, 

including a reference to the provision of the Act, 

standard, rule, regulation, or order alleged to have 

been violated. In addition, ·the citation shall fix 

a reasonable time for abatement of the violation. 

30 U.S.C. § 814(a). 

510 
conditions cited by Villegas on June 20. 9 FMSHRC at 1763, 1767. By 

July 25, Mid-Continent had graded the area of the escapeway where 

Villegas observed the obstruction. See Exh. R-1. 

The floor heave, deterioration of the pack walls, and obstruction 

in the mine's escapeways is the result of a continuous, natural process 

at the Dutch Creek No. 1 mine. The record establishes that such 

problems can occur quickly when, as here, mining has proceeded and the 

face has advanced. Tr. 34-35, 170, 184-185. Given these natural 

geologic propensities, the conditions found by Smith on July 25 may have 

been "similar" to those found by Villegas on June 20. Sec. Br. 8. The 

mere subsequent existence of similar conditions, however, is an 

inadequate basis for concluding that the section 104(a) citation issued 

to Mid-Continent had not been abated. We therefore find that 

substantial evidence supports the judge's finding that the Secretary has 

not established that Mid-Continent failed to abate the violation 

originally cited. 

Because the Secretary did not prove that the violative conditions 

identified by the inspector in the underlying section 104(a) citation 

were still extant when the subject section 104(b) withdrawal order was 

issued, we conclude that the Secretary failed to establish a prima facie 

case that the failure to abate withdrawal order was validly issued. 

Accordingly, we affirm the judge's decision finding, in accordance with 

the Secretary's alternative argument before the judge, that the 

conditions described in the section 104(b) order constituted an 

additional, discrete violation of 30 C.F.R. § 75.1704. ZI 

~ A~ rd,Chairman 

4 

c-::~ AAA/'<A«'/~---..- .Richard V. Backley, Commissioner 

ames A. Last~ka, Commissioner 

', . . /) '\ ' 

··~L1-.~·~·-v . &__{_"1-f1"7\.J 

L. Clair Nelson, Commissioner 

ZI On review, Mid-Continent has moved to traverse what it views as a 

material mischaracterization of its position by the Secretary. In 

response, the Secretary states that she never intended her position to 

have the meaning that Mid-Continent suggests. In view of the 

Secretary's disclaimer and our conclusion that the Secretary did not 

prove the validity of the contested order, we find Mid-Continent's 

motion to be moot. 

511 
Commissioner Doyle, concurring in part and dissenting in part: 

I concur with the majority's holding that in order to sustain a 

104(b) withdrawal order, the Secretary need not prove that the violation continued uninterrupted from the time it was cited until the withdrawal order was issued. The law provides a presumption of continuance 

with respect to conditions proven to exist at a given time and I see no 

reason that it should not be applied to the existence of conditions that 

violate the Mine Act. 31A C.J.S. Evidence §124(1), 29 Am. Jur. 2d 

Evidence §237. To find otherwise would impose an imposstble burden 

on the Secretary. 

I dissent, however, from the majority's affirmance of the judge's 

finding of insufficient evidence to support the "failure to abate" 

violation, a finding that was based on the judge's incorrect assumption 

that it was necessary for the Secretary to prove that the violation continued uninterrupted from the time it was originally cited until the 

section 104(b) order was issued. 

The majority affirms the judge but on the different basis that the 

Secretary failed to prove that the July 25 obstruction was the same as 

the June 20 obstruction. Slip op. at 6. In contrast, the judge found 

that "the essence of the standard is the having of two escapeways as 

contrasted to a focus on the presence of a particular condition, obstruction or impediment to passage at a given place in the escapeway." 

9 FMSHRC at 1767. I agree with the judge and am of the opinion that 

the record supports his finding. 

The regulation in issue, 30 C.F.R. §75.1704, (1984), requires that 

at least two separate and distinct travelable passageways be maintained 

to insure passage at all times. The passageway in issue was not so maintained on June 20, 1984, when it was originally cited. It was not so 

maintained when the inspector returned to the mine on July 5, 1984, and 

July 11, 1984. Nor was it so maintained when a second inspector visited 

the mine on July 25, 1984, and issued a section 104(b) withdrawal order. 

The evidence indicates that, at the time of the original citation 

"floor material had been pushed up to within four feet of the roof 

forming a bank and an inpoundment of water and rock •.. " at a location "450 feet outby the 102 longwall face." Exh. P-1. The testimony 

of Mid-Continent's mine superintendent, Allyn Davis, who is also a 

geological engineer, reveals that Mid-Continent recognized that, 

in.order to abate the violation, it would have to grade the entire tailgate, ·not just the particular area in question, "[b]ecause that area, you 

know --""Ehat would just propogate itself. If I cleaned that area up, 

then, we·would find the same thing ahead." Tr. 208. Even if the in512 
spector did not immediately recognize the extent of the work that would 

be required for abatement, he soon became aware that abatement would 

require grading of the entire tailgate. The inspector who issued the 

original citation based his extensions of time for abatement upon the 

extent of grading that had been accomplished. Tr. 93, 94. Similarly 

the inspector who issued the order did so because the grading was not 

being done in a diligent manner. Tr. 123. 

As Mid-Continent attempted to abate the violation by grading the 

escapeway, "this mess kept following [them] in or kept preceding [them] 

in." Tr. 191. The fact that "this mess" had been advanced by the 

grading and was now at a different location does not, to me, indicate a 

separate violation but rather that the same violation, a failure to maintain the escapeway to insure passage, was still in existence. 

Accordingly, I would reverse the judge and reinstate the section 

104(b) withdrawal order. 

513 
Distribution 

Colleen A. Geraghty, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

·Arlington, VA 22203. 

Edward Mulhall, Esq. 

Delaney & Balcomb 

P.O. Drawer 790 

Glenwood Springs, CO 81602 

Administrative Law Judge Michael Lasher 

Federal Mine Safety & Health Review Commission 

280 Colonnade Center 

1244 Speer Blvd. 

Denver, Colorado 80204 

514 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

URRALBURU MINING COMPANY, 

Respondent 

APR 4 1989 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 88-254-M 

A.C. No. 05-03211-05501 

Breezy Mine 

DECISION 

Appearances: Robert J. Murphy, Esq., Office of the Solicitor, 

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

for Petitioner. 

Before: Judge Lasher 

This matter arises upon the filing of a proposa.l for penalty 

by the Secretary of Labor on August 11, 1988, seeking assessment 

of civil penalties against Respondent for the violations alleged 

in two Citations numbered 2640413 and 2640414; such Citations 

issued pursuant to the provisions of Section 104(a) of the 

Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 815(d) 

(1977), and charged infractions of 30 C.F.R. § 57.1000, and 30 

C.F.R. § 41.20, respectively. 

As above indicated, Petitioner was represented at this 

hearing by counsel but Respondent, which the record shows 

received actual and legal notice of the hearing held on February 

13, 1989, neither appeared nor advised the Presiding Judge or 

counsel for Petitioner of its intent not to appear. In such 

circumstances the testimony of the issuing inspector, Dennis J. 

Tobin, was submitted on the record under oath in support of the 

Petitioner's position together with certain documentary evidence. 

Based thereon, at the close of the hearing, this bench decision 

was issued. 

Findings with respect to Citation No. 2640413: 

This Citation was issued by Inspector Tobin on March 16, 

1988, when he discovered, while enroute to inspect another mine, 

tire tracks leading to the subject mine, i.e., Respondent's 

Breezy Mine. Inspector Tobin parked his vehicle at the mine 

entrance and waited until the mine operator, Ben Urralburu, came 

515 
out of the mine portal in the company of two other miners, one of 

whom was recognized by the Inspector as a longtime employee of 

Mr. Urralburu. 

At this time Mr. Urralburu advised the inspector that he had 

just started mining, and the Inspector advised Mr. Urralburu of 

the requirement of 30 C.F.R. § 51.1000 for a mine operator to 

notify MSHA before commencement of mining operations. 

30 C.F.R. § 57.1000 states, "The owner, operator, or person 

in charge of any metal and nonmetal mine shall notify the nearest 

Mine Safety and Health Administration Metal and Nonmetal Mine 

Safety and Health Subdistrict Office before starting operations 

of the approximate or actual date mine operations will commence." 

Other provisions of this regulation require that the 

notification include the name of the mine, its location, the name 

of the person in charge and other pertinent data. 

Mr. Urralburu indicated, as his justification for failure to 

provide such notification, that Union Carbide had filed such 

papers for him in the past. The Inspector apparently did not 

recognize this as legal justification sufficient to excuse the 

violation, nor do I. The violation consists, without more, of 

the failure to notify MSHA of the contemplated commencement of 

mining operations. The importance of such notification to 

implementation of the safety program created by Congress is 

obvious. It is therefore concluded that a violation of 30 C.F.R. 

§ 57.1000 occurred as charged and an appropriate penalty therefor 

will be subsequently assessed herein. 

Findings with respect to Citation No. 2640414: 

This Citation, actually issued on March_ 17, 1988, but back 

dated to March 16, 1988, by Inspector Tobin, charges the 

Respondent with failing to file a legal identity report in 

accordance with 30 C.F.R. § 41.20. Without belaboring the point, 

the record clearly establishes that Respondent did in fact fail 

to file such report, and such failure in and of itself 

constitutes the violation. 

Accordingly, the Inspector's judgment in connection with the 

issuance of this Citation is affirmed, and the violation charged 

is found to have occurred. 

Assessment of Penalties 

At the hearing Petitioner presented documentary evidence 

(Exhibit P-1) indicating that during the two-year period 

preceding the issuance of the subject Citations Respondent had a 

history of two prior violations. 

516 
Petitioner does not contend that either of the violative 

conditions reflected in the two Citations was not promptly abated 

in good faith by Respondent upon notification of such. 

The record reflects, and Respondent has not established of 

course at the hearing, or for that matter in pretrial submissions 

prior to the hearing, that assessment of penalties at the level 

sought by Petitioner would jeopardize its ability to continue in 

business. 

Based on information provided by the inspector on the face 

of both Citations with respect to the likelihood of occurrence of 

injuries and the contemplated severity of any such, neither 

violation is found to be serious. 

This operator, who is found to be a small mine operator, had 

approximately 20 years of prior mining experience. Based 

thereon, and the content of conversations with the issuing 

Inspector at the time of the issuance of the Citations, it is 

both found and inf erred that the Respondent had knowledge of the 

requirements of the two regulations infracted and accordingly 

Respondent is found to be negligent in the commission of both 

violations. 

Petitioner seeks assessment of $20 for each of the two 

violations. Such is found appropriate and is here assessed. 

ORDER 

Citations numbered 2640413 and 2640414 are both affirmed. 

Respondent, if it has not previously done so, is ordered to 

pay the total sum of $40 to the Secretary of Labor within 30 days 

as and for the civil penalties here assessed. 

Distribution: 

~~~! / Y:,tt1 ~ - Michael A. Lasher, Jr. 

Administrative Law Judge 

Robert J. Murphy, Esq., Office of the Solicitor, U.S. Department 

of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO 

80294 (Certified Mail) 

Mr. Ben Urralburu, Urralburu Mining, P.O. Box 310, Nucla, CO 

81424 (Certified Mail) 

/bls 

517 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

GEORGE H. ADKINS, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 5 1989 

. . DISCRIMINATION PROCEEDING 

Complainant . . 

. . Docket No. KENT 88-180-D . 

. . BARB CO 88-23 

BOB & TOM COAL, INC. . . Respondent No. 5 Mine 

ORDER OF DISMISSAL 

Before: Judge Maurer 

The parties, by counsel, have jointly moved to dismiss the 

captioned case on the grounds that they have reached a mutually 

agreeable settlement. Under the circumstances herein, permission 

to withdraw the complaint is granted. 29 C.F.R. § 2700.11. The 

case is therefore dismissed, with prejudice, as requested by the 

parties~ and the hearing set for April 13, 1989, in London, 

Kentucky is cancelled. 

urer 

ative Law Judge 

Distribution: 

Margaret R. Barr, Esq., Tony Oppegard, Esq., Appalachian Research 

and Defense Fund of Kentucky, Inc., P.O. Box 919, Barbourville, 

KY 40906 (Certified Mail) 

Otis Doan, Jr., Esq., P.s.c., 119-A First St., Harlan, KY 40831 

(Certified Mail) 

/ml 

518 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 6 1989 

RUSHTON MINING COMPANY, CONTEST PROCEEDING 

Contestant 

v. Docket No. PENN 89-82-R 

Citation No. 2889823; 1/17/89 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH Rushton Mine 

ADMINISTRATION {MSHA), 

Respondent 

DECISION 

Before: Judge Broderick 

STATEMENT OF THE CASE 

Contestant Rushton Mining Company {Rushton) filed a Notice 

of Contest on February 8, 1989, contesting the validity of 

Citation 28809823 issued on January 17, 1989. The citation 

charged a violation of 30 C.F.R. § 70.501 because an MSHAconducted noise survey showed that the noise standard was 

exceeded in the environment of a roof bolter operator. The 

citation fixed March 20, 1989 for termination of the violation. 

The Secretary of Labor {Secretary) filed an answer and a motion 

for continuance on February 27, 1989. On March 3, 1989, Rushton 

filed a Motion for Summary Decision and a Motion for expedited 

consideration. Following a conference with counsel, the 

Secretary agreed to extend the time for abatement to April 3, 

1989. On March 24, 1989, the secretary filed a cross-motion for 

Summary Decision. I was orally informed by counsel for Rushton 

that the hearing conservation plan referred to in the citation 

has been submitted by Rushton to MSHA. The Secretary's 

cross-motion states that the citation did not require the 

submission of a hearing conservation plan in order to abate the 

citation. It further states that abatement was achieved by 

Rushton by lowering the noise levels in the affected area. On 

March 31, 1989, Rushton filed a response to the Secretary's 

cross-motion. The notice of contest challenged the designation 

of the violation as significant and substantial. However, 

neither motion has referred to this as an issue, and I have no 

factual basis to make a finding whether, if a violation is 

established, it was significant and substantial. Therefore, I 

will not make a ruling on this question. 

519 
FINDINGS OF FACT 

The parties agree that there is no dispute as to any 

material fact in this proceeding. On January 10, 1989, Federal 

Coal Mine Inspector Donald Klemick conducted a noise survey in 

the 4th East 002 section of the subject mine. As a result of the 

survey, he determined that the noise standard had been exceeded 

in the environment of the roof bolter operator. Rushton does not 

contest the inspector's determination. Therefore, I find as a 

fact that the noise levels in the cited area exceeded the levels 

permitted by the regulation. The inspector issued a citation 

charging a violation of 30 C.F.R. § 70.501. He directed that the 

violation be abated by March 20, 1989. The citation also states 

that "a hearing conservation plan, as required by section 70.510, 

shall be submitted to MSHA within 60 days from the date of this 

citation." As I mentioned above, the Secretary states in her 

motion that this language does not require submission of such a 

plan in order to abate the citation, but was only "a reminder" 

that the issuance of a citation under § 70.501 "triggers" 

§ 70.510 which requires that such a plan be submitted within 60 

days of the issuance of a citation. Therefore, I assume for the 

purposes of this decision that the citation has been abated. 

Rushton argues that the requirement to file a hearing 

conservation plan is triggered not by a violation of § 70.501, 

but by excessive noise levels disclosed in a supplemental noise 

survey under § 70.509. This issue is not presented in this case: 

MSHA concedes that the citation contested herein has been abated; 

the submission of a hearing conservation plan was not required to 

abate the citation. I am not ruling on the question whether 30 

C.F.R. § 70.510 requires the submission of an effective hearing 

conservation plan following the issuance of a citation under 

§ 70.501 because of excessive noise levels found on an MSHA 

conducted noise survey. 

REGULATIONS 

30 C.F.R. § 70.501 provides: 

~very operator of an underground coal mine shall 

maintain the noise levels during each shift to which 

each miner in the active workings of the mine is 

exposed at or below the permissible noise levels set 

forth in Table I of this subpart. 

Section 70.502 sets forth a formula for computation of 

multiple noise exposure. Section 70.503 requires mine operators 

to measure noise exposures of each miner in the active workings 

of the mine. Section 70.504 directs that the measurement of 

noise exposure be made by qualified persons certified by MSHA as 

qualified. Sections 70.505 and 75.506 describe the necessary 

520 
equipment and procedures for measuring noise exposure. Section 

70.507 requires an initial noise survey be performed before 

June 30, 1971, and section 70.508 requires periodic noise surveys 

with the results reported to MSHA. Section 70.509 provides that 

if a noise exposure survey under § 70.507 or § 70.508 shows 

excessive noise levels, a supplemental survey shall be conducted 

by the operator within 15 days after notification by MSHA, and 

the results reported to MSHA. Section 70.510 provides that if 

the supplemental survey shows excessive noise, a citation shall 

be issued, and the operator shall promptly institute measures to 

assure compliance. The operator is also required by this 

subsection to submit within 60 days of the date of the issuance 

of the citation, a hearing conservation plan. 

ISSUE 

Whether a citation may be issued under section 104(a) of the 

Act for a violation of 30 C.F.R. § 70.501 based on the results of 

a noise survey conducted by an MSHA inspector showing an 

excessive noise level? 

CONCLUSIONS OF LAW 

Rushton concedes that 30 C.F.R. § 70.501 "seems to indicate 

that a noise survey indicating an excessive noise level is a 

violation of the regulations." It argues, however, that 

Subpart F of Part 70, 30 C.F.R. when read as a whole, indicates 

that noise surveys are to be conducted by mine oerators. When an 

operator's survey shows excessive noise levels, it is required 

under § 70.509 to conduct a supplemental noise survey. Only if 

the supplemental survey shows excessive noise, Rushton asserts, 

is a citation to be issued. 

Section 103 of the Act requires authorized representatives 

of the Secretary to make frequent inspections of coal mines for 

the purpose, inter alia, of determining whether there is 

compliance with the mandatory health or safety standards. 

Section 104 directs the Secretary or her authorized 

representatives to issue a citation to the mine operator if she 

believes the operator has violated any mandatory health or safety 

standard. Section 206 of the act directs the Secretary to 

publish proposed mandatory health standards establishing maximum 

noise exposure levels for all underground coal mines. It also 

directs mine ooerators to conduct tests of the noise levels at 

their mines. ~his provision was originally enacted as part of 

the Federal Coal Mine Health and Safety Act of 1969. 30 C.F.R. 

§ 70.500-70.511 (Subpart F) contains the noise standard 

regulations. They were promulgated July 7, 1971, and amended 

September 12, 1978, September 11, 1979, and June 29, 1982. The 

regulations do not specifically provide that the Secretary's 

521 
representative may issue a citation for excessive noise disclosed 

in an MSHA noise survey; neither do they forbid the issuance of 

such a citation. In view of the responsibility placed on the 

Secretary's representatives by § 103 and § 104 of the Act, to 

imply such a limitation on the Secretary's authority because the 

9perator is also required to take noise samples, would be an 

extreme and unreasonable interpretation of the regulations. 

Furthermore, the Secretary has, in her Program Policy Manual 

issued July 1, 1988, specifically referred to MSHA-conducted 

noise surveys and the issuance of citations under 30 C.F.R. 

§ 70.501 for excessive noise exposures found in such surveys. 

This constitutes an official interpretation of the regulation 

which must be given deference. 

Therefore, I conclude that the Secretary is authorized to 

issue a citation for the violation of 30 C.F.R •. § 70.501 based on 

the results of an MSHA-conducted noise survey showing an 

excessive noise level. 

ORDER 

Basd on the above findings of fact and conclusions of law, 

IT IS ORDERED: 

1. Citation No. 2889823 as modified is AFFIRMED. 

2. The Notice of Contest is DENIED. 

~ A ,,,./· :v;;' · .. i. 1,,,,-~,~,:1 • t.' -~/ i ~1<-C~ ./f-· /_ t'Z. L {. " r - .__. 

) James A. Broderick , Administrative Law Judge 

Distribution: 

Joseph Yuhas, Esq., Rushton Mining Company, P.O. Box 367, 

Ebensburg, PA 15931 (Certified Mail) 

Therese I. Salus, Esq., u.s. Department of Labor, Office of the 

Solicitor, 3535 Market St., Philadelphia, PA 19104 (Certified 

Mail) 

slk 

522 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 6 1989 

ROGER L. STILLION, 

Complainant . . DISCRIMINATION PROCEEDING 

v. 

QUARTO MINING COMPANY, 

Respondent 

: 

. . Docket No. LAKE 88-91-D 

MORG CD 88-3 

Powhattan No. 4 Mine 

DECISION 

Appearances: Thomas M. Myers, Esq., United Mine workers of 

America, Shadyside, OH, for Complainant; 

Michael Peelish, Esq., Consolidation Coal 

Company, Pittsburgh, PA for the Respondent 

Before: Judge Fauver 

Complainant brought this proceeding under § 105(c) of 

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

§ 801 et seq, to recover compensation for his time spent as a 

"walkaround representative" of miners during a federal mine 

inspection. 

Having considered the hearing evidence and the record as 

a whole, I find that a preponderance of the ~,μbstantial, 

reliable, and probative evidence establishes the following 

Findings of Fact and additional findings in the discussion 

that follows. 

FINDINGS OF FACT 

1. Around August 1987, the Quarto Mining Company 

entered into a. contract with A&C Construction Company, for 

the hauling of top soil and the removal of trees and brush 

at its Powhattan No. 4 Mine. 

2. A&C Construction Company had about 12 to 15 employees 

performing contract work, and Quarto Mining Company had about 12 

of its employees working in and about the same area as the A&C 

employees. Quarto employees were hauling rocks and stones from 

stone bins to the top of the hill where A&C Construction 

employees were working. 

3. Shortly after A&C commenced its project on the 

Quarto Mining property, rank-and-file Quarto employees began 

523 
complaining to Ron Winkler, the outside safety committeeman, 

and to other union officials, with respect to the manner in 

which A&C employees were driving their trucks, and also with 

regard to a dust problem on the haul road and the lack of 

backup alarms on A&C equipment. Several Quarto employees 

raised similar complaints about A&C Construction employees 

and their equipment at the September, 1987, union meeting of 

Local Union 1785. Complainant, a union member, had also 

observed several of the complained-of conditions himself. 

4. After the local union meeting at which the various 

complaints had been raised, safety committeeman Ted Hunt 

placed a Code-a-Phone call to MSHA, requesting that an 

inspection be conducted concerning A&C's equipment. 

5. The haul road from the top of the hill, where the 

gob pile was located, to the bottom near ~oute 7 was a 

winding road and had areas cut out for the purpose of 

yielding the right-of-way. One of the complaints of Quarto 

employees was that A&C employees were not yielding the 

right-of-way. Quarto employees, as a part of their training, 

knew that the wide areas were designed to allow empty trucks 

going downhill to yield the way to loaded trucks which were 

going up the hill. 

6. In response to the Code-a-Phone complaint by the 

union, MSHA Inspector Homko came to the Quarto property on 

October 2, 1987, and began an inspection of the A&C equipment. 

During that inspection, a walkaround representative for Local 

Union 1785, a Quarto employee, was paid for his participation 

as a walkaround, and was joined by Quarto safety 

representative Percy Hawkins. 

7. During the inspection, one Quarto employee told the 

inspector that the A&C Construction employees were not 

yielding the right-of-way. 

8. The inspection continued into the following week. 

In that week, Complainant Stillion was asked by mine safety 

committeeman Ted Hunt to accompany the federal inspector as a 

union walkaround on the remainder of the inspection of A&C's 

equipment. On October 6, Complainant met Inspector Gary 

Gaines to tell him that he was going to accompany Gaines as 

the walkaround for the remainder of the inspection, and 

Respondent's representative told Complainant that he would 

not be paid for his time spent with Inspector Gaines. 

9. Quarto's refusal to pay Complainant reflected a 

change of policy. For about 16 years before this inspection, 

union representatives had accompanied federal inspectors on 

524 
both regular general mine inspections and specific 

inspections which were aimed at the inspection of 

contractors' equipment only, and were compensated by Quarto 

in both cases. 

10. On October 6, 7 and 8, 1987, Complainant Stillion 

traveled with Inspector Gaines but was not paid for any of 

his time spent on the inspection. As a result of the 

inspections conducted by Inspectors Homko and Gaines, several 

citations were issued to the A&C Construction Company. 

11. The reason for the Code-a-Phone call to MSHA was 

the concern of safety committeeman Hunt for the safety of 

Quarto employees, based upon by the various complaints 

which Quarto employees had made concerning the safety of A&C 

equipment and the manner in which the equipment was being 

operated by A&C employees. 

DISCUSSION WITH FURTHER FINDINGS 

The basic issue is whether Complainant, a walkaround 

representative of Quarto's miners, was entitled to be paid 

under§ 103(f) of the Act for the time he participated in a 

federal inspection of A&C's equipment at Quarto's mine. The 

inspection was at the request of the Quarto employees through 

their miners' representative. The request was transmitted by 

Code-a-Phone to MSHA and, for the purpose of this Decision,is 

treated as an inspection request made under§ 103Cg}(l} of 

the Act. 

Section 103Cg>Cl> provides in part: 

Whenever a representative of miners • • • has 

reasonable grounds to believe that a violation of 

this Act or a mandatory health or safety standard 

exists, or an imminent danger exists, such ••• 

representative shall have a right to obtain an 

immediate inspection by giving notice to the 

Secretary or his authorized representative of such 

violation or danger. * * * 

Section 103(f} provides in part: 

Subject to regulations issued by the 

Secretary, a representative of the operator 

and a representative authorized by the miners 

shall be given an opportunity to accompany 

the Secretary or his authorized representative 

during the physical inspection of any coal or 

other mine made pursuant to the provisions of 

525 
subsection {a), for the purpose of aiding such 

inspection and to participate in pre- or postinspection conferences held at the mine. * * * 

Such representative of miners who is also an 

employee of the operator shall suffer no loss of 

pay during the period of his participation in the 

inspection made under this subsection. * * * 

In United Mine Workers of America v. FMSHRC, 671 F. 2d 

615 CD.C. Cir. 1982), cert. denied, 459 U.S. 927, the D.C. 

Circuit Court of Appeals examined§ 103{f) in depth to 

determine whether Congress intended to grant walkaround 

rights to miner representatives for spot or specific hazard 

inspections, in addition to "regular" inspections required by 

§ 103(a) of the Act. The court held that "spot" inspections 

are authorized by and made pursuant to§ 103{a) of the Act 

and are therefore covered by the walkaround compensation 

rights granted by§ 103(f). In reaching this holding, the 

court gave weight to the Secretary's Interpretative Bulletin 

of April 19, 1978 (43 Fed. Reg. 1754-47 (1978)), observing 

that the Secretary's interpretation is entitled to deference 

and that the Act, as safety legislation, is to be liberally 

construed to effectuate the Congressional purpose. The court 

stated further: 

We agree with the Secretary that under 

Section 103Cf) miner representatives are entitled 

to walkaround pay rights with respect to any 

physical inspection of a mine carried out under 

Department of Labor auspices for the purpose of 

determining "whether an imminent danger 

exists," or "whether there is compliance with the 

mandatory health or safety standards or with any 

citation, order, or decision issued under this 

subchapter or other requirements of this chapter." 

The Secretary's interpretative bulletin also interprets 

§ 103(f) as applying to inspections made at the request of a 

representative of the miners. Indeed, no significant 

distinction could be made in applying§ 103{f) to spot 

inspections as well as§ 103(g)(l) inspections because the 

authority for both kinds of inspections ultimately derives 

from§ 103(a) of the Act. Section 103Cg) inspections are 

therefore subject to the walkaround pay requirements of § 

103(f). 

CONCLUSIONS OF LAW 

1. The judge has jurisdiction over this proceeding. 

526 
2. Respondent violated§ 103(f) of the Act by refusing 

to pay Complainant his regular rate of pay for his time spent 

accompanying a federal mine inspector on October 6, 7, and 8, 

1987. 

ORDER 

1. The parties are directed to confer within 15 days of 

this Decision in an effort to stipulate the amount of 

Complainant's back pay (with accrued interest computed 

according to the Commission's decision in Local Union 2274, 

UMWA v. Clinchfield Coal Co., 10 FMSHRC 1443 (1988), pet. for 

review Filed; No. 88-1873 CD.C. Cir. Dec. 16, 1988)) and 

Complainant's litigation expenses, including a reasonable 

attorney's fee. 

2. Within 30 days of this Decision, Complainant shall 

file either a stipulated proposed order awarding monetary 

relief signed by both parties ii or, if there is no 

stipulation, Complaint's proposed order awarding monetary 

relief. If there is no stipulation, Respondent shall have 10 

days after the proposed order is filed to file a response. 

If appropriate, an additional hearing will be scheduled to 

resolve any issues of fact as to monetary relief. 

3. The above Decision will not become final until an 

order is entered awarding monetary relief and declaring the 

above Decision to be final. The judge will retain 

jurisdiction of this proceeding until such an order is 

entered. 

-u}~ ~~.,tl'L- William Fauver 

Administrative Law Judge 

1/ Respondent's stipulation of a proposed order awarding 

monetary relief will not limit its right to seek review of a 

final Decision and Order entered in this proceeding. 

527 
Distribution: 

Thomas M. Myers, Esq., General Counsel, UMWA, District 6, 

56000 Dilles Bottom, Shady side, OH 43947 (Certified Mail) 

Michael R. Peelish, Esq., Quarto Mining Company, 1800 

Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

iz 

528 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FAL.LS CHURCH, VIRGINIA 22041 

APR 6 1989 

RODNEY CHANEY, DISCRIMINATION PROCEEDING 

Complainant 

v. 

JOHNNY TACKETT, 

(GILLETTE COAL COMPANY) 

Respondent 

. . 

. . 

Docket No. KENT 88-82-D 

PIKE-CD-88-03 

ORDER OF DISMISSAL 

Before: Judge Maurer 

Respondent, by counsel, has moved to dismiss the subject 

complaint because of the complainant's continued failure and 

refusal to abide by the Commission's Rules of Practice or 

otherwise cooperate with the respondent to facilitate the trial 

of this case. 

More specifically, on August 30, 1988, a Notice to take the 

deposition of the complainant and a request for production of 

documents was served upon the complainant. The complainant did 

not appear for the deposition or produce the documents, even 

though the deposition was once postponed at the request of the 

complainant and rescheduled at his convenience. Again, on 

February 14, 1989, a notice to take the deposition of the 

complainant and a request for production of documents was served 

upon the Complainant. Once again, the complainant failed to 

appear for his deposition or produce the requested documents. 

Additionally, I note that I have scheduled this case and 

noticed it for hearing on three occasions. Once before, I have 

continued it at the request of the complainant and this last time 

because the complainant has failed and refused to cooperate with 

the normal discovery processes available to the parties to 

prepare their cases. I further note that complainant has never 

complied with the prehearing order issued by the undersigned on 

any of the three occasions that the case has been set down for 

hearing. 

On March 7, 1989, an ORDER TO SHOW CAUSE was issued by the 

undersigned, wherein the complainant was ordered to show cause 

within ten (10) days as to why this proceeding should not be 

dismissed for "failure to prosecute his complaint or otherwise 

529 
cooperate with the respondent to facilitate the trial of this 

case. There has been no response received to date with regard to 

this order or the respondent's motion to dismiss. 

Accordingly, respondent's motion to dismiss IS GRANTED and 

this case IS DISMISSED. 

Distribution: 

Robert J. Breimann, Esq., Street, Street, Street, Scott, & 

Bowman, P.O. Box 2100, Grundy, VA 24614 (Certified Mail) 

Mr. Rodney Chaney, Rt. 1, Box 105A, Kingston, TN 37763 

(Certified Mail) 

/ml 

530 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 . 

APR 6 1989 

LOCAL UNION 1570, DISTRICT 

UNITED MINE WORKERS 

31,: COMPENSATION PROCEEDING 

OF AMERICA CUMWA), 

Complainants 

Docket No. WEVA 88-227-C 

v. . . Federal No. 2 Mine 

E~STERN ASSOCIATED COAL 

CORPORATION, 

Appearances: 

Before: 

Respondent 

DECISION 

Joyce A. Hanula, Legal Assistant, United Mine 

Workers of America, Washington, D.C., for the 

Complainants; 

Eugene P. Schmittgens, Jr., Esq., Eastern 

Associated Coal Corporation, Pittsburgh, 

Pennsylvania, for the Respondent. 

Judge Koutras 

Statement of the Proceeding 

This proceeding concerns a claim for compensation filed 

by the UMWA against the respondent pursuant to the third 

sentence of section 111 of the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. § 621, seeking compensation for miners 

employed at the captioned mine who were idled for 3-1/2 shifts, 

from 8:00 p.m., on February 9, 1988, to midnight on 

'February 10, 1988. The UMWA contends that the mine was idled 

as a direct result of two section 104(d)(2) orders issued at 

the mine by an MSHA inspector, and the respondent maintains 

that the mine was idled because of a legitimate business 

decision by mine managa~ent. A hearing was held in Morgantown, 

West Virginia, and the parties filed posthearing arguments in 

support of their respective positions. I have considered these 

arguments in the course of my adjudication of this matter. 

531 
Issues 

The issues presented are (1) whether or not the orders in 

question were final orders within the meaning of the Act: 

(2) whether the mine or miners .were idled by those orders: and 

(3) whether the miners are entitled to compensation. 

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. Commission Rules, 29 C.F.R. § 2700.l et ~· 

Stipulations 

The parties stipulated to the following: 

1. The members of Local Union 1570 are 

employed at Eastern's Federal No. 2 Mine. 

2. The UMWA is the authorized representative of the members of the Local Union 1570. 

3. The Federal No. 2 Mine is a mine whose 

operations and products affect interstate 

commerce. 

4. On February 8, 1988, at 6:25 p.m., 

MSHA Inspector Michael G. Kalich issued Order 

No. 2943582 pursuant to Section 104(d)(2). 

Order No. 2943582 applied to the Federal No. 2 

Mine. A copy of said order was attached and 

marked as Exhibit A to the joint stipulations 

of fact. 

5. On February 10, 1988, at 12:00 noon, 

Order No. 2943582 was vacated. A copy of the 

document vacating said order was attached and 

marked as Exhibit B to the joint stipulation of 

fact. 

6. On February 8, 1988, at 6:30 p.m., 

MSHA Inspector Michael G. Kalich issued Order ~o. 2943583 pursuant to Section 104(d)(2). 

Order ~o. 2943583 applied to the Federal ~o. 2 

Mine. A copy of said order was attached and 

1narked as Exhibit C to the joint stipulation of 

fact. 

532 
7. On February 10, 1988, at 12:00 p.m., . 

Order No. 2943583 was modified. A copy 0£ said 

modification was attached to the joint stipulation of fact and marked as Exhibit D. 

8. Order ~o. 2943583 was termin~ted at 

3:05 p.m., on February 10, 1988. A copy of 

said termination was attached to the joint 

stipulati6n of fact and marked as Exhibit ~. 

9. The above referenced orders restricted 

Eastern from operating the 14 Right 3 South 

Longwall section. 

10. After the issuance of the above 

referenced orders, the Federal ~o. 2 Mine 

continued to operate 2-1/2 shifts. 

11. The Federal No. 2 Mine was idle from 

8:00 p.m., on February 9, to midnight 

February 10, 1988. 

12. Miners returned to work on the 

12:00 a.m. shift on February 11, 1988. 

13. The names of the miners idled, their 

idle time, rate of pay, and alleged lost wages 

was attached to the joint stipulation of fact 

and marked as Exhibit F. 

14. The aforementioned Ordec Nos. 2943582 

and 2943583 were not contested under Section 

105{d) of the Federal Mine Safety and Health 

Act of 1977. 

15. It is the position of the UMWA that 

the Federal ~o. 2 Mine was idled as a direct 

result of the above referenced orders. 

16. It is the position of Eastern that 

the mine was idled as the sole result of a 

business decision made by management at the 

Federal No. 2 Mine. 

Complainant's Testimony and Evidence 

MSHA Inspector Michael G. Kalich testified that he visited 

the mine on February 8, 1988, after being instructed to do so 

533 
by his field supervisor who had received a call that the respondent was operating its longwall section. Mr. Kalich stated 

that at the time of his inspection of the longwall section a 

pr~viously filed petition for modification seeking relief from 

the requirements of mandatory safety standard 75.1002, was 

still pending for decision by MSHA. He confirmed that he 

issued section 104(d)(2) Order No. 2943582, on February 8, 

1988, at 6:25 p.m., citing a violation of section 75.1002, and 

that he did so because of the respondent's failure to comply 

with one of the conditions of the petition, namely paragraph 7, 

which required the respondent to provide overtemperature protection for the high-voltage neutral grounding resistor used in 

the high-voltage circuit supplying the longwall power center 

(exhibit R-2, Petition for Modification filed December 1, 1987). 

Mr. Kalich issued the order because he found that the longwall 

power center was energized, that some amount of coal had been 

produced, and the overtemperature device required by 

paragraph 7 of the petition had not been installed (Tr. 6-8). 

Mr. Kalich confirmed that he subsequently vacated Order 

No. 2943582 after being informed by his supervisor that he 

could not issue a violation based on a pending petition for 

modification which had not been granted. He also confirmed 

that he could not have issued the order citing a violation of 

section 75.1002 independent of the modification petition 

because the power center was outby the area, and the vacated 

order in question was based on paragraph 7 of the pending 

modification petition rather than on section 75.1002. He 

explained that he cited a violation of section 75.1002 

"because that is what the petition is based on, relief of that 

standard," but he confirmed that the cited condition was not 

in violation of section 75.1002 (Tr. 9-11). 

Mr. Kalich confirmed that he issued the second section 

104(d)(2) Order No. 2943583, at 6:30 p.m., on February 8, 1988, 

on the longwall section citing a second violation of section 

75.1002, because he found that the high voltage cables on the 

section were located inby the last open crosscut and were 

withi~ 150 of the pillar workings. These conditions were independently in violation of the requirements of section 75.1002, 

and he based the order on that section rather than on paragraph 7 of the pending modification petition. Since he could 

not base the order on the petition, he simply included the 

language referencing the petition from the prior vacated order 

as part of the subsequent Oeder No. 2943583, by modifying it 

on February 10, 1988 (Tr. 8, 11-12; Exhibits C & D, stipulations). Mr. Kalich confirmed that the order was terminated on 

February 10, 1988, by another inspector who was reyularly 

assigned to the mine (Tr. 12; Bxhibit E, stipulations). 

534 
On cross-examination, Mr. Kalich stated that he never 

closed the mine or required that any miners be withdrawn, and 

that "I just required that the power center be de-energized" 

(Tr. 13). With regard to the cited overtemperature device 

mentioned in Order No. 2943582, he confirmed that "it was 

repaired after I issued the order," and a copy of the order 

reflects that it was terminated at 7:35 p.m. the same evening 

that it was issued (Tr. 13; Exhibit A, stipulations). He 

confirmed that with respect to both orders, he simply required 

the power to be deenergized, and that by doing this, no coal 

could be mined but that "they could do any kind of setup work 

they wanted to do" (Tr. 18). Although he did not remain at 

the mine after he issued the first order, he "heard that men 

were laid off" (Tr. 18). 

Terry Osborne UMWA District #31, International Safety 

Representative, testified that he was familiar with the modification petition in question and that prior to its filing and 

the issuance of the orders by Inspector Kalich, representatives of the UMWA and mine management were meeting to discuss 

the conditions to be included in the petition for its approval. 

The last meeting was held on January 29, 1988, and as of that 

date, the UM.WA had not agreed upon the terms for approval of 

the petition. When he learned from the local union president 

that the respondent intended to operate the longwall while the 

petition was still pending, he placed a call to MSHA and 

requested an investigation into the possibility of the longwall being operated with high voltage at the face without the 

petit~on being granted. As a result of this call, MSHA 

inspectors were sent to the mine on the afternoon shift when 

the orders were issued. The petition was subsequently granted 

on February 10, 1988, 2 days after the orders were issued (Tr. 

19-22) • 

On cross-examination, Mr. Osborne confirmed that in the 

course of the meetings with mine management with respect to 

the petition, the future of the mine was discussed, and mine 

management expressed the view that in the event the petition 

were not granted the mine would "suffer severe consequences" 

(Tr. 23). Mr. Osborne stated that mine management advised the 

union that if the petition were not granted the mine would be 

shut down and that "This mines will not operate unless the 

petition is granted and this longwall is running" (Tr. 24). 

Mr. Osborne agreed that longwalls produce more coal more 

efEiciently than continuous miners, and that unless coal is 

mined economically the mine will not make ~oney. He also 

535 
agreed that the mine operator may decide ~hich method of mining to .use in its mine, and that layoffs occur in the mining 

industry for mines which do not make ~oney (Tr. 25). He 

stated that the mine had in the past operated for years with a 

longwall without the necessity.for filing a petition and 

without high voltage at the face of the longwall, and that 

"they did excellent" (Tr. 28). 

Larry ~nis~ll, president of the local union and member of 

the mine safety and health committee, testified that he was 

familiar with the modification petition in question and the 

ocd~rs issued by Inspector Kalich. He confirmed that he took 

part in the meetings with mine management with regard to the 

petition and that the local union did everything it could to 

"help it along," and he realized that management needed the 

high voltage at the longwall (Tr. 30). 

Mr~ Knisell stated that he learned that the longwall had 

been running on February 8, 1988, the day the order was issued. 

He confirmed that when the order was issued, the miners worked 

the rest of that day, and that on February 9, the four to 

twelve shift was idle for 4 hours, and that on February 10, 

"there was some work done in the mines." The 15 longwall 

development section was being "driven up one side to set the 

longwall on," and that coal was being produced on the 15 ~ight 

3 South Section. He did not know whether any other sections 

were producing coal at this time (Tr~ 32). He confirmed that 

it was common knowledge at the mine that if the petition were 

not ultimately approved there would be "serious economic 

consequences," and that he became aware of this sometime in 

January, 1988 (Tr. 32). 

Respondent's Testimony and Evidence 

General Mine Superintendent Mick Toth testified that the 

February 8, 1988, order issued by tnspector Kalich was of "no 

importance" because the reason for not operating the longwall 

was the fact that the petition for modification had not been 

granted. Mr. Toth confi.r..:ned that he was never told that the 

inspector had closed the ~ine or reqgired the withdrawal of 

any miners at the longwall or any other section of the mine. 

He explained that meetings and discussions were neld with 

union representatives, MSHA personnel, and mine management as 

early as 3-weeks prior to the granting of the petition, and he 

advised everyone concerned that "there would be some economic 

.impact to the mines" .if the petition were not granted (Tr. 43). 

Mr. Toth identified a copy of a memorandum dated January 13, 

1988, addressed to the resoondent's law deoartment, ~hich he 

sent at their request, makln3 it =.tware of the economic impact 

536 
resulting from the unavailability of the longwall (Tr. 45-46; 

Exhibit R-1). He also identified a copy of a letter dated 

January 13, 1988, from the respondent's attorney to MSHA 

requesting expedited consideration of the modification petition, and advising MSHA of the-adverse economic impact on the 

mine if the petition were not granted (Tr. 47; Exhibit R-2). 

Mr. Toth stated that the mine is a profitable mine, and 

he confirmed that it produces coal on a longwall section and 

four belt and continuous miner sections. He explained the 

coal production figures, and confirmed that by February 3, 

1988, all of the available coal on the longwall panel had been 

mined, and that no coal production took place on that longwall 

.from February 3 to February 8, 1988 CTr. 49-52). He produced 

copies of the mine production records for January and 

February, 1988, and confirmed that for the period January 29 

to February 3, 1988, coal production on the longwall was 

reduced by 110,000 tons (Tr. 55; Exhibits R-3 and R-4). 

Mr. Toth stated that during the period from February 3 to 

the afternoon shift on February 9, no miners were idled, and 

he confirmed that if the petition for modification had been 

granted prior to February 9, the mine would not have been 

closed (Tr. 56). He explained that the power was on the 

longwall section on February 8, in order to make the necessary 

startup "trim pass" adjustments in anticipation of the granting of the modification petition. Mr. Toth stated further 

that power was on the section a week earlier, and none of the 

union representatives or MSHA inspectors who were at the face 

objected. He confirmed that he had no intention of mining 

coal on the longwall until the petition was granted, and that 

the section 104(d)(2) orders had nothing to do with his 

decision to idle the mine on February 9 (Tr. 57-58). 

On cross-examination, Mr. Toth confirmed that the modification petition was filed on December 1, 1987, and that the 

approval process is time consuming. tn instances of previously 

.filed petitions, "interim relief" was available to a mine operator pending final approval by MSHA, but this procedure is no 

longer available. ~!though he believed that the union did 

everything it could to support the petition, delays and 

disagreements with respect to the conditions upon which the 

petition could be approved were encountered (Tr. 60). 

Mr. Toth confirmed that the longwall section in question 

was energized on February 4 or 5, and the cables were energized 

so that equipment could be moved. He stated that he made 

several calls to MSHA personnel and they informed him that if 

the petition had not been granted they could not advise him to 

537 
put the long-wall into production, and apart from any "tri,n 

pass," no coal production was started on the longwall until 

final approval of the petition was received (Tr. 63-64). 

Mr. Toth also explained that the power was on so that the MSHA 

inspectors could check all electrical connections and startups 

to confirm that the conditions under which the petition were to 

be granted were being followed, and that this was taking place 

on or about February 4 (Tr. 67). 

Mr. Toth explained that during the day shift on 

February 8, a "trim pass" was made on the longwall section, 

and this process included necessary adjustments to the 

shearing machine cable and chain. He stated that this process 

did not involve the normal production cutting and mining of 

the coal, and that the "trim" only cut away 2 inches of coal, 

rather than the usual 30 inch cut taken during normal production. The longwall shields were not advanced, there were no 

roof falls behind the shields, and there was no gob. The 

section was "active," the power was on, miners were working, 

and he believed that the belt was running to take out the 

trimmed coal (Tr. 73-74). Mr. Toth confirmed that all of the 

miners who were subsequently idled were working and involved 

in this process on February 8, and that the petition had not 

been approved as of that date. He stated that everyone at the 

mine was aware of the fact that the petition had not as yet 

been approved at that time (Tr. 79-80). Mr. Toth could not 

recall speaking with union president Knisell after the orders 

were issued (Tr. 81). 

In response to a question as to why the miners were idled 

on February 9, Mr. Toth responded as follows (Tr. 81-82): 

The reason for the idlement on 

February 9th, you have to realize that 

throughout this whole period it was always 

getting right on the edge, yeah, we'll have it, 

or already been sent by FAX, the MSHA off ice, 

as soon as you get there in the morning, it'll 

be there at your mine. 

That had gone on for several days. ! went 

along with that. I didn't want to idle any 

miners. I want to make every dime I can make 

and mine every ton of coal I can mine. But the 

fact was that on February 9th I just got 

completely fed up hearing all I was going to 

hear about being there in the next hour or two. 

It dealt -- there were some pretty big losses 

throughout this period. 

538 
I felt from the period January 28th until 

the time they granted the petition which was 

the 10th of February, I just couldn't take no 

more losses. Economic factors, that was my 

sole reason for doing what I did, and it was 

something I didn't want to do, but had to do. 

Mr. Toth stated that the four continuous miner sections 

which were in operation on February 8, accounted for approximately 25 percent of the mine production, and that he had full 

crews working that day. Only one of these developing sections 

was working on February 10, and the only miners working on 

this day were those who he believed were necessary to start up 

the longwall in order to bring the other miners back to work. 

The longwall started into production on February 11 (Tr. 

86-87). 

Frank Peduti, Respondent's chief maintenance supervisor, 

testified that he is responsible for all mine electrical 

activities. He confirmed that he was at the 14 ~ight Longwall 

section on February 8, 1988, making certain adjustments in 

preparation "to set up the new longwall section" (Tr. 111). 

He discussed the modification petition with Inspector Kalich, 

and whether or not an additional overtemperature device had 

been installed in the load center. Mr. Peduti stated that "I 

had the part in hand" and that it took 15 minutes to install 

it (Tr. 112). 

On cross-examination, Mr. Peduti stated that at the time 

he spoke with the inspector and installed the overtemperature 

device, as well as before going underground that day, he did 

not "assume one way or the other" that the modification 

petition had not as yet been granted (Tr. 113). 

Mick Toth was recalled and explained that the drop in 

coal production after the modification petition was granted, 

as shown by his production records, was due to the fact that 

after mining for 100 feet with the longwall startup, rock 

displacement was encountered, and throughout the end of 

February and the first 2 weeks of March "we encountered some 

difficult problems on .that particular longwall panel" <Tr. 

120). He reiterated that the order issued by Inspector Kalich 

had nothing to do with his decision to idle the mine, and he 

explained that he was aggravated and frustrated over the 

promises and assurances that the modification petition 

approval was imminent, and when it did not materialize "I just 

couldn't wait no longer. I got myself where I had no longwall 

production. I was in some big losses and I had no other 

539 
choice but to do what I did. 

with that" (Tr. 12lt 124). 

follows at (Tr. 121-125): 

That order had nothing to do 

Mr. Toth further explained as 

Q. Could you have used these men on anything 

else? 

A. Not and make money. 

Q. Could you have used them on anything else? 

What do you mean "not make money?" Couldn't 

you .have used them on the other section, the 

continuous mining section? 

A. No-- Yeah, I could have used them. I 

could have. I've got 580 people at that coal· 

mine and what justified that employment of 580 

people is the amount of tons and amount of p~cif it :to be made. If those profits and tons 

aren't made,. ther·e' s a reasoning for that. The 

reasoning for that p_eriod of time was the lack 

6f the granted Petition for Modification that 

had been filed for. 

* ·* * * * * * 

A. There were other people that worked in the_ mine~ Like I say, there were other people that 

worked throughout that period that the mine was 

idled on a development s·ection. We had a 

crucial situation at that coal mine on our 

developments keeping up with retrieve. And the 

development that I had 9reat concerns about was 

one immediately outby the longwall. 

* * * * * * 

Q. I'm not going to put myself in the position 

to cross-examine you, but this next question. 

What better way of getting someone's attention 

to shut the whole mine down? I mean, if I were 

the superintendent and being frustrated, I'd 

·say, well, the heck with it, I'm just going to 

shut her down and let's see if we can't get 

some action on that petition. Is that what 

.happened? 

~. That's basically what happened. We had no 

petition and we just -- what we didn't need, 

540 
you know -- I can't employ 500 people if I 

don't have any work for them. I worked what I 

could and I worked areas I thought were crucial 

to the future of that coal mine. What I didn't 

work I didn't need or I'd.have worked thein. 

Complainant's Arguments 

In its posthearing brief, the UMWA asserts that since the 

respondent did not contest the section 104(d)(2) Order ~o. 2943583, issued by Inspector Kalich at 6:30 p.m., on 

February 8, 1988, it waived its right to challenge the order 

pursuant to section lOSCd) of the Act, and that in the circumstances, the order has become final. Since the third sentence 

of section 111 of the Act provides that compensation is due 

after an order upon which it is based is "final," the UMWA 

states that the next critical issue to be resolved is whether 

a nexus existed between the order and the miners being idled. 

Local Union 781, District 17, UMWA v. Eastern Associated Coal 

Coro., 3 Fr'1SHRC 1175 (May 19 81); Local Union 1889, District 17, 

UMWA v. Westmoreland Coal Co .. , 8 FMSHRC 1317 (September 1986) 

and Local Union 2333, District 29, UMWA v. Ranger Fuel Corp., 

10 FMSHRC 612 (May 1988). 

The UMWA asserts that the order in question restricted 

the longwall section from operating until the pending petition 

for modification was granted, and that this in turn forced the 

respondent to idle the entire mine because it would not be 

economically feasible to operate it at a reduced productivity 

level. Under these circumstances, the UMWA concludes that a 

"nexus" existed between the issuance of the order and the 

idlernent of the miners. In support of its position, the UMWA 

maintains that the evidence presented clearly demonstrates 

that the mine would have continued to work through the period 

of idlement "but for" the issuance of the order. The TJMWA 

asserts that the evidence shows that the respondent was "fed 

up" with MSHA's delay in acting on the petition for modification and that Mine Superintendent Mick Toth believed that the 

economic situation required him to start up the high-voltage 

longwall, even though he did not have the necessary modif ication from the requirements of 30 C.F.R. § 75.1002. The UMWA 

concludes that it is ~vident that the respondent intended to 

mine coal without the necessary modification and would have 

continued to do so had the inspector not issued the withdrawal 

order. 

Citing the Commission's decisions in Local Union 5869, 

District 18, UMWA v. Youngstown Mines Corp., 1 FMSHRC 990 

U\.ugust 1979), Local Union 3453, District 17, UMWA v. Kanawha 

541 
Coal Co., 1 FMSHRC 1315 (September 1979 >, and Local Union 1670., 

District 12, UMWA v. Peabody Coal Co., 1 FMSHRC 1785 (November 

1979), the UMWA argues that the fact that the mine continued to 

work two and one-half shifts after the order was issued does 

not preclude the miners from receiving compensation because the 

order was still outstanding when the miners were idled. Citing 

the Local Union 5869, District 17, UMWA v. Youngstown Mines 

Corp., case, the UMWi\ points out that a withdrawal order was 

issued on the afternoon shift and miners on that shift were 

withdrawn from production work and detailed to work abating the 

violation. Every miner who worked on the afternoon shift was 

paid for the entire shift, but the evening shift employees who 

were also assigned to abatement work worked only 4 hours and 

were then sent home. The evening shift employees were paid for 

the first 4 hours they worked but not for the remaining 4 hours 

of the shift. In response to a compensation claim filed 

seeking compensation for the 4 hours of the evening shift that 

did not work, the Commission granted them compensation for the 

4 hours and stated as follows at 1 FMSHRC 992: 

[Alt the time the miners were sent home the 

withdrawal order was still outstanding. But 

for the withdrawal order, the miners would have 

worked and received compensation for the final 

hours of their shift. 

Respondent's Arguments 

In its posthearing brief, the respondent concedes that it 

did not contest the order in question within the required 

30 days. However, citing Secretary of Labor v. Quinland Coals, 

Inc., 9 ~MSHRC 1614, 1620 (Seotember 1987), the respondent 

points out that while it has the opportunity to contest the 

validity of the order at the civil penalty phase, MSHA has indicated there has been no civil penalty assessment proposed for 

the violation cited in the order, and that no assessment will 

be made. Furthec, citing Local Union 1810 v. Nacco Mining 

Company, 9 FMSHRC 1349 (August 1987), holding that a mine operator's rights under section lOSCd) of the Act must be either 

exhausted or waived before the Commission may order compensation pursuant to section 111, the respondent suggests that it 

has not been given its full ~ights to contest the order and 

that the Commission does not yet have jurisdiction in this case. 

Tn the alternative, respondent points out that since MSHA has 

indicated that it would not be issuing a civil penalty assessment in this matter, and in light of the approval of its petition for modification, it appears that the order in question 

has been de facto vacated. If this is the case, respondent 

542 
further suggests that the Commission may proceed to decide this 

case. 

With regard to the merits of the compensation claim, the 

respondent maintain~ that the idled miners are not entitled to 

compensation pursuant to section 111 of the Act because they 

were not idled by the order in question and the evidence fails 

to establish any nexus between the issuance of the order and 

the idlement and closure of the mine some two and one-half 

shifts after it was issued. Respondent points out that the 

UMWA has conceded that if the mine had been idled on 

January 29, 1988, until the modification petition was ultimately granted on February 11, 1988, there would be no case 

(Tr. 76-77), and that presumably, the local union membership 

would then have been without recourse for approximately 

2 weeks of lost wages. Respondent suggests that the union 

would have the Commission "punish" the respondent for keeping 

its membership working through significant economic losses 

notwithstanding the fact that section 111 of the Act was not 

designed for this purpose. 

In support of its position, the respondent asserts that 

in the absence of a nexus between a designated withdrawal 

order and the miners' idlement and loss of pay, or between the 

underlying reasons for the idlement and pay loss and the 

reason for the order, compensation pursuant to section 111 of 

the Act is not available. Respondent argues that section 111 

is not intended to be punitive, but recognizes that miners 

should not lose pay because of the operator's violations, or 

because of an imminent danger which was totally outsid~ of 

theic control. Quoting from Local Union No. 781 v. Eastern 

Associated Coal Coro., supra, respondent states that "mere 

occurrence, alone of withdrawal or idlement and issuance of an 

order does not, by itself, justify compensation," and that 

miners are considered to be idled by a withdrawal order whenever the order prevents the:n f com working / Local Union 3454 v. 

Kanawha Coal, supra. 

The respondent maintains that the overwhelming evidence 

in this case clearly shows that the cause of the idlement of 

the miners was due to the severe econoffiiC losses suffered by 

the mine from January 28, until February 9, 1988, and that as 

eacly as January 13, 1988, mine superintendent Toth advised 

the respondent's legal counsel that it would not b~ economically feasible to operate the mine at reduced producti~ity 

without the longwall, and that drastic workforce reductions 

would be i nevi t:i.ble. A.t approximately the saine tiine, represent3. ti '1es of the UMW.A union local and international were 

advised of the possibility of layoffs without the approval of 

543 
the modification petition. Since this occurred approximately 

1 months before the mine was idled, the respondent concludes 

that the idlement of the mine was contemplated well in advance 

of the issuance of the order, and that the evidence shows a 

consistent approach by the respondent to the economic realities 

it faced. 

Respondent states that the evidence establishes that mine 

management attempted to keep the mine open, and that when the 

operational longwall was mined out some 2 weeks before the 

order was issued, management opted to extend the panel some 

300 feet so that the mine would not have to be idled. Although 

this action by management resulted in a 50 percent reduction of 

production capacity, and ended on February 3, 1988, when the 

coal could no longer be mined safely, the mine still remained 

open for approximately 1 week even with no longwall production. 

~espondent points out that when the order was issued on 

February 8, 19 88, the mine re;nained opened, and Inspector 

Kalich testified that he was neither withdrawing miners from 

the mine, nor was he withdrawing them from the 14 Rt. 3 South 

Longwall section. Contrary to the UMWA's contention that the 

order caused the mine to be idled, respondent maintains that 

the evidence shows that only a few miners assigned to the longwall section ever were idled, and that the obvious implication 

is that t~ven after the mine was closed the workers at the 

affected section were never idled, and that the order did not 

prevent the miners from working. 

The respondent views the UMWA's assertion that the sole 

reason f::>r the idlement of the mine was the order issued by 

Inspector Kalich, as implausible in that "it would be a quantum leap in logic to presume" that the information communicated to the union by mine management relative to the economic 

implications of the failure to obtain the modification petition was somehow created by management to "jack with the 

union." If anything, the respondent concludes that management 

took a consistent approach to keep the mine open and to keep 

the union local's membership working. Since the UMWA has 

acknowledged the respondent's authority to close a mine if it 

is not profitable, respondent concludes that this authority 

presumably also applies to a section of the mine as well. 

Since the logical implication of the evidence is that the 

order did not requir2 the mine to be closed, respondent maintains that other factors were involved, namely the economic 

conditions expressed in its January 13, 1988, correspondence, 

as ·.vell as the meetinJs held with UM"wA :;nembers. 

544 
Applying the Commission's observations in Local Union 

No. 781 v. Eastern Associated Coal Corp., supra, that it would 

"examine the relationship bet\'leen the underlying reasons for 

the withdrawal and for the order, and will give balanced 

consideration both to the limited and purely compensatory 

character of section 111 and to the overall safety purposes of 

the 1977 Mine Act and section 111 itself," Id at pg. 1178, the 

respondent concludes that it is clear that the "safety" 

aspects of the Act, as well as section lll's mandate to pay 

compensation, are not at issue in this case because the order 

clearly never required the miners to be withdrawn and the 

alleged "safety" violation was remedied by shutting down the 

power. 

Respondent concludes that the UMWA's evidence simply 

establishes that an order was issued, and, at some point, the 

mine was idled. Given the fact that the UMWA has conceded 

that if the mine were shut down on January 28, there would be 

no case, and assuming the mine were idled on February 3 or 8, 

or even the 9th, and no order had been issued, "then too there 

would be no case," respondent suggests that it would appear 

that the UMWA has conceded the central issue in this case, 

i.e., the mine without the modification petition could not 

operate profitably, and thus the order did not cause it to be 

idled. Since the respondent is under no obligation to 

continue to operate a mine which loses money, respondent 

believes that the UMWA's assertion that everyone at the mine 

should have been kept on, even though production was down some 

75 percent, is contrary to the testimony of its witnesses and 

contrary to accepted practices in not only the coal industry, 

but in business in general, and must be rejected. 

The respondent asserts that even if the implication that 

the decision to idle the mine was made to spur MSHA to act on 

the petition, there still would be no right to compensation 

because it may only be awarded when a miner is idled due to 

the issuance of a withdrawal order. Absent a nexus between 

the idlement and the order, there can be no compensation. 

Even assuming arguendo that the mine was idled to Eorce MSHA 

to act on the petition for modification, respondent concludes 

that the order did not factor into the idlement decision. 

Even though mine management 1nay have caused its economic 

concerns to become a self-fulfilling prophesy, the order ~ould 

not be a factor which caused the mine to close. Respondent 

maintains that this case reflects a consistent approach on its 

part to keep the mine open, and that it communicated to all 

persons involveu the economic consequences which would follow 

if the modification petition were not granted. When production declined, management kept its employees on, and even kept 

545 
them on after longwall production stopped even though it had 

no obligation to do so. Respondent concludes that mine management alone idled the mine after it determined that the losses 

were too great to continue to operate. 

Findings and Conclusions 

Section 111 of the Act is intended to provide limited 

compensation to miners who lose pay because of a withdrawal 

order. The first two sentences of section 111 state as 

follows: 

If a coal or other mine or area of such 

mine is closed by an order issued under section 

103, section 104, or section 107, all miners 

working during the shift when such order was 

issued who are idled by such order shall be 

entitled, regardless of the result of any 

review of such order, to full compensation by 

the operator at their rates of pay for the 

period they are idled, but for not more than 

the balance of such shift. If such order is 

not terminated prior to the next working shift, 

all miners on that shift who are idled by such 

order shall be entitled to full compensation by 

the operator at their regular rates of pay for 

the period they are idled, but for not more 

than four hours of such shift. 

The compensation claims filed in this proceeding arise 

under the third sentence of section 111, which states as 

follows: 

[I]f a coal or other mine or area of such mine 

is closed by an order issued under section 104 

or section 107 of this title for a failure of 

the operator to comply with any mandatory 

health or safety standards, all miners who are 

idled due to such order shall be fully compensated after all interested parties are given an 

opportunity for a public hearing, which shall 

be expedited in such cases, and after such 

order is final, by the operator for lost time 

at their regular rates of pay for such time as 

the miners are idled by such closing, or for 

one week, whichever is the lesser. (Emphasis 

added). 

The fourth sentence of section 111, provides as follows: 

546 
[WJhenever an operator violates or fails or 

i~fuses to comply with any order issued under 

section 103, section 104, or section 107 of 

this ~ct, 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 evidence in this case establishes that the first section 104(d)(2) Order No. 2943582, was issued by Inspector 

Kalich at 6:25 p.m., on February 8, 1988, and the "area" 

affected by this order was the "14th Right 3 South Longwall 

Power Center." The order cited an alleged violation of mandatory safety standard 30 C.F.R. § 75.1002, and on its face 

stated that it was issued because of the respondent's failure 

to comply with one of the conditions stated in its then pending petition for modification, namely, item No. 7, which 

required overtemperature protection for a high-voltage neutral 

grounding resistor used in connection with a high-voltage 

circuit supplying the longwall power center. The cited condition was abated by the installation of the overtemperature 

device in question, and the order was terminated at 7:30 p.m., 

the same day it was issued. The order was subsequently 

vacated by Mr. Kalich on February 10, 1988, after his supervisor informed him that he could not support a violation based 

on the respondent's alleged failure to comply with one of the 

conditions associated with its then pending petition to modify 

the requirements of section 75.1002. Mr. Kalich confirmed 

this fact, and he also confirmed that he could not support a 

violation of section 75.1002, independent of the modification 

petition, and that t~e cited condition was not in violation of 

that standard. 

With regard to the second section 104(d)(2) Order 

~o. 2943583, issued by Inspector Kalich, the evidence establishes that it was issued at 6:30 p.m. on February 8, 1988, 

5 minutes after the first one, and the "area" affected by this 

order ~as "the 2400 volt power circuits of the 14 Rt. 3 South 

Longwall." 1nspector Kalich again cited an alleged violation 

of section 75.1002, and he confir~ed that he issued the violation because he found some energized 2400 high voltage cables 

located inby the last open crosscut and within 150 feet of the 

547 
pillar workings. Although the order issued by Mr. Kalich 

makes reference to the outstanding modification petition, and 

Mr. Kalich later incorporated the language of the first order 

as part of the second one when he subsequently modified it on 

February 10, he confirmed that.he based his second order on an 

alleged violation of section 75.1002, which prohibits locating 

high voltage cables inby the last open crosscut and less than 

150 feet from pillar workings, cather than on the pending 

modification petition. The second order was subsequently 

terminated at 3:05 p.m., February 10, 1988, by another inspector who was regularly assigned to the mine. The justification 

for terminating the order simply states that "the petition for 

modification of the application of 30 C.F.R. § 75.1002 is 

granted, for the 14 aight through 17 Right, 3 South Longwall 

Panels only." 

Inspector Kalich confirmed that the effect of both orders 

was to de-energize the power from the longwall power center, 

and with the power down, no coal could be mined on the longwall. He also confirmed that the miners could continue to 

work on "setup work," but he did not remain at the mine and 

simply "heard that men were laid off." Mr. Kalich conceded 

that he did not order any area of the mine closed, and that he 

never required the withdrawal of any miners. Mine Superintendent Toth confirmed that he was never advised that Mr. Kalich 

had closed the mine or ordered the withdrawal of any miners. 

The parties stipulated that the two orders restricted the 

respondent from operating the 14 Right 3 South Longwall panel, 

but that the rest of the mine continued to operate for 

2-1/2 shifts and all of the affected miners were kept working 

without interruption performing longwall maintenance work and 

working on the other continuous mining sections after the 

orders were issued, until the mine was idled by Mr. Toth at 

8:00 p.m., on February 9, 1988. The mine remained idle until 

midnight February 10, 1988, when the miners returned to work 

for the shift beginning at 12:00 a.m., February 11, 1988. The 

claimed compensation is for the 3-1/2 shifts which were idled 

by Mr. Toth. 

The Finality Issue 

Unlike the first two sentences of section 111 of the Act, 

which entitles idled miners to compensation for lost wages 

resulting from an order regardless of any review of the idling 

order, the third sentence of section 111 contains two conditions which must be met before compensation attaches. The 

Eicst condition requires a showing that the order was issued 

because of the mine operator's failure to comply with a mandatory health or safety standard, and the second condition 

548 
limits the availability of any compensation to an order which 

has become final after an "opport•.rnity for a public heacing." 

The parties have stipulated that the respondent did not 

avail itself of its right pursuant to section 105(d) of the 

Act to contest the orders issued by Inspector Kalich. 

Addressing itself to the second order issued by Mr. Kalich 

(No. 2943583), the UMWA maintains that since the respondent 

did not contest the order within 30 days of its issuance, it 

has waived its right to further challenge it, and the order 

has become final. Since it is final, the UMWA concludes that 

jurisdiction attaches, compensation is due, and that the next 

critical issue to be resolved is whether or not a nexus 

existed between the order and the miners who were idled. (I 

take note of the fact that the UMWA's posthearing arguments 

are limited only to the second order issued by Mr. Kalich). 

The respondent's posthearing arguments are also limited 

to the second order issued by Inspector Kalich. Conceding 

that it did not contest this order within the required 

30 days, respondent maintains that since it had not exhausted 

its right to a review of the order in a civil penalty 

proceeding pursuant to the Commission's Quinland Coals, Inc., 

decision, the order is not final and jurisdiction to consider 

the compensation claims is lacking. Altern~tively, given the 

fact fhat its petition for modification of the cited section 

75.1002 has now been granted, and the fact that MSHA will not 

initiate a civil penalty proceedin3, respondent suggests that 

the order has been de facto vacated, and that the Commission 

may proceed to decide this matter. 

The section 104{d){2) unwarrantable failure orders issued 

by the inspector in this case alleged violations of mandatory 

safety standard 30 C.F.R. § 75.1002. Pursuant to the third 

sentence of section 111, miners idled as a result of an order 

issued for the unwarrantable failure of an operator to comply 

with any mandatory health or safety standacd are entitled to 

compensation for such time as they are idled, or for 1 week, 

whichever is the lesser, and jurisdiction to hear and decide 

such claims attaches after the order has become final. 

Commission review o.f such an order is governed by the 

procedures found in section 105 of the Act, and the Commission 

~ules, and not by section 111. 

Section 105 of the Act provides an operator with two 

opportunities to contest an order issued pursuant to section 

104, and to request a hearing concerning any alleged violation 

which pro;npted the issuance of the order. S11bsection ( d) of 

section 105 affords an operator with an opportuni~y to 

549 
immediately contest an order within 30 days of its receipt. 

Subsection (a) of section 105 allows the operator to initiate 

a contest with respect to any civil penalty proposal filed by 

MSHA for the alleged violation stated in the order, and this 

may be done within 30 days of MSHA's notification of the 

proposed civil penalty assessment. In the Quinland Coals, 

Inc. case, supra, 9 FMSHRC at 1621-22, the Commission held 

that an operator may challenge the fact of violation and any 

special findings made in a section 104 order regardless of 

whether it availed itself of the opportunity to contest the 

order in which the allegation of violation is contained. See 

also: Local Union 2333, District 29, UMWA v. Ranger Fuel 

CQrPoration, 10 FMSHRC 612, 618 (May 1988). 

The Ranger Fuel case involved a compensation claim filed 

by the union pursuant to the third sentence of section 111 of 

the Act. The Commission held that in a compensation proceeding, an opecator may not challenge the validity of a violation 

after it has paid the civil penalty assessmeht because it 

would improperly place the miners and their representatives in 

a prosecutorial role to prove the violation, and would require 

them to perform functions properly resting within MSHA's 

domain, 10 FMSHRC, at pg. 619. The Commission went on to 

state that the issue of causal nexus in a compensation case is 

independent of the allegation of a violation and must be determined separately in order to determine entitlement to compensation under the third sentence of section 111. It concluded 

that an operator may litigate in a compensation proceeding the 

issue of the causal relationship between the order and the 

idlement of miners, but not the fact of violation. 

The parties have stipulated that the respondent did not 

contest the orders pursuant to the available review procedures 

found in section 105(d) of the Act, and the Commission's Rules. 

Insofar as its available rights under section 105(d) are concerned, I agree with the UMWA's assertion that the respondent 

has waived its rights under this section, and to this extent, 

the orders are final. With regard to the respondent's contest 

rights in a civil penalty proceeding pursu~nt to se~tion 

105(a) of the Act, I recognize the fact that it has not yet 

had an opportunity to avail itself of an opportunity to 

challenge the orders in any civil penalty proceeding pur~uant 

to the Co@nission's decision in Quinland Coals, supra. However, on the facts of this case, it ~oes not appear that the 

respondent will ever have an opportunity to challenge the 

ordecs in any civil penalty proceeding because no such proceeding will be initi:i.ted by MSHA. The UM.WA's counsel confirmed 

that she ~as informed by MSHA's district office that MSHA does 

not intend to file any civil penalty proposal with respect to 

550 
Order No. 2943583, because of the fact that the modification 

petition which was pending at the time the order was issued 

was subsequently granted (Tr. 101). Since MSHA was not a 

party to this proceeding, no further information or explanation was forthcoming with respect to MSHA's apparent 

reluctance or refusal to initiate a civil penalty proceeding 

with respect to the order and the alleged violation. 

With regard to the first order (No. 2943582), the record 

reflects that it was terminated within an hour of its issuance, 

and subsequently vacated. The inspector candidly conceded that 

the conditions cited in the order, including an alleged violation of mandatory standard 30 C.F.R. § 75.1002, could not be 

supported, and that no violation existed, notwithstanding the 

respondent's immediate abatement of the cited condition. Since 

the order was obviously invalid, and no violation ever existed, 

one can reasonably conclude that no civil penalty assessment 

will be forthcoming, and the respondent would have no reason to 

challenge it further. Further, given the fact that the mine 

continued to operate for 2-1/2 shifts after the order was 

issued, and since the order was irrunediately terminated, it did 

not exist and was no longer in effect at the time the miners 

were idled. 

With respect to the s~cond order (No. 2943583), the 

inspector confirmed that he~ssued it because he believed that 

the cited conditions constitttt~d a violation of mandatory standard ~O .c.F.R. § 75.1002, inde~endent of any reference to the 

pending modification petition. Although the record reflects 

that the order was subsequently terminated on February 10, 

1988, upon approval of the modification petition, it was still 

outstanding and in effect when the miners were idled, and 

there is no evidence that MSHA has ever vacated it. The 

respondent's suggestion that the approval of the modification 

petition has resulted in a de facto vacation of the order is 

rejected. If the responden"t:believed that this was the case, 

it was incumbent on the respondent to present credible and 

probative evidence or facts to support such a conclusion, and 

none were forthcoming during the course of the hearing. I 

find nothing in the record to support any conclusion that MSHA 

aver vacated the order or made any finding that no violation 

ever existed. Although an MSHA inspector terminated the 

order, and "justified" it by a reference to the fact that the 

modification petition had been granted, he was not the same 

inspector who issued the order and violation, and the issuin~ 

inspector's credible testimony that a violation had occurred 

and that he cited a violation of section 75.1002 independently 

of the modification petition stands unrebutted. I take note 

oE the respondent's further suggestion that n.ssuming the oi:-der 

551 
were de facto vacated, the Commission could proceed to adjudicate the compensation claim. 

The respondent's reliance on the Quinland Coals decision 

as the basis for its argument that the Commission lacks jurisdiction to decide the compensation claim because it has not 

been afforded its full rights to contest the order in any civil 

penalty proceeding IS REJ.ECTED. In my view, the Quinland Coals 

decision simply expanded the appeal rights afforded a mine 

operator to challenge the validity of special findings made by 

an inspector in a contested order. The Commission rejected a 

iestrictive interpretation of the review provisions of section 

105 of the Act, and concluded that since a special finding was 

a critical consideration in evaluating the nature of ari alleged 

violation and its impact upon the appropriate civil penalty to 

be assessed, an operator should have an opportunity to seek 

review of an order in any subsequent civil penalty proceeding 

pursuant to section 105(a) of the Act, notwithstanding the fact 

that it failed to seek review pursuant to section 105(d). The 

focus of the Commission's decision in Quinland Coals was on the 

interrelationship between a contest proceeding and a civil 

penalty proceeding, and not on section 111 of the Act. 

On the facts.of this case, I believe it would be unjust 

to deny the miners an opportunity to have their cqmpensation 

claims adjudicated because of MSHA's reluctance to initiate a 

civil penalty proceeding which may afford the respondent a 

forum to litigate the validity of.the order or the fact of 

violation. The respondent's liability for the compensation 

claims are to be adjudicated pursuant to the remedial purposes 

of section 111, and not the punitive enforcement statutory and 

regulatory schemes connected with the issuance of citations, 

orders, and civil penalty assessments. Further, the fact that 

a withdrawal order is subsequently vacated does not deprive 

miners of their right to compensation, CF&I Steel Corp. v. 

Morton, 516 F.2d 868 (10th Cir. 1975). 

Section 111 is remedial in nature and was not intended by 

Congress to be interpreted and applied narrowly. Local 

Union 1889, District 17, UMWA v. Westmoreland Coal Company, 

8 FMSHRC.1317 (September 1986). In a l'."ecently decided compensation case before the United States Court of Appeals for the 

District of Colu~bia Circuit, International Union, UMW~ v. 

FMSHRC, 840 F.2d 77, 82 (D.C. Ci!'.". 1988), the court observed 

that the legislative history of section 111 makes it clear 

that its purpose was to make .miners whole for wages lost due 

to a closure order or for wages lost through no fault of their 

own. ~he court pointed out that section 111 was not intended 

to be a part of the Act's civil penalty assessment scheme, and 

552 
that the statutory language accords the Secretary CMSHA) no 

role in determining section 111 liability. The court further 

concluded that section 111 is self-executing, and that once a 

section 104Cd)(2) order based on a violation of a mandatory 

health or safety standard is issued and causes the miners to 

be idled, the miners have a right to seek compensation, and 

that such a right may be vindicated through recourse to the 

Commission. 

In this case, the issuance of the unwarrantable failure 

orders came about through no fault of the miners. Both orders 

were issued because of the conduct of the respondent in 

energizing the longwall section and exposing the area to 

certain conditions which the inspector believed were in violation of mandatory section 75.1200 and/or contrary to the modification petition which had not been granted at the time of 

the inspection which prompted the action taken by th2 inspector. Further, MSHA's inaction in failing to initiate a civil 

penalty proceeding likewise came about through no fault of the 

miners. 

On the facts of this case, and in light of the foregoing 

findings and conclusions, I conclude and find that for 

purposes of the instant section 111 proceeding, the orders in 

question have become final, and that I have jurisdiction to 

adjudicate the compensation claims. 

The Nexus Issue 

The prerequisites for entitlement to compensation for 

section 104 orders which result in the idling of miners are 

found in section 111 of the Act, and the conditions precedent 

for the awarding of compensation is that the mine is idled by 

the issuance of an order which cites a violation. In short, 

section 111 of the Act creates a graduated scheme of compensation ranging from the limited shift compensation described in 

the fi.cst two sentences, to the more generous 1-week compensation provided by the third sentence, all of which are dependent on the mine operator's conduct relating to the conditions 

in the mine. Shift compensation is awardable for an idlement 

attributable to an order issued under section 104 of the Act, 

and up to 1-weeks's compensation is available if the idlement 

is attributable to a section 104Cd)(2) order issued for an 

unwarrantable failure by the operator to comply with a cited 

mandatory standard, Westmoreland Coal Company, supra, 9 FMSHRC 

1325. 

In order to establish its claim to compensation, the U.MWA 

must establish that a nexus e~isted between the orders and the 

553 
idling of the miners. As stated by the Commission in Local 

Union No. 781, District 17, UMWA v. Eastern Associated Coal 

~., 3 FMSHRC 1175, 1178: 

[S]ection 111 compensation is awardable only if 

there is a nexus between a designated withdrawal order and the miners' idlement and loss 

of pay, or between the underlying reasons for 

the idlement and pay loss and the reasons for 

the order. Mere occurrence alone of withdrawal 

or idlement and issuance of an order does not, 

by itself, justify compensation •••• Where 

an order precedes and plainly causes a withdrawal leading to loss of pay, compensation 

9rdinarily will be awarded; conversely, • • • 

where the order has nothing to do with the withdrawal ••• compensation will not be awarded. 

However, withdrawal situations can arise 

involving more complicated sequences of events 

or concurrent operation of causative factors. 

In resolving the latter class of cases, we 

think it wiser to develop the nexus rule on a 

case-by-case basis. In such cases, we will 

examine the relationship between the underlying 

reasons for the withdrawal and for the order, 

and will give balanced consideration both to 

the limited and purely compensatory character 

of section 111 and to the overall safety 

purposes of the 1977 Mine Act and section 111 

itself. (Emphasis added). 

It is well-settled that the voluntary closure of a mine 

by an operator, and the withdrawal of miners prior to the 

issuance of an order does not preclude the miners from 

receiving compensation based on the order. UMWA, District 31 

v. Clinchfield Coal Company, 1 MSHC 1010 (1971); Mine Workers, 

Local 2244 v. Consolidation Coal Company, 1 MSHC 1674 (1978); 

Mine workers, Local 1993 v. Consolidation Coal Company, 1 MS~C 

1668. (1978). 

In the Clinchf ield Coal Company case, supra, in rejecting 

the operator's contention that its voluntary closure of the 

mine prior to the issuance of the closure order preempted the 

order, the Eormer Interior Board of Mine Operations Appeals 

noted that a withdrawal order is more extensive in scope than 

a voluntary ~ithdrawal of miners by the operator, in that it 

prohibits reentry until the Secretary determines that the 

danger no longer eKists, and the illine or particular section 

thereof is ofEicially closed upon the issuance oE an order, 

554 
and the effected miners are officially idled by such an order. 

See also: Mine Workers, Local 1993 v. Consolidation Coal 

company; supra, where Judge Broderick followed the Clinchfield 

Coal Company decision in concluding that the mine operator's 

voluntary closure of the mine in advance of the issuance of 

the order was strongly motivated by the increasing probability 

that a closure order would be issued. The instant case presents a unique situation in that the orders issued by the 

inspector did not directly order any withdrawal of miners or 

the closing of the mine, and the miners continued to work for 

2-1/2 shifts after the orders were issued until the mine 

superintendent subsequently closed the mine. 

Order No. 2943582 

Inspector Kalich issued Order No. 2943582, at 6:25 p.m., 

on February 8, and terminated it at 7:35 p.m. that same day 

after the respondent installed a ground check circuit overtemperature device. The inspector subsequently vacated the order 

on February 10, on the instructions of his supervisor who 

advised him that he could not support a violation based on a 

pending modification petition. During the course of the hearing, the UMWA' s represent.:itive asserted that the inspector 

"messed up" when he issued the order (Tr. 102). 

While it is true that a subsequently vacated order may 

not deny miners their right to claim compensation, in this 

instance the mine continued to operate for two and one-half 

shifts after the order was terminated, all of the miners continued to work, and no one was ordered to be withdrawn or 

idled. Further, the inspector conceded that the cited condition did not constitute a violation of the cited mandatory 

safety standard, section 75.1002, and any possible hazard to 

which the miners assigned to the longwall panel may have been 

exposed was effectively eliminated when the respondent took 

immediate action to install the overtemperature device as 

required by the inspector. In addition, at the time of the 

subsequent idlement of the entire mine by the mine superintendent on February 9, the order was no longer in effect or in 

existence. Under all of these circumstances, I cannot conclude that any nexus has been established between Order 

No. 2943582, and the .idlement of the miners on February 9, 

1988. 

Order No. 2943583 

Section 111 of the Act provides for compensation for 

miners when a mine or mine area is closed by a section 104 

555 
order. The evidence in this case establishes that the inspector did not order the closure of the entire mine or the longwall area of the mine, nor did he order the withdrawal of any 

miners. The parties have stipulated that the mine continued 

to operate for 2-1/2 shifts after the order was issued until 

it was idled by superintendent Toth on February 9. Superintendent Toth's unrebutted and credible testimony establishes that 

notwithstanding the unavailability of power on the longwall 

panel, all miners assigned to the longwall were kept working, 

and the UMWA agreed that all mine shifts continued to work 

without interruption for 2-1/2 shifts after the order issued, 

and that the miners assigned to the longwall continued doing 

"dead work" (Tr. 92). 

During the course of oral argQment on the record, the 

UMWA's representative asserted that as a result of Insoector 

Kalich's order, some miners were idled from work (Tr. 33). 

Wh.en asked to identify these miners, she confirmed that they 

were the miners listed on "Exhibit F" to the prehearing Joint 

Stipulation of facts which were filed and received on 

October 11, 1988, "which we've all agreed to" (Tr. 34). The 

list contains the names of 432 individuals assigned to work in 

the plant and the mine from February 9, through February 10, 

1988. Eleven Cll) of those listed were assigned to the 

longwall on February 9, 1988 (Tr. 88). Having reviewed the 

stipulation, and contrary to any inference by the UMW~'s reprasentative that the parties stipulated that the miners listed 

were idled by the order, my conclusion is that the parties 

stipulated that these miners were idled from 8:00 p.m., on 

February 9, 1988 to midnight February 10, 1988, as a result of 

Mr. Toth's decision to idle the mine, rather than the order 

issued by the inspector. 

Superintendent Toth testified that the mine is equipped 

to operate one longwall installation, and four belt and continllous miner sections, and that in order to maintain its profitability, 12,000 to 14,000 tons of coal a day must be produced 

CTr. 49). He confir~ed that by January 28, 1988, one longwall 

panel had been completed and ready for production, but that no 

coal could be produced because the pending modification petition had not as yet been approved. However, work continued, 

and extra manpower was used to extend the panel an additional 

300 feet in anticipation of the approval of the petition (Tr. 

51). He confirmed that during this time, production levels 

were at "50 percent efficiency," and that on February 3, in 

view of safety considerations, further coal production ceased 

on the longwall, and from February 3 to February 9, when he 

idled the mine, there was no further longwall production (Tr. 

52). Referring to his longwall coal production records, 

556 
Mr. Toth confirmed that from January 29 to February 3, coal 

production was reduced by 70,000 tons a day, and that from 

February 3, until February 9, production was reduced by 40,000 

tons a day (Tr. 55). He also confirmed that the four continuous miner sections accounted for 25 percent of total coal 

production (Tr. 86). 

Mr. Toth.confirmed that from February 3, until the afternoon shift of February 9, no miners were idled, and "preparation and setup" work continued on the longwall, as well as in 

all of the other available developments (Tr. 56). He confirmed 

that those longwall miners who were subsequently idled by his 

decision to idle the mine were involved in the "set-up and 

adjustment work" which was going on (Tr. 80). Mr. Toth 

explained that the high voltage power was on the longwall panel 

in question on February 8, in order to make necessary adjustments to the power cables and "trim passes" in anticipation of 

starting up the longwall once the petition was granted, but 

that he had no intention of starting any coal production on the 

panel without the petition being granted (Tr. 57-58; 62). 

Mr. Toth also confirmed that the power was also on the longwall 

panel on February 4 and 5, even though the modification petition was still pending, and he explained that it was on while 

MSHA inspectors were present evaluating the modification 

petition (Tr. 65-66). 

The petition of modification in question was filed to 

permit the respondent to use high voltage power on the longwall 

panel. When the order was issued, the petition had not been 

granted, and the use of high voltage power was not permitted. 

Inspector Kalich testified that while this was true, he issued 

the order because he believed the use of high voltage cables on 

the longwall ~as a violation of mandatory safety standard 

section 75.1002, independent of the then pending petition. The 

merits of the alleged violation were not litigated in this 

compensation proceeding, and the parties differ as to whether 

or not the cited conditions constituted a violation of section 

75.1002 (Tr. 103, 106-107). ·rhe UMWA takes the position that 

the failure by the respondent to timely contest the alleged 

violation constitutes a tacit admission of a violation. This 

contention is ~ejected. I find no basis for such a conclusion, 

and given the Co~nission's decision in the Quinland Coals, 

Inc., case, supra, I believe that the resoondent's belief that 

it could still litigate the merits of the~alleged violation in 

any subsequently filed civil penalty proceeding, notwithstanding its failure to ti~ely contest the violation, is reasonable 

and plausible. 

557 
Aside from the merits of the alleged violation, and from 

a safety point of view, the decision by the respondent to 

introduce high voltage on the longwall without approval by 

MSHA, exposed the miners assigned to the longwall to a potential hazard. Indeed, the inspector who issued the order 

believed that the use of high voltage cables on the longwall 

was contrary to mandatory safety standard 75.1200, and ·he concluded that the alleged violation was "significant and substantial" and presented a reasonable likelihood of an injury. 

The parties do not dispute the fact that while the order 

did not directly require the withdrawal of any miners or the 

closure of the longwall area of the mine, it did result in the 

shat down of the 2400 volt power circuits supplying power to 

the longwall area. In the absence of available power, normal 

longwall production could not continue, and miners normally 

assigned to their normal longwall production duties could not 

continue performing those duties and were assigned "dead work." 

Any attempt by the respondent to continue full production on 

the longwall with use of high voltage power in defiance of the 

order would have placed the respondent at risk to pay the 

increased compensation to the affected miners working in the 

longwall area as provided for in the fourth sentence of 

Section 111. Thus, the net effect of the order was to curtail 

further coal production in the longwall area. Under all of 

these circumstances, including the fact that the ocder was 

still in effect and had not been terminated or vacated at the 

time superintendent Toth decided to idle the entire mine on 

February 9, I conclude and find that a causal relationship did 

exist between the order and the idling of the longwall area, 

and that the proximate and priinary cause of the idling of that 

area was the order issued by the inspector. 

I conclude and find that the evidence in this case establishes a reasonable nexus between the order and the idling of 

the longwall area, notwithstanding the respondent's "economic 

considerations" arguments to the contrary. Accordingly, I 

further conclude and find that the miners normally assigned 

full production work duties on the 14 ~ight 3 South Longwall 

Section, and who would have continued performing these duties 

but for the issuance of the order in question, are entitled to 

be compensated for the time the longwall area was idle from 

8:00 p.m. on February 9, to midnight February 10, 1988. 

With regard to the mine areas other than the longwall, 

while it ia true that the order affecting the longwall was 

still outstanding and in ef Eect when superintendent ~oth 

558 
decided to idle the entire mine on February 9, the facts establish, and the UMWA concedes, that the continuous mining sections continued to operate for 2-1/2 shifts after the order 

was issued. Miners continued to work in these areas, and coal 

production continued, albeit at reduced efficiency, but still 

unaffected by the order. Unlike the longwall area, where coal 

production was substantially reduced because of the unavailability of high voltage power which came about as a result of 

the order, the continuing mining sections continued to operate 

for 2-1/2 shifts, and no miners were idled. 

With regard to any safety connection between the order 

and the remaining mine areas other than the longwall, the evidence establishes that any potential hazards to miners through 

exposure to the cited high voltage cables was limited to the 

longwall area, and I find no evidence to support any conclusion 

that any of the miners who continued to work in these other 

mine areas were at risk or exposed to any potential hazard 

because of the alleged violation which prompted the inspector 

to issue the order on the longwall. 

Although I have concluded that the order issued on the 

longwall was safety related, and that a reasonable nexus has 

been established between the order and the idling of the 

longwall area of the mine, I cannot reach the same conclusion 

with respect to the remaining mine areas which were unaffected 

by the order. On the facts of this case, I conclude that the 

respondent has made a credible, plausible, and reasonable 

showing with respect to the adverse economic impact on the 

mine which resulted from its failure to gain timely approval 

of its modification petition. 

The evidence in this case establishes that the adverse 

economic impact on the continued viable operation of the mine 

as a result of the respondent's failure to obtain timely 

approval of its longwall modification petition was clearly 

communic3.ted to the union well in advance of the issuance of 

the order, and it came to fruition at a time when the respondent was attempting to continue mining by extending the 

longwall in anticipatidn of MSHA's approval of the petition, 

which the respondent believed was imminent, and at a time when 

there was little or no ongoing production on the longwall, 

even before the order was issued. 

While it is true that the respondent precipitated the 

issuance of the order by advancing high voltage cables into 

the longwall ~rea, given the remedial nature of section 111 of 

the ~ct, and the fact that no miners working in areas other 

than the longwall were exposed to ~ny hazard as a result of 

559 
the alleged violation, and notwithstanding the fact that the 

order was still in effect at the time Mr. Toth decided to idle 

the entire mine on February 9, I conclude and find that the 

order was incidental to, and not the immediate cause of the 

idling of the rest of the mine-by Mr. Toth. To the contrary, 

I conclude and find that Mr. Toth's decision to idle the mine 

was primarily the result of his managerial decision that he 

could not continue to economically operate the mine, and his 

obvious frustration and aggravation over the failure to gain 

timely approval of the then pending modification petition. 

The respondent's credible evidence clearly supports its 

contention that for a period of approximately !-month prior to 

the issuance of the order on February 8, and Mr. Toth's decision of February 9, to idle the entire mine, representatives 

of the UMWA were on notice by the respondent that drastic 

workforce reductions were inevitable in the event the pending 

modification petition was not timely approved by MSHA. Respondent's credible evidence also establishes that at the time the 

longwall panel in question was mined out approximately 2 weeks 

before the order was issued, coal production on the longwall 

showed a marked decrease. The reasons for this was the fact 

that all of the longwall coal had been mined up that point, 

and the respondent had not as yet had approval f rorn MSHA to 

iritroduce high voltage on the panel which would have allowed 

it to continue mining at a high production capacity. Notwithstanding these factors, the respondent decided to extend the 

panel an additional 300 feet in anticipation of the approval 

of its petition, and miners were kept working at reduced productivity levels until superintendent Toth decided that he 

could no longer justify operating the mine with a full employment complement in the face of decreased production and the 

lack of high voltage capability on the longwall. 

Under all of the aforementioned circumstances, I cannot 

conclude that a reasonable nexus existed between the issuance 

of the order and Mr. Toth's decision to idle the entire mine. 

~ccordingly, I further conclude and find that those miners 

assigned to and working in mine areas other than the longwall 

area are not entitled to any compensation as a cesult of 

Mr. Toth's idlement of the mine. 

ORDER 

In view of the forgoing findings and concl'J.sions, IT IS 

ORDE:RED ·raA.·r: 

1. The affected miners assigned to the 14 Right 3 South 

Longwall Section of tha mine as of February 9, 1988, as shown 

560 
in Exhibit· "F" to the Joint Stipulation of Facts filed by the 

parties in this proceeding, are entitled to compensation at 

their regular rates of pay for wages lost during the idletnent 

0£ the mine, from 8:00 p.m. on February 9, 1988 .to midnight 

February 10, 19 88, t;.,i th interest computed from February 9, 

1988, until the date payment is made, and to this extent the 

compensation claims filed in this proceeding ARE GRAN·rED. 

All interest due with respect to the claims which have 

been allowed shall be calculated in accordance with the 

Commission's decision in Arkansas-Carbona, 5 FMSHRC 2042 

(December 1983), as modified by Local Union 2274, District 28, 

UMWA v. Clinchfieid Coal Company, 10 FMSHRC 1493 (November 

1988). See: 54 Fed. Reg. 2226-2227, January 19, 1989. 

2. All other miners working ih areas other than the. 

14 Right 3 South r ... ongwall Section of the mine during the aforementioned idlement period of the mine are not entitled to compensation, and to this extent, the compensation claims filed 

in this proceeding ARE DENIED. 

3. Within twenty (20) days of the date of this decision, 

and without prejudice to the right of the parties to seek 

further review of this decision, the parties shall confer i~ 

an effort to stipulate to the amounts of compensation and 

interest due the aforementioned longwall .miners, and within 

ten (10) days thereafter, the parties shall file their joint 

stipulation or agreement in this regard with me so that a 

supplemental decision and final order may be entered. 

4. The UMWA's request for payment of attorney's fees IS 

D~NIBD. Section 111 of the Act does not provide for an award 

of attorney's fees and costs in compensation proceedings. · 

See: Local Union 2274, District 28, United Mine Workers cf 

America v. Clinchfield Coal Company, 10 FMSHRC 1493, 1499 

(November 1988), and the cases cited therein~ 

5. This decision shall not be made final until the 

parties have submitted their joint stipulation and agreement, 

and a supplemental decision and final order is issued. 

~A. u //~ Koutras 

Administrative Law Judge 

561 
Distribution: 

Joyce A. Hanula, Legal Assistant, United Mine Workers of 

America, CUMWA), 900 15th Street, N.W., Washington, DC 20005 

(Certified Mail) 

Eugene P. Schmittgens, Jr., Esq., Eastern Associated Coal 

Corporation, 301 N. Memorial Drive, Post Office Box 373, 

St. Louis, Mo· 63166 (Certified Mail) 

/fb 

562 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DONALD F. DENU, 

Complainant 

v. 

AMAX COAL COMPANY 

Respondent 

APR 7 1989 

. . 

: 

ORDER 

DISCRIMINATION PROCEEDING 

Docket No. LAKE 88-123-D 

VINC - CD 88-08 

Ayrshire Mine 

Appearances: Donald F. Denu, Rockport, Indiana, 

pro se1 

D. c. Ewigleben, Esq., Amax Coal Company, 

Indianapolis, Indiana for Respondent 

Before: Judge Melick 

By Qecision dated March 3, 1989, the Discrimination 

Complaint of Donald F. Denu was granted. The parties 

subsequently reached agreement as to costs and damages at 

$1,000. Accordingly Amax Coal Company is irected to pay to 

Donald F. Denu the amount of $1,000 within 0 days of the 

date of this order. 

Distribution: 

Donald F. Denu, R.R. #1, Box 333, Rockport, IN 47635 

(Certified Mail) 

D. C. Ewigleben, Esq., Amax Coal Company, P.O. Box 967, 

Indianapolis, IN 46206-0967 (Certified Mail) 

nt 

563 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 7 1989 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. LAKE 88-79 

A.C. No. 12-01986-03504 

v. . . Hunley Creek 

SUPER BLOCK COAL CORPORATION, 

Respondent 

Appearances: 

Before: 

DECISION 

Miguel J. Carmona, Esq., Office of the 

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

Illinois, for the Petitioner. 

Judge Koutras 

Statement of the Case 

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

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

§ 820(a), seeking a civil penalty assessment in the amount of 

$20 for an alleged violation of mandatory safety standard 

30 C.F.R. § 77.1109(c)(l). The respondent filed a timely 

answer and contest and a hearing was convened in Evansville, 

Indiana. However, the respondent failed to appear, and the 

hearing proceeded in his absence, and testimony and evidence 

was submitted by the petitioner in support of the alleged violation. A show cause was subsequently served on the respondent affording it an opportunity to explain its failure to 

appear at the hearing, but no response was received. Under 

the circu.~stances, pursuant to Commission Rule 63, 29 C.F.R. 

§ 2700.63, the respondent is deemed to be in default. 

Issues 

The issues presented in this case are Cl> whether the 

condition or practice cited by the inspector constitutes a 

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

appropriate civil penalty to be assessed for the violation, 

564 
taking into account the statutory civil penalty criteria found 

in section llO(i) of the Act. 

Applicable Statutory and Regulatory Provisions 

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

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

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

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

Discussion 

Section 104(a) non-"S&S" Citation No. 3038275, issued on 

January 19, 1988, cites a violation of mandatory safety standard 30 C.F.R. § 77.1109(c)(l), and the cited condition or 

practice states as follows: "A portable fire extinguisher was 

not provided for the Ingersoll-Rand T-4 highwall drill. work 

area I.D. No. 900-0." 

MSHA Inspector Keith L. Stoner testified as to his background and experience, and he confirmed that he issued the 

citation in question during the course of a regular inspection 

which he conducted at the mine on January 19, 1988. He stated 

that the coal stripping superintendent, Danny Jasper, was present at the mine and was aware of his inspection. Mr. Stoner 

confirmed that he issued the citation after finding that a 

rubber-tired drill truck was not equipped with a portable fire 

extinguisher as required by the cited standard. He stated 

that the drill apparatus is an integral part of the truck, and 

he considered it to be a mobile piece of equipment within the 

meaning of the standard. 

Mr. Stoner confirmed that the truck was parked approximately 100 feet from the repair garage, but that it was not 

tagged out. Other pieces of equipment parked near the garage 

were equipped with fire extinguishers, and the cited drill was 

the only piece of equipment which was not provided with one. 

Except for the lack of a fire extinguisher, the drill truck 

appeared to be in normal and good operating condition. The 

truck was equipped with a bracket which normally is used to 

hold an extinguisher in place. Mr. Stoner confirmed that he 

spoke with Mr. Jasper about the matter, and Mr. Jasper 

informed him that he did not believe that an extinguisher was 

required because the drill truck was not in use when the 

inspector observed it. 

Mr. Stoner stated that the violation was not significant 

and substantial, and he believed that an injury was unlikely 

565 
because the drill was not in use and no one was around it at 

the area where it was parked. He made a negligence finding of 

"moderate" because the other equipment was provided with fire 

extinguishers, and abatement was achieved within 5 minutes 

when a spare extinguisher located in the repair garage was 

placed on the drill truck in the bracket which was provided 

for this purpose. 

Findings and Conclusions 

Fact of Violation 

The respondent is charged with a violation of mandatory 

safety standard 30 C.F.R. § 77.1109(c)(l), for failure to 

provide a portal fire extinguisher for the highwall drill in 

question. Section 77.1109(c)(l) provides as follows: "Mobile 

equipment, including trucks, front-end loaders, bulldozers, 

portable welding units, and augers, shall be equipped with at 

least one portable fire extinguisher." 

As noted earlier, the respondent failed to appear at the 

hearing in this matter, and failed to respond to my show cause 

order of March 14, 1989. The returned postal service certified mail receipts of record reflect that the respondent 

received the initial hearing notice, the amended hearing 

notice, and the show cause order. However, it has not further 

responded or explained its absence and failure to respond. 

Under all of these circumstances, I conclude and find that the 

respondent is in default and has waived its right to be heard 

further in this matter. 

On the basis of the credible testimony of the inspector 

who issued the citation, I further conclude and find that the 

petitioner has established a violation of section 

77.1109(c)(l), and the citation is therefore AFFIRMED. 

Size of Business and Effect of Civil Penalty Assessment on the 

Respondent's Ability to Continue in Business 

The respondent appears to be a small mine operator, and 

absent any information to the contrary, I conclude and find 

that the $20 civil penalty assessment for the violation in 

question will not adversely affect its ability to continue in 

business. 

History of Prior Violations 

A computer printout submitted by the petitioner reflects 

that for for the period March 21, 1986 to March 20, 1988, the 

566 
respondent paid civil penalty assessments in the amount of 

$960 for 17 section 104(a) citations, none of which include 

prior violations of mandatory safety standard section 

77.1109(c)(l). I cannot conclude that the respondent's compliance history is such as to warrant any additional increase 

in the civil penalty assessment made for the violation which 

has been affirmed in this case. 

Good Faith Compliance 

I conclude and find that the respondent immediately abated 

the violation in good faith by providing a fire extinguisher 

for the cited drill in question. 

Negligence 

The inspector's "moderate" negligence finding is affirmed. 

Gravity 

The inspector's credible testimony establishes that the 

violation was not serious, and I adopt his finding as my finding and conclusion on this issue. 

Civil Penalty Assessment 

On the basis of the foregoing findings and conclusions, 

and taking into account the requirements of section llOCi) of 

the Act, I conclude and find that the petitioner's proposed 

civil penalty assessment in the amount of $20 for the violation in question is reasonable and appropriate, and IT IS 

APPROVED. 

ORDER 

The respondent IS ORDERED to pay to the petitioner a 

civil penalty assessment in the amount of $20 tor a violation 

of mandatory safety standard 30 C.F.R. § 77.1109Cc>Cl), as 

stated in section 104Ca) "non-S&S" Citation No. 3038275, 

January 19, 1988. Payment is to be made to the petitioner 

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

order, and upon receipt of payment, this case is dismissed. 

567 
Distribution: 

Miguel J. Carmona, Esq., Office of the Solicitor, U.S. 

Department of Labor, 230 South Dearborn Street, 8th Floor, 

Chicago, IL 60604 (Certified Mail) 

Mr. Larry Wallace, President, Super Block Coal Corporation, 

Post Office Box 234, Crestwood, KY 40014 (Certified Mail) 

/f b 

568 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

POMERLEAU BROTHERS, INC., 

Respondent 

april 7, 1989 

CIVIL PENALTY PROCEEDING 

Docket No. YORK 89-8-M 

A. C. No. 19-00970-05501 

Chelmsford Mill 

DECISION 

ORDER TO PAY 

Appearances: David L. Baskin, Esq., Office of the Solicitor, 

u. s. Department of Labor, Boston, Massachusetts, 

for Petitioner. 

Before: Judge Merlin 

This case is a petition for the assessment of three civil 

penalties filed by the Secretary of Labor against Pomerleau 

Brothers, Inc. At the hearing, the Solicitor advised that the 

parties had agreed upon settlement recommendations of all items 

for the originally assessed amounts. The Solicitor placed the 

recommendations on the record. The hearing in this matter took 

place at the same time as another case which was heard on the 

merits. 

Citation Nos. 2853598 and 2853599 were issued for violations 

of 30 C.F.R. § 56.9087 and § 56.9011, respectively. Upon a 

review of the record, I am satisfied that the proposed single 

penalty assessments which are the original amounts are 

appropriate for these items. 

Order No. 2853597 was issued for a violation of 30 C.F.R. 

§ 56.9003 because the No. 35 Euclid truck had not been equipped 

with adequate brakes. The proposed settlement is for the $500 

originally assessed penalty. MSHA found that the gravity of the 

violation was serious, because it created the danger of a haulage 

accident. The service brakes on the rear wheels did not function 

and the hand brake could not hold the empty truck on the ramp at 

the primary crusher. Under such circumstances the machine could 

have run out of control. In addition, the operator was negligent 

since a routine examination of the machine would have revealed 

this condition. The operator is small with no prior history. 

However, in view of the substantial degree of gravity and the 

569 
existence of negligence, I conclude $500 is an appropriate 

penalty amount for this violation. 

In light of the foregoing, the recommended settlements are 

APPROVED and the operator is ORDERED TO PAY $540 within 30 days 

from the date of this decision. 

\~ - \ 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

• 

David L. Baskin, Esq., Office of the Solicitor, u. s. Department 

of Labor, John F. Kennedy Federal Building, Government Center, 

Room 1803, Boston, MA 02203 (Certified Mail) 

Pomerleau Brothers, Inc., Box 236, North Chelmsford, MA 01863 

<Certified Mail) 

/gl 

570 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 111989 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

STERLING ENERGY, INC., 

Respondent 

. . 

. . 

. . 

DECISION 

CIVIL PENALTY PROCEEDINGS 

Docket No. KENT 88-103 

A.C. No. 15-14587-03536 

Docket No. KENT 88-169 

A.C. No. 15-14587-03540 

Docket No. KENT 88-208 

A.C. No. 15-14587-03544 

Sterling No. 5 Mine 

Appearances: Mary Sue Ray, Esq., and William F. Taylor, Esq., 

Office of the Solicitor, U.S. Department of 

Labor, Nashville, Tennessee, for Petitioner1 

Mr. Ralph Ball, President, Sterling Energy, Inc. 

LaFollette, Tennessee, for the Respondent. 

Before: Judge Maurer 

These cases are before me under section 105(d) of the 

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

seq., the "Act", to challenge two citations, one issued under 

section 104Ca) of the ~ct, the other under section 104(d)(l) of 

the Act, one imminent danger withdrawal order, seven section 

104Cd)(l) orders and a single section 104Cd) (2) order. The 

respondent also seeks review of the civil penalties proposed by 

the Secretary of Labor for the related violations. 

Pursuant to notice, the cases were heard in Knoxville, 

Tennessee on February 21, 1989. 

STIPULATIONS 

The parties have agreed to the following stipulations, which 

I accept: 

1. Sterling Energy, Inc., owns and operates the No. 5 Mine, 

which produces coal for resale in interstate commerce and is 

subject to the jurisdiction of the Act. 

571 
2. The undersigned administrative law judge has 

jurisdiction over this proceeding pursuant to Section 105 cf the 

Act. 

3. The subject. citations and orders were properly served on 

the respondent by a duly authorized representative of the 

Secretary. 

4. Copies of the subject citations and orders entered into 

this record as petitioner's exhibits are authentic copies of the 

originals~ 

I. Docket No. KENT 88-103 

Citation No. 3001604, issued on September 11, 1987, pursuant 

to Section 104(a) of the Act, alleges a "significant and 

substantial" violation of the standard at 30 C.F.R. § 75.200 and 

charges as follows: 

The roof on 002~0 pillaring section was loose and had 

sJoughed out around the roof bolts as much as 12" from 

the plates, where the employees had cleaned up and had 

trammed the miner part of the way to start producing 

coal. 

The cited standard, 30 C.F.R. § 75.200, provides in 

pertinent part as follows: 

The roof and ribs of all active underground roadways, 

travelways, and working places shall be supported or 

otherwise controlled adequately to protect persons from 

falls of the roof or ribs. 

According to Inspector Osborne, an MSHA coal mine inspector, 

the roof in the cited area was loose and 12-14 inches of material 

had sloughed out around one full row of bolts on one side. At 

the time he observed this condition, the operator was engaged in 

moving equipment through this area and one man was observed 

directly underneath where this roof had sloughed out. It was 

stipulated that there were four people on the section, that there 

was robbing work going on, taking the pillars out, and that the 

operator was planning on using this as a haulage road. 

The inspector assessed the gravity of the violation as 

highly likely to produce or result in a lost work days or 

restricted duty accident involving four persons because, in his 

words, "it's a real tender top" and they were doing robbing work 

at the time. 

572 
Mr. Ball, testifying on behalf of the respondent, agreed 

that action should have been taken in this area, but that he 

didn't see anything particularly serious about it. He believes 

that if he would have put up three or four timbers, he could have 

went ahead and used it as a roadway. His rationale for that 

position is that they were using 60-inch resin bolts in this area 

as opposed to 42~inch "traditional bolts". 

The Secretary also presented the testimony of Mr. Roger 

Dingess, a roof control and ventilation specialist, employed as 

such by MSHA for the last seven years. 

Mr. Dingess, after hearing the prior testimony of both 

Inspector Osborne and Mr. Ball, testified that based on the 

inspector's description of the affected area and the roof 

conditions he found there, including the fact that 60-inch resin 

bolts were used in this area, it was his opinion that the 

occurrence of a roof fall was highly likely. He went on to state 

that when you have sloughing out around the roof bolts, 

continuing bolt after bolt in a line, it weakens the roof and 

lets it swing on the remaining bolts on the other side. This 

creates an i1n."'llinent danger, in his opinion, which when they are 

taking the pillars out, as they were here, makes it highly likely 

that a roof fall would occur. 

To abate this condition, the area was re-supported with 

timbers and dangered-off and a new roadway was established. 

In view of the foregoing, I conclude and find that MSHA has 

established a violation of section 75.200, by a preponderance of 

the credible evidence adduced in this case, and also find that 

the violation was of such a nature as could significantly and 

substantially contribute to the cause of a coal mine safety 

hazard. I accept the testimony of Messrs. Osborne and Dingess 

that there was a reasonable likelihood that the cited hazard 

could have resulted in at least serious, if not fatal, injury to 

a person or persons. I therefore conclude that the violation was 

significant and substantial and serious. Mathies Coal Company, 6 

FMSHRC 1 (1984). The citation, accordingly, will be affirmed. 

Related Order of Withdrawal No. 3001603, issued pursuant to 

section 107(a) of the Act reads as follows: 

The roof on the 002-0 pillaring section was loose and 

had sloughed out around the roof bolts as much as 12" 

from the plates, where the employees had cleaned up and 

had trammed the miner part of the way to start 

producing coal. 

573 
Section 107(a) of the Act provides in part as follows: 

If, upon any inspection or investigation of a coal or 

other mine which is subject to this Act, an authorized 

representative of the Secretary finds that an imminent· 

danger exists, such representative shall determine the 

extent of the area of such mine throughout which the 

danger exists, and issue an order requiring the 

operator of such mine to cause all persons except those 

referred to in section 104Cc), to be withdrawn from, 

and to be prohibited from entering, such area until an 

authorized representative of the Secretary determines 

that such imminent danger and the conditions or 

practices which caused the imminent danger no longer 

exist. 

Section 3Cj) of the Act defines "imminent danger" as "the 

existence of any condition or practice in a coal or other 

mine which could reasonably be expected to cause death or 

serious physical harm before such condition or practice can 

be abated." 

The limited issue herein is whether such a condition or 

practice existed at the time this order was issued. According to 

Inspector Osborne, the imminent danger order was issued because 

of a "condition" in which he observed a miner proceed beneath an 

area of dangerous roof. Inspector Osborne maintained that this 

"condition" constituted an "imminent danger" because the 

inadequately supported roof might fall and kill or seriously 

injure the miner. I find that the hazard was such that the cited 

condition "could reasonably be expected to cause seriou~ physical 

injury". Accordingly, I find that there was an imminent danger 

and will affirm Order No. 3001603. 

II. Docket No. KENT 88-169 

Citation No. 3166112, issued on April 5, 1988, pursuant to 

section 104(d)(l) of the Act, alleges a "significant and 

substantial" violation of the mandatory standard found at 

30 C.F.R. § 75.303 and charges as follows: 

An adequate preshift examination was not being made for 

the above mentioned mine. The seals located on the 

first right panel off the main intake cannot be 

examined because of loose roof and water. This 

condition has been recorded in the preshi£t record 

book and in the mine foreman's report of hazardous 

conditions, February 2, 1988. 

574 
The cited standard, 30 C.F.R. § 75.303, requires that 

operators examine seals and doors to determine whether they are 

functioning properly prior to each shift. 

Roger Dingess issued this citation because the seals on the 

first right panel on the intake side had not been inspected by 

the operator during pre-shift examinations of this area between 

February 2, 1988, and the date the citation was issued, April 5, 

1988. This is a period in excess of two months that these seals 

were not inspected allegedly due to a build-up of water and poor 

roof conditions extant in that area. Mr. Dingess is of the 

opinion that the loose roof could have been scaled down and the 

water could have been pumped out, which would have allowed them 

to examine those seals. 

A request to relocate these seals was made to MSHA by the 

operator on February 24, 1988. But because the mine's 

ventilation plan expired on March 1, 1988, this request was not 

approved until March 28, 1988. I note here that as of 

April 5, 1988, when the citation was issued there was no 

indication that the operator was moving the seals or even 

preparing to move the seals. Nor was the operator examining the 

existent seals. Apparently, the material necessary to construct 

the new seals was present on the surf ace, but the respondent had 

made no effort to begin construction prior to the issuance of the 

citation. 

The required preshift examinations of these seals were 

particularly important in order to detect any weakness or 

deterioration which might allow the seals to crush out and 

possibly expose the miners to black damp, which is a lack of 

oxygen in the air, and which very likely could have been built-up 

behind the old permanent ventilation seals. Furthermore, the 

poor roof conditions could significantly enhance the possibility 

of the seals crushing out in the first instance. 

Mr. Dingess opined that it was "highly likely" that a fata1 

accident could occur involving fourteen (14) miners because of 

the poor roof conditions which existed in the area and the length 

of time for which the seals had not been examined. He also 

testified that in his experience there was black damp behind 

every seal that he has ever seen, if it had been there for 

awhile. 

In my opinion, the record in this case concerning this 

citation will not support a gravity finding of "highly likely" 

because there is no evidence of what the actual physical 

condition of the seals was on the date the citation was issued. 

575 
The more appropriate finding, which I believe the record will 

support, is "reasonably likely". 

A violation is properly designated as being of a significant 

and substantial nature if, based on the particular facts 

surrounding the violation, there exists a reasonable likelihood 

that the hazard contributed to will result in an injury or 

illness of a reasonably serious nature. Cement Division, 

National Gypsum Co., 3 FMSHRC 822, 825 (April 1981). In Mathies 

Coal co., 6 FMSHRC 1, 3-4 (January 1984), the Commission 

explained: 

In order to establish that a violation of a mandatory 

standard is significant and substantial under National 

Gypsum the Secretary must prove: (1) the underlying 

violation of a mandatory safety standard; (2) a discrete 

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

contributed to by the violation; (3) a reasonable likelihood 

that the hazard contributed to will result in an injury; and 

(4) a reasonable likelihood that the injury in question will 

be of a reasonably serious nature. 

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," and that the likelihood of injury must be evaluated in 

terms of continued normal mining operations. U.S. Steel Mining 

Co., 6 FMSHRC 1573-74 (July 1984); see also, Halfway, Inc., 

8 FMSHRC 8, 12 (January 1986). 

I find the violation is proven as charged. When Mr. Dingess 

discussed this situation with Harley Wilder, the Mine 

Superintendent, Mr. Wilder admitted that they had not been 

inspecting the seals. Mr. Ball also admitted at the hearing that 

the mine supervision got a little relaxed on the seals once they 

put in for the relocation. They let the water build-up in that 

area aftec that. 

The second, third and fourth prongs of the test are 

adequately met by the unrebutted and really unopposed testimony 

of Mr. Dingess to the effect that the operator's failure to 

inspect these seals for two months left the miners in the 

unenviable position of not knowing the condition of the subject 

ventilation seals. Given the poor roof conditions in that area 

as well, it was reasonably likely that one or more of these seals 

could fail in that amount of time and release black damp which 

certainly could lead to serious or even fatal injuries. 

Accordingly, I also find that the violation was "significant and 

substantial" and serious. 

576 
I further find that the violation was the result of 

inexcusable aggravated conduct, constituting more than ordinary 

negligence, on the part of the operator's superintendent, Harley 

Wilder, which conduct is clearly imputable to the operator. The 

violation was therefore cau~ed by the operator's unwarrantable 

failure to comply with the cited mandatory standard. Emery 

Mining Corp., 9 FMSHRC 1997, 2002 (December 1987>; Youghiogheny & 

Ohio Coal Co., 9.FMSHRC 2007, 2010 (December 1987). 

Based on the foregoing, the high degree of negligence 

exhibited, if not reckless disregard for the consequences, and 

the seriousness of the violation, section 104(d)(l) Citation No. 

3166112 was properly issued and will be affirmed herein. 

III. Docket No. KENT 88-208 

There are seven section 104Cd)(l) Orders and a single 

section 104(d)(2) Order included in this docket. Mr. Ball, on 

behalf of the respondent, admits all eight of the violations that 

are cited in this docket, has no particular objection to those 

being found to be "significant and substantial" but strenuously 

denies the unwarrantable nature of these eight orders. 

Order No. 3175428 

Order No. 3175428, issued pursuant to section 104Cd>Cl) of 

the Act, alleges a violation of the regulatory standard at 

30 C.F.R. § 75.1722(b) and charges as follows: 

The No. 2 belt conveyer head drive was not guarded to 

prevent persons from being caught between the belt and 

pulley. 

Section 75.1722(b) provides that: "Guards at conveyordrive, conveyor-head, and conveyor-tail pulleys shall extend a 

distance sufficient to prevent a person from reaching behind the 

guard and becoming caught between the belt and the pulley". 

Mr. Dingess issued this order on April 18, 1988, when he 

found that the ~o. 2 belt conveyor head drive was not guarded. 

He observed a miner greasing this belt drive unit at that time 

while the belt was in operation without the guard. The miner 

stated that the guard for this head drive had been removed for 

several days. 

The respondent admits the violation and I further find it to 

be a significant and substantial violation. The head drive unit 

was not guarded as to prevent a miner from becoming caught 

577 
between the belt and the pulley. Furthermore, the miner 

stationed there must grease the belt while exposed to the moving 

parts, open gears and rollers. Therefore, I find it to be 

reasonably likely that this violation could result in a 

permanently disabling injury involving one miner. Mathies, 

supra. 

I also find it to be a serious violation and caused by the 

unwarrantable failure of the operator to comply with the cited 

mandatory standard. The operator's superintendent who was in 

charge of performing the preshift examination in this area had 

actual personal knowledge the guard was missing and yet took no 

action to replace it. This amounts to aggravated conduct on the 

part of the operator because this condition was allowed to exist 

for several days while a miner was assigned to this duty station. 

Order No. 3175428 will be affirmed. 

Order No 3175429 

Order No. 3175429, issued pursuant to section 104(d)(l) of 

the Act, alleges a violation of the regulatory standard at 

30 C.F.R. S 75.1722Cb) and charges as follows: 

A guard was not provided for the No. 1 belt conveyor 

tail roller. 

Mr. Dingess found that a guard was also not provided for the 

No. 1 belt conveyor tail piece, which was located in the same 

general area as the missing guard cited in Order No. 3175428, 

supra. 

The respondent admits the violation and the same rationale 

applies to my finding that this violation was also significant 

and substantial and occurred as a result of the operator's 

unwarrantable failure to comply with the cited standard. 

Accordingly, Order No. 3175429 will be af~irmed herein. 

Order No. 3175430 

Like the previous two orders in this docket, Order ~o. 3175430 was issued on April 18, 1988, pursuant to section 

104(d)(l) of the Act, and alleges a violation of the regulatory 

standard at 30 C.F.R. § 75.1722Cb), charging as follows: 

The 002 Section belt conveyer head drive was not 

guarded to prevent persons from becoming caught between 

the belt and the pulley. 

578 
Herein, Mr. Dingess found that a guard was not provided for 

the 002 section belt conveyor head drive unit. This particular 

head drive unit had never been guarded, even though the belt had 

been in place for approximately a month. 

Once again, the respondent admits the violation and my 

rationale for finding the violation to be significant and 

substantial, serious, and an "unwarrantable failure" is the same 

as for the previous two orders in this docket. 

Accordingly, Order No. 3175430 will also be affirmed. 

Order No. 3175435 

Order No. 3175435, issued pursuant to section 104(d)(l) of 

the Act, alleges a non-"S&S" violation of the regulatory standard 

at 30 C.F.R. § 75.302 and charges that line brattice was not 

installed as raquired to provide adequate ventilation to the 

working faces. 

Mr. Dingess issued this order on April 19, 1988, when he 

observed that a line brattice or other approved device was not 

being used to provide air to the face while active mining was 

going on in the Number 3 entry. There was no detectable movement 

of air in this entry. 

The operator admits the violation. 

The Secretary also charges that the violation was caused by 

an unwarrantable failure to comply with the standard in question. 

However, as stated earlier in this decision, in order to 

establish "unwarrantable failure," the Secretary must establish 

by a preponderance of the reliable and probative evidence that 

the operator has engaged in "aggravated conduct constituting more 

than ordinary negligence". Emery Mining Corp., supra. Rather 

than evidence of aggravated conduct, what this record reflects, 

at least as of April 19, 1988, is at best the educated guess of 

the inspector and at worst, speculation on the part of the 

inspector. I simply cannot find any hard evidence of aggravated 

conduct or gross negligence on the part of the operator with 

respect to this violation. The Secretary urges that the 

operator's failure to install this line brattice was a "practice" 

at this mine and for this reason the violation should be found to 

have occurred as a result of the operator's "high" negligence. 

However, there is no evidence of when this "practice" began, for 

how long it continued or who knew about it, ordered it or 

condoned it. Indeed, I don't find any evidence in the record 

that such a "practice" existed on or before April 19, 1988, 

although I concede it cectainly may very well have. Therefore, I 

find that the instant order iu1p.roperly concluded that the 

579 
admitted violation resulted from Sterling's unwarrantable failure 

to comply with the mandatory standard. Accordingly, Order ~o. 

3175435 will be modified to a citation issued under section 

104Ca) of the Act, and affirmed as such. 

Order Nos. 3175436, 3175438 and 2995460 

These three orders, all issued pursuant to section 104(d)(l) 

of the Act, all allege a violation of the mandatory standard 

found at 30 C.F.R. § 75.301 and essentially charge that the 

quantity of air reaching the last open crosscut for the section 

mentioned therein was less than the 9000 cfm required. The 

operator admits all three violations. 

Order No. 3175436 was issued by Mr. Dingess on April 19, 

1988, when he measured the quantity of ai:;: reaching the last open 

crosscut on the 001 section at 7,488 cfm. Because less than 

9000 cfm were reaching the last open crosscut, this was a 

violation of the cited standard. 

The respondent admits the violation, but challenges the 

alleged unwarrantability. I must concur with Sterling on this 

one. As of this date, April 19, 1988, there was no direct 

evidence of aggravated conduct on the part of the operator with 

respect to this violation. The basis for issuing this order was 

Dingess suspected that they were "short-circuiting" the air, 

manipulating it from one section to the other, depending on where 

an inspector was in the mine. He also saw a curtain laying down 

in the return and believes that he knows what the company used it 

for, i.e., "short-circuiting" the ~ir and sending it to whatever 

section the inspector was on. The operator, however, has several 

potential alternative explanations for that curtain being down 

and flatly denies manipulating the air from section to section. 

The issue of unwarrantability concerning this particular 

order must be settled with the evidence that was either in 

existence at the time the inspector issued the order or at least 

that relates back to the time the order issued. He testified he 

issued the instant order on the basis of his suspicion that the 

operator was improperly regulating the air from one section to 

another on April 19. In my opinion, a suspicion that the 

operator is willfully violating a standard does not equate to 

evidence of aggravated conduct on the part of the operator, at 

the particular instant of time the order is issued, even if 

subsequent investigation a day, a week or a month later 

establishes that the operator is knowingly and willfully 

violating the standard at that subsequent point in time. Herein, 

evidence of subsequent violations of the same nature and of the 

same standard to prove the degree of negligence that existed on 

580 
April 19 is not of sufficient weight to establish that the 

instant voiolation was an "unwarrantable failure" to comply. 

Therefore, Order No. 3175436 will be modified to a citation 

issued under section 104(a) of the Act and affirmed. 

The other two orders, issued the next day, on April 20,. 

1988, by Mr. Dingess and Inspector Blume present an entirely 

different situation. To confirm his suspicions of the previous 

day, on April 20, Mr. Dingess brought another inspector with him 

to Sterling's No. 5 mine. They synchronized their watches and he 

proceeded to the 001 section while Inspector Blume went to the 

002 section. At exactly high noon, they both took anemometer 

readings of the quantity of air reaching the last open crosscut 

on their respective sections. Inspector Blume measured only 

1,512 cfm reaching the last open crosscut on the 002 section and 

so issued section 104(d)(l) Ord~r No. 2995460 for an "S&S" 

violation of 30 C.F.R. § 75.301. Mr. Dingess meanwhile measured 

7,704 cfm in the last open crosscut on the 001 section and issued 

Order No. 3175438 for a "non-S&S" violation of the same section. 

This was an excellent investigative technique and makes an 

iron-clad case for an "unwarrantable" violation on both sections. 

On April 19th, the operator was put on actual notice that there 

was a ventilation problem at the very least on the OOl'section 

and perhaps on both sections, one being related to the other, 

ventilation-wise. Furthermore, the-operator ~bated the violative 

condition on the 001 section on the 19th by making adjustments 

that the operator knew would adversely effect the air on the 002 

section. Therefore, the two ventilation violations found on the 

20th were without a doubt the result of the operator's aggravated 

conduct and existed with the operator's actual knowledge and 

disregard for the mandatory standard involved. 

Additionally, I find the extremely low air Inspector Blume 

found at the last open crosscut on the 002 section to be a 

significant and substantial violation of the standard as well, as 

his testimony concerning the reasonable liklihood of a signif icantly increased health hazard to the miners working there is 

unrebutted and credible, and I do credit it in making this 

finding. 

Accordingly, Order Nos. 3175438 and 2995460 will be affirmed 

in their entirety. 

581 
Order No. 3172666 

Order No. 3172666, issued on June 27, 1988, pursuant to 

section 104Cd)(2) of the Act, alleges a "significant and 

substantial" violation of the mandatory standard found at 

30 -C.F.R. § 75.303 and charges as follows: 

During a discrimination complaint investigation the 

investigator determined through review of the preshift 

examination books and statements from the operator that 

the miners worked from April 19th to May 3, 1988, 

without a preshift examination being conducted of the 

areas worked on the second shift (maintenance shift). 

Inspector Blume issued this order because the operator had 

failed to have a certified person perforw a preshift examination 

of the mine prior to the second shift between April 19 and May 3 

of 1988. The second shift was a maintenance shift employing 

three miners and a foreman. Before April 19, one Danny Elliot 

was the second shift foreman and the person certified to perform 

the preshift examination. He was fired on April 19, 1988, and 

not replaced until May 3, 1988. In the meantime, no preshift 

examination was performed prior to the start of the second shift. 

The operator contends the preshift examinations were being 

done, but just not recorded. I specifically reject that· 

contention as incredible. As far as I am concerned, the preshift 

examination bobk for the mine for the period between April 19, 

1988 and May 3, 1988, establishes by a preponderance of the 

credible evidence available that preshift examinations were not 

being performed for the second shift during that entire time 

period. 

There is additional evidence to that effect. Mr. Ronnie 

Brock, a special investigator for MSHA, had occasion to 

investigate this allegation concerning preshif t examinations as 

part of a discrimination complaint investigation involving two 

discharged miners at Sterling's No. 5 Mine. It was reported to 

him by the other two miners who continued to work the second 

shift that from April 19, 1988, until May 3rd there was no 

preshift examination performed prior to the second shift. 

Furthermore, they told him that complaints were made to Harley 

Wilder, the Mine Superintendent about the lack of a forem·an and 

the lack of a preshift examination on the 19th of April. The 

next night, the 20th of April, the same complaints were voiced to 

Mr. Ralph Ball, the President of Sterling. Reportedly, Mr. Ball 

indicated that he would try to have them a foreman by the 

following week, which would have been around the first part of 

May. I recognize the hearsay nature of this testimony, but it is 

corroborated by the documentary evidence of the preshift 

582 
examination book itself and I do give it weight, particularly on 

the issue of "unwarrantability". 

I also recognize that the Commission recently rejected the 

notion that any violation of section 75.303 is per se significant 

and substantial in nature. Birchfield Mining Co., 11 FMSHRC 31, 

35 (January 1989). The Mathies test is still the proper test to 

apply in making the "S&S" finding and applying it here, I find 

that the respondent's failure to preshift this mine on the second 

shift for some two weeks running is a significant and substantial 

violation of the mandatory standard. There is a violation of the 

mandatory standard established, if not admitted. There is also a 

discrete safety hazard presented in my opinion in that two miners 

worked the second shift for some two weeks without a foreman 

present and without a preshift examination being conducted 

approximately a mile underground while a myriad of other 

violations and hazards existed, as demonstrated earlier in this 

decision. At least some of the other violations that existed at 

that time were themselves significant and substantial and some 

violations, particularly ventilation-related ones were repetitive 

in nature as well. I believe the mining conditions and lack of 

supervision were such during this period of time that the failure 

to inspect and report any violative or hazardous conditions prior 

to these two men going into the mine constituted an "S&S" 

violation of the preshift standard because in my opinion there 

was a reasonable liklihood that the hazard contributed to would 

have resulted in an event in which there very well could have 

been a serious injury. 

Order No. 3172666 will be affirmed in its entirety. 

Civil Penalty Assessments 

A computer printout entered into evidence as Petitioner's 

Exhibit ~o. 16, indicates to me that this operato~ has a 

relatively lengthy history of roof control and ventilation 

violations in the two year period prior to ~pril 17, 1989. This 

is not a good sign~ to say the least. 

There is some question raised as to the operator's financial 

ability to pay these assess~ents and remain in business. At the 

hearing the respondent put into evidence a document that purports 

to be a financial statement. However, this statement is 

unaudited and the CPA firm that submitted it attached a very big 

disclaimer to it that renders it all but worthless for its 

intended use, i.e., to prove the respondent's inability to pay. 

Mr. Ball also testified that the No. 5 Mine is now closed, but 

the ~o. 8 Mine was opened in latter 1988. The record really does 

not contain any substantial evidence in a usable form concerning 

the operator's financial condition. Therefore, I find that the 

583 
civil penalties ordered herein, infra, are appropriate 

considering the size of the operator and such penalties will not 

cause the company to discontinue in· business •. 

Upon consideration of the entire record in this case and the 

foregoing findings of fact and conclusions of law, I find that 

the assessment of civil penalties is warranted as follows: 

Citation/Order No. Date Standard Penalty 

3001604 9/11/87 75.200 $ 1100 

3166112 4/5/88 75.303 1200 

3175428 4/18/88 75.1722{b) 500 

3175429 4/18/88 75.1722{b) 500 

3175430 4/18/88 75.1722{b) 500 

3175435 4/19/88 75.302 200 

3175436 4/19/88 75.301 200 

3175438 4/20/88 75.301 400 

2995460 4/20/88 75.301 500 

31 72666 6/27/88 75.303 750 

ORDER 

1. Citation Nos. 3001604 and 3166112 ARE AFFIRMED. 

2. Order Nos. 3001603, 3175428, 3175429, 3175430, 3175438, 

2995460, and 3172666 .ARE AFFIRMED. 

3. Order Nos. 3175435 and 3175436 ARE HEREBY MODIFIED to 

citations issued under section 104{a) of the Act, AND 

AFFIR..\1ED. 

4. Respondent, Sterling Energy, Inc., IS ORDERED TO PAY 

civil penalties totaling $5850 within 30 days of the 

date of this decision. 

584 
Distribution: 

Mary Sue Ray, Esq., William F. Taylor, Esq., U.S. Department of 

Labor, Office of the Solicitor, 2002 Richard Jones Road, Suite 

B-201, Nashville, TN 37215 (Certified Mail> 

Mr. Ralph Ball, President, Sterling Energy, Inc., P.O. 

Box 1528, LaFollette, TN (Certified Mail) 

/ml 

585 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

APR 12 1989 

UTAH POWER & LIGHT COMPANY, 

Contestant 

CONTEST PROCEEDING 

v. . . Docket No. WEST 89-160-R Citation No. 2876485; 3/16/89 

SECRETARY OF LABOR, Cottonwood Mine 

MINE SAFETY AND HEALTH Mine ID 42-01944 

ADMINISTRATION (MSHA), 

Respondent 

. . 

DECISION 

Appearances: Timothy M. Biddle, Esq., Susan E. Chetlin, Esq. 

Crowell & Moring, Washington, D.C., 

for Contestant; 

Robert Cohen, Esq., Office of the Solicitor 

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

for Respondent. 

Before: Judge Morris 

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

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

(the "Act"), to challenge the issuance by the Secretary of Labor 

of a citation charging Utah Power & Light Company C"UP&L"), with 

a violation of the regulatory standard published at 30 C.F.R. 

§ 75.1105. 

After notice to the parties a hearing on the merits was held 

in Denver, Colorado on April 5, 1989. The parties relied on oral 

arguments, waived the filing of post-trial briefs and further 

requested a decision without receiving the transcript of the proceedings. 

Summary of the Case 

Citation No. 2876485, issued on March 16, 1989, charged 

contestant with violating 30 C.F.R. § 75.1105, which provides as 

follows: 

§ 75.1105 Housing of underground transformer 

stations, battery-charging stations, substations, compressor stations, shops, and 

permanent pumps. 

586 
[Statutory Provisions] 

Underground transformer stations, batterycharging stations, substations, compressor 

stations, shops, and permanent pumps shall be 

housed in fireproof structures or areas. Air 

currents used to ventilate structures or areas 

enclosing electrical installations shall be 

coursed directly into the return. Other underground structures installed in a coal mine as 

the Secretary may prescribe shall be of fireproof construction. 

Citation No. 2876485 alleges the following violative 

condition: 

The transformer being used to supply 480VAC 

to the 12th West belt drive located at 

crosscut #2 12th West was not being vented 

directly to the return. 

When tested with chemical smoke, the smoke 

was observed entering the intake entry for 

the 12th West working section through holes 

in the stopping being used to isolate the 

tr an sf ormer. .A power cable was observed 

exiting through one of the holes. This hole 

measured 3! inches wide x 8 inches high. 

When tested in front of Coutby end), over, 

at the sides of the transformer, smoke was 

observed moving toward the intake stopping 

that was located 18 feet 4 inches (measured) 

away from the transformer. 

A 12 inch vent tube was located on the left 

rib inby the transformer. The vent tube was 

28 inches (measured) from the left corner of 

the transformer and back 3 feet from the end 

of the transformer and ran 150 feet to the 

return. There were no check curtains across 

the cross cut to enclose the transformer. 

The cross cut was open to the belt drive. 

587 
1) The transformer had been at this location 

since Aug. 1988. 

2) Approximately 2 weeks ago, a major air 

change was done to increase the amount of 

air to the newly installed longwall section. 

3) The hole was made in the stopping 1 or 2 

days earlier to supply power via the cable. 

4) Management was aware the air change and 

should have re-evaluated this transformer 

for proper ventilation. 

The above 4 items are contributing factors 

concerning this condition. 

Issues 

The issues are whether a violation of 30 C.F.R. § 75.1105 

occurred; if it occurred, should the violation be designated as 

S & S and if a violation occurred was it due to the unwarrantable 

failure of the operator to comply with the regulation. 

Stipulation 

At the commencement of the hearing the parties stipulated as 

follows: 

1. The Commission and the Administrative Law Judge hearing 

the dispute have jurisdiction to determine this case. 

2. Donald E. Gibson, an MSHA Inspector, was an authorized 

representative of the Secretary at the time of the inspection. 

3. The Cottonwood Mine is a large coal mine. 

4. Various exhibits can be admitted into evidence without 

further authentication. These include Exhibits C-1, C-2, C-3, as 

well as R-1 and R-2. 

588 
Secretary's Evidence 

Donald E. Gibson is a federal coal mine inspector. He 

is also an electrical specialist and he has been employed by 

MSHA since May 26, 1987. The witness has extensive background 

experience in mining as well as in his specialty. He is assigned 

to the Orangeville, Utah office. 

He is familiar with the Cottonwood Mine and on March 14, 

1989, he began an electrical inspection at the mine. During 

his pre-inspection conference with management, he advised the 

operator why they were inspecting the mine. At that time he 

also reviewed with management previous Triple-A inspections. 

Those in attendance at the conference included maintenance 

and safety representatives as well as the superintendent, mine 

foreman and the miner representative. At the meeting they 

also discussed the national sales policy manual, that is, the 

inspector's manual which states the intent of. certain laws 

and regulations relating to safety and health. 

At this meeting it was indicated that certain District 9 

policy had been rescinded. 

On December 30 there was another inspection at the mine and 

Inspector Gibson indicated to the company they would have to vent 

transformers directly to the return. This was discussed with 

representatives of the safety department including Tatton, 

Norton and a miner representative. In the witness' opinion 

"directly to the return" means the venting shall be without any 

deviation. The Bureau of Mines recommends a 3,000 cfm flow of 

air over transformers. 

The company can use tubing to vent its transformers to the 

return. If the area is vented without being enclosed it would 

not be vented directly to the return. 

After the pre-inspection on March 14 he started this 

inspection and it continued on March 16, 1989. On that date 

Inspector Gibson went underground at approximately 8:05 a.m. 

to 8:15 a.m. He was accompanied by the superintendent of 

maintenance, safety department representatives, and a miner 

representative. 

During the course of the inspection they went to the 12 West 

Belt Area where he intended to observe the longwall where miners 

589 
were working. After leaving the longwall face they were on 

their way outside. While traveling in a vehicle the inspector 

noticed a power center in an open crosscut. 

The power center was in crosscut 6. (Crosscut 6 was marked 

on Exhibit R-1.) The equipment in the XC was a 480 VAC rectifier. 

The rectifier was neither housed nor plugged. He then followed 

tne electrical cable of the rectifier 400 feet to a stopping in 

the main intake airway, which was also a primary escapeway. At 

crosscut 2 the inspector observed that the cable went through 

a hole in the stopping. Beyond the stopping was an energized 

transformer. A person could pass through the stopping by using 

a 5-foot high by 6-foot wide steel door. (See Exhibit C-2 

showing equipment in CX2.) 

Also located in crosscut 2 were electrical belt starters 

and belt drive electric motors. The belt entry also serves as 

a secondary escapeway. ~/ 

Inspector Gibson believed the transformer was not being 

vented directly to the return. To verify this he took 9 

different smoke samples at various places close to the transformer. (Marked as red X on Exhibit C-2.) 

The long and short of his 9 samples were that the smoke was 

not moving directly to the return. Some of the smoke hung in 

place and in the last 3 tests (closest to the stopping) the smoke 

moved through the 3i" x 8" hole in the stopping. 

It is permissible to knock a hole in the stopping but it 

must be resealed. 

The inspector opened the door in the stopping and saw smoke 

in the air intake. He also repeated these tests for his supervisors who were present. In addition, the company representative 

agreed they saw smoke in the air intake. 

He then told company representative Peacock that the company 

had a Cd)(2) order. He issued such an order because 15 miners 

inby were subjected to the hazard of a fire occurring at the 

transformer. The belt air was not isolated and there was no 

isolation because of the hole in the stopping. In addition, the 

secondary escapeway was not separated from the primary escapeway. 

(The witness marked the intake air course with red arrows on 

Exhibit C-2.) 

1/ The inspector later conceded that the belt entry shown in 

Exhibit C-2 was not an escapeway. 

590 
In addition there was a CO center inby the transformer. If 

the inby crews came out the secondary return escapeway, that area 

would already be contaminated by any smoke. 

The vent pipe would also pick up the smoke if there was a 

fire in the transformer area. 

After Inspector Gibson orally issued his (d}(2} order, 

company representatives claimed the company was no longer subject 

to the Cd> series. Inspector Gibson believed otherwise but he 

checked with William Ponceroff, his supervisor. Mr. Ponceroff 

confirmed that Inspector Jones had just completed an inspection 

and, in fact, the company was off the Cd) series. 

For this reason Inspector Gibson issued a (d)(l) citation. 

A company representative indicated that the hole in the 

stopping had been made by a diamond drilling crew in the last 

day or two. But the hole was not more than three days old. The 

inspector did not recall the name of the person he was given but 

he didn't feel he was being too harsh on the operator in issuing 

the (d)(2) order. He felt the company met the unwarrantability 

feature. In fact, the inspector previously had three conversations with management about venting directly into the return. 

To be in compliance, the company would have had to erect a 

fire wall check curtain to enclose the transformer and the air 

would have to be channeled into the vent tube. Without the installation of a stopping, the smoke could go into the belt entry. 

(See Exhibit C-2 to locate belt entry.) 

When the inspector saw smoke enter the intake entry, he 

concluded there was a violation of § 75.1105. 

He then told company representative Tatton that if the 

Jones' inspection was completed, the company could put up a check 

curtain inby the transformer and plug up the hole in the stopping 

with cinder block and plaster. 

Additional smoke tests by Inspector Gibson showed the smoke 

merely hanging in the area of the transformer: it was not being 

drawn into the vent tubing. 

Abatement was accomplished by a combination of steps. 

Initially, a check curtain was hung (and rehung) outby the 

transformer. (See blue dots on C-2 for location of curtain.> 

Further, the 12-inch metal corrugated vent pipe was extended 

10 feet toward the transformer and an additional 5 feet to the 

side. (See green lines on Exhibit C-2 showing route of vent 

piping from the transformer some 135 to 140 feet to the return 

air in 3rd South entry.) 

591 
It took an hour and fifteen minutes to abate the violation. 

Abatement was confirmed when smoke flowed directly into the tube. 

Prior to abatement the transformer had not been vented 

directly to the return. 

Crosscut 2, where the transformer was located, is a work 

area that must be pre-shifted and the hole in the stopping 

was obvious. Someone told the drilling crew to do this work 

and there had been three weekly examinations and two or three 

electrical examinations of the area. Some person must have 

observed these conditions. 

The inspector observed a beltman in the belt entry downwind from the belt drive. Any smoke would come down to him. 

The safety and health of the beltman and the 15 miners in the 

longwall would be affected by the hazard. 

Any fire in the transformer or belt drive would generate 

thick heavy smoke from the neoprene, rubber and transformer 

insulation cables. Such smoke could take away your breath. 

A W-65 self-rescuer would not filter such smoke. It would only 

take a small amount of it to overcome a miner. 

Exhibit C-2 shows various fire-suppression devices in the 

crosscut. The installed heat sensors would detect any heat~ 

however, there are times when the solenoids will stick. 

The inspector wrote a three-page citation describing the 

conditions he observed. He also wrote four items which contributed to the citation. 

These items, as testified by Inspector Gibson and as listed 

on the citation, were as follows: 

1. The company indicated that the transformer had been at 

this location since August 1988. 

2. Although he was told that there had been a major air 

change two weeks ago, such a change should have caused the air 

to draw better. 

3. The hole had been made in the stopping 1 or 2 days 

earlier to supply power to the cable. 

4. When a major air change is made, the company should have 

re-evaluated this transformer for proper violation. 

592 
The witness is aware of the definition of unwarrantable 

failure. Basically, unwarrantable failure means aggravated 

conduct by the operator, that the operator knew and was aware 

of the concerns. He had talked to the operator repeatedly 

and if after such discussions the company goes in the direction 

of non-compliance then such conduct constitutes aggravated 

negligence. 

The company had experienced a major mine fire. The company 

has 24 belt drives and probably a transformer for each belt 

drive. 

None of the areas were enclosed before the citation was 

issued and the inspector had only looked at two other belt 

drives. 

The inspector considered the violation to be serious because 

the primary and secondary escapeway could be contaminated with 

smoke. The 15 miners at the longwall and the beltman would be 

affected. 

The inspector concluded that the conditions here involved 

unwarrantable failure on the part of the company for several 

reasons. Initially, the drill foreman had been told to knock 

a hole in the stopping. The area was pre-shifted and in fact 

some 18 to 27 pre-shifts had been done as well as 6 to 9 onshift checks. But no one reported the hole in the stopping. 

In addition, Section 75.512 requires weekly examinations of 

electrical equipment and this should have been discovered. 

In addition, the inspector personally discussed venting 

the transformer with upper management and they had 2 or 3 days 

to re-evaluate their position after he was on the company's 

property. In addition, he was astounded when he saw the 

ventilation tubing and he concluded that the company could not 

reasonably think that it could ventilate the transformer in 

thls fashion. 

Further, all pre-shifters have smoke tubes. In addition, 

the four items he listed on the citation indicated to him that 

the operator was indifferent and did not seal or enclose the 

transformer area so the ventilation pipe could accomplish its 

desired result. 

The inspector believed it was an S & S violation for a 

number of reasons: 

1. Section 75.1105 was violated. 

2. A strong safety hazard was involved as miners could be 

overcome by smoke. 

593 
3. It was likely that an injury could result and it would 

be serious; being overcome by smoke could result in disability 

or a fatality. 

Concerning gravity, the inspector concluded it was reasonably likely that an injury could result from the violative 

condition. It would be possible to have smoke in the entry 

without being detected by a monitor. This occurred in a previous 

26-minute fire where the surface did not receive a signal from 

the monitors. 

On cross-examination the inspector admitted that the transformer was enclosed in a metal container and so there was no 

violation in the first sentence of the regulation. He believed 

the second sentence had been violated. 2/ 

The revoked District 9 policy in essence stated that an 

operator was in compliance if it vented a transformer into a 

return entry "eventually". The District 9 policy which was 

revoked did not address transformers as such. 

On December 20, the Manager of District 9 rescinded previous District 9 policy and a memorandum to this effect went to 

the inspection force. Inspector Gibson did not give the company 

anything in writing nor did they ask for it. (Exhibit C-4 

revokes prior policy.) 

On December 30, he discussed the new policy with UP&L and 

told the company they would have to ventilate directly into the 

return, use an air lock, 3/ further, all enforcement would be 

guided by Part 75. The reason for ventilating is to keep the 

heat down on the equipment by keeping the transformer cool. 

The inspector was aware that § 75.1105 is part of a series 

of fire regulations and is not a ventilation regulation. 

11 The second sentence of the cited regulation reads: 

Air currents used to ventilate structures or areas 

enclosing electrical installations shall be coursed 

directly into the return. 

ll Air locks are not involved in this case. 

594 
The rectifier in crosscut 6 was not energized nor housed, 

nor was it vented directly to the return. 

Walking down the intake air, the flow of it was in the 

inspector's face at about 62,000 - 63,000 cfm. 

The CO sensor was a block away from the transformer. The 

sensor will activate at 15 parts per million. He did not test 

the sensor and he supposed it was operable. 

He was tracing cable that went to the crosscut 2 area. 

The hole in the stopping was at the upper left side. The 

stopping was 18 to 20 feet wide, the hole in it was 3i" x 8" 

It is not unusual for cable to go through a stopping. The 

rectifier cable is ll inches in diameter and it took up that 

much of the 3l" x 8" hole in the stopping. Sufficient room 

remained for a person to reach his hand through the opening. 

There were other problems and other potential violations 

in the area but the inspector did not issue citations from these 

other conditions because he wanted to be fair with the operator. 

It seemed to him that issuing additional citations would be 

unfair. 

It was 18 feet from the transformer to the stopping. The 

transformer was in a metal box and it was free standing. 

The mine roof was above the transformer. It rested on 

gravel. The vent was corrugated metal and located by the left 

corner. It was two feet back from the transformer and located 

to the side. 

The cable from the rectifier was connected to the transformer. 

He was not sure if the belt entry at this location was a 

secondary escapeway. The witness agrees that the belt entry 

was not a secondary escapeway because the secondary escapeway 

makes a bend and it goes into the main return before it reaches 

this area. 

The inspector knew the vent tube was not venting as a result 

of smoke tests. Vent tubing attempts to ventilate an area and to 

go into the main return. 

The transformer must be close to the belt drive and the 

company attempted to comply with the regulation by putting in 

ventilation tubing. 

595 
A transformer fire could affect workers. The belt was not 

isolated and the secondary escapeway was not separated from the 

primary but this is based on the inspector's misapprehension 

that this area was a secondary escapeway. The power pack is 

also protected by sprinklers. It is the Secretary's scenario 

that there could be a failure of the water system or the CO 

system or that the belt attendant would not react to a fire. 

In his scenario some things could go wrong. 

A two-man diamond driller team made a hole in the stopping 

as the inspector was told by company representative Tatton. 

Inspector Gibson did not talk to the diamond drillers. He 

also ask.ed the company but they could not identify the drillers. 

Inspector Gibson discussed venting directly into the return 

with the company officials. He thought they were ignoring his 

earlier warning but he didn't think the vent tube could vent 

the transformer directly into the return. They said the tube had 

been there for a month. It would be reasonable for the company 

to check to see how the tube was drawing. The hole in the 

stopping served to accommodate the cable and was not for ventilation purposes. 

The witness issued the citation because the air was not 

being pushed over the transformer. The violation existed before 

the hole was put in the stopping. In sum, the hole in the 

stopping only contributed to the violation. 

The violation would still have been a unwarrantable failure 

even if there had been no hole in the stopping. 

On December 20, 1988, venting directly to the return became 

a requirement by virtue of a national MSHA directive. 

The inspector assumed that the major air change undertaken 

by the operator was an increase of 40,000 cfm. Such an increase 

would permit the air to draw better. 

Concerning unwarrantability, the inspector was told that the 

foreman received a directive to put the 3!" x 8" hole in the 

stopping. The hole was a catalyst and a contributing factor in 

the unwarrantable failure designation. 

The inspector was "astounded" when he saw an open area 

where the transformer was located was not enclosed as by a check 

curtain or omega wall. 

596 
In his citation the inspector stated that 15 miners could be 

impacted by a transformer fire but this does not include the belt 

attendant. He did not know if the beltman was always in the area 

of the transformer. However, the beltman would be one to recognize the smoke conditions. 

When the inspector advised the operator of the change in 

policy, he recognized that UP&L needed time to comply, and he 

personally afforded them such an opportunity. They could comply 

in 15 to 30 days. They could comply by evaluating the transformer and they might relocate it, and they could re-evaluate the 

system. The company should have re-evaluated its transformer. 

Section 75.1105 has never been changed nor has there been 

a change since the 1969 Coal Act regarding venting directly into 

the return. 

The 3l" x 8" hole in the stopping was obvious. 

Sufficient smoke could get through the 3l" x 8" hole to 

contaminate the adjoining airway. 

The inspector took no air readings as he did not think it 

was necessary. He didn't see any company personnel taking air 

readings and the air was going directly to the return. 

If the inspector had found fire suppressor devices in that 

area not functioning he would have issued a § 107 imminent danger 

order. 

He has recently seen a movie where all fire suppression 

devices failed during a mine fire. 

Fifteen to thirty days is a reasonable time to comply. The 

vent tube had been there for one month before March 16, 1989. 

The smoke through the 3l" x 8" inch hole went into the 

intake. There was 60,000 cfm in the intake. 

In the event of a raging fire the stopping would quickly 

burn. 

JEFFREY A. RACHETTI is a miner mechanic at the Cottonwood 

mine as the Safety and Health Representative for the UMWA. 

He accompanied Inspector Gibson on walk-arounds and he was 

with him when this citation was issued. 

597 
Mr. Rachetti agrees the (d)(l) order stated a violation of 

the regulation. He also agrees that it was a unwarrantable 

failure violation because every day people travel that area and 

they should have noticed it in their travels. 

Mr. Rachetti was with Inspector Gibson during the smoke tube 

test and he believed Gibson's testing was adequate. 

Concerning seriousness, he observed a real hazard in the 

smoke leaving the area via the hole in the stopping and going 

into the airway. 

There was a possibility of a fire and the company has had 

a few fires. One of them killed 27 people, and this could happen 

again. 

The witness was familiar with the CO monitoring intakes and 

there was no problem with the monitoring systems within a week 

of the order. However, during that previous week there had been 

electrical problems. The operator has a back-up electrical 

system. 

There is a beltman assigned to the 12 West Belt Drive. He 

walks to the tailpiece, which would be 150 to 200 feet from the 

working face. The area where the transformer is located would be 

2,000 to 3,000 feet away from the face. 

In the witness' opinion Gibson is a very consistent inspector, that is, he does his job and explains things to the 

miner representatives. Mr. Rachetti has a high opinion of 

Mr. Gibson's skill. 

The witness travels with other federal inspectors. Section 

75.1105 is a violation and the transformer was not properly 

vented. 

The tube was not over the transformer and it would not draw 

smoke. The company should have noticed the hole. 

The vent tubing was in place 30 days before the citation and 

he learned this from someone in the safety department. 

The CO system is activated at 30 PPM (parts per million). 

The vent was physically in view when he was in the area with 

Inspector Gibson. 

598 
UP&L's Evidence 

GLENN JOHNSON has been UP&L's general belt supervisor for 

a year; prior thereto he was the belt maintenance foreman. 

Previously he was a coal miner and also a hard rock miner. 

He works the day shift supervising maintenance and all 

conveyor belt lines in the mine. 

The witness is familiar with the 12 West Section. 

(Witness shows the 12 West Belt Drive on Exhibit C-1) 

A belt drive is a mechanism that moves the belt and 

transports coal. 

In 12 West there is one belt drive which is 3200 feet long. 

Coal is dumped at crosscut 32, the headgate of the longwall. 

From that point it is transported by belt to the outside. 

Electricity comes to the belt via a high voltage cable 

through a transformer to a starter box in a belt drive. There 

is a step-down unit for the transformer and the electricity is 

stepped down to 480 volts. The starter box itself is 15 feet 

from the transformer. (The witness marks starter box as "SB" 

on Exhibit C-2.) 

SB is metally enclosed; 6 foot long, 3 foot high and sits 

on legs. 

The witness also identified the power pack (pp) which is a 

metal tank 3 foot square. This is all in the No. 2 crosscut in 

12 West Section. The height of the area is 9 feet. 

The block stopping in crosscut 2 consists of 1 inch by 16 

inch cinder blocks. The company mortars the joints on the cinder 

blocks. 

The stopping contains a 6 foot by 5 foot steel door and the 

stopping is coated on the intake side to retard air movement. 

The beltman inspects and maintains the area. 

Water sprinklers are installed over the belt drive and over 

the power pack. 

599 
A fire hydrant is located at the side of the drive and heat 

and sensors are connected to the fire detection systems located 

at 50 foot intervals. There is also 500 feet of hose stored 

within 50 feet of the fire hydrant. 

A foam adductor mechanism attaches to the end of the fire 

hose and this creates suction which introduces foam into the 

water. The foam is a fire-fighting device that removes oxygen 

from the atmosphere. 

On March 16, the foamer was 15 feet from the south end of 

the transformer. 

In addition, there were 40 to 50 pound sacks of rock dust on 

the east side of the transformer and within 10 feet of it on the 

intake side of No. 2 stopping. This was approximately 250 pounds 

of rock dust, which covers coal on the floor and is used_ for fire 

fighting purposes. 

There are.3 No. 10 fire extinguishers in the area. Two 

are on the south side of the transformer and one is adjacent to 

the starter box. 

There are also 3 SCSRs in the adjacent area, one CO sensor 

in the belt entry and one in the adjacent entry. 

The equipment the witness described was in place on March 16 

and witness Johnson is in the 12 West Belt area four times a 

shift. 

Seventy-five percent of the operator's coal comes from this 

section. 

On March 16 he saw Inspector Gibson at 10:00 a.m. when he 

walked into the area. Inspector Gibson was looking at the 

equipment and he obs.erved him use a smoke tube. 

Inspector Gibson proceeded to inspect the stopping. He was 

looking at the cables that went through the stopping. 

The inspector told the company representative Peacock that 

there was a problem with a hole in the stopping and he then 

proceeded to test with smoke between the transformer and the 

stopping. 

The smoke tube is a chemical and when it is released into 

the air it produces smoke. The purpose is to detect air flow. 

Johnson observed three tests at the transformer and two tests at 

the stopping. 

600 
On one of the tests he could see no smoke movement. The 

equipment entering the 3!" x 8 11 hole in the stopping was 1-inch 

cable and a smaller telephone cable. 

The third smoke test that Johnson observed was in the transformer area and the fourth test was in the center of the 

transformer and then at the north end of the transformer. 

The witness saw most of the smoke go into the vent tube. 

The vent tube had been there for about a month and that was the 

only airflow through the entry. 

The belt attendant checks the transformer and he is required 

to check with the power center of the transformer. He keeps a 

record of this check. He physically goes into the area. 

The beltman marks his cards to show checks made on one hour 

intervals. 

On the 16th Witness Johnson did not make any notes. 

He had seen the citation issued by Inspector Gibson concerning conditions and practices. 

He agrees some smoke went through the hole in the stopping 

and ventilation was going through the tube when he put his hand 

up to it. It is possible that all the air was not going into the 

tube. 

The witness saw no smoke from the test on the transformer 

and didn't know if there was a violation. 

Part of the smoke hung suspended on the north side but most 

of it went into the tube. On the test on the south side of the 

transformer the smoke simply hung there. He saw smoke from two 

tests going toward the tube. 

He did not attempt to show Inspector Gibson if the fire 

suppressant equipment was working in the area. 

Mr. Johnson did not know who made the hole in the stopping 

and did not know the name of the foreman. The holes were not 

sealed and it appeared that the workers had knocked out an entire 

cinder block. 

No protection was provided for the trailing cables or 

through the stopping and he did not know if the cable was ever 

energized. 

601 
Mr. Johnson concedes he is not an expert in ventilation 

nor in ventilating transformers. However, he was satisfied that 

the tube was ventilating the transformer. 

The stopping hole should have been observed by mine management and the hole existed for one or two days. The hole put 

there was to get the cable to the power supply. 

Mr. Johnson was involved in abating the citation. They 

plugged the hole and hung curtain on the north end of the transformer. Gibson rechecked and it was still inadequate. The tube 

was changed in length and direction. 

During the test the inspector said the effort was still 

inadequate; they were not getting airflow at the south end of the 

transformer. 

The witness agreed that you could see smoke drifting into 

the belt entry. 

Gibson asked Peacock and another individual to go to the 

intake side of the stopping. In this test, within 16 feet of 

the stopping, smoke went through the hole in the stopping. 

The airflow would go over the belt drive and course to 

No. 4 crosscut and vent directly into the return. (On R-1 the 

witness marked directional flow of the smoke with red arrows.) 

Smoke will activate the CO monitors. 

Discussion 

The initial issue to be considered is whether or not the 

violation of Section 75.1105 occurred. 

On this issue the credibility determination must be made 

between the testimony of Inspector Gibson and UP&L's witness 

Johnson. 

I credit the testimony of the inspector for several 

reasons. The inspector is clearly a knowledgeable expert concerning ventilation. In comparison, Witness Johnson readily 

admitted that he was not a ventilation expert. I further credit 

the inspector's testimony because it was forthright and positive 

as compared with Mr. Johnson's testimony which at times hedged 

as to whether or not the vent pipe was in fact ventilating the 

transformer. 

602 
On Inspector Gibson's testimony it is clear that the 

transformer was not in fact vented directly into the return 

and a violation of the regulation occurred. 

A further issue presented is whether the occurrence should 

be designated as significant and substantial within the meaning 

of the Act. 

Section 75.1105 embodies the statutory provisions and it was 

originally enacted by the Federal Coal Mine Health and Safety Act 

of 1969. It has essentially ranained intact until this time. 

The Secretary, relying on the legislative history of the 

1969 Coal Act, argues that any violations of § 75.1105 are per se 

significant and substantial. The legislative history of the 1969 

Act 4/ expresses the Congressional view as follows: 

Section 212(c) 

This section provides for certain underground equipment that could cause fires if not 

functioning properly to be placed in fireproof 

structures. Air that is used to ventilate the 

structure and which might contain noxious fumes 

must be passed directly to the return air. 

Experience has shown that such a requirement will reduce the possible mine fire hazards 

with accompanying inherent dangers to human life 

and property. In the event a fire should occur 

in one of these installations the type of equipment enclosed is of such a nature that considerable smoke and fumes are emitted and therefore 

should be coursed directly into the return aircourse before endangering human life. 

4/ Senate Subcommittee on Labor, Committee on Labor and Public 

Welfare, 94th Cong., 1st Sess., Part I Legislative History of 

the Federal Coal _Mine Health and Safety Act of 1969 at 204 (1975) 

C"Legis. Hist.") 

603 
In Birchfield Mining Company, 11 FMSHRC 31 (1989) the 

Commission rejected a per se argument as it related to the 

violation of a different regulation. I likewise reject the 

per se argument. However, the credible evidence as recited in 

the summary of the evidence establishes the violation was s & s 

as outlined by Commission doctrine expressed in Mathies Coal 

Company, 6 FMSHRC 1 (1984) and U.S. Steel Mining Co., 6 FMSHRC 

1573-74 (1984). 

For the foregoing reasons the circumstances here constitute 

an S & S violation of the regulation as contained in Section 

104(d)(l), 30 u.s.c. § 814(d)(l) of the Act. 

The final issue concerned is whether the circumstances 

involved here are due to the unwarrantable failure of the 

operator to comply with the regulation. 

The Commission has clearly delineated its views of the 

meaning of unwarrantable failure. It means "aggravated conduct, 

constituting more than ordinary negligence, by a mine operator in 

relation to a violation of the Act." Emery Mining Corporation, 

9 FMSHRC 1997-2004 (1987). See also, Quinland Coals, Inc., 

10 FMSHRC 705 (1988), and Helen Mining Company, 10 FMSHRC 1672 

(1988). 

It is uncontroverted in this case that the policy in MSHA 

District 9 for many years was to the effect that transformers 

did not have to be ventilated directly to a return air course. 

On December 30, 1988, there was a meeting where the company was 

advised that previous District 9 policy had been rescinded. 

Thereafter, the company would have to vent transformers and 

similar installations directly to the return. It is further 

uncontroverted in the record that the company did, in fact, 

install a 12" corrugated metal vent pipe, one end of which was 

in close proximity to the end of the transformer. It extended 

from that point toward the belt drive entry, a distance of 

25 feet, and then extended down the belt entry to the 3rd South 

air return, a distance of approximately 90 feet (See directions 

and scale in Exhibit C-2). The record is further uncontroverted 

that the installation was completed by the operator about 30 days 

before this citation was issuedi namely, about mid-February 1989. 

Such an installation contradicts any view that the operator's 

actions constituted "aggravated conduct". To the writer it 

establishes that there was an attempt to comply with the regulation on the basis of the advice the operator had received from 

the inspector on December 30, 1988. 

604 
For the foregoing reasons I conclude that the operator's 

conduct was not aggravated within the meaning of the Emery 

Mining Company, et al case precedent. 

I would rule differently if I concluded the metal corrugated vent tubing was merely a charade to comply with the 

regulation, but I find it was not. The inspector testified he 

was "astounded" to observe this venting. Further, he could not 

believe that the company would think that this would ventilate 

the transformer. I concede the inspector may well have been 

astounded because what he saw conflicted with his expertise. 

However, the uncontroverted facts again are that when abatement 

was accomplished the transformer was vented by using the tubing. 

The tubing itself was extended about 10 feet toward the end of 

the transfo~mer and about 5 feet to the side, and a curtain was 

hung to enclose the area in the crosscut. I accordingly conclude 

that the operator did not ignore the inspector's advice, nor did 

they ignore the new MSHA policy, but they acted in a responsible 

manner. The fact that its effort did not accomplish the desired 

result cannot work to its detriment. In sum, the operator's 

conduct was not aggravated within the meaning of the Commission 

decisions and the factual circumstances cannot be described as a 

result of the company's unwarrantable failure to comply. The' 

designation of unwarrantable failure in the citation should be 

stricken. 

Consolidation Coal Company, 9 FMSHRC 782 (1987) (Melick, J), 

relied on by the Secretary, is not inapposite the views expressed. 

here. In Consolidation the operator did nothing and, in fact, 

relied on the previous interpretation that no violation occurred 

so long as the power center was "eventually" ventilated to the 

return. 9 FMSHRC at 785. But this was the prior policy that had 

been revoked in December, 1988. 

Summary 

To summarize the action to be taken: I conclude the 

104Cd)Cl> Citation No. 2876485 should be affirmed under Section 

104(a) of the Act and not under Section 104Cd)(l) of the Act. 

For the reasons previously stated the citation should be 

designated as significant and substan~iali further, the 

designation of unwarrantable failure should be stricken. 

For the foregoing reasons I enter the following: 

605 
ORDER 

1. Citation No. 2876485 is affirmed as a violation 

under Section 104(a) of the Act. 

The allegations that contestant violated section 104(d) of 

the Act are stricken. 

2. The allegations that the violation of the citation are 

significant and substantial are affirmed. 

3. The allegations that the contestant's unwarrantably 

failed to comply with the regulation are stricken. 

Law Judge 

Distribution: 

Timothy M. Biddle, Esq., Susan E. Chetlin, Esq., Crowell & 

Moring, 1001 Pennsylvania Ave., N.W., Washington, D.C. 20004 

<Certified Mail) 

Robert Cohen, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified 

Mail) 

/ot 

606 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 12 1989 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

ON BEHALF OF 

WILLIAM J. KELLER 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

: 

. . 

. . 

: 

. . 

. . 

DECISION 

DISCRIMINATION PROCEEDING 

Docket No. WEVA 88-202-D 

MORG CD 87-22 

Ireland Mine 

Appearances: Linda M. Henry, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, PA, 

for Complainant: 

Michael R. Peelish, Esq., Pittsburgh, PA, for 

Respondent 

Before: Judge Fauver 

This proceeding was brought by the secretary of Labor under 

§ 105Cc> of the· Federal Mine Safety and aealth Act of 1977, 

30 u.s.c. § 801 et seq. The Secretary contends that Respondent 

violated§ 105(c)(l) by reprimanding and threatening William J. 

Keller for engaging in protected activities and by applying a 

company policy requiring employees to report safety complaints 

first to a foreman or mine management before reporting them to a 

government inspector or a mine safety committee member. The 

Secretary seeks injunctive relief and a civil penalty. 

Having considered 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 

and additional findings in the discu~sion that follows. 

FINDINGS OF FACT 

1. On July 3, 1987, William J. Keller was working as a 

precision.mason in the Three North Section of Respondent's 

Ireland Mine. The mine produces coal for sale or use in or 

affecting interstate commerce. 

607 
2. Keller and Harry Gallagher were building an overcast, a 

job that required about eight bags of block bond. Only one bag 

of block bond was at the construction site. 

3. Following a common practice at the mine, after they 

applied the bag of block bond they searched for block bond in 

other parts of the mine. Keller looked in the belt entry and 

Gallagher searc.hed the supply track. Both miners considered the 

places in which they were searching to be part of their work area 

for the purposes of the construction job. 

4. The two miners had previouly searched areas of the mine 

to look for work materials, without asking permission of a 

foreman and without being reprimanded for such practice. Local 

union president Jerald Stephens could not recall any case in 

which a miner was disciplined (before the instant case) for 

leaving his work area to search for materials. Witnesses Keller, 

Gallagher, Stephens, and Wise testified that it was a common 

practice for miners to looK for work materials in the mine. 

Keller's foreman had instructed him on previous occasions that if 

he needed supplies, he should look for them. Gallagher 

had never been instructed that he should first contact a foreman 

before looking for supplies. 

5. While looking for block bond, Keller came upon an 

inspection party in the belt entry: state mine inspector Colin 

Simmons, company mine safety representative Chris Alloway, and 

union safety committeeman Billy Wise. Inspector Simmons 

cautioned Keller by telling him that he (Keller) had just walked 

under an unguarded trolly wire. After walking a bit farther, 

Keller stopped, turned, and told Billy Wise that there was tight 

clearance and an upguarded high line in the supply track. This 

statement was audible to Inspector Simmons as well as to Wise and 

others present. It was, in effect, a complaint of two alleged 

safety violations or dangers. 

6. The inspection party went to the supply track area 

mentioned by Keller, and there Inspector Simmons issued two state 

citations for the conditions Keller had mentioned. After the 

issuanc~ of the citations, the company mine safety 

representative, Alloway, asked Wise, "Does Mr. Keller always 

cause trouble like this?" (Tr. 77.) 

7. After Keller finished his shift Con Friday, July 3, 

1987), the shift foreman met him outside and told him that the 

mine superintendent, John Snyder, wanted to see him the following 

Monday. 

8. Over the weekend, Keller told the local union president, 

Stephens, that Snyder wanted to see him on Monday. Stephens said 

he would accompany Keller to the meeting with Snyder. 

608 
9. That Monday, at a meeting in Snyder's office, Snyder 

reprimanded Keller for reporting safety violations to a state 

inspector and a safety committee member, and threatened him with 

discharge if he reported safety complaints to a federal or state 

mine inspector or to a union safety committeeman in the future. 

Keller testified that Snyder stated, "I cost him a lot of money 

on July 3rd by turning in those violations and he told me if I 

ever talked to a safety committeeman or a state or federal mine 

safety inspector that he would discharge me." (Tr. 12.) Stephens 

confirmed that Snyder reprimanded and threatened Keller, and that 

the threat was serious. (Tr. 136, 139.) I credit Keller's and 

Stephens' testimony on this matter. 

10. Harry Gallaher was not reprimanded or threatened for 

walking up the supply track to look for block bond. 

11. Respondent has a policy that mine employees must first 

report safety hazards or violations to a supervisor or mine 

managenent before they report them to a government inspector or 

safety committee member. 

DISCUSSION WITH FURTHER FINDINGS 

In order to establish a prima facie case of discrimination 

under § 105(c) of the Act, a miner must prove that Cl) he engaged 

in protected activity and (2) the adverse action complained of 

was motivated in any part by that activity. In order to rebut a 

prima facie case, an operator must show 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 nevertheless may defend 

affirmatively by proving that it also was motivated by the 

miner's unprotected activity alone and would have taken the 

adverse action in any event for the unprotected activity. 

Secretary on behalf of Robinette v. United Castle Co., 3 FMSHRC 

803 (1981). 

Keller was engaged in a protected activity when he reported 

alleged safety hazards or violations to his safety committeeman, 

Billy D. Wise, in the presence of a state mine inspector, on July 

3, 1987. 

Respondent has demonstrated a hostile attitude towards its 

miners' exercise of complaint rights protected by§ 105(c)(l) of 

the Act. Billy Wise, who has served as a member of the mine 

safety committee and grievance committee and as vice president of 

the local union, testified that Respondent did not like to have 

employees turn in violations to federal or state inspectors and 

that many employees did not report violations because they were 

afraid of reprisal. (Tr. 101-102.) Harry Gallagher t~stified 

that an assistant mine superintendent had told him not to tell 

government inspectors or safety committee members about 

violations. (Tr. 124-127, 132.) Jerald Stephens, president of 

609 
the local union, testified that some miners were hesitant to 

report conditions to inspectors "because they don't want to put 

their jobs in jeopardy." (Tr. 139.) I credit the testimony of 

the above witnesses. 

I do not accept Respondent's contention that it was 

motivated to reprimand Keller because he left his work area 

without permission. Gallagher was not reprimanded for searching 

for bond block at the same time Keller searched a different entry 

for bond block. The evidence showed that Keller and Gallagher 

were simply following a mine custom and practice in looking for 

bond block away from the immediate construction site. Employees 

in the past had followed this practice and there was no evidence 

of any other ~nployee being reprimanded for searching for work 

materials without permission of a foreman. I find that 

Respondent's contention that Keller was reprimanded because he 

left the work area without permission was a mere pretext. 

Respondent, through its mine superintendent, John Snyder, 

reprimanded Keller because he had reported safety violations to a 

safety committeeman and to a state inspector, and threatened 

Keller with discharge if he ever reported safety violations to a 

federal or state inspector or to a safety committee member in the 

future. This reprimand and threat interfered with Keller's right 

to engage in protected activities under § 105(c) of the Act and 

therefore violated that section. Considering all of the criteria 

for a civil penalty in§ llOCi) of the Act, a civil penalty of 

$1,200 is assessed against Respondent for this violation. 

Respondent has a policy that mine employees must first 

report safety h~zards or violations to a supervisor or mine 

management before they report them to a government mine inspector 

or a safety committee member. The local union president, Jerald 

J. Stephens, who has been employed at this mine for 19 years, 

described the policy as follows: "the practice is report things 

to your immediate for~~an first and then if you get no 

satisfaction, then you are to go on to your steps, which you see 

your safety corruni tteeman or the state or federal agency" (Tr. 

147). This same policy is illustrated by the mine superintendent's answers to the following questions (Tr. 183-184): 

JUDGE FAUVER: When you talked to Keller and Stephens, 

the thrust of what you were saying to Keller seems to 

have been that he was causing unnecessary citations 

for this mine. 

THE WITNESS: I think the thrust of the conversation 

was that he needlessly got us two citations because 

he left his immediate work area to go out there and 

tell Simmons. He could have very well got on the 

phone and called his immediate suoervisor and had 

them corrected the same way. ~ 

610 
JUDGE FAUVER: This is something that could have 

been done kind of in the family without involving 

the state inspector? 

THE WITNESS: Correct. 

JUDGE FAUVER: Had the inspector gone down the belt 

entry and had Keller been mixing the block bond and 

working on the overcast and if he had told the 

inspector about these two violations at that point, 

would you have reprimanded or cautioned him? 

THE WITNESS: I don't know if I would have personally 

said anything but I would have maybe had his frontline supervisor again go over the important step they 

should bring their problems to mine management and then 

we don't have to receive a citation to get every little 

thing that they think is wrong corrected. 

JUDGE FAUVER: Do you believe that that kind of 

communication to Keller would be a discouragement of 

his exercise of a right to talk to an inspector who 

is in his work place? 

THE WITNESS: No, sir. 

Respondent's policy inhibits miners from reporting alleged 

violations or dangers to inspectors or safety committee members~ 

it is an unjustified interference with their exercise of rights 

under§ 105Cc)Cl> of the Act, and therefore violates that 

section. 

In Local Union No. 1110 and Carney v. Consolidation Coal 

Company, 1 FMSHRC 338 (1979), the Commission held that a 

reprimand of a safety committee member for leaving his assigned 

duties to report an alleged safety violation or danger to MESA, 

the predecessor to MSHA, violated§ llO(b) {the 

anti-discrimination section) of the 1969 Mine Safety Act, which 

is the predecessor to§ 105{c)(l) of the 1977 Act. It also held 

that the company's "permission policy" -- requiring the company's 

permission before a member of the safety committee could leave 

his assigned duties to report safety complaints to federal 

inspectors or their agency -- violated the 1969 Act's 

anti-discrimination provision. The Comn1ission affirmed Judge 

Broderick's order to Consolidation Coal Company to "cease and 

desist from enforcing a policy requiring [the Colnpany's] 

permission before a member of the Mine Health and Safety 

Committee can leave his assigned duties to bring safety 

complaints to the Secretary "{id., at 340). 

In the instant case, the Secretary is similarly entitled to 

a cease and desist order regarding ~espondent's violative policy 

of requiring employees to report alleged violations or dangers 

611 
first to a supervisor before reporting them to a government 

inspector or a safety committee member. This ruling does not 

relieve or affect a miner's obligation to report a violation or 

hazard to his supervisor where special circumstances, e.g., a 

work refusal, create such a duty. For example, in a work refusal 

case, the following legal principles apply (quoted from the 

Commission's decision in S & M Coal Company, Inc., et al (Slip 

Op. p. 6; Sept 26, 1988)): 

A miner has the right under section 105Cc) of the 

Mine Act to ref use to work if the miner has a good 

faith, reasonable belief that continued work 

involves a hazardous condition. Pasula, supra, 

2 FMSHRC at 2789-96; Robinette, supra, 3 FMSHRC at 

807-12. See also, e.g., Metric Constructors, supra. 

Where reasonably possible, a miner ref using to work 

ordinarily must communicate or attempt to communicate 

to some representative of the operator his belief 

that a hazardous condition exists. Reco, suora, 9 

FMSHRC at 955; Dunmire & Estle, supra;-4 FMSHRC at 

133-35. See also Miller v. Consolidation Coal Co., 

687 F.2d 194, 195-97 (7th Cir. 1982) (approving 

Dunmire & Estle communication requirement). 

CONCLUSIONS OF LAW 

1. The judge has jurisdiction over this proceeding. 

2. Respondent violated§ 105(c)(l) of the Act on July 6, 

1987, by reprimanding and threatening William J. Keller for 

engaging in activities protected by that section. 

3. Respondent's policy of requiring employees to report 

alleged mine safety or health violations or dangers first to a 

supervisor or mine management before reporting them to a 

government inspector or a mine safety committee member violates § 

105(c)(l) of the Act. 

ORDER 

WHEREFORE IT IS ORDERED that: 

1. Respondent shall pay a civil penalty of $1,200 within 30 

days of this Decision. 

2. Respondent shall cease and desist from reprimanding 

threatening, or otherwise discriminating against employees for 

engaging in protected activities under§ 105(c)(l) of the Act. 

3. Respondent shall cease and desist from enforcing a 

policy of requiring employees to report alleged mine safety or 

health violations or dangers first to a supervisor or mine 

612 
management before reporting them to a federal or state inspector 

or a mine safety committee member. 

Oistibution: 

~~::rw.....- William Fauver 

Administrative Law Judge 

Linda M. Henry, Esq., Office of the Solicitor, u. S. Department 

of Labor, Room 14480 Gateway Building, 3535 Market Street, 

Philadelphia, PA 19.104 (Certified Mail) 

Michael R. Peelish, Esq., Consolidation Coal Company, Legal 

Department, 1800 Washington Road, Pittsburgh, PA 15241 (Certified 

Mail) 

iz 

613 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 12 1989 

PAULA L. PRICE, 

Complainant . . DISCRIMINATION PROCEEDING 

v. 

MONTEREY COAL COMPANY, 

Respondent 

DECISION 

Docket No. LAKE 86-45-D 

VINC CD 85-18 

Monterey No. 2 Mine 

Appearances: Linda Krueger MacLachlan, Esq., 314 North 

Broadway, St. Louis, Missouri for the Complainant: 

Thomas c. Means, Esq., Crowell & Moring, 

Washington, D.C. for the Respondent. 

Before: Judge Melick 

This case is before me upon the Complaint by 

Paula L. Price under section 105(c}(3) of the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. § 801 et seg.,, the 

"Act," alleging discrimination by the Monterey Coal Company 

(Monterey) in violation of section 105(c)(l) of the Act.l/ 

I/section 105(c}(l) of the Act provides as follows; - No person shall discharge or in any manner · 

discriminate against or cause to be dlscharged or 

cause discrimination against or otherwise interfere 

with the exercise of the statutory rights of any 

miner, representative of miners or applicant for 

employment in any coal or other mine subject to 

this Act because such miner, representative of 

miners or applicant for employment, has filed or 

made a complaint under or related to this Act, 

including a complaint notifying the operator or the 

operator's agent, or the representative of the 

miners at the coal or other mine of an alleged 

danger or safety or health violation in a coal or 

other mine or because such miner, representative of 

miners or applicant for employment is the subject 

of medical evaluations and potential transfer under 

a standard published pursuant to section 101 or 

because such representative of miners or applicant 

for employment has instituted or caused to be 

instituted any proceedings under or related to this 

Act or has testified or is about to testify in any 

such proceeding, 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. 

614 
In her Complaint to the Secretary of Labor and to the F8deral 

Mine Safety and Health Administration CMSHA} on July 15, 

1985, pursuant to section l05(c)(2} of the Act2/ Ms. Price 

alleged as follows: -

~/Section 105(c}(2} of the Act provides as follows: 

Any miner or applicant for employment or 

representative of miners who believes that he has 

been discharged, interfered with, or otherwise 

discriminated against by any person in violation of 

this subsection may, within 60 days after such 

violation occurs, file a complaint with the 

Secretary alleging such discrimination. Upon 

receipt of such complaint, the Secretary shall 

forward a copy of the complaint to the respondent 

and shall cause such investigation to be made as he 

deems appropriate. Such investigation shall 

commence within 15 days of the Secretary's receipt 

oe the complaint, and if the Secretary finds that 

such complaint was not frivolously brought, the 

Commi$sion, on an expedited basis upon application 

of the Secretary, shall order the iffi!'llediate 

reinstatement of the miner pending final order on 

the complaint. If upon such investigation, the 

Secretary determines that the provisions of this 

subsection have been violated, he shall immediately 

file a complaint with the Commission, with service 

upon the alleged violator and the miner, applicant 

for employment, or representative of miners, 

alleging such discrimination or interference and 

propose an order granting appropriate relief. The 

Commission shall afford an opportunity for a 

hearing Cin accordance with section 554 of title 5, 

United States Code, but without regard to 

subsection (a)(3) of such section} and thereafter 

shall issue an order, based upon findings of fact, 

affirming, modifying, or vacating the Secretary's 

proposed order, or directing order appropriate 

relief. Such order shall become final 30 days 

615 
On July 15 1985, Monterey Coal implemented the 

policy of Mandatory Metatarsal footgear, to cut 

down on foot injuries in the mine. The Company 

provided us with the first pair of boots, but I 

have been having problems with the fit of the boot 

I chose from the very limited selection they 

offered. The women were offered 4 styles while the 

men were offered between 12 to 20 styles. Monterey 

says if the shoes we were provided do not fit, we 

must find ones that do, dictating also the type of 

metatarsal we are allowed to wear. (no clip on 

type) I feel if Monterey makes this requirement, 

then the expense of providing a sufficient 

selection of boots that are fitted properly and 

comfortably should fall on them. If this is not 

possible or practical to provide, the rule should 

be revoked for everyone. The boots I had to wear 

caused blisters and severe feet and leg cramps. 

They hindered my ability to walk and were a safety 

hazard. Also the cramps in my feet and legs 

stopped me from getting adequate rest. After·· 

wearing their boots two days, I went to the safety 

department and tried to get some temporary approved 

clip on type because I could hardly walk. Only 

after having to leave the mine early in my shift on 

July 19, 1985, and seeking medical treatment from 

my doctor, then Monterey allowed me the clip on 

metatarsals. Monterey refuses to acknowledge this 

as a work related injury even though they required 

me to wear their boots or the alternative of not 

work. 

cont'd fn.2 

after its issuance. The Commission shall have 

authority in such proceedings to require a person 

committing a violation of this subsection to take 

such affirmative action to abate the violation as 

the Commission deems appropriate, including, but 

not limited to, the rehiring or reinstatement of 

the miner to his former position with back pay and 

interest. The complaining miner, applicant, or 

representative of miners may present additional 

evidence on his own behalf during any hearing held 

pursuant to this paragraph. 

616 
In a letter apparently accompanying the above Complaint 

to MSHA Ms. Price further stated as follows: 

I hereby file a complaint of 105(c)(2) 

discrimination by my employer in retaliation for my 

safety and health efforts for myself and other 

employees. My actions occurred on 7-19-1985 at 

approximately 2:30 AM. I could no longer tolerate 

the pain in my legs and feet caused by the now 

mandatory metatarsal safety boots I am now required 

to wear by Monterey Coal Company. They do not fit 

properly and comfortably, and are a safety hazard 

because they hinder my ability to walk comfortably 

and would prevent a safe and expedient exit from 

the mine, should it become necessary because of an 

emergency at the mine. Leg & foot cramps are a 

hinderance to my getting adequate and essential 

rest. The company actions of discrimination 

occurred on July 15, 1985, by requiring all workers 

to wear metatarsal protection then dictating what 

type of metatarsal we are allowed to wear, while 

refusing to permit an approved add on type of 

metatarsal, without furnishing adequate and proper 

fit for all workers. The person responsible for 

the company action is Gordon Roberts, 

superintendent of the *2 Mine. Witnesses with 

similar problems are listed below. 

Ms. Price subsequently, on August 26, 1985, submitted an 

additional statement to MSHA further expanding on her 

Complaint. The statement reads as follows: 

On Monday, August 12, 1985, I received my second 

pair of work boots ~ith metatarsal guards from 

Monterey. These were replacement boots sent rrom 

Hy-Test because my iirst pair was sent in to them 

to check for defects. The first pair was size 7E 

and the replacement pair they sent was size 7D. I 

can't wear a size 7D because of my wide feet. I 

took then home and wore them at home and tried to 

break them in for several days but I couldn't keep 

them on my feet for more than an hour. When I went 

to on Thursday Ben Chauvin, Mine Manager, 

617 
questioned me as to where my new boots were and I 

told him they were at home and that I was trying to 

break them in because they hurt my feet. I was 

wearing the clip-on type metatarsal guards which 

had been provided by Monterey to wear until my 

boots were sent by Hy-Test. Several other 

employees had been given these Hy-Test type to wear 

while their boots came in (Special ordered sizes). 

Monterey routinely gives out these clip-on type 

guards to visitors and inspectors when they come to 

the mine. Chauvin then told me that on Monday, 

August 19, 1985, I had to turn in the clip-on 

guards and be wearing integral metatarsal guard 

boots or he would not let me go to work. 

On Monday, August 19, 1985, I reported to work 

and turn in the clip-on guards but I wore another 

set of clip-ons that belonged to me on my boots. I 

still could no~ wear the boots provided by Monterey 

because they were not the right size for my feet. 

Chauvin stopped me prior to entering the mine and 

told me that I could not work because I did not 

have my boots on, I then leit tne mine. I returned 

on Tuesday, got dressed to go below still wearing 

the clip-on guards. I then met with Dave Longe, 

Head Mine Manager, and Chauvin and Longe advised me to 

turn my new boots in to the workhouse as suggested by a 

Hy-Test representative I had talked to if they were not 

the right size. Chauvin again told me that I could not 

go to work with just the clip-on guards on. I then left 

the mine. Longe stated that the two days I missed would 

be considered AWOL or unexcused absence days. On 

Wednesday, August 21, 1985, I went to work again and met 

with D. Longe and Chauvin and was read a letter of 

suspension, suspending me until August 26, 1985, because 

I had failed to follow Chauvin's directions to wear my 

boots with integral metatarsal guards. If I failed to 

do so there would be further disciplinary action which 

may include suspension with intent to discharge. I 

returned to the mine on Thursday to see if Monterey 

would accept the clip-on type guards if they were 

permanently attached to my regular work boots. I had 

found a cobbler that told me he could attach them to my 

boots if I provided the metatarsal guard. After about 

1 1/2 hours I was told that Gordon Roberts, Supt., had 

decided that the guards would satisfy the company 

metatarsal policy with certain stipulations; the altered 

metatarsal would overlap the steel toe, the work would 

618 
have to be done by a certified cobbler and done in a 

workmanlike manner, and that it be done by 

August 26, 1985. Larry Krupnik, Safety, gave me the 

stipulations. I was led to believe that if I did all 

this I could return to work on August 26, 1985. However 

it will be Chauvin's decision to let me work or not. I 

then took my boots to the cobbler and had the work done. 

I feel that I have been discriminated against because I 

was not allowed to work on August 19 and 20, and was 

then suspended for the 21, 22, and 23. I did not have 

proper boots to wear but I was willing to wear the 

clip-on guards on these days until I got boots that I 

could wear. Other employees had been allowed to work 

with the clip-on types until their boot problems were 

resolved. Monterey then changed their position and is 

willing to let me work with clip on types if I get them 

permanently attached. I am requesting the pay for the 

days I was not allowed to work because I could not 

comply with Monterey's request to wear integral 

metatarsal boots even though I was willing to work with 

clip on guards which Monterey accepts for visitors and 

inspector to comply with their metatarsal protection 

policy. 

Subsequently by letter dated December 16, 1985, the 

Complainant notified the MSHA attorney then handling her case 

that she had achieved a partial remedy to her Complaint. 

The letter reads as follows: 

After your phone call today, I'm writing to confirm 

that Monterey paid me 4 of the 5 days pay I asked 

for. I still feel they owe me the 5th day. The 

5th day they still owe me should have been my idle 

Friday to work. Eight hours at 14.42 per hours 

plus 30 cents per hour shift differential which 

totals to $117.76. I would also like any and all 

reference due to this policy, concerning any 

disciplinary action taken by Monterey, and any 

derogatory inferences concerning my performance as 

an employee, to be removed from my file. 

Thereafter by letter dated January 7, 1986, Ms. Price 

waa notified by MSHA as follows: 

Your complaint of discrimination under 

section 105{c) of the Federal Mine Safety and 

Health Act of 1977 has been investigated by a 

619 
special investigator of the Mine Safety and Health 

Administration {MSHA). 

A review of the information gathered during the 

investigation has been made. On basis of that 

review, MSHA has determined that your complaint of 

discrimination has been satisfied and that no 

further pursuit of the complaint is required. 

If you should disagree with MSHA's determination, 

you have the right to pursue your action and file a 

complaint on your own behalf with the Federal Mine 

Safety and Health Review Commission at the 

following address: 

Federal Mine Safety and Health Review Commission 

1730 K Street, N.W. 

Washington, D.C. 20006 (202) 653-5629 

Section 105{c) provides that you have the right, 

within 30 days of this notice to file your own 

action with the Commission. 

In her Complaint to this Commission pursuant to 

Section 105{c){3) of the Act~/ 

~/Section 105{c){3) provides in part as follows: 

Within 90 days of the receipt of a complaint filed 

under paragraph (2), the Secretary shall notify, in 

writing, the miner, applicant for employment, or 

representative of miners of his determination 

whether a violation has occurred. If the 

Secretary, upon investigation, determines that the 

provisions of this subsection have not been 

violated, the complainant shall have the right, 

within 30 days of notice of the Secretary's 

determination, to file an action in his own behalf 

before the Commiasion, charging discrimination or 

interference in violation of paragraph (1). The 

Commission shall afford an opportunity for a 

hearing {in accordance with section 554 of title 5, 

United States Code, but without regard to 

subsection {a){3) of such section), and thereafter 

shall issue an order based upon findings of fact 

dismissing or sustaining the complainanc's charges 

620 
Ms. Price stated as follows: 

My complaint of discrimination, I do not feel has 

been satisfied. I am requesting relief of $117.76 

for the idle day of 8-23-85. I have been paid 

[sic] for the preceding four days {Mon thru Fri) of 

that week in which Monterey refused me the right to 

work and then suspended me. I would also like, for 

my relief, any and all reference due to this policy 

concerning any disciplinary action taken by 

Monterey, and any derogatory inferences concerning 

my performance as an employee, to be removed from 

my file. 

At a subsequent preliminary hearing held in response to 

Moterey's Motion for a More Definite Statement and in an 

attempt to clarify the nature of the complaint and the relief 

sought, Ms. Price stated that she waa seeking as damages, pay 

for one eight hour shift for the "idle" day on August 23, 

1985, expenses (postage and phone calls) related to the 

litigation of her complaint {presumably including expenses 

relating to the pursuit of her grievance resulting in the 

recovery of four days pay for August 19 - 22, 1985) and ~a 

pair of boots that fit". 

Based on my best understanding of her somewhat rambling 

and ambigious complaints I conclude that in substance 

Ms. Price's Complaint of Discrimination as it is now before 

me is that she was suspended from work by Monterey because 

she in essence ref used to perform work under a work rule that 

cont'd fn. 3 

and, if the charges are sustained, granting such 

relief as it deems appropriate, including, but not 

limited to, and order requiring the rehiring or ~ 

reinstatement of the miner to his former position 

with back pay and interest or such remedy as may be 

appropriate. Such order shall become final 30 days 

after its issuance. Whenever an order is issued 

sustaining the complainant's charges under this 

subsection a sum equal to the aggregate amount of 

all costs and expenses {including attorney's fees) 

as determined by the Commission to have been 

reasonably incurred by the miner, applicant for 

employment or representative of miners for, or in 

connection with, the institution and prosecution of 

such proceedings shall be assessed against the 

person committing such violation .•.• 

621 
was unhealthful and unsafe as applied to her.4/ It is 

undisputed that Monterey refused to allow Ms.-Price to work 

on August 19 and 20, 1985, and that she was suspended on 

August 21 and August 22, 1985, because of her refusal to wear 

intregrated metatarsal work boots which she maintains did not 

fit, caused foot injuries and created an unsafe and 

unhealthful condition. While Ms. Price also claims she was 

denied the opportunity to work an "idle" workday on 

August 23, 1985, there is a separate dispute as to whether 

she was in any event scheduled to work that day and therefore 

entitled in any event to be paid for such work. 

Within this framework it is apparent that the legal 

analysis applicable to "work refusals" must be applied to 

this case. Under that analysis a miner's "work refusal" is 

protected under section 105(c) of the Act if the miner has a 

good faith, reasonable belief in the existence of a 

hazardous condition. Simpson v. FMSHRC, 842 F.2d 453 CD.C. 

Cir. 1988); Miller v. FMSHRC, 687 F.2d 1994 (7th Cir. 1982)~ 

Secretary on behalf of Robinette v. United Castle Coal Co., 3 

FMSHRC 803 (1981). 

By way of background, it is not disputed that sometime 

before the incident at issue Monterey had conducted studies 

of foot injuries leading to the conclusion that its 

underground miners should be required to wear protection for 

the metatarsus. Monterey was apparently also aware of a 

decision by the West Virginia State Board of Coal Mine Safety 

and Health that many foot injuries might have been prevented 

4/rn her post-hearing brief Ms. Price has alleged other 

acts of discrimination. To the extent however that these 

allegations were not first preaented to the Secretary under 

the procedures set forth in section 105(c)(2) of the Act she 

has neither exhausted her administrative remedias nor met a 

statutory condition precedent~ The merits of these 

allegations are accordingly not properly before me. Moreover 

the complaint in this proceeding has never been properly 

amended to incorporate these new allegations, the allegations 

cannot be considered as having been timely tiled and the 

allegations do not in any event comport with the .cequirements 

of Commission Rule 42(a), 29 C.F.R. § 2700.42(a}. In 

addition as noted, infra, sha has obtained all of the 

remedies requested in her complaint herein except those to 

which she is not otherwise entitled. 

622 
or might have been less severe if the injured person had been 

required to wear metatarsal protective boots. Monterey also 

concluded that an intregrated metatarsal guard rather than a 

temporary clip-on guard was preferable. Studies showed 

problems with clip-ons including evidence they tended to come 

loose. It also appears that the clip-on type of metatar~al 

guards had not passed ANSI standards unlike the integrated 

metatarsal type boot. 

In implementing its new policy Monterey agreed to pay 

for an initial pair of intregrated metatarsal boots for each 

miner and contracted with two companies to bring "shoemobiles" 

to the mine. The miners were not prohibited from obtaining 

their integrated metatarsal boots from other sources but were 

told that the company would pay only for the cost of the 

initial pair of boots selected from one of these two vendors. 

According to Monterey the selection and fit were to be the 

employee's responsibility. Both of the selected shoe 

companies reported however that they could make any size as a 

special order and employees were apparently advised to place 

orders with the vendors if a special size was required. 

Monterey apparently also anticipated that some miners 

might nevertheless be unable to obtain pcoper fitting boots 

by the July 15, 1985, deadline when the policy would take 

effect. Those who anticipated difficulty locating 

appropriate boots were advised to see Safety Supervisor Larry 

Krupnick for assistance. A list of miners who were unable to 

obtain proper boots due to circumstances beyond their control 

was provided to shift managers so that these miners would be 

permitted to work with only the temporary clip-ons until they 

obtained their shoes. It was Monterey's policy that 

ordinarily other miners would not be permitted to start work 

without integrated metatarsal protection except for unusual 

situations to be dealt with on a case-by-case basis. 

Monterey anticipated rigid enforcement of the new policy and 

managers were apparently advised that exceptions from the 

policy would be closely monitored for abuse. 

Ms. Price was one of the listed miners. She advised 

Monterey that the boot she had selected from the Hy-Test 

company was not in stock and had to be special ordered. She 

thereafter reported to work in her new integrated metatarsal 

boots on July 16, 1985. It is not disputed that she began 

experiencing discomfort with the new boots and complained to 

various individuals including her foreman Don Overturf. Ms. 

Price maintains that she also complained around that time to 

623 
an unidentified clerk in ·the Safety Department and 

purportedly requested permission to use temporary clip-on 

guards so she could alternate wearing her new boots with her 

old boots. This person apparently told Ms. Price that he did 

not have the authority to allow her to do so. 

Ms. Price described her injuries at this time as: 

More like a bruise rather than--across the toes 

rather than a bubbly blister. I didn't have what I 

would call a raised blister until Wednesday 

[July 18). 

As she continued to work with her new boots the problems 

increased. She described the problems as follows: 

The marks on the front of the toes became deeper. 

And the heels started--they still felt very, very 

bruised on the back part of my heel. There was no 

[sic] marks on the back part of my heels. It just 

hurt inside of my heel. And before the end of the 

day I--I was having cramps from below the knee 

down, in the calves of my legs, causing cramps in 

those. And it just--it's indescribable. (Laughs) 

It felt like I had a toothache from the knee down. 

It ached inside your muscles from walking. Well, 

you walk funny so you don't rub your foot any more 

and walk--well, you walk slow so--so your not going 

to rub anything else any more to make anything in 

your toes hurt. (Laughs) And then you walk funny, 

well, it pulls on muscles that you haven't used in 

that way for a while and it creates tension in your 

muscles and causes them to ache." (Tr. 486-487) 

Price described the condition of her feet from the new 

boots after completion of her shift on Tuesday, July 17 as 

follows: "[t)hey were much, much redder and the top layer of 

skin on both feet, across the top of the toe was not 

blistered with liquid behind it but like the top layer the 

skin was loose, like it is chaffed, chapped." CTr. 490). 

She then described how she sought relief when she returned 

home from work: 

Get out the old wash bucket and put your feet in it. 

(Laugh~.) By then I was having very severe cramps 

in my arches of my feet that were coming and going. 

But my problem, biggest problem, was when you lay 

624 
down to go to bed and you'd start to relax you'd be 

laying flat of [sic] your back and my toes were 

curling down with both feet going into a charley 

horse. Maybe not both feet at one time but maybe 

my right foot and then later my left foot and maybe 

both feet. But this was going on all day. And you 

couldn't even sleep because every time you started 

to relax your feet went .••• (Laughs.) (Tr. 490) 

Other employees were having similar problems with their 

new integrated metatarsal boots. Ms. Price recalled 

conversing with her foreman Don Overturf about the problems 

of another employee who had open blisters on both heels. She 

also discussed her own problem with Overtuf f and purportedly 

told him as follows: 

I thought these boots were pretty silly because 

they were seeming to create a bigger safety hazard 

by wearing them than they were •••• you know, the 

metatarsal was supposed to be an extra safety 

factor for us and I wasn't arguing against that 

because it would protect the top of your foot. But 

to criple-up all the rest of your foot--. 

(Tr. 49 3) • 

Overturf acknowledged in his testimony that he "had 

heard some complaints about her boots a time or two" (Tr. 

1358). He recalled that she complained of leg cramps and 

"she felt that her shoes were causing her not to be able to 

perform her job properly" (Tr. 1359). 

Price testified as follows concerning the condition 

of her feet after working on July 18. 

By then I had small raised portions on the top of 

my toes close to the foot, not at the bottom of my 

toe. My heels were very painful, very, very tender. 

There were no obvious marks on my heels. I didn't 

have any blisters or large red heels, nothing like 

that. It was--the visible marks were on my toes 

and they were raising the layers of skin to have 

small little bubbles, you know, not a big one but 

with large red marks in the whole area, pressure 

marks like.*** My legs were aching below the knee 

on down. It was very, very miserable. And when I 

would take my boots off in the locker room, then 

the cramps in the arches would get worse. When I 

625 
would sit down ·~fnd take--like my body weight 

pressure off of them, when my feet would relax they 

would cramp up. (Tr. 578). 

Price also testified that she had trouble sleeping 

because of the cramps, had "charley horses" in the arches of 

her feet and was awakened 2 or 3 times because of this 

(Tr. 578-579). 

Price further testified that at the beginning of her 

shift on July 19, her feet continued to be "very painful" and 

"it was very hard to walk anywhere" (Tr. 582). She again 

complained to Overturf that the boots were unsafe because of 

the crippling effect (Tr. 583). She nevertheless began 

working in her job as a continuous miner operator and rotated 

duties as a continuous miner helper keeping the power cable 

from being run over. Price testified that during this time 

her "feet hurt so bad I also felt sick, I just--I was in 

misery" (Tr. 587). 

Because of the "aching, the blisters, the very painful 

heels that felt very, very bruised" she returned to the shop 

area to see Overturf and to arrange for a ride out of the 

mine {Tr. 588). She removed her shoes and socks and showed 

Overturf her feet. She then left the mine and reported to 

the nurse's station where she showed "the blisters, the red 

marks, all the pressure rnark.s on the top of my toes" to the 

nurse on duty (Tr. 592). Price maintains that she had three 

blisters on each foot located on top of her toes (Tr. 592). 

Overturf reported the redness but did not report observing 

blisters and, apparently consistent with Monterey's policy 

that blisters from ill-fitting clothes were not work related, 

classified the condition has non-work-related. On July 20, 

1985, Ms. Price visited a doctor who prepared a note 

indicating that she should not wear the boots and that she 

then had vesicles~/ on her feet. 

5/ "Vesicles" are defined as a circumscribed, elevated, 

fluid=containing lesion of the skin, 5 mm or less in diameter. 

Dorland's Pocket Medical Dictionary, 21st edition, W.B. 

Saunders Co. 

626 
On her return to work on July 22, 1985, Price presented 

the doctor's note to Ben Chauvin, the Shift Mine Manager, and 

filed a safety grievance under the collective bargaining 

agreement. She was given temporary clip-on metatarsal guards 

to use with her old boots and a one-week exemption from the 

policy. 

Price continued to have cramps in her feet and sought 

additional medical care on July 24, 1985. She apparently 

also sought advice from this specialist concerning how to 

find boots meeting the Monterey policy. She filed another 

grievance under the collective bargaining agreement on 

July 24, 1985, over the company's denial to excuse her shift 

and to treat her injury as work-related. The grievance was 

settled on July 26, with a written agreement that states as 

follows: 

The appropriate manufacturing representative shall 

be contacted regarding this employee's shoes. 

After such contact is made and a determination 

given by the manufacturer, the employee shall make 

necessary arrangement for providing footwear that 

meets management standards for metatarsal shoes. 

Ms. Price was also then given an extended exemption and 

was allowed to wear temporary clip-ons until her boots were 

returned or she obtained new boots. The Hy-Test manufacturer 

was contacted and the boots were returned for evaluation. 

Hy-Test later told Safety Supervisor Larry Krupnick that it 

had not found the boots defective but would nevertheless 

replace them with a smaller size at no charge. According to 

Krupnick Hy-Test advised Price that she should be sure the 

replacement boots fit before she wore theffi in the mine. 

Ms. Price received the new boots on August 12, 1985. 

She attempted to break them in at home over several days. 

She had already tried the same size boot (Size 7-D) at the 

shoemobile and found that they cut into her toes. On August 

18, 1985, shift manager Chauvin told Price that she would 

be expected to report to work with these boots on the next 

working day or she would not be allowed co work. Price 

purportedly told Chauvin that the replacements were the wrong 

size, that they hurt her feet and that she had tried without 

success to breax them in. She told him that she planned to 

discuss the problem with Hy-Test the next time the shoemobile 

was on the premises. Chauvin then apparently told Price that 

her "time was up" and that she would have to turn in the 

temporary clip-ens the next working day (Monday, August 19, 

1985) and comply with the policy. 

627 
It is not disputed that, in an apparent effort to comply 

with the policy, Price then visited the "London Bootery" and 

was told that the replacement boot might no longer comply 

with Federal regulations governing steel-toe boots if the 

steel toe was stretched and that they had no integrated 

metatarsal guard boots in her size in stock except other 

Hy-Test boots. ·She also inquired if they would attach a 

metatarsal to one of the Red-Wing brand boots that she had 

been buying for the previous eight years but they apparently 

declined for "liability reasons". Price also contacted the 

MSHA investigator who was handling her complaint and 

purportedly was told that Monterey's threat was so 

unreasonable that it would not implemented on August 19. 

Price maintains that uniou representatives including an 

attorney also agreed with this assessment of the situation. 

On August 19, 1985, the Complainant turned in her 

company issued clip-ens and reported for work in her old 

boots with another pair oi temporary clip-ons. Chauvin 

refused to permit her to work in these clip-ons and she was 

marked "AWOL". Price explained to Krupnick that the 

replacement boots did not fit and that she had tried 

everything she could think of to come up with another pair of 

boots but had been unsuccessful. When she nevertheless 

attempted again to go to work she was refused entry to the 

elevator. She then filed another grievance under the 

collective bargaining agreement stating that there was "no 

reason whatsoever for them to be denying me work, it was 

unsafe to require me to wear something that didn't fit my 

feet". It was around this time that Krupnick also told Price 

that the company had fulfilled its responsibility by having 

furnished her a pair of boots. According to Price she was 

told that it was her responsibility to deal with the vendor 

directly. 

Before reporting to work on the night shift of 

August 20, 1985, Price obtained a note from her doctor 

indicating that she needed special-made boots to be able to 

comply with the policy. This note was given to Monterey the 

same day. She also called the Hy-Test shoe company before 

reporting to work and was told to return the boots to the 

warehouse. She returned the boots and then reported to work 

in her old boots with temporary clip-ons. She told Chauvin 

that she no longer had the boots and that she had returned 

the replacements for the "correct" size at Hy-Test's 

direction. She was again denied permission to work and was 

suspended for failure to follow orders to wear integrated 

628 
metatarsal safety boots. She was also warned that failure to 

wear the proper shoes the following morning could result in 

discharge. 

Price apparently continued in her efforts to resolve the 

problem when she and Safety Committeemen Burkholder went to 

the office of Mine Superintendent Lange. They informed Lange 

that Price's doctor had submitted a note stating that she was 

not to work in the replacement boots, that at Hy-Test's 

direction replacement boots had been turned in for exchange 

and that Ms. Price had been unable to locate any integrated 

metatarsal boots that fit her feet. Lange apparently told 

Price to retrieve her boots from the warehouse and to wear 

them. Before her shift on August 21, Price again called 

various shoe stores and confirmed that no store had any other 

brands in stock other than the brands already tried. She 

determined that any other integrated metatarsal boots would 

have to be special ordered taking at least two weeks. She 

again reported to work in her old boots with clip-ons on 

August 21. She was again denied work and when she and 

Burkholder again went to Lange's office to complain, they 

were told she was suspended until August 26, 1985. She was 

also told to report to work at that time in boots with 

integrated metatarsal work shoes. 

On the following day, August 22, Richard Morlegan 

another employee, reported to Mine Superintendent Roberts 

that the boots which the Company had been special-ordered for 

him did not fit properly. He asked if he could cut the 

integrated metatarsal off the new boots and have it 

reintegrated by a cobbler onto another pair of boots that did 

fit. Roberts approved this procedure. Later that same 

afternoon Price asked Roberts if she could have a metal 

clip-on guard attached to her existing boots by a cobbler. 

After conferring with other officials Roberts granted Price's 

request. The boot policy was according revised and posted 

the following Friday, August 23. Price thereafter returned 

to work and apparently has continued to work wearing her old 

boots with a metatarsal guard permanently attached. 

On August 28, 1985, the union filed a grievance under 

the collective bargaining agreement for the days Price was 

marlced "AWOL" and suspended and demanded payment for an 

"idle" day and for her out-of-pocket expenses. The grievance 

was settled by the union for four days pay in return for the 

withdrawal of her other demands. The Complainant was not 

present at the settlement meeting. She maintains that she 

629 
did not consent to the settlement and was not even told about 

it until several days later. According to Price she was not 

compensated for the loss of pay for an "idle" work day on 

August 23, for a free pair of integrated metatarsal boots 

that fit and for her expenses. 

The above narration of evidence is essentially 

undisputed and I find it to be credible. Within this 

framework I find that the Complainant has met her burden of 

proving that her refusal to comply with Monterey's work rule 

requiring the wearing of an integrated metatarsal boot on 

August 19, 20, 21, and 22, 1985, was a protected work refusal 

based on a good faith, reasonable belief that it would have 

been hazardous to comply with. The credible evidence 

supports a finding that Ms. Price made good faith and 

reasonable efforts to obtain properly fitting integrated 

metatarsal boots comporting with Monterey's policy prior to 

August 19, 1985, and continued with such efforts through 

August 22, 1985. Based on her prior experience with ill 

fitting boots the month before and her unsuccessful efforts 

to break in another pair of boots and obtain properly fitting 

boots at the time of her suspension it is also clear that she 

then entertained a good faith, reasonable belief that it 

would have been hazardous to have worked in ill-filling 

boots. 

Indeed Monterey does not appear to challenge Ms. Price's 

complaint that the boots she had obtained did not fit 

properly and caused injuries to her feet. Not only would the 

wearing of such boots in itself present a hazard of possible 

infection from abrasions and blisters but, as Ms. Price 

points out, could present a stumbling hazard and interfere 

with the safe evacuation of the underground mine should an 

emergency develop. Since it is undisputed that Monterey 

refused to allow Ms. Price to work based on her refusal to 

wear the integrated metatarsal boots on August 19 through 22, 

1985, it is clear that the denial of such work was motivated 

solely by her refusal to wear such boots. 

It is also apparent from the history of the problem that 

Ms. Price had communicated to various company officiais, 

including Don Overturf and Ben Chauvin, the hazardous nature 

of wearing ill-fitting integrated metatarsal boots. The 

"co~nunication" requirement has accordingly been met. See 

Simpson supra.; Secretary on behalf of Dunmire and Estle v. 

Northern Coal Co., 4 FMSHRC 126 (1982). 

630 
Accordingly Ms. Price is entitled to lost pay for the 

period she was denied opportunity to work i.e. four days pay 

for August 19 through 22, 1985, as well as those costs 

directly related to the prosecution of this claim in the 

grievance proceeding below. She is also entitled to recover 

her costs in these proceedings necessary to recover the costs 

related to the grievance proceedings. I do not find however 

that Ms. Price is entitled to a company-paid pair of 

integrated metatarsal boots. She has of course, consistently 

maintained that she cannot find any such boots that fit her. 

In any event the Monterey policy was changed at her request 

to permit her to wear her old boots with a professionally 

attached metatarsal guard. Ms. Price then elected this 

alternative thereby waiving any claim to the company paid 

integrated metatarsal boots. 

Ms. Price also makes the bald assertion that she is 

entitled to one day "idle" day pay for August 23, 1985. I do 

not however find that she has sustained her burden of proving 

that she would have been entitled to such pay in any event. 

Indeed the Complainant's own evidence through the testimony 

of the union local president Jim Kimball, is that she was not 

entitled to "idle" day pay on August 23rd (Tr. 732-733). 

Another of Complainant's witnesses, union committeeman 

Ron Burkholder, also failed to support her claim (Tr. 

2468-2469). 

ORDER 

Based on the foregoing decision I find that the 

Complainant is entitled to reimbursement for her initial 

costs (alleged to be postage and phone calls) in prosecuting 

her grievance leading to her retrieval of four days pay 

(August 19, through August 22, 1985) and her subsequent costs 

in the instant proceedings to recover those costs. Any 

petition for such costs as well as any petition by Respondent 

must be filed with the undersigned on or before May 1, 1989. 

The parties are directed to file any response-to such 

petitionCs) on or before May 12, 1989. Monterey Coal Company 

is further directed to delete from its records any reference 

to disciplinary action taken against Ms. Price for her 

refusal to wear integrated metatarsal boots in August 1985. 

631 
Monterey Coal Company has also alleged "nonfeasance and 

malfeasance" by Complainant's trial counsel. Any such 

allegations must be directed to the Commission under its 

Rule 80, 29 C.F.R. § 2700.80. This decision is not a final 

disposition of these proceedings and no final disposition can 

be made until the issue of costs is determined. 

Distribution: 

~ ·\. '.., ~~ . . .... ~·,~wJ~t. ~ \ \ ~/ _'C\f'w~ . .. .. ...., i 

i :: '"' i it ~ 

qary Mklick ~\ Adminis.trative \Law Judge 

( 703) ·7J6-6261 l 

Michael J. Hoare, Esq., 314 North Broadway, St. Louis, MO 

63120 (Certified Mail) 

Thomas c. Means, Esq., Crowell & Moring, 1001 Pennsylvania 

Avenue., NW, Washington, DC 20004-2505 (Certified Mail) 

nt 

632 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 14 1989 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MARTIN MARIETTA AGGREGATES, 

Respondent 

CIVIL PENALTY PROCEEDINGS 

Docket No. SE 88-87-M 

A.C. No. 31-00064-05515 

Belgrade Quarry 

Docket No. SE 88-97-M 

A.C. No. 31-00048-05511 

New Bern Quarry 

DECISION 

Appearances: Michael K. Hagan, Esq~, Office of the Solicitor, 

U.S. Department of Labor, Atlanta, Georgia, for 

Petitioner (Secretary); w. Scott Hunt, Safety 

Engineer, Martin Marietta Aggregates, Rocky Point, 

North Carolina, for Respondent (Martin Marietta). 

Before: Judge Broderick 

STATEMENT OF THE CASE 

Each docket involves a single citation charging a violation 

of 30 C.F.R. § 56.16006 because stored oxygen and acetylene tanks 

were not provided with covers over the valves. The first 

citation involved tanks at Respondent's Belgrade Quarry, the 

second involved tanks at the New Bern Quarry. Respondent denies 

that it violated the standard, and asserts that the tanks were 

not stored, but were in use. The cases were consolidated for the 

purposes of hearing and decision. Pursuant to notice, they were 

heard on March 14, 1989, in Jacksonville, North Carolina. 

Inspector Ronald D. Lilly testified on ~half of the Secretary; 

William Fennell and Lynwood Yates testified on behalf of Martin 

Marietta. At the conclusion of the hearing, each party orally 

argued its position on the record, and waived its right to file a 

post hearing brief. I have reviewed the entire record and 

considered the contentions of the parties, and make the following 

decision. 

633 
FINDINGS OF FACT 

Respondent Martin Marietta Aggregates is the owner and 

operator of aggregate mines in Onslow County and Craven County, 

North Carolina, known as the Belgrade Quarry and the New Bern 

Quarry. The mines produce stone which enters interstate commerce. 

There is no evidence in the record as to the size of the 

operator or either of the mines. The Belgrade Quarry has a 

history of ten violations during the 24 month period prior to the 

violation at issue here. The New Bern Quarry has a history of 

six violations during the 24 month period prior to the violation 

charged in these proceedings. The history is not such that 

penalties otherwise appropriate should be increased because of 

it. 

CITATION 2859521 BELGRADE QUARRY 

On June 26, 1988, an oxygen and an acetylene gas cylinder 

were located in the shop area of the Belgrade Quarry. They were 

located under a tin-roofed canopy and were securely chained to 

the steel leg of the canopy. The valves were turned off; the 

regulators and hoses were attached, and the valves were not 

covered. No workers were in the immediate area; a mechanic was 

seen in a truck across a small creek. Ronald Lilly issued a 

citation alleging a violation of 30 C.F.R. § 56.16006. At the 

time the citation was issued Cll:OO a.m.), the Inspector did not 

observe any apparent tasks to be performed with the gas cylinders. 

The violation was abated and the citation terminated the 

following day, when Martin Marietta had placed the original 

covers on the cylinders. Later Martin Marietta constructed metal 

boxes over the top of the cylinders; the inspector considered the 

metal boxes as compliance with the requirement of a cover on gas 

cylinder valves even if the original covers were not in place. 

CITATION 2859530 NEW BERN QUARRY 

On July 6, 1988, an oxygen and an acetylene gas cylinder 

were standing upright at the shop of the New Bern Quarry. They 

were attached to the leg of the shop. The regulators and hoses 

were attached but the valves were not covered. There was no 

equipment in the shop. A mechanic was present in the shop, but 

there were no apparent tasks to be performed with the cylinders. 

The mechanic told the inspector that the cylinders "were used ••• 

mostly every day." Inspector Lilly issued a citation for a 

violation of 30 C.F.R. § 56.16006. The violation was abated and 

the citation terminated the following day when the tanks were 

placed in a metal cage. 

634 
REGULATION 

30 C.F.R. § 56.16006 provides: 

Valves on compressed gas cylinders shall be protected 

by covers when being transported or stored, and by a 

safe location when the cylinders are in use. 

ISSUES 

1. Whether the cylinders at the Belgrade Quarry were stored 

or in use when the subject citation was issued? 

2. Whether the cylinders at the New Bern Quarry were stored 

or in use when the subject citation was issued? 

3. If violations are established, what are the appropriate 

penalties? 

CONCLUSIONS OF LAW 

Respondent is subject to the provisions of the Mine Safety 

Act in the operation of its Belgrade and New Bern Quarries. I 

have jurisdiction over the parties and subject matter of these 

proceedings. 

The crucial issue on which the parties disagree in this case 

is whether the cited compressed gas cylinders were "being stored" 

and thus required to have their valves protected by covers, or 

were "in use" and thus merely required to be protected by a safe 

location. It is not disputed that the gauges and hoses were 

attached, and therefore the cylinders were available for use, 

when the citations were issued. Neither is it disputed that the 

cylinders were not actually being operated at the time. 

Respondent argues that the cylinders are in use whenever the 

regulators, gauges and hoses are attached. Therefore, they are 

in use throughout the working day even between shifts. The 

Secretary takes the position that if the cylinders are not 

actually being used, and there are no apparent "tasks to be 

performed," i.e., there is no equipment in the area to be 

repaired or otherwise worked on, the cylinders are being stored. 

In the case of Secretary v. Phelps Dodge Corporation, 

6 FMSHRC 1930 (1984), Chief Judge Merlin concluded that gas 

cylinders which had not been used for two hours or more were 

"being stored temporarily or semi-permanently." He upheld a 

citation alleging a violation of 30 C.F.R. § 55.16-6. 

Judge Merlin relied in part on the Commission decision in FMC 

Corporation, 6 FMSHRC 1566 (1984) in which the temporary 

placement of explosives in a supply yard for more than an hour, 

635 
and some-for more than six hours was found to constitute storage. 

The term storage, the Commission held, "is sufficiently broad to 

include short-term, long-term and semi-permanent storage ••• " 

The standard in § 56.16006 has two facets: Cl> valves on gas 

cylinders shall be covered when being transported or stored; (2) 

the cylinders shall be in a safe location when in use. By a 

separate standard, namely § 56.16005, compressed gas cylinders 

are required to be secured in a safe manner. 

In the Belgrade Quarry, there was no equipment at the site 

to be worked on, and there was no mechanic or other worker at the 

site to operate the gas cylinders. Full time welders, however, 

were employed at the quarry. Part of the time they worked with 

the cylinders involved here, and part of the time on welder 

trucks. There is no evidence in the record as to when the gas 

cylinders involved here were last used, or when they might next 

be used. The quarry is in operation from 7:00 a.m. to 5:00 p.m. 

The Martin Marietta official to whom the citation was served did 

not testify. I conclude that the evidence clearly establishes 

that the cylinders were not in use, but were in temporary storage 

under the Com.~ission's definition of the term. Therefore, 

failure to cover the valves constituted a violation of the 

standard. 

The facts surrounding the New Bern Quarry cylinders differ 

somewhat: the New Bern Quarry operated "[m]ost of the time 

around ••• the clock," (Tr. 73-74), ten hours on production and 

fourteen on a maintenance shift. At the New Bern Quarry a 

mechanic was present in the shop area when the citation was 

issued. He was not called to testify. The Plant Manager 

testified that the tanks (cylinders) were "used all during the 

day." (Tr. 61> However, he also stated that he could not say 

whether they were used on the day the citation was issued, "but 

there's very seldom a day goes by when it's not used off and on 

during the day." (Tr. 67) Nor could he say whether they had 

been used the previous day, or how often they are used. Although 

the question is closer with respect to the New Bern Quarry than 

with respect to Belgrade, I conclude that the cylinders were not 

in use when the citation was issued but were in temporary storage. 

Therefore, failure to cover the valves constituted a violation of 

the standard. 

PENALTIES 

Each of the violations involved herein was assessed at $20. 

The parties have agreed that if violations are established, the 

amount assessed is appropriate. The Secretary does not contend 

that the violations were serious or the result of more than 

moderate negligence. However, I cannot ignore the fact that the 

636 
violation cited at the New Bern Quarry was the same as that cited 

more than a week previously at Belgrade. Therefore, I conclude 

that Respondent was guilty of greater negligence in permitting 

the violation to occur at New Bern. The violations were not 

serious because they were unlikely to cause injury. The 

conditions were abated promptly in good faith. The violations 

resulted from Respondent's negigence~ the violation at New Bern 

resulted from a high degree of negligence. Based on the criteria 

in section llO(i) of the Act, I conclude that penalties of $30 

and $70 are appropriate for the violations found. 

ORDER 

Based on the above findings of fact and conclusions of law 

Respondent is ORDERED to pay within 30 days of the date of this 

decision the following civil penalties. 

Citation 

2859521 

2859530 

Distribution: 

TOTAL 

Penalty 

$ 30 

70 

$100 

~ . •. μ3 /,Vd£.1,1~~/£ es A. Broderick 

Administrative Law Judge 

Michael K. Hagan, Esq., U.S. Department of Labor, Office of the 

Solicitor, 1371 Peachtree St., N.W., Atlanta, GA 30367 (Certified 

Mail) 

Mr. w. Scott Hunt, Safety Engineer, Martin Marietta Aggregates, 

P.O. Box 347, Rocky Point, NC 28457 (Certified Mail) 

slk 

637 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 14 1989 

HERBERT M. KING, 

Complainant . . DISCRIMINATION PROCEEDING 

v. 

SHAMROCK COAL COMPANY, 

Respondent 

. . 

: 

Docket No. KENT 88-179-D 

MSHA Case No. BARB CD 88-27 

No. 10 Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Fauver 

The parties have moved for approval of a settlement and 

a dismissal of this case. I have considered the 

representations and documentation submitted and I conclude 

that the proffered settlement is consistent ~ith the purposes 

of the Act. 

ORDER 

WHEREFORE IT IS ORDERED that the motion for approval of 

settlement is GRANTED and this proceeding is DISMISSED. 

Distribution: 

~ ':l__.~ William F~ ~ Administrative Law Judge 

Tony Oppegard, Esq., Appalachian Research & Defense Fund of 

Kentucky, Inc., P.O. Box 360, Hazard, KY 41701 (Certified 

Mail) 

Neville Smith, Esq., Smith and Smith, 110 Lawyer Street, 

Manchester, KY 40962 (Certified Mail) 

iz 

638 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE· 

FALLS CHURCH, VIRGINIA 22041 

APR 14 1989 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SHAMROCK COAL COMPANY, 

Respondent 

: 

. . 

. . Docket No. KENT 88-11 

A.C. No. 15-16109-03501 

: Greenwood No. 12 Mine . . 

. . 

DECISION 

Appearances: Anne T. Knauff, Esq., Office of the Solicitor, 

U.S. Department of Labor, Nashville, TN, for 

Petition; 

Neville Smith, Esq., Smith & Smith, Manchester, 

KY, for Respondent; 

Before: Judge Fauver 

This civil penalty proceeding was brought by the 

Secretary of Labor under § llO(a) of the Federal Mine Safety 

and Health Act of 1977, 30 u.s.c. § 801 et seq. 

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 

1. Shamrock Coal Company's Greenwood #11 and #12 Mines, 

located in MSHA's District 7, are physically separate, 

underground coal mines. They are one mile apart, and access 

into the mines is gained through separate entries. There are 

no innerconnections between the mines and one cannot travel 

underground from one mine to the other. The mines have separate 

MSHA identification numbers. 

2. Before 1985, Shamrock had operated a different mine 

with several sections that were five or six miles apart, 

under one MSHA identification number. Under the policy in 

force in District 7 at that time, one set of mine plans would 

suffice for the entire mine. 

639 
3. Since 1985, however, MSHA District 7 has required a. 

separate mine identification and separate mine plans for each 

physically separate and distinct mine. 

4. On May 13, 1987, Gordon Couch, Safety Director of 

Shamrock, submitted one set of plans seeking to cover Mines 

#11 and #12 as one mine, called the "Clinton Mine." The 

plans called for Mines #11 and #12 to be identified as 

sections 001 and 002 of the Clinton Mine. H. R. Boston, 

an MSHA Supervisory inspector, advised Shamrock's 

representative that the proposed "Sections 001 and 002 would 

have.to be treated as two separate mines" (Tr. 50). 

5. About the same date, May 13, 1987, Jimmy Sams, an 

engineering assistant in Shamrock's Manchester office, 

advised Mr. Couch that MSHA required two separate ventilation 

plan& for Mines #11 and #12. 

6. · Also on May 13, 1987, John Pyles, an MSHA staff 

assistant in District 7, advised Mr. Couch that two separate 

sets of plans .were required for Mines #11 and #12. 

7. Respondent started developing the Mine #11 coalbed 

in late June, 1987, with approved plans for that mine. It 

started developing the coalbed in Mine #12 during the first 

or second week of July, 1987, without approved plans for Mine 

#12. 

8. On July 23, 1987, MSHA received an undated legal 

identity form from Shamrock for Mine #12. 

9. On July 27, 1987, Inspector Elmer G. Keen inspected 

Mine #12 and found that Shamrock was developing the coalbed 

without approved mine plans. The approved plans for Mine #11 

did not cover Mine #12 either as a section of Mine #11 or as 

a separate mine. 

10. At 11:00 a.m. (first shift) on July 27, 1987, 

Inspector Keen issued Citation 2797706 at Mine #12, charging 

a violation of 30 c. F. R. § 75.1721, for developing the 

coalbed without approved plans for the mine. 

11. The inspector terminated the citation on the same 

shift on July 27, 1987, based upon the company's 

representations that the miners would be pulled from the 

mine, production would stop and would not resume until the 

required plans for Mine #12 were submitted and approved. 

12. Shamrock employees left Mine #12 on July 27, 1987, 

as observed by Inspector Keen, but they stayed out only for 

640 
the remainder of the first shift. The mine resumed 

operations that night. 

13. A few days later, on July 30, 1987, MSHA Inspector 

Don McDaniel discovered that Mine #12 was still operating 

without approved plans and issued Citation 3004642, charging 

a violation of 30 C.F.R. § 75.1721Ca), which states in 

relevant part: "[T]he operator shall not develop any part of 

the coalbed in such mine unless and until all preliminary 

plans have been approved." The required preliminary plans 

are identified in subsection Cb> of that section. 

14. Inspector McDaniel set an abatement time of one hour 

for Respondent to produce approved plans for Mine #12 if they 

existed. Inspector McDaniel decided that if Shamrock had the 

plans, one hour was a reasonable time for the plans to be 

produced. Respondent's representative, Mr. Hacker, 

contacted Elmer "Rick" Couch, the Mine Superintendent. When 

Mr. Couch could not produce the plans for Mine #12, he told 

Inspector McDaniel, "they just messed up at the (Shamrock) 

main office by not submitting them" (Tr. 45). Based on a 

failure to abate the violation, Inspector McDaniel issued 

Order 3004643 at 11:45 a.m. on July 30, 1987, to stop coal 

production until all required preliminary plans were approved 

for Mine #12. 

15. On July 31, 1987, MSHA approved the Mine #12 program 

for searching miners for smoking materials required by 30 

C.F.R. 75.172l(b)(9). On August 3, 1987, MSHA approved the 

Mine #12 roof control and training plans required by 30 

C.F.R. § 75.1721Cb)(6) and (c)(l) and (2), respectively. 

These were the last of the plans required by 30 C.F.R. § 

75.1721. 

DISCUSSION WITH FURTHER FINDINGS 

Citation 3004642 

MSHA advised Respondent on many occasions before July 

30, 1987, that it would have to have separate approved plans 

for Mines #11 and #12 before it could start developing their 

coalbeds, under 30 C.F.R. § 1721. On July 27, 1987, an MSHA 

inspector had issued a citation because Respondent was 

developing the coalbed at Mine #12 without approved plans for 

that mine. The inspector could have issued a follow-up § 

104(b) withdrawal order on that date, but, instead, he 

terminated the citation based upon Respondent's 

representations that it was withdrawing the miners and would 

not resume development work until all the required plans were 

submitted and approved for Mine #12. Respondent did not 

641 
abide by that agreement, but later resumed mining without the 

approved plans. 

The new violation was discovered on July 30, 1987, when 

another inspector found that Respondent was still mining 

without approved plans. He therefore issued the citation and 

order that are the subject of this proceeding. 

I find that Respondent violated 30 C.F.R. § 172l(a) on 

July 30, 1987, as alleged in Citation 3004642, and that this 

violation was due to gross negligence on the part of the 

operator. 

I also find that this violation was "significant and 

substantial" within.the meaning of§ 104 of the Act. The 

plans required by § 1721 are crucial to the safety and health 

protection of miners. 

Considering all of the criteria for a civil penalty in 

§ llOCi) of the Act, I assess a civil penalty of $500 for the 

above violation. 

Order 3004643 

The Secretary charges a separate violation of 

§ 75.172l(a) based upon Order 30fr4643, which alleges that 

"approved plans could not be provided at the mine site" (Jt. 

Exh. 4). That section does not state that the required plans 

must be available at the mine site. It does not imply such a 

duty with sufficient clarity to hold an operator liable for a 

civil penalty for a separate violation of§ 172l(a). The 

focus of § 172l(a) is the duty to have "all preliminary plans 

• • • approved" before the operator begins to develop the 

coalbed. Although some of the plans may be required by other 

sections of Title 30, C.F.R., to be available at the mine, 

§ 1721Ca) does not in itself impose such a duty. 

Order 3004643 therefore does not support a charge of 

violating § 172l(a) by failure to have the required plans 

available at the mine site. The order, nonetheless, is a 

valid exercise of the Secretary's authority under§ 104(b) of 

the Act because the violation cited in Citation 3004642 had 

not been abated in the time allowed. 

CONCLUSIONS OF LAW 

1. The judge has jurisdiction over this proceeding. 

2. Respondent violated 30 C.F.R. § 172l(a) as charged 

in Citation 3004642. 

642 
3. The allegation in Order 3004643 that "appro~ed plarts 

c6uld not be provided at the mine site" does not state a 

violation of 30 C.F.R. § 172l(a), but the order is valid as 

an exercise of the Secretary's authority under § 104(b) of 

the Act. 

ORDER 

WHEREFORE IT IS ORDERED that: 

1. Citation 3004642 and Order 3004643 are AFFIRMED. 

2. Respondent shall pay a civil penalty of $500 within 

30 days of this Decision for the violation of 30 C.F.R. § 

1721 (a) alleged in Citation 3004642 and found above. 

3. The Secretary's petition for an additional civil 

penalty for a violation of 30 C.F.R. § 172l(a) based upon 

Order 3004643 is DISMISSED. 

Distribution: 

~hi~~~ ~am Fauver 

Administrative Law Judge 

Anne T. Knauff, Esq., Office of the Solicitor, U.S. 

Department of Labor, 2002 Richard Jones Road, Suite B-201, 

Nashville, TN 37215 

Neville Smith, Esq., Smith & Smith, 110 Lawyer Street, 

Manchester, KY 40962 

iz 

643 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

ROBERT YOUNG, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 171989 

Complainant 

: 

. . 

DISCRIMINATION PROCEEDING 

Docket No. YORK 88-9-DM 

MD 88-05 

LEHIGH PORTLAND CEMENT 

COMPANY, . . Cement Plant and Quarry 

Respondent 

DECISION 

Appearances: Dennis B. Schlenker, Esq., and Zachary Wellman, 

Esq., Albany, NY, for Complainant~ 

Christopher s. Flanagan, Esq., for Respondent. 

Before: Judge Fauver 

This proceeding was brought by Robert Young under § 

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

u.s.c. § 801 et seq., alleging a discriminatory discharge. 

Respondent contends Mr. Young was discharged for 

insubordination and not for any activity protected by § 

105(c). 

Having considered 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 and additional findings in the Discussion that follows. 

FINDINGS OF FACT 

1. Based upon the parties' stipulated facts (Jt. Exh. 

1), the following facts are incorporated as findings of fact: 

a. Complainant, Robert Young, was hired by Lehigh 

Portland Cement Company on August 10, 1978, and discharged on 

October 2, 1987, by John Jones, Plant Manager of Lehigh 

Portland Cement Company's plant and quarry in Cementon, New 

York. 

b. At the time of his discharge, Complainant was a yard 

foreman. 

644 
c. Complainant was directed by Ed Moran, his 

supervisor, to issue a verbal warning to B. Buley, brakeman, 

following a locomotive accident on September 29, 1987. 

d. Complainant was also directed by John Jones to issue 

a verbal warning to B. Buley, arising from the same incident. 

e. Complainant refused to issue a verbal warning to Mr. 

Buley despite the direction of Messrs. Moran and Jones. 

f. Complainant's job responsibility included the 

supervision of those employees performing the tasks of 

locomotive operator and brakeman. 

2. Respondent's letter of termination, October 2, 1987, 

from the plant manager, John J. Jones, to Complainant stated: 

Your employment with Lehigh Portland Cement 

Company is terminated as of October 2, 1987 due 

to your insubordination when you refused to 

follow my specific instructions regarding an 

employee's disciplinary matter on September 

30, 19 87. 

3. The employee disciplinary matter involved a railroad 

collision and derailment at Respondent's cement plant. A 

locomotive was pushing a string of cars when the cars 

collided with a line of standing railroad cars at a switching 

junction, resulting in a derailment and damage to two 

railroad c~rs. The cause of the accident was an error by the 

brakeman, Bruce Buley, who failed to position himself 

properly to observe the movement of the front of the train 

when he signaled the engineer to move the train forward. 

4. Mr. Buley was· near the mid-point of the train when 

he signaled the locomotive operator to move the train forward. 

He could not see the track ahead when he signaled the 

engineer, and he admitted to Mr. Jones that he did not 

position himself properly to observe the movement of the 

train, and that he had taken a short cut in performing his 

brakeman duties. Mr. Buley also acknowledged at the hearing 

that the purpose of walking the cars is to make sure they fit 

on the track and do not hit anything, and that had he 

followed the procedure of walking the cars, the collision and 

derailment would not have occurred. 

5. By custom and practice, and the exercise of ordinary 

care, the brakeman is required to be in the lead car or 

alongside the front of the train when the train is being 

moved forward, so he can see the track ahead. After the 

645 
accident, Complainant orally reprimanded Mr. Buley because he 

had not been in the proper position to observe the movement 

of the train at the time of the accident. 

6. Mr. Jones, the plant manager, personally 

investigated the train accident before he discharged the 

Complainant. He also consulted and sought the approval of 

his superior at corporate headquarters before discharging 

Complainant. The action of discharging a foreman for 

insubordination was not without precedent~ Mr. Jones had 

terminated Andrew Jasiewski, process foreman, in 1985, for 

refusing to come to work in time to relieve another 

supervisor. 

7. On September 30, 1987, 1/ Complainant was instructed 

by Ed Moran, his supervisor, to Issue a verbal warning to B. 

Buley, brakeman, following the locomotive accident on the 

previous day. Mr. Jones also directed Complainant to issue a 

verbal warning to B. Buley on September 30, 1987. 

8. A "verbal warning" as used by Respondent is an oral 

warning that is recorded in the employee's file. An example 

is the verbal warning given to Mr. Buley by supervisor Moran 

on September 30, 1987 (after Complainant refused to give such 

a warning), and entered in Mr. Buley's file as a "Record of 

Employee Verbal Warning" (Jt. Exh. 2). The verbal warning 

was for improper work performance, not misconduct, and 

cautioned Mr. Buley in the future to make sure that he walked 

the cars while moving trains in the yard. A verbai warning 

is not designed to be punitive, but is viewed by Reppondent 

as a training tool, used to modify and correct improper work 

performance. The first official step of Respondent's 

progressive disciplinary program is a written warning. A 

verbal warning may support the later imposition of a written 

warning for a repetition of the original improper 

performance, but it is not intended to have any punitive 

impact per se. 

9. Complainant refused to issue a verbal warning to Mr. 

Buley despite the direction of his supervisors Moran and 

Jones. Complainant's stated reasons f6~ his refusal to issue 

a verbal warning to Mr. Buley were the absence of an 

established disciplinary policy for safety incidents and the 

1/ The September 30 date cor~ects a conflicting date in the 

Iestimony of Mr. Jones and in Stipulated Facts #3 and #4 in 

Jt. Exh. 1. I find that a preponderance of the evidence 

shows the correct date was September 30, 1987. 

646 
fact that the employee or his union had previously requested 

a written job safety analysis for the brakeman position and 

it had not been made as of September 29, 1987. 

DISCUSSION WITH FURTHER FINDINGS 

In order to establish a prima facie case of 

discrimination under§ 105Cc)(l) 1/ of the Act, a miner has 

the burden of proving that Cl) he-engaged in a protected 

activity, and (2) an adverse action against him was motivated 

in any part by the protected activity. In order to rebut a 

prima facie case an operator must show 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 proving that Cl> it was 

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

would have taken the adverse action in any event for the 

unprotected activity alone. The operator bears the burden of 

proof with regard to the affirmative defense; the ultimate 

burden of persuasion that discrimination has in fact occurred 

does not shift from the miner. Secretary on behalf of 

Robinette v. United Castle Co., 3 FMSHRC 803 (1981). 

1/ Section 105Cc)(l) provides: "No person shall discharge or 

Tn any manner discriminate against or cause to be discharged 

or cause discrimination against or otherwise interfere with 

the exercise of the statutory rights of any miner, 

representative of miners or applicant for employment in any 

coal or other mine subject to this Act because such miner, 

representative of miners or applicant for employment has 

filed or made a complaint under or related to this Act, 

including a complaint notifying the operator or the 

operator's agent, or the representative of the miners at the 

coal or other mine of an alleged danger or safety or health 

violation in a coal or other mine, or because such miner, 

representative of miners or applicant for employment is the 

subject of medical evaluation and potential transfer under a 

standard published pursuant to section 101 or because such 

miner, representative of miners or applicant for employment 

has instituted or caused to be instituted any proceeding 

under or related to this Act or has testified or is about to 

testify in any such proceeding, 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." 

647 
Complainant has failed to prove that he was engaged in a 

protected activity at the time of the Buley matter, or that 

his discharge was motivated in any part by an asserted prior 

protected activity. 

Complainant was discharged on October 2, 1987, for 

insubordination relating to an employee disciplinary matter. 

Specifically, he was terminated because he refused to obey a 

directive of the plant manager to issue a verbal performance 

warning to an employee under his supervision, one Bruce 

Buley, following a locomotive accident. 

The Buley disciplinary matter involved a railroad 

collision and derailment on September 29. After a 

thorough investigation of the matter, the plant manager, 

Jones, decided that Buley was at fault and directed 

Complainant to issue a verbal warning to Buley for improper 

job performance. 

A verbal warning to Buley would not have involved a 

threat of danger to any one, including Complainant, or a 

violation of a safety or health standard. Complainant's 

refusal to comply with Mr. Jones' order was therefore not 

protected as a work refusal under§ 105(c)(l). 

Nor was Complainant's expression of concern about the 

fairness of a warning to Buley a protected activity under tbe 

Act. Complainant may have held sincere reservations about 

the fairness of a verbal warning to Buley, and for his own 

reasons he may have disagreed in good faith with Jones' 

judgment on the matter. However, disagreements of this kind 

are not protected by§ 105Cc> of the Act. The plant manager 

was justified in interpreting Complainant's refusal as an act 

of insubordination that warranted discharge. From his 

viewpoint, Complainant's refusal threatened to undermine 

management's decision to give safety direction and training 

to a brakeman who had just endangered a locomotive engineer,· 

a trainee and himself and caused substantial property damage 

in an avoidable train collision and derailment. The facts do 

not point to a discriminatory motive. Indeed, the verbal 

warning Jones directed Complainant to give to Buley was 

essentially the same as the warning Complainant had already 

given to Buley. Complainant's opinion that, "I figured what 

I gave him [Buley] was enough - - sufficient telling him 

about what he should do" (Tr. 206), was simply Complainant's 

opinion that Jones' managerial decision was wrong. However, 

as stated, manager/subordinate disputes or disagreements of 

this kind are not protected activities under§ 105Cc)(l). 

648 
The prior request for a job safety analysis of the 

brakeman position does not support Complainant's claim of 

discrimination. It was well within Jones' authority as plant 

manager to order a verbal warning of Buley regardless of the 

status of a request for a job safety analysis of the brakeman 

job. Even if Buley had decided not to walk the cars because 

he perceived it dangerous to do so (and I do not find such a 

concern was his actual reason for staying at the midpoint of 

the train), he would not have been justified in playing 

"Russian Roulette" with the safety of the engineer and others 

by signaling the engineer to move the train forward when he 

(Buley) could not see the track ahead. Jones was therefore 

justified as plant manager in deciding to have Complainant 

issue a verbal warning to Buley. There has been no showing 

that Jones' decision and his enforcement of it were in any 

part motivated by discrimination against Complainant. 

At the hearing Complainant testified that Jones and 

Moran did not give him a direct order to issue a verbal 

warning to Buley, and that, had he realized that they meant 

to give him such an order, he would have given the verbal 

warning to Buley in order to save his job. I do not find 

this testimony either convincing or relevant. First, it is 

contrary to the parties' stipulation that Moran and Jones 

directed Complainant to issue a verbal warning to Buley and 

he refused to do so. Also, Jones testified that he gave 

Complainant a direct order to issue a verbal warning to 

Buley and Complainant refused. I credit Jones' testimony on 

this point. Considering the record as a whole, I hold the 

parties bound by their factual stipulations. Secondly, even 

if Complainant interpreted Moran's and Jones' statements as 

mere opinions of management, and not orders, Complainant 

assumed the risk of miscalculating Jones' managerial 

intention. The risk was not insured by§ 105(c) of the Act. 

Complainant has not shown a nexus between his discharge 

and any protected activity before the Buley matter. His 

activities before September 29, 1987, were not shown to be 

particularly safety-active, and the reliable evidence does 

not show a prior safety complaint by Complainant that is any 

way connected with his discharge. 

Finally, I accept management's evidence that Complainant 

was discharged solely because of his insubordination on 

September 30 1987. 

649 
CONCLUSIONS OF LAW 

l.· The ~udge has jurisdiction over this proceeding. 

2. Complainant has failed to prove a violation of § 

lOSCc){l) of the Act. 

ORDER 

The Complaint is DISMISSED. 

Distribution: 

~61 "4 _' . ::r--~ ~auver Administrative Law Judge 

Zachary Wellman, Esq., and pennis B. Schlenker, Esq., Felt 

and Schlenker, 174 Washington Avenue, Albany, NY 12210 

(Certified Mail) 

Christopher s. Flanagan, Esq., Lehigh Portland Cement 

Company, P.O. Box 1882, 718 Hamilton Mall, Allentown, PA 

18105-1882 (Certified Mail) 

iz 

650 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRA'rION CMSHA), 

Petitioner 

v. 

B AND D COAL COMPANY, 

INCORPORATED, 

Respondent 

APR 1 7 J989 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. SE 88-53 

A. C. No. 40-02944-03513 

: No. 7 Mine 

. . 

. . 

DECISION 

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

Department of Labor, Nashville, Tennessee, for the 

Secretary~ 

Bruce Anderson, Esq., Mccampbell & Young, Knoxville, 

Tennessee, for the Respondent. 

Before: Judge Weisberger 

This case is before me upon a petition for assessment of 

civil pehalty under Section 105Cd) of the Federal Mine Safety and 

Health Act of 1977 (the Act). Pursuant to Notice, this case was 

scheduled for hearing on March 29, 1989, in Knoxville, Tennessee. 

At the hearing, the Parties entered into settlement discussion 

and made a joint motion to approve settlement. A reduction in 

penalty from $8,000 to $4,000 is proposed. Based on the representation set forth in the stipulated facts filed on March 29, 1989, 

as well as the testimony and documentary evidence admitted on 

March 29, 1989, in support of the joint motion, I conclude that 

the proffered settlement is appropriate under the criteria set 

forth in Section llOCi> of the Act. 

WHEREFORE, the motion for approval of settlement is GRANTED, 

and it is ORDERED that Respondent pay a penalty of $4,000 within 

30 days of this order. 

Avram 

?~(A_ Weisberger 

Administrative Law Judge 

651 
Distribution: 

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

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

(Certified Mail) 

Bruce Anderson, Esq., Mccampbell & Young, 2021 Plaza Tower, 

P. o. Box 550, Knoxville, TN 37901-0550 (Certified Mail) 

dcp 

652 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

APR 171989 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ENERGY FUELS COAL, INC., 

Respondent 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 88-168 

A.C. No. 05-03455-03557 

Docket No. WEST 88-193 

A.C. No. 05-03455-03558 

Southfield Mine 

DECISION 

Appearances: S. Lorrie Ray, Esq., Office of the Solicitor, 

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

for Petitioner; 

Phillip D. Barber, Esq., Welborn, Dufford, Brown, 

and Tooley, Denver, Colorado, 

for Respondent. 

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., (MineAct). The Secretary of Labor on behalf of the Mine Safety and 

Health Administration, charges the operator of the Southfield 

Mine, a coal mine located near Florence, Colorado, with violating 

certain mandatory safety standards set forth in Title 30 Code of 

Federal Regulations. 

Respondent filed a timely answer contesting the existence of 

certain alleged violations, their characterization as "significant and substantial", and the amount of the proposed penalties. 

After notice to the parties the matter was set for an 

evidentiary hearing on the merits at Denver, Colorado on March 

16, 1989. When the matter was called for hearing the parties 

offered documentary evidence and made motions amending certain 

citations and proposed penalties and pleadings. After due 

consideration the motions were granted resolving all issues. 

Docket No. WEST 88-168 

Order/Citation No. 2839897 

The Secretary moved to amend Order No. 2839897 from a 107(a) 

order to a 104(a) citation. The Citation alleges a violation of 

653 
30 C.F.R. § 75.604Cb)(c) because three permanent splices in the 

trailing cable of the Joy shuttle car were improperly made. The 

Secretary's original $400.00 proposed penalty was not modified. 

Respondent in turn moved to withdraw its notice of contest and 

agreed to pay the Secretary's original proposed $400.00 civil 

penalty. There was no objection to either motion and the motions 

were granted resolving all issued with respect to this citation. 

Citation No. 2839894 

Citation No. 2839894 alleges a "significant and substantial" 

104(a) violation of 30 C.F.R. § 75.1725(a). The citation alleges 

that the audible alarm provi.ded for the Joy shuttle car was 

inoperative. The Secretary proposed a $74.00 civil penalty. At 

the hearing no modification was proposed for the citation or the 

proposed penalty. Respondent moved to withdraw its notice of 

contest and agreed to pay the Secretary's original proposed civil 

penalty of $74.00. There was no objection to the motion. The 

motion permitting respondent to withdraw its notice of contest to 

the citation and pay the original proposed penalty was granted. 

Citation No. 2839895 

Citation No. 2839895 alleges a "significant and 

substantial"l04Ca) violation of 30 C.F.R. § 75.400. The citation 

alleges that oil, grease, and float coal dust was allowed to 

accumulate under the lids and in the pump compartments of the LEE 

NORSE Miner. The Se~retary proposed a $74.00 civil penalty. Mo 

change was proposed in the citation or the proposed penalty. 

Respondent moved to withdraw its notice of contest to the 

citation and the proposed civil penalty. There was no objection 

to the motion. The motion permitting respondent to withdraw its 

notice of contest and to pay the Secretary's original proposed 

penalty was granted. 

Citation No. 2839896 

Citation No. 2839896 alleges that two bushings on the 

shuttle car were not insulating the cable guide from the frame of 

the shuttle car. It was respondent's position that the bushings 

were in place, that the bushings did insulate the cable guide 

from the frame of the shuttle car and that there was no violation. The operator nevertheless did comply with the inspectors 

"judgment call" and replaced the bushings. The Secretary moved 

to vacate the citation. There was no objection to the motion. 

The motion was granted resolving all issues with respect to this 

citation. 

654 
Docket No. WEST 88-193 

Citation No. 2839893 

Citation No. 2839893 alleges a 104(d)(l) violation of 30 

C.F.R. § 75.400, in that float coal dust allegedly was allowed to 

accumulate. The operator did not dispute the occurrence of the 

violation but denied that it was aware of the existence of the 

condition which it promptly corrected as soon as the operator 

became aware of the condition. The inspector simply speculated 

that the operator was aware of the condition. The Secretary 

moved to amend the 104(d)(l) order to a 104(a) citation and 

accordingly modified the $259.00 proposed penalty to $150.00. 

There was no objection to the motion. The motion was granted. 

Respondent in turn withdrew its notice of contest to the citation 

and to the proposed penalty as amended. 

The Secretary's counsel stated in support of its motion, 

that on review and preparation for the trial it was found that 

the negligence was less than "originally believed". Once the 

operator discovered the violative condition, it immediately took 

action to correct it. Although the operator admitted.the violation, there was no evidence to support the issuance 104(d)(l) 

citation rather than a 104(a) citation. 

Conclusion 

After careful review and consideration of the pleadings, - arguments, and the information placed upon the record at the 

hearing, I am satisfied that the proposed disposition made at the 

hearing is reasonable, appropriate and in the public interest. 

The civil penalties are appropriate under the criteria set forth 

in section llOCi) of the Mine Act. 

DOCKET NO. WEST 88-168 

Citation/Order No. 2839897 as modified to a 104(a) citation 

and the Secretary's original proposed civil penalty of $400.00 

are affirmed. 

Citation No. 2839896 and its proposed civil penalty are 

vacated. 

Citation Nos. 2839895 and 2839894 and the Secretary's 

original proposed civil penalty of $74.00 for each of these 

violations are affirmed. 

DOCKET NO. WEST 88-193 

Citation No. 2839893 as modified to a 104(a) citation and 

its amended proposed civil penalty of $150.00 are affirmed. 

655 
ORDER 

The respondent, Energy Fuels Coal Inc., is directed to pay 

the civil penalties in the amounts shown above in satisfaction of 

the citations and orders in question within 30 days of the date 

of this decision and order. 

Distribution: 

s. Lorrie Ray, Esq., Office of the Solicitor, U.S. Department of 

Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO 

80294 (Certified Mail) 

Phillip D. Barber, Esq., Welborn, Dufford, Brown.and Tooley, 1700 

Broadway, Suite 1100, Denver, CO 80290-1199 (Certified Mail) 

/bls 

656 
FEDERA.. MINE SAFETY AND HEALTH REVIEW ~~MISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

APR 2 0 1989 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MONITEAU COUNTY COMMISSION, 

Respondent 

. . 

. . 

. . 

. . 

. . 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 88-148-M 

A.C. No. 23-01971-05502 

Maintenance Shop 

DECISION 

Appearances: John J. Matthew, Esq., Office of the Solicitor, 

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

for Petitioner; 

John T. Kay, Esq., Prosecuting Attorney, Moniteau 

County, California, Missouri, 

for Respondent. 

Before: Judge Lasher 

This proceeding was initiated by the filing of a proposal 

for penalty by Petitioner MSHA pursuant to Section 110 of the· 

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

Section 801 et seq. (1977)(herein the Act). Petitioner sought 

assessment of a penalty of $20.00 for an alleged violation of 30 

C.F.R. Section 50.30 described in Citation No. 3064674 issued on 

March 31, 1988 by MSHA Inspector Dulces N. Mesa as follows: 

"The operator has failed to file with the appropriate 

MSHA off ice a quarterly mine employment report 

(Form 7000-2), after having been advised not to by their 

legal representative." 

30 C.F.R. § 50.30(a) provides: 

Ca) Each operator of a mine in which an individual worked 

during any day of a calendar quarter shall complete a 

MSHA Form 7000-2 in accordance with the instructions and 

criteria in § 50.30-1 and submit the original to the 

MSHA Health and Safety Analysis Center, P.O. Box 25367, 

Denver Federal Center, Denver, Colo. 80225, within 15 

days after the end of each calendar quarter. These forms 

may be obtained from MSHA Metal and Nonmetallic Mine 

Health and Safety Subdistrict Offices and from MSHA Coal 

657 
Mine Health and Safety Subdistrict Offices. Each operator 

shall retain an operator's copy at the mine office nearest 

the mine for 5 years after the submission date. 

The matter came on for hearing on February 16, 1989 in 

Sedalia, Missouri. Thereafter, by motion to dismiss dated April 

14, 1989, the Secretary indicated its determination that 

Respondent Moniteau County Commission was operating a "borrow 

pit" rather than a mine covered under the Mine Act, that borrow 

pits are covered by OSHA except in certain circumstances not 

present here, that the Citation in question should be vacated, 

and these proceedings dismissed. 

The motion to dismiss is for all intents and purposes a 

withdrawal by MSHA of its prosecution of this matter. Pursuant 

to Commission Rule 11 (29 C.F.R. 2700.11) a party may withdraw a 

pleading at any stage of a proceeding with the approval of the 

Commission or the Judge. In view thereof, and good cause 

appearing for the withdrawal of MSHA's proposal herein, the 

motion to dismiss is GRANTED, Citation No. 3064674 is VACATED, 

and this proceeding is DISMISSED. 

Distribution: 

/hk~~? If?. ~~~(h~ "'{~hael A. Lasher, Jr. 

Administrative Law Judge 

Robert A. Cohen, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified 

Mail) 

John T. Kay, Esq., 405 North High Street, California, MO 65018 

(Certified Mail) 

/bls 

658 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 211989 

LOCAL UNION 9909, DISTRICT 31 

UNITED MINE.WORKERS OF 

AMERICA, 

Complainants 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

COMPENSATION PROCEEDING 

Docket No. WEVA 89-65-C 

Loveridge No. 22 Mine 

ORDER OF DISMISSAL 

Before: Judge Fauver 

Pursuant to Complainant's request to withdraw its 

complaint in the above case, motioned by the United Mine 

Workers of America for the above case is DISMISSED. 

Distribution: 

~~.,,~ William /:;;;er 

Administrative Law Judge 

Joyce A. Haula, Legal Assistant, UMWA, 900 15th Street, N.W., 

Washington, D.C. 20005 (Certified Mail} 

Michael R. Peelish, Esq., Legal Department, Consolidation 

Coal Company, 250 w. Main Street, P.O. Box 11430, Lexington, 

KY 40575 (Certified Mail} 

iz 

659 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 2 4 1989 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

Docket No. CENT 88-106-M 

A.C. No. 41-02775-05503 

v. 

Dudley's Pit Mine 

LEBLANC'S CONCRETE & MORTAR 

SAND COMPANY, 

Appearances: 

Before: 

Respondent 

DECISION 

Brian L. Pudenz, Esq., Office of the Solicitor, 

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

the Petitioner; 

Dudley J. LeBlanc, Owner, LeBlanc's Concrete & 

Mortar Sand Company, Rosenberg, Texas, Pro Se, 

for the Respondent. ~- --

Judge Koutras 

Statement of the Case 

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

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

§ 820Ca), seeking civil penalty assessments for 10 alleged 

violations of certain mandatory safety standards found in 

Part 56, Title 30, Code of Federal Regulations. The respondent filed a timely answer and notice of contest, and a hearing was held in Houston, Texas. The parties waived the filing 

of posthearing briefs, but I have considered all of their oral 

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

Issues 

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

conditions or practices cited by the inspector constitute violations of the cited mandatory safety standards, (2) the appropriate civil penalties to be assessed for the violations, 

660 
taking into account the statutory civil .penalty criteria found 

in section llOCi) of the Act, and (3) whether several of the 

violations were in fact "significant and substantial." 

Applicable Statutory and Regulatory Provisions 

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

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

2. Part 56, Title 30, Code of Federal Regulations. 

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

Stipulations 

The parties stipulated in pertinent part to the following 

(Exhibit ALJ-1): 

1. The name of the respondent company is 

LeBlanc's Concrete & Mortar Sand Company with a 

place of business near Rosenberg, Texas. 

2. Jurisdiction is conferred upon the 

Federal Mine Safety and Health Review 

Commission under the Federal Mine Safety and 

Health .Act, 30 u.s.c. § 801 et seq. The 

alleged violations took place in or involve a 

mine that has products which affect commerce. 

3. The name of the mine is Dudley's Pit, 

identification number 41-02775. The mine is 

located near Richmond, Texas in Fort Bend 

County. The size of the coinpany and mine is 

7,480 production tons or hours worked per year. 

4. The imposition of any penalty in this 

case will not affect the respondent's ability 

to continue in business. 

5. The total number of assessed violations (including single penalties timely paid) 

in the preceding twenty-four months is zero. 

6. On March 1, 1988, an inspection was 

conducted by .James S. 3miser and Joseph P. 

Watson (also known as Jim Watson) authorized· 

661 
representatives of the Mine Safety and Health 

Administration. 

7. Ten Section 104(a) citations (numbers 

03061705 through 03061714) were issued for 

violations of 30 C.F.R. § 56.14006, 56.14001, 

56.15020, 56.14001, 56.4102, 56.4230(a)(l), 

56.46001, 56.14001, and 56.4100Cb) respectively, 

on March 1, 1988. 

8. All of the citations were abated within 

twenty-four (24) hours by the respondent. 

Discussion 

When the hearing convened, the parties advised me that 

the respondent wished to withdraw its contests with respect to 

Citation Nos. 3061705 and 3061708 (photographic exhibits P-4 

and P-1). The respondent agreed to pay the full amount of the 

proposed civil penalty assessments for the violations, and 

after considering the request to withdraw the contests as a 

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

§ 2700.30, the request was granted and the settlement was 

approved from the bench. My decision in this regard is herein 

reaffirmed, and the citations are affirmed as issued. 

The remaining citations in issue in this proceeding are 

as follows: 

Section 104(a) "S&S" Citation No. 3061706, cites a violation of 30 C.F.R. § 56.14001, and the condition or practice 

states as follows: 

The guard covering main drive shaft and 

couplers on dredge was broken, parts removed, 

and loose, exposing employee to moving machine 

parts, a fall into dredge sump, and a potential 

of being drown (sic) in water/oil bein~ held in 

bottoin of dredge-.-

Section 104(a) "S&S" Citation No. 3061707, cites a violation of 30 C.F.R. § 56.15020, and the condition or practice 

5tates as follows: 

The dredge operator did not ~ear a life 

jacket on dredge ~hile on deck and where there 

is a danger froin falling into water, the <lr.edge 

deck is not £YCotected by handr.:ii ls. 

662 
Section 104(a) "S&S" Citation No. 3061709, cites a violation of 30 C.F.R. § 56.4102, and the condition or practice 

states as follows: 

The flammable or combustible liquid spillage and leakage was not removed in a timely 

manner or controlled to prevent a fire hazard 

on the dredge. The sump of dredge contained a 

large amount of oil, diesel fuel, and water 

floating under engine, pump, and other equipment which could be ignited to produce a flash 

fire and expose operator to fire hazard. 

Section 104(a}"S&S" Citation No. 3061710, cites a violation of 30 C.F.R. § 56.4230{a){l), and the cited condition or 

practice states as follows: 

A fire extinguisher was not provided on 

the dredge where a fire or its effects could 

i1npede escape f ram self-propelled equipment. 

Operator is exposed to fire hazard from diesel 

fuel, oils, and grease used on dredge motor. 

Section 104(a} "S&S" Citation No. 3061711, cites a violation of 30 C.F.R. § 56.4600(a){l}, and the cited condition or 

practice states as follows: 

A fire extinguisher was not provided in 

the welding area of shop where electric arc and 

cutting torch were in use. Electrical circuits 

are also in area which could produce a hazard 

by the use of a electrical conductive extinguishing agent. A multi-purpose dry chemical 

fire extinguisher or other type with at least a 

2-A; 10 B:C rating shall be used. Combustibles 

are stored in area of shop which could be 

ignited by welding activity. 

Section 104(a} non-"S&S" Citation No. 3061713, cites a 

violation of 30 C.F.R. § 56.14001, and the cited condition or 

practice states as follows: 

The V-belt drive 

pu..rnp was not provided 

ingoing pinch points. 

location of pump. 

of floating fresh water 

with a guard to protect 

Gravity reduced due to 

663 
Section 104(a) non-"S&S" Citation No. 3061712, cites a 

violation of 30 C.F.R. § 56.14001, and the cited condition or 

practice states as follows: 

The V-belt drive on shop air compressor 

was not provided with a guard to protect 

employees from ingoing pinch points. Gravity 

is reduced due to location of drive. 

Section 104Ca) "S&S" Citation No. 3061714, cites a violation of 30 C.F.R. § 56.4100(b), and the cited condition or 

practice states as follows: 

Welding, which produces open flame and 

sparks, was in area of shop which also had bulk 

oils stored with open caps and hand pumps. 

Employee was exposed to fire hazard. Gravity 

is increased due to lack of a fire extinguisher 

being available at area. 

Petitioner's Testimony and Evidence 

MSHA Inspector James R. Smiser, testified as to his 

experience and training, and he confirmed that he conducted an 

inspection at the respondent's mining operation on March 1, 

1988, and issued the citations which are in issue in this 

proceeding. 

Citation No. 3061706 

Inspector Smiser stated that he issued this citation 

after observing that the mesh grating guard used to guard the 

main drive shaft and coupler on the dredge was loose and 

uns~cured. If one were to step on the grating, it would give 

and go down under the weight of anyone walking on it. 

Mr. Smiser identified exhibit P-2 as a photograph of the mesh 

guard in question. 

Mr. Smiser confirmed that he made a gravity finding of 

"highly likely," and he did so because the dredge deck was wet 

and coated with oil, making it slippery, and he belie~ed that 

if anyone stepped on the grating it would give way and expose 

the individual to the hazard of falling into the exposed 

moving drive shaft and coupler. 

Mr. Smiser confirmed that he made a negligence finding of 

"moderate" because the dredge operator was required to be on 

the dredge, and he should have been aware of the readily 

observable condition of the loose grating. 

664 
On cross-examination, Mr. Smiser confirmed that when he 

stepped on the loose grating guard, it gave some, but did not 

touch the coupler. He also confirmed that he had no knowledge 

that the grating had been in that condition for 2 years, and 

that his inspection was the first time he had observed the 

condition. He stated that he discussed the condition with 

superintendent Jim Davis, and agreed that the loose grating 

was probably caused by fatigue resulting from a broken angle 

iron which helped support the grating. 

Citation No.3061707 

Inspector Smiser cohf irmed that he issued the citation 

after observing that the dredge operator was not wearing a 

life jacket while the dredge was in operation. He stated that 

the dredge operator walked around the dredge while inspecting 

the equipment, and at the time of the inspection the dredge 

deck was wet and slippery due to the presence of water and 

oil, and the dredge perimeter was not equipped with handrails. 

Under these circumstances, he concluded that the violation was 

"significant and substantial" because it was reasonable likely 

that the dredge operator could drown if he slipped and fell 

off the barge without a life jacket. 

Mr. Srniser confirmed that he made a negligence finding of 

"moderate" because the respondent had been in the dredging 

business for years and should have been aware of the requirement for the wearing of a life jacket. 

Mr. Smiser st~ted that he spoke with superintendent Jim 

Davis who advised him that life jackets are made available to 

the dredge operator and that the operator apparently chose not 

to take one with him or to wear it at the time of the 

inspection. 

On cross-examination, Mr • .Srniser stated that he did not 

know the dimensions of the dredge and made n·o measurements. 

He described the pilot house where the dredge operator is 

stationed when he operates the dredge, and estimated that it 

was 5 feet wide. He confirmed that he observed no life jacket 

on the dredge, and that Mr. Davis obtained one after the 

inspection and provided it to the dredge operator. Mr. Smiser 

identified photographic exhibitP-3(a) as the dredge in question, and he estimated that it was anchored approximately 100 

to 150 yards off shore, but he did not know the depth of the 

water at that location. He also identified photographic 

exhibit P-3(b) as a photograph of a portion of the edge of the 

dredge deck where no handrails were installed. 

665 
Mr. Smiser stated that if the water was "knee deep," he 

would still require the dredge operator to wear a life jacket 

because if he slipped or fell overboard and struck his head, 

he would still be exposed to a drowning hazard if he was not 

wearing a life jacket. 

Mr. Smiser stated that in accordance with MSHA's policy, 

if the dredge were equipped with protective hand-rails, a life 

jacket would not be required. He confirmed that there is no 

mandatory standard requiring hand-rails on a dredge, and that 

in the absence of hand-rails, there is a presumption that a 

dredge operator without a life jacket would be exposed to the 

hazard of falling overboard at any given time while walking 

around the dredge performing his duties. 

Mr. Smiser confirmed that he spoke with the dredge operator and asked him why he was not wearing a life jacket, but 

received no response or explanation. 

Citation No. 3061709 

Mr. Smiser stated that he issued the citation after 

observing an accumulation of combustible and flammable oil and 

diesel fuel below the dredge engine and sump pump. The liquid 

had spilled or leaked from the engine or swnp and it W"as mixed 

with water and was floating on the surface beneath the engine. 

He identified the material as the "shiny" material shown 

behind the batteries and below the engine in photographic 

exhibit P-5. 

Mr. Smiser confirmed that he made a gravity finding of 

"reasonably likely," and considered the violation as significant and substantial because the combustible materials could 

have been ignited and caused a "flash fire" from the heat of 

the engine. Although the operator's compartment was located 

15 to 2 0 feet from the sump and engine area, the absence. of a 

life jacket and a fire extinguisher on the dredge, and the 

fact that diesel fuel was stored on the dredge, added to the 

hazard in that in the event of a fire, the dredge operator 

would be unable to safely remove himself from the dredge and 

could suffer fatal injuries. 

Mr. Smiser confirmed that he made a negligence finding of 

"moderate" because the leakage or spillage was ceadily 

observable and the respondent should have been aware of the 

requirement to timely remove the accumulated materials. 

666 
On cross-examination, Mr. Smiser stated that he did not 

measure the accumulations, but estimated they were 6 to 

8 inches deep. He confirmed that he had no knowledge of the 

"flash point" of the accu..rnulated oil or fuel, and did not know 

how much heat was generated by the engine, or how hot it had 

to be in order to ignite the materials or cause a flash fire. 

He assumed that oil and fuel, by their-nature, are combustible 

and f la:mmable. 

Mr. Smiser stated that the su..mp is located approximately 

12 to 15 inches below the deck level of the dredge, and he had 

no knowledge of the size and type of the dredge engine. 

Citation No. 3061710 

Mr. Smiser confirmed that he issued the citation after 

finding that no fire extinguisher was provided for the dredge 

which was the subject of the previous citations. Given the 

potential fire hazard presented by the accumulation of 

combustible fuel and oil at the dredge engine and sump area, 

as described with respect to Citation No. 3061709, and the 

fuel stored on board, he believed that it was reasonable 

likely that a fire would occur, and if it did, the absence of 

a fire extinguisher would not provide a means for extinguishing 

the fire, and the lack of a life jacket for use by the dredge 

operator would have impeded his escape from the hazard. 

Mr. Smiser confirmed that he considered the dredge to be 

self-propelled equipment for which a fire extinguisher was 

required. Under these circumstances, he concluded that the 

violation was significant and substantial. 

Mr. Smiser confirmed that he made a negligence finding of 

"moderate" and that he did so because superintendent Davis 

advised him that a fire extinguisher had previously been provided for the dredge, and that one was obtained and provided 

by Mr. Davis after the inspection. Under these circumstances, 

Mr. Smiser concluded that the respondent was aware of the 

requirement for a fire extinguisher and that it knew or should 

have known about the requirement. 

On cross-examination, Mr. Smiser confirmed that he and 

Mr. Davis were transported to the dredge by a small boat, but 

he had no knowledge as to whether another boat or barge used 

to transport fuel and the dredge operator to the dredge was 

also tied up and available for the dredge operator at the time 

of the inspection. Mr. Smiser stated further that the pilot 

house containing the dredge controls had one door. 

667 
Citation No. 3061711 

Mr. Smiser confirmed that he issued the citation after he 

found that a multipurpose dry chemical fire extinguisher was 

not provided at the shop area where electrical welding work 

was being performed on a dredging bucket. He stated that 

fluids and oils were being used and stored in the shop, and he 

observed three or four 55-gallon drums of oil stored in one 

corner of the shop, and one of the drums was equipped with a 

hand pump. He estimated that these drums were located approximately 8 to 10 feet from where the welding or cutting was 

taken place. 

Mr. Smiser confirmed that he made a gravity finding of 

"moderate" and considered the violation to be significant and 

substantial because it was reasonably likely that an "air arc" 

generated by the type of work going on could spray small · 

pieces of hot metal in the shop and ignite the oil and other 

fluids which were present in the shop. However, he believed 

that in the event of a fire, the workers in the.shop area 

could quickly exit the shop. 

Mr. Smiser confirmed that he made a negligence finding of 

"moderate" because he believed that the respondent knew or 

should have known about the requirement for a fire extinguisher 

in the shop. 

On cross-examination, Mr. Smiser stated that he had no 

knowledge of the size of the shop, but estimated that it was 

approximately 100 x 200 feet, and he characterized it as 

"pretty good size," with an open entrance. 

Mr. Smiser confirmed that the welding truck was parked 

inside the shop, and the actual welding work was taking place 

outside the shop entrance immediately below the shop roof-line 

and approximately 4 to 5 feet outside of the shop. 

Mr. Smiser stated that he could not reciall the precise 

cutting or welding process which was taking place, but believed 

that it was an "air-arc" cutting apparatus which used compressed air. He did not believe that an open flame process 

which utilizes acetylene gas or oxygen, or electric welding, 

was being used, but confirmed that both of these processes 

were available for use. He confirmed that the bucket in question was on the ground. 

Mr. Smiser confirmed that the cited standard, section 

56.4600(a)(l), requires that a multipurpose dry chemical fire 

extinguisher be available when electrical arc or open flame 

668 
welding or cutting work is being performe~, and that the 

intent of the standard is to insure that an appropriate fire 

extinguisher be available in the event the kind of welding 

taking place creates an electrical hazard. 

Citation No. 3061712 

Mr. Smiser confirmed that he issued the citation after 

finding that the V-belt drive on a compressor located in the 

shop was not guarded. He stated that amployees had access to 

the area where the compressor was located, .and that tools and 

other materials were located and stored in'the area. 

Mr. Smiser described the compressor as a "large tank" located 

in the corner of the shop, and he stated that the unguarded 

belt was mounted on top of the compressor approximately 5 to 

5-1/2 feet above the shop floor, and that it was to the rear 

of the compressor facing the outside shop wall. 

Mr. Smiser stated that he made a gravity finding of 

"unlikely" and did not consider the violation to be significant 

and substantial because he believed it was unlikely that an 

injury would occur due to the location of the unguarded belt. 

He did not believe it was likely that an employee would get 

caught in the unguarded belt and suffer an injury. He confirmed that the respondent's negligence was low because it was 

probably not aware that the belt was required to be guarded. 

On cross-examination, Mr. Smiser stated that if someone 

delibecately wanted to get into the unguarded belt, they could 

do so by reaching behind the compressor. He also believed 

that someone could contact the unguarded belt through inattention, but conceded that there was a "slim chance" of anyone 

contacting the belt. 

Mr. Smiser stated that he did not believe that the cited 

belt in question was guarded "by location," and that MSHA's 

informal policy recognizes "guarding by violation" only .in 

instances where unguarded pinch points are located 7 feet off 

the ground. 

Citation No. 3061713 

Inspector Smiser confirmed that he issued the citation 

after finding that the V-belt drive on the fresh water floating pump motor was not provided with a guard to protect the 

exposed pinch points. Ha identified photographic exhibit P-9 

as a photograph of the pump in question. He confirmed that he 

made a gravity finding of "unlikely" and did not consider the 

violation to be significant and substantial because it was 

669 
unlikely that an employee would be at the pump location when 

it was started up or in operation. Due to the location of the 

pwnp, and the fact that the motor was activated from the 

plant, he did not believe that it was likely that an employee 

would be exposed to a hazard. 

On cross-examination, Mr. Smiser stated that the cited 

mandatory standard, section 56.14001, requires that a belt 

drive "which may be contacted" be guarded. He confirmed that 

Mr. Davis advised him that under normal operating circumstances, no one would be on the pump barge. 

Citation No. 3061714 

Mr. Smiser confirmed that he issued the citation because 

the welding taking place in the shop area as previously 

described with respect to Citation No. 3061711 was taking 

place at the shop area where flammable or combustible oils and 

fluids were stored or handled. Mr. Smiser confirmed that 

while both citations were issued for the same welding or 

cutting work which was being performed on the bucket outside 

the shop, Citation No. 3061714, was issued for performing 

welding work in an area where open flame welding was taking 

place in an area where combustible or flammable oils and 

fluids were stored. Performing such work in such an area is 

prohibited by the standard. 

Mr. Smiser stated that the coil welding which was taking 

place produces open flame sparks, and he determined that an 

injury was reasonably likely in that in the event of a fire 

someone would probably suffer minor burns. For these reasons, 

he determined that the violation was significant and 

substantial. 

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

negligence, and that he did so because Mr. Davis advised him 

that he was in the process of moving the stored materials to 

another location. · 

~espondent's Testimony and Evidence 

Dudley J. LeBl(!nc, respondent's owner, testified that bis 

concrete and sand dredging operation is a very small business, 

and that he employs four individuals at his operation. One 

person operates the dredge, one operates the plant, one operates the loaders which load the trucks, and one person works 

in the office. He further stated that he is open for business 

5 days a week, from 7:00 a.m. to 5:00 p.m. 

670 
Citation No. 3061706 

Mr. LeBlanc conceded that the metal grating provided to 

guard the dredge drive shaft and couplers was loose and in 

need of repair because of a broken angle iron support. However, he pointed out that most of the drive shaft was located 

under the grating which was firmly in place as shown by photographic exhibit P-2. He also stated that the machine gear box 

which is shown in the photograph is normally in that raised 

position. Although the guarding was loose, Mr. LeBlanc stated 

that one could walk on it and it would not give or contact the 

drive shaft or coupler. 

Citation No. 3061707 

Mr. LeBlanc stated that he has instructed the dredge operator to wear a life jacket while working on the dredge, and 

that he is provided with a jacket. Although he was not present during the inspection, Mr. LeBlanc believe~ that a life 

jacket was provided and located in the pilot house located at 

the end of the dredge. After ';Tiewing photographic exhibit 

P-3Ca), Mr. LeBlanc estimated that the dredge was located 10 

to 15 feet from the bank, and was in 4 or 5 feet deep water on 

the day of the inspection. However, he confirmed that during 

any given day, the dredge moves from one location to another 

during the dredging and pumping operation, and that it does 

operate in water which is 30 feet deep. 

Mr. LeBlanc stated that the dredge was 16 feet wide and 

24 feet long, with two 4 x 20 foot floats. The dredge contains a pilot house, an 8 x 10 foot pump, four winches, and a 

Detroit engine and hydraulic pump. Diesel fuel is used to 

drive the dredge, and there is a 900 gallbn fuel tank at the 

rear of the dredge. 

Citation No. 3061709 

Mr. LeBlanc stated that the engine and ·sump leakage in 

question was not unusual in that the packing a.round the sump 

drive shaft causes leakage. He confirmed that the spillage 

and leakage cannot be emptied into the water, and that it is 

periodically removed and taken ashore. He has now devised a 

method to automatically pump out the spillage and remove it 

from the dredge. 

Mr. LeBlanc stated that while diesel fuel is combustible, 

its ignition point is so high that o~e could throw a lighted 

match on the materials and it will not ignite. He confirilted 

that the dredge operator is permitted to smoke while in the 

671 
pilot house, and that a water can is available in the house 

for cigarette butts. The operator is not permitted to smoke 

while working on the dredge outside of the pilot house. 

Citation No. 3061710 

Mr. LeBlanc confirmed that since he was not on the dredge 

during the inspection, he did not know whether a fire extinguisher was aboard. He stated that an 8 x 20 foot small barge 

used for transporting fuel is always tied up at the dredge, 

and it can be used by the dredge operator in an emergency. He 

stated that the pilot house has two doors, and it contains the 

dredge controls and radio and communications equipment. 

Citation No. 3061711 

Mr. LeBlanc confirmed that he was not present during the 

inspection and has no knowiedge as to whether a fire extinguisher was provided for the shop area. However, he did 

observe a c.o. five extinguisher in the shop in the evening 

after the inspection. He confirmed that the welding operation 

was taking place outside of the shop and that the bucket which 

was being serviced was on the ground. Since it was on the 

ground, he did not believe that any sparks or arcs would reach 

the oil stored inside the shop. In the event welding was 

taking place above the stored oil drums, he would concede that 

arcs and sparks could fall below and onto the oil drums, but 

since this was not the case, he did not believe that any 

hazard was present. 

Citation No. 3061712 

Mr. LeBlanc stated that the cited unguarded compressor 

belt was at approximate "eye-level" and that the compressor 

was mounted on 4 x 4 blocks in the corner of the shop. He 

stated that in order to change out the belt located at the 

rear of the compressor, one would have to physically move the 

compressor in order to gain access to the belt. He stated 

that he abated the citation by installing a bar across the 

compressor to provide a physical barrier, and that the V-belt 

itself was not required to be guarded. 

Citation No. 3061713 

Mr. LeBlanc stated that under normal operating procedures, 

no one is required to be on the barge on which the fresh water 

pump was located. The pump motor is activated from shore in 

the plant by means of a switch located 200 to 300 feet from the 

barge, and that any engine priming is done from the shore some 

672 
20 to 30 feet away. He stated that the pump is located on a 

6 x 6 foot barge which rests on floats, and that no one is 

permitted to be on the barge while the pump is in operation. 

He confirmed that someone is on the barge only once a week for 

service before dredging is started, but that all of the 

electricity is deenergized and the pump is shut down. When 

major repairs are required, the pump is physically lifted 

ashore by means of a cherry picker. 

Citation No. 3061714 

Mr. LeBlanc confirmed that the welding work in question 

was taking place outside of the shop at the same location and 

on the same piece of equipment where Citation No. 3061711 was 

issued. He conceded that the work was being performed with an 

acetylene oxygen cutting torch which produced an open flame, 

and although he had available a "plasma cutter that you cut 

with electricity," it was inoperative. 

Findings and Conclusions 

Fact of Violations 

Citation No. 3061706, 30 C.F.R. § 56.14001 

The inspector issued the citation after finding that the 

wire mesh grating guard used to guard the dredge drive shaft 

and coupler was loose and unsecured. The inspector confirmed 

that the respondent's superintendent agreed that the grating 

was loose because of fatigue resulting from a broken angle 

iron used to support the guard, and .Mr. LeBlanc conceded that 

this was the case and that the guard was in need of repair. 

Although Mr. LeBlanc believed that most of the drive shaft was 

protected and disagreed with the inspector's belief that the 

grating would give and 1nove down if someone were to walk on 

it, the fact remains that the guard was not securely in place, 

and I believe one can reasona'.'.:>ly conclude that through fatigue 

and wear, it would have come completely looie ~ver time and 

exposed one to a hazard of falling into the moving drive shaft 

and coupler. I conclude and find that a violation has been 

established, and the citation IS AFFIRMED. 

Citation No. 3061707, 30 C.F.R. § 56.15020 

The evidence establishes that the dredge operator was not 

wearing a life jacket while the dredge was in operation and 

while he was,walking around a slippery deck performing his 

duties. The dredge was not provided with any protective 

handrails around its perimeter, and in the event the operator 

673 
fell into the water, which I believe was reasonably likely 

given the slippery deck conditions, he could possibly drown. 

Although Mr. LeBlanc stated that the dredge was located in 4 

or 5 feet of water, he confirmed that on any given day the 

dredge moves around and sometimes operates in water 30 feet 

deep. Although the respondent's evidence indicates that a 

life jacket may have been provided for the dredge operator's 

use, the fact remains that he was not wearing it. Under the 

circwnstances, I conclude and find that a violation has been 

established, and the citation IS AFFIRMED. 

Citation No. 3061709, 30 C.F.R. § 56.4102 

The inspector issued the citation after observing a combination of oil, diesel fuel, and water floating under the dredge 

sump pump and engine located approximately 12 to 15 inches 

below the deck level of the dredge. The inspector did not 

measure the accumulated materials, but estimated they were 6 to 

8 inches deep. The cited section 56.4102, provides that 

"flammable or combustible liquid spillage shall be rei.-noved in a 

timely manner or controlled to prevent a fire hazard." 

30 C.F.R. § 56.2 defines the term "combustible" as 

"capable of being ignited and consumed by fire." The term 

"flammable" is defined as "capable of being easily ignited and 

of burning rapidly." The term "Flash Point" is defined as 

"the minimum temperature at which sufficient vapor is released 

by a liquid or solid to form a flammable vapor-air mixture at 

atmospheric pressure." 

Mr. LeBlanc testified that due to the packing around the 

shell of the water pump, it is impossible to prevent water 

from leaking and mixing with oil and hydraulic fluid which may 

be present when the hoses break. He confirmed that any such 

spillage is periodically cleaned up and contained within the 

dredge, and then taken to shore and disposed of. Although he 

conceded that the material may be considered combustible, he 

stated that the ignition point is so high tnat it would not 

burn even if one were to throw a lighted match on it. 

Mr. LeBlanc's testimony in this regard is unrebutted. 

The evidence here establishes that the accumulated 

materials were a mixture of water, which one may reasonably 

assume was leaking from the water pump, and oil and diesel 

fuel. Section 56.4102, requires the removal or control of 

"flammable or combustible spillilge. In my view, in order to 

est3.blish a violation, a determination must be made by the 

inspector as to whether the accumulations he observed were in 

£act combustible or flammable. Given the mixture of water 

674 
·which was present, and Mr. r ... eBlanc' s unrebut ted testimony with 

respect to the absence of an ignition point high enough to 

ignite the materials in question, I cannot conclude that the 

petitioner has presented any credible probative evidence to 

establish the combustibility or flammability of the materials 

cited by the inspector. Although the inspector was of the 

opinion that a "flash fire" could have resulted from the heat 

generated by the engine, he conceded that he had no knowledge 

as to the flash point of the accumulated oil and fuel, how 

much heat was generated by the engine, or whether the engine 

was hot enough to generate a flash fire. Under the circumstances, I conclude and find that the petitioner has failed to 

establish that the accumulated materials were in fact combustible or flammable. Accordingly, I conclude and find that a 

violation has not been established, and the citation IS 

VACATED. 

Citation No. 3061710, 30 C.F.R. § 56.4230(a)(l) 

The inspector issued the citation after finding that a 

fire extinguisher was not provided for the self-propelled 

dredge. The cited section 56.4230(a)(l), provides ihat 

"whenever a fire or its effects could impede escape from 

self-propelled equipment, a fire extinguisher shall be on the 

equipment." 

The inspector believed that an accumulation of fuel and 

oil at the sump pump area presented a potential Eire hazard, 

and that in the event of a fire, and in the absence of a fire 

extinguisher, there would be no available means to fight the 

fire. The accumulations noted by the inspector were the same 

accumulations previously cited in Citation No. 3061709. That 

citation was vacated for a lack of any credible evidence to 

establish that the accumulations were combustible or flammable. 

I find no problem with a safety standard which directly 

and clearly requires that a fire extinguisher be available on 

a dredge in the event of a fire. However, 1 do have a problem 

with the language of the particular standard cited in this 

instance. The standard requires a fire extinguisher only if 

it can be shown that "a fire or its effects" could impede an 

escape from self-propelled equipment. I find no evidence in 

this case to establish that any fire or its effects could have 

impeded the escape of the dredge operator f roin the dredge. 

Although the absence of a life jacket may have ef Eectively 

impeded his escape, the respondent here has already been 

charged with a violation for the failure of the dredge oparator to wear a life jacket. 'l'he intent of the standard is 

fire protection, and it is not a life jacket requirement. 

675 
On the facts of this case, the dredge was located 10 to 

15 feet from shore in water 4 to 5 feet deep, and Mr. LeBlanc's 

unrebutted credible testimony reflects that a small barge is 

always tied up to the dredge for use in any emergency. In the 

event of any fire, the dredge operator could readily jump 

overboard, or use the barge as a means of leaving the dredge. 

Under all of these circumstances, including the lack of any 

evidence to establish that a fire, or its effects, would have 

impeded the escape of the dredge operator, I conclude and find 

a violation has not been established. Accordingly, the citation IS VACATED. 

Citation No. 3061711, 30 C.F.R. § 56.4600(a)(lt 

In this instance, the respondent is charged with an 

alleged violation of mandatory standard 30 C.F.R. 

§ 56.4600(a)(l), which provides as follows: 

Extinguishing Equipment. 

(a) When welding, cutting, soldering, 

thawing, or bending--

(!) With an electric arc or with an open 

flame where an electrically conductive extinguishing agent could create an electrical 

hazard, a multipurpose dry-chemical extinguisher 

or other. extinguisher with at least a 2-A:lO-B:C 

rating shall be at the worksite. 

The inspector confirmed that he issued the citation 

because a multi-purpose dry chemical fire extinguisher was not 

provided at the location where welding work was being performed 

on a dredging bucket outside of the shop. The citation states 

that an electric arc and cutting torch were in use during the 

welding process, that electrical circuits we.re present, and 

that these circuits could produce a hazard by the use of an 

electrically conductive extinguishing agent. 

The inspector testified that electrical welding work was 

being performed on the bucket in question, and that he was 

concerned that an "air arc" generated by the type of welding 

work taking place could have sprayed small pieces of hot metal 

into the shop and ignited some oil and othet::' fluids which were 

stored in drums inside the shop. In short, the testilriony of 

the inspector reflects that he was concerned about a Eire 

hazard, rather than an electrical hazard. Although the citation alluded to the presence of certain electrical circuits, 

676 
the inspector's testimony is devoid of any reference to any 

such electrical circuits or electrical hazards. 

In my view, the intent of the standard is to preclude the 

use of an extinguishing agent or apparatus capable of conducting electricity, thereby introducing an electrical hazard if 

the proper type of extinguisher is not available when work is 

being performed with an electric arc or open flame. As an 

example, the inspector stated that if a water fire extinguisher 

were being used, it could create an electrical hazard (Tr. 60). 

The inspector testified that electrical welding was taking 

place, and that the work included the use of an "air arc 

process" which is a cutting method that uses compressed air to 

remove molten metal. He confirmed that he could not recall 

whether an electric or gas process was being used, nor could he 

recall whether an electrical welding device or a torch open 

flame device using oxygen acetylene or propane was being used. 

In any event, he confirmed that the term "air arc" could apply 

to either a torch welding system or an electric system, and 

that the respondent was using one or the other, and no other 

type of syst~n (Tr. 59). 

Mr. LeBlanc confirmed that he was not present during the 

inspection and he had no knowledge as to whether or not any 

fire extinguisher was provided at the location where the 

welding work in question was being performed. He conceded 

that the work was being performed with an acetylene cutting 

torch which produced an open flame. 

On the facts presented here, although the inspector could 

not recall which of the two welding systems were being used 

(electric arc or open flame), Mr. LeBlanc confirmed that it 

was the latter. The inspector's credible testimony establishes 

that no fire extinguishing agent or device was available at the 

loca.tion where the work was being performed. Although one may 

argue that in the absence of any fire extinguisher, an electrically conductive extinguishing agent was not· present to create 

an electrical hazard, my construction 6f the intent of the 

standard l2rtds me to conclude and find that a multipurpose 

dry-chemical extinguisher was required to be available at the 

work location in question. Since it was not, I further conclude and find that a violation has been established, and the 

citation IS AFFIR.\1ED. 

Citation No. 3061712, 30 C.F.R. § 56.14001 

The evidence establishes that the compressor drive unit 

was not guarded to prevent contact with an ex:posed moving 

677 
machine part. Although the evidence establishes that the 

unguarded unit was facing the wall, and that it had to be 

moved in order for one to gain access to it, I cannot conclude 

that it was "guarded by location." The inspector stated that 

the unguarded drive was approximately 5 to 5-1/2 feet above 

ground level, and Mr. LeBlanc confirmed that it was at "eye 

level." The inspector also testified that the compressor was 

located in a shop area where tools and other materials were 

located and stored, and that employees had ready access to the 

area. Although the inspector agreed that it was unlikely that 

anyone would get caught in the unguarded drive unit and suffer 

an injury, the intent of the guarding standard is to preclude 

the possibility of anyone contacting an exposed and unguarded 

pinch-point through inattention, inadvertence, or ordinary 

human carelessness. See: Secretary of Labor v. Thompson 

Brot~~~~-~oal Company, Inc., 6 FMSHRC 2094 (September 1984). 

I conclude and find that a violation has been established, and 

the citation IS APFIRMED. 

Citation No. 3061713, 30 C.F.R. § -~6.14001 

The inspector issued the citation after finding that a 

belt drive unit on a floating fresh water pump was not guarded 

over i'ts "ingoing pinch points." The pump was in.stalled on a 

6 x 6 foot barge which is supported by floats, arid it was 

located on the water 20 x 30 feet off shore (photographic 

exhibit P-9)~ The inspector believed that it would be 

unlikely that anyone would be on the barge when the pump was 

started from the plant, and due to the location of the pump, 

he did not believe that it was likely that anyone would be 

exposed to a hazard. Mr. LeBlanc's unrebutted credible testimony reflects that the pump motor is activated by means of a 

switch located in the plant which was located some 200 to 

300 feet from the barge, and that any priming of the pu..'tlp is 

done from shore. Mr. LeBlanc confirmed that no one is 

required to be on the barge during the normal operation of the 

pump, and that although someone may be on th!= barge once· a 

week for service before any dredging is begun, the pump is 

deenergized and shut down, and if any major repairs to the 

pump are required, the pump is lifted out of the water with a 

chercy picker and taken ashore for repairs. 

I find no evidence to support any reasonable conclusion 

that there existed a reasonable possibility of anyone contacting the unguarded pump belt drive unit in question, and the 

petitioner has presented no evidence to establish that anyone 

would ever be near the belt drive while the pump was in operation. Under the circllinstances, I conclude and find that a 

678 
violation has not been established, and the citation IS 

VACATED. 

Citation No. 3061714, 30 C.F.R. § 56.4100(b) 

The inspector issued the citation because of the presence 

of oils and fluids in the shop area where welding was taking 

place. Section 56.4100(b), prohibits the use of an open flame 

where flammable combustible liquids, including greases, are 

stored or handled. The inspector testified that he observed 

several 55 gallon drums of oil, one of which had a hand pump 

foe dispensing the oil, and three or four drums of petroleum 

fuel. The inspector confirmed that the superintendent advised 

him that a new storage area was being prepared to store the 

drums of oil and fluids in question. 

The evidence establishes that the oil and fluid drums in 

question were stored inside the shop area in one corner, and 

that the welding work in progress was taking place outside of 

the shop. The inspector had no knowledge as to the types of 

fluids or oils which were in the drums, and he presented no 

credible testimony or evidence to establish that the oils and 

fluids were in fact combustible or flammable. He confirmed 

that section 56.4100 does not establish any particular distance 

parameters requiring the separation of stored flammable and 

combustible materials from open flames, and assumed that the 

use of an open flame in the same building where such materials 

are stored would be prohibited, unless there was an appropriate 

distance between the two or a partition isolating the materials 

from an open flame. He conceded that in this case, he simply 

concluded that the materials and open flame welding were in 

"close enough proximity" to present a hazard (Tr. 79-80). 

In this case, the evidence establishes that the oil and 

fuel drums were stored inside the shop approximately 8 to 

10 feet away from where the welding was taking place {Tr. 52). 

The shop was approximately 100 x 200 feet, with an opening in 

the front of approximately 50 to 75feet. T"he dredge bucket 

which was being worked on was located oqtside of the shop on 

the ground some 4 to 5 feet beyond the roof line of the shop 

(Tr. 56). Thus, the drums in question were stored inside the 

shop approximately 12 to 15 feet from where the dredge bucket 

was located outside of the shop. Under these circumstances, I 

conclude and find that there was an adequate physical separation between the outside shop area where the work was being 

done and the drea inside the shop where the drums which were 

not proven to contain combustible or flammable materials were 

stored, and that the work location was not, by any reasonable 

interprat~tion, ~ location where flammable or combustible 

679 
liquids were stored. Accordingly, I further conclude and find 

that a violation has not been established, and the citation IS 

VACA'rEo. 

Significant and Substantial Violations 

A "significant and substantial". violation is described in 

section 104(d)(l) of the Mine Act as a violation "of such 

nature as could significantly and substantially contribute to 

the cause and effect of a coal or other mine safety or health 

hazard." 30 C.F.R. § 814(d)(l). A violation is properly 

designated significant and substantial "if, based upon the 

particular facts surrounding the violation there exists a 

reasonable likelihood that the hazard contributed to will 

result in an injury or illness of a reasonably serious nature." 

Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 (April 

19 81) • 

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

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

In order to establish that a violation of 

a mandatory safety standard is significant and 

substantial under National Gypsum the Secretary 

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

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

hazard contributed to will result in an injury; 

and (4) a reasonable likelihood that the injury 

in question will be of a reasonably serious 

nature. 

In United States Steel Mining Company, Inc., 7 FMSHRC 

1125, 1129, the Commission stated further a~ follows: 

We have explained further that the third 

ele1nent of the Mathies formula "requires that 

the Secretary establish a reasonable likelihood 

that the hazard contributed to will result in 

an event in which there is an injury." U.S. 

Steel Mining Co., 6 FMSHRC 1834, 1836 (August 

1984). We have emphasized that, in accordance 

with the langu~ge of section 104(d)(l), it is 

the contribution of a violation to the cause 

and effect of a hazard th~t must be significant 

and substantial. U.S. Steel Mining Company, 

680 
Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S. 

steel Mining Company, Inc., 6 FMSHRC 1573, 

1574-75 (July 1984). 

The question of whether any particular violation is significant and substantial must be based on the particular facts 

surrounding the violation, including the nature of the mine 

involved, Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498 

(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007 

(December 1987). 

Citation No. 3061706 

I conclude and find that the loose and broken wire mesh 

guard over the engine drive shaft and couplers constituted a 

significant and substantial violation. The location of the 

engine was such that it was readily available to anyone 

stepping across from one side of the dredge to the other, and 

given the fact that the angle iron guard support had broken 

through fatigue, I believe that over time, as more strain was 

placed on the mesh guarding by anyone stepping or walking on 

it, it would be reasonably likely that the guarding would have 

given way. If this had occurred while someone was stepping 

over it or walking on it, he could have fallen into the moving 

drive shaft and couplers and suffered injuries of a reasonably 

serious nature. Under the circumstances, the inspector's 

"S&S" finding IS AFFIRMED. 

I take note of the fact that although the citation issued 

by Inspector Smiser makes reference to a potential drowning if 

someone were to fall into the water and oil held in the bottom 

of the dredge, no testimony was forthcoming from the inspector 

with regard to this alleged hazardous condition, and my findings and conclusions are limited to the question of possible 

contact with moving machine parts because of the loose and 

unsecured wire mesh guarding in question. 

Citation No. 3061707 

I conclude and find that the failure of the dredge operator to wear a life jacket while performing his work duties on 

the slippery deck of the dredge which was not protected by 

handrails constituted a significant and substantial violation. 

Given the fact that the dredge operator works alone in water 

which is sometimes as much as 30 feet deep, if he were to slip 

and fall off the dredge without a life jacket, and possibly 

strike his head on the metal deck, I believe that one could 

conclude that he would likely drown. The inspector's "S&S" 

finding IS AFFIRMED. 

681 
With regard to Citation No. 3061711, concerning the lack 

of a fire extinguisher in the shop area where welding was 

taking place with an electrical arc and cutting torch, the 

evidence establishes that the welding work was not being performed inside the shop where the 55-gallon drums of oil were 

stored in one corner. The work was being done outside the 

shop some 12 to 15 feet from where the drums were located. 

Inspector Smiser conceded that it was possible that the respondent was performing the welding outside of the shop as a precautionary measure to insure some distance between the welding 

work area and the area where the drums were stored. The 

inspector also confirmed that in the event of a fire, the 

employees in the shop area would have no difficulty in exiting 

the shop. Mr. LeBlanc confirmed that the welding work was 

taking place at ground level, and he did not believe that any 

sparks generated by the welding activity could reach the drums 

which were stored in the corner of the shop. 

Based on the facts presented here, I cannot conclude that 

the violation was significant and substantial. Given the fact 

that the welding was taking place at ground level outside the 

shop, and some distance from the stored oil drums, I find it 

unlikely that any sparks generated by the welding activity 

would reach the drums and ignite the oil and cause a fire. 

Further, I find no evidence that the lack of a fire extinguisher presented any electrical hazard. Under the circun1-

stances, the inspector's "S&S" finding IS REJECTED, and the 

citation is modified to a non-"S&S" citation. 

Size of Business and Effect of Civil Penalty Assessments on 

the Respondent's Abilitx to Continue in Business 

Based on the stipulations by the parties and Mr. LeBlanc's 

unrebutted testimony concerning the size and scope of his 

operation, I conclude and find the respondent is a very small 

mine operator. 

The parties have stipulated that payment of any civil 

penalty assessments in this case will not adversely affect the 

respondent's ability to continue in business. I adopt this 

stipulation as my finding and conclusion on this issue. 

~istorx of Prior Violations 

Mr. LeBlanc stated that he has operated his present 

business since 1984. Although the petitioner's proposed stipulations, ~xhibit ALJ-1, and the information which appears on 

MS.HA' s proposed assessment Form 10 0-17 9, r.:ef lects that the 

682 
respondent had no prior assessed violati.ons for the 24-month 

period prior to the issuance of the citations in issue in this 

case, Mr. LeBlanc believed that he had three prior citations. 

However, he could provide no further information, and the petitioner could not elaborate further. 

Since the burden of establishing any prior violations 

lies with the petitioner, and since the petitioner did not 

present any computer print-out or other evidence with regard 

to any prior assessed violations, I conclude and find that for 

purposes of the civil penalty assessments made by me for the 

violations which have been affirmed, the respondent has no 

history of prior assessed violations. 

Good Faith Compliance 

Mr. LeBlanc testified that his operation has never 

experienced an accident or injury, and that he has a concern 

for the safety of his employees and has always taken prompt 

corrective action to abate any violative conditions brought to 

his attention. He confirmed that he always welcomes any MSHA 

inspection in order to maintain a safe working environment for 

his employees, and that all of the citations in this case were 

promptly abated within 24 hours. 

Inspector Smiser agreed with Mr. LeBlanc's testimony, and 

the parties have stipulated that all of the citations were 

abated in good faith by the respondent within 24 hours. 

Accordingly, I conclude and find that the respondent exhibited 

rapid good faith compliance in correcting the cited conditions, and this is reflected in the civil penalties which I 

have assessed for the violations which have been affirmed. 

Negligence 

For the reasons stated by the inspector, I agree with his 

moderate negligence findings with respect to Citation Nos. 

3061706, 3061707, and 3061711, and these firidihgs are all 

affirmed. I also agree with his low negligence findings with 

respect to Citation No. 3061712, and his finding in this 

regard is affirmed. 

Gravity 

In view of my "S&S" findings with respect to Citation 

Nos. 3061706 and 3061707, I conclude and find that these violations were serious. I further conclude and find that the 

violation cited in Citation No. 3061711, was non-serious. 

683 
Civil Penalty Assessments 

On the basis of the foregoing findings and conclusions, 

and taking into account the requirements of section llOCiJ of 

the Act, I conclude and find that the following civil penalty 

assessments are reasonable and appropriate for the violations 

which have been affirmed in this proceeding: 

Citation No. Date 30 C.F.R. Section Assessment 

3061705 03/01/88 56.14006 $ 30 

3061706 03/01/88 56.14001 $ 70 

3061707 03/01/88 56.15020 $ 65 

3061708 03/01/88 56.14001 $ 20 

3061711 03/01/88 56.4606CaJClJ $ 20 

3061712 03/01/88 56.14001 $ 20 

ORDER 

The respondent IS ORDERED to pay the civil penalties 

assessed in this proceeding within thirty (30) days of this 

decision and order. Upon receipt of payment by the petitioner, 

this case is dismissed. 

Citation Nos. 3061709, 3061710, 3061713, and 3061714 ARE 

VACATED, and the proposed civil penalty assessments ARE denied 

and dismissed. 

~/?::·!!u~ Administrative Law Judge 

Distribution: 

Brian L. Pudenz, Bsq., Office of the Solicitor, U.S. 

Department of Labor, 525 Griffin Street, Sufte 501, Dallas, TX 

75202 (Certified Mail) 

Dudley J. LeBlanc, Owner, LeBlanc's Concrete & Mortar Sand 

Company, 1400 Millie Street, Rosenberg, TX 77471 

(Certified Mail) 

/f b 

684 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 · 

APR 2 4 1989 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

Docket No. KENT 88-152 

A.C. No. 15-13469-03658 

v. 

Green River Coal No .. 9 Mine 

GREEN RIVER COAL COMPANY, 

Respondent 

Appearances: 

Before: 

DECISION 

Joseph B. Luckett, Esq., Office of the 

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

Tennessee, for the Petitioner; 

B. R. Paxton, Esq., Paxton & Kusch, Central 

City, Kentucky, for the Respondent. 

Judge Koutras 

Statement of the Case 

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

the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 820(a), seeking civil penalty assessments for four alleged 

violations of certain mandatory safety standards found in 

Part 75, Title 30, Code of Federal Regulations. The respondent filed a timely notice of contest and a_hearing was.conducted in Owensboro, Kentucky. The parties were afforded an 

opportunity to file posthearing arguments, but did not do so. 

However, I have considered their oral arguments made during 

the hearing in my adjudication of this matter. 

Issues 

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

conditions or practices cited by the inspector constitute violations of the cited mandatory safety standards, (2) the appropriate civil penalties to be assessed for the violations, 

taking into account the statutory civil penalty criteria found 

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

were "significant and substantial." Additional issues raised 

685 
by the parties are identified and disposed of in the course of 

this decision. 

Applicable Statutory and Regulatory Provisions 

1, The Federal Mine Safety and Health Act of 1977, 

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

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

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

The parties stipulated to the following (Exhibit P-1): 

1. The presiding judge has jurisdiction 

to hear and decide this case. 

2. The respondent employs approximately 

200 workers, and produces over one million tons 

oe coal per year. 

3. The civil penalty assessments in question will not affect the respondent's ability 

to continue in business. 

4. The respondent acted in good faith and 

timely abated the alleged violations. 

5 •. The respondent's history of previous 

violations for the 2-year period preceding 

March 21, 1988, is as indicated in MSHA's 

computer print-out (Exhibit P-2). 

Discussion 

During a prehearing conference prior to the taking of 

testimony, the parties informed me that they proposed to. 

settle Citation Nos. 3227255 and 3227256, and that the respondent agreed to pay the full amount of the proposed civil 

penalty assessments, and to withdraw its notice of contests 

with respect to these citations. The proposed settlement was 

approved from the bench, and my decision in this regard is 

affirmed. The citations are affirmed as issued. 

With regard to Citation No. 3227257, respondent's counsel 

confirmed that although the respondent does not dispute the 

fact of violation, 0r the inspector's "S&S" finding, it does 

dispute the appropriateness of the proposed civil penalty 

assessment. Counsel also confirmed that the parties have discussed a settlement of the case but that the petitioner's 

686 
counsel would not agree to any reduction in the proposed civil 

penalty assessment. Under the circumstances, evidence was 

taken on this citation, and the parties were afforded an opportanity to present arguments with regard to the appropriate 

civil penalty assessment. 

With regard to Citation No. 3227259, respondent's counsel 

confirmed that the respondent still desired to continue its 

contest on this alleged violation, and testimony and evidence 

was taken in this regard. 

All of the section 104(a) "S&S" Citations in this case 

were issued by MSHA Inspector Jerrold Pyles on March 21, 1988. 

Mr. Pyles issued an initial section 107(a) imminent danger 

order and cited four alleged violations which are as follows: 

Citation No. 3226255, cites a violation of 30 C.F.R. 

§ 75.200, and the cited condition or practice is described as 

follows: 

The inby and outby brows located at crosscut 6, on the 5 o~belt, had not had additional 

support set where a roof fall had occurred, 

according to the rock loading plan on page 9 of 

roof-control plan dated Dec. 3, 1987. Also 

refer to page 6, art. 22 B and D. 

Citation No. 3227256, cites a violation of 30 C.F.R. 

§ 75.200, and the cited condition or practice is described as 

follows: 

The timber plan, located in roof-control 

plan dated Dec. 3, 1987, on page 13 in sketch 

was not followed at crosscut 6 on the 5 D-belt. 

A roof fall had occurred in this area and there 

were no timbers from the beginning of fall 

(3 ft. outby crosscut) to end of fall, at end 

of intersection. Two bolts in cavity oh either 

side of belt were not touching roof. water was 

coming through top in this area. 

Citation No. 3227257, cites a violation of 30 C.F.R. 

§ 75.400, and the cited condition or practice is described as 

follows: 

At cross cut No. 6 on the 5 D-belt where 

roof fall had occurred, grey shale had slid 

against belt and belt was running against it. 

Also a piece was lodged between bottom and top 

687 
belt. Belt was also rubbing against a wooden 

holy board used to prop belt rope up; there 

were four frozen or stuck rollers in this area 

(approximately 24 ft.) and belt line from tailpiece to this area (approx. 540 ft.) had float 

dust under and in crosscuts along the belt, 

areas were light brown to black. 

Citation No. 3227259, cites a violation of 30 C.F.R. 

§ 75.1403(5)(g), and the condition or practice is described as 

follows: 

A clear travelway of at least 24 inches 

was not provided on the 5 D-belt crosscut 

No. 6, in that rock had fallen down against 

belt due to a roof fall and had the travelway 

partially blocked to where a man or person 

would have to walked (sic) over the top of it. 

Area was wet and slippery on top of the grey 

shale. 

MSHA Inspector Jerrold Pyles testified as to his experience and training, and he confirmed that he issued Citation 

No. 3227259 (exhibit P-8). He confirmed that a rock fall had 

previously occurred at the No. 6 crosscut where the number 

5 D-belt was located, and that the rock had slipped down on 

each side of the belt partially blocking the travelway on each 

side of the belt. Mr. Pyles identified exhibit P-5 as a copy 

of his notes which include a sketch of the fall area. 

Mr. Pyles described the extent of the fall, and confirmed 

that the rock covered both sides of the belt. He stated that 

the rock was approximately 2 feet high and extended for a 

distance of 10 to 12 feet along both sides of the belt. He 

confirmed that the .area was wet, and although the rock was 

slippery in spots, there was no standing water in the area. 

He also confirmed that most of the rock fall had been loaded 

out, and that coal was being loaded out on the belt. 

Mr. Pyles stated that he made a gravity finding of "reasonably likely" because he believed that a belt examiner 

walking the belt line for the purpose of examining the belt 

pursuant to standard section 75.303, would have to walk over 

the rock to examine the belt, and since the rock was slippery, 

the examiner could fall into the belt if it were moving. If 

it were not moving, the examiner could slip on the rock and 

suffer injuries if he were to strike the belt. Mr. Pyles 

confirmed that the shift started at 8:00 a.m., and that he 

issued the citation at 10:00 a.m. 

688 
Mr. Pyles stated that only the belt examiner would be 

exposed to the hazard, and although he observed a man in the 

area, he did not know what he was doing there. Mr. Pyles confirmed that in the event of a slip off the rock, the examiner 

would likely suffer serious injuries or bruises depending on 

whether the belt was running or not, and that lost time would 

likely result from such injuries. 

Mr. Pyles confirmed that he made a negligence finding of 

"moderate" because the respondent had loaded out most of the 

rock fall and was loading out coal on the belt. He believed 

that the operator was aware of the condition, but conceded 

that the rock in question could have slipped after the initial 

rock fall occurred and was loaded out. Mr. Pyles confirmed 

that he based his "S&S" finding on his belief that it was reasonably likely that an accident would occur and that serious 

injuries would follow. 

Mr. Pyles identified exhibit P-9, as a copy of a previous 

safeguard notice he issued on January 21, 1987, citing mandatory standard section 75.1403(5)(g), and he confirmed that he 

based his citation on that safeguard notice. Mr. Pyles could 

not recall the details concerning the conditions which prevailed at the time of the safeguard notice, and he confirmed 

that no rock fall was involved. He stated that once a safeguard notice is issued, it becomes law for the mine, and in 

the event of a subsequent repeat violation, a citation would 

be issued. He also confirmed that the cited condition was 

corrected and the citation was terminated at 4:30 p.m., the 

same date that it was issued. 

On cross-examination, Mr. Pyles stated that although the 

belt examiner could walk around the rock on either side of the 

belt, and had enough room to shine his light on the belt, his 

passage would be restricted and he would still be required to 

walk over the slippery rock in order to adequately inspect the 

belt. He conceded that the belt examiner had ~nough room to 

walk around the belt to shine his light, and that he could get 

within 10 feet of the belt to observe it, and that by doing 

this, he would be in a safe position. 

Mr. Pyles confirmed that the belt examiner would be looking for fallen rocks, spillage, and stuck belt rollers, and 

that he would also be required to shut the belt down in the 

event of a hazardous condition. In order to adequately do his 

job in this regard, the belt examiner would necessarily have 

to walk over the slippery fallen rock. 

689 
Mr. Pyles did not know when the rock slipped, and he 

agreed that the cited condition could have occurred between 

the time the belt examiner last walked and examined the belt 

and the time he arrived on the scene. Mr. Pyles confirmed 

that pursuant to section 75.303, belt conveyors are required 

to be examined at any time during the shift and after coal 

production has started. Mr. Pyles confirmed that he did not 

speak to the belt examiner or examine the preshift books. 

Mr. Pyles confirmed that after the initial rock fall, 

enough rock was removed to facilitate the reinstallation of 

the belt, and he confirmed that he observed evidence of work 

being done to correct the rock fall conditions. He also confirmed that the prior roof and rock fall cavity had been 

re-bolted and the roof re-supported. In the final analysis, 

it was his judgment that the rock which had slipped restricted 

passage on either side of the belt and it did not afford the 

belt examiner enough room to pass through the area to adequately view and inspect the belt. 

Grover Fischbeck, respondent's former safety manager, 

conEirmed that he was with Inspector Pyles during the course 

oE his inspection, and that the citation was served on him. 

He confirmed that an initial roof fall had occurred in the 

cited area earlier in the week of March 21, 1988, and that the 

rock was removed from the center of the crosscut down to the 

mine floor level, and that rock was scaled down to clear out 

any remaining loose rock. He also confirmed that the roof was 

fully supported, and that he did not know when the rock which 

was present when he and Mr. Pyles observed it during the 

inspection fell, and that the last time the belt was "made" 

was during the last shift on the day before the inspection. 

Mr. Fischbeck believed that the belt area in question 

could have been visually inspected by the belt examiner safely 

by walking up to edge of the belt where the rock had fallen 

and then walking around the adjacent entry and viewing the 

belt from the other side. If this were doni, the belt examiner 

would not have been exposed to any hazard. 

Mr. Fischbeck stated that while he and Mr. Pyles were in 

the cited area, he observed belt examiner Hubert Hunt walk up 

to the edge of the belt where the rock was located and observe 

the belt, but that he did not speak to him at that time. 

Mr. Fischbeck stated that he was surprised to find the rock 

when he and Mr. Pyles arrived at the scene. 

Mr. Fischbeck confirmed that he was familiar with the 

prior safeguard notice issued by Mr. Pyles and confirmed that 

690 
it did not involve a rock or roof fall~ He explained that the 

installation of timbers in an area adjacent to a belt which 

had been installed off-center restricted the adjacent walkway 

in such a manner as to reduce the clearance to less than 

24 inches, and that additional rock had to be scaled down to 

further widen the walkway to permit access for the belt 

examiner. 

On cros~-examination, Mr. Fischbeck stated that the belts 

are not usually examined unless they are in operation, and 

that this is necessary in order to inspect the belts for 

hazards under actual operational conditions. He confirmed 

that the rock had slipped down from the side of the entry and 

was resting against the belt, but that it was not uniformally 

2 feet high along the 10 feet distance in which it was resting 

against the belt. He estimated that the height of the rock 

ranged from 1-1/2 to 2 feet, and that the belt was 18 to 

24 inches high off the mine floor. He agreed that the rock 

caused some blockage of the walkway and that it presented a 

stumbling hazard. 

Inspector Pyles confirmed that he issued Citation 

No. 3227257 (exhibit P-7}, after observing loose coal and coal 

dust ranging from zero to 8 inches on either side of the 5 

D-belt. He also observed that a piece of the shale rock which 

had slipped against the belt was rubbing the belt top and 

bottom, and that the belt was also rubbing against a roof 

support "header" or "holy" wooden board which was being used 

to support a cable. The rock had knocked the belt out of line 

against the board causing it to touch and rub against the belt. 

He described the dimensions of the board as 10 x 16 inches. 

Mr. Pyle also confirmed that he observed four stuck belt 

rollers which were not turning within a belt area of 24 feet, 

and float coal dust under the belt and in the crosscuts for a 

distance of approximately 540 feet from the belt tail piece to 

the area whece the rock fall had occurred. 

Mr. Pyles stated that the belt was running, and he 

believed that any friction caused by the belt rubbing against 

the rock and board, and the stuck rollers which were not turning, were potential ignition sources and could have ignited 

the float coal dust. Although the area was wet, some of the 

float coal was on top of the wet areas, but when he picked up 

a handful of the float coal dust and squeezed it, it was dry 

and not damp. He also confirmed that he did not otherwise 

"test" float coal dust accumulations and simply observed it 

visually. He described the float coal dust as "light brown to 

black" in color. 

691 
Mr. Pyles confirmed that he made a gravity finding of 

"reasonably likely," and he believed that in the event of a 

fire it was reasonably likely that 12 miners working on the 

section would be exposed to fire, smoke inhalation, and entrapment hazards. He also confirmed that he based his "S&S" finding on the fact that if mining were allowed to continue it was 

reasonably likely that a fire would have occurred and exposed 

miners to the. aforementioned hazards. 

On cross-examination, Mr. Pyles stated that his principal 

concern was the potential fire which could result from the 

presence of the accumulations of loose coal and coal dust, and 

the potential ignition sources which were present. He confirmed that he observed no fire sensors on the belt, but conceded they could have been present because each belt is 

normally provided with a fire sensor system. 

Mr. Fischbeck testified that the board referred to by 

Mr. Pyles was saturated with water and that no float coal dust 

or other combustibles were present in the area where the board 

was located. With regard to the belt rubbing against the 

rock, Mr. Fischbeck believed that given the fact that it was a 

rock and not coal, there was a low potential for any fire. 

Mr. Fischbeck identified exhibit P-12 as a copy of the 

most recent fire boss examination records which he supplied, 

and he stated that the examination record for March 21, makes 

no reference to any hazardous conditions in the areas cited 

Mr. Pyles. Although the records indicated that some areas 

needed to be cleaned up and rock dusted on March 18 and 19, 

since these conditions were not noted on the record for 

March 21, he assumed they had been corrected and were not 

present on March 21. 

Mr. Fischbeck confirmed that Mr. Pyles took no samples of 

the loose coal or coal dust, and that clean-up and rock dusting 

is performed periodically on the section. H~ agreed that 12 

miners were working on the section on the day of the inspection, but that an alternative fire escape route was available 

to these individuals through the intake air course. 

Mr. Fischbeck stated that his notes reflect that the area 

cited by Mr. Pyles was damp and rock dusted. He stated that 

dry coal dust is not uncommon, and agreed that the tail piece 

needed to be shovelled because of some coal spillage, and that 

shovelling is done periodically at that location. 

Mr. Fischbeck stated that fire detection sensors were in 

place on the belt line, and that 2 inch Eire hoses and water 

692 
lines were available along the belt for use in the event of a 

belt fire. The detection devices were located down the center 

of the belt, and they were suspended from the roof. 

Findings and Conclusions 

Fact of Violations 

Section 104(~) "S&S" Citation Nos. 3227255 and 3227256, 

30 C.F.R. § 75.200 

As previously noted, the parties agreed to settle these 

violations, and the respondent conceded the fact of violations, including the inspector's significant and substantial 

{S&S) findings, and agreed to pay the proposed civil penalty 

assessments in full. The proposed settlements have been 

approved, and the citations and violations ARE AFFIRMED AS 

ISSUED. 

Section 104(a) "S&S" Citation No. 3227257, 30 C.F.R. § 75.400 

The respondent does not dispute the fact of violation or 

the inspector's "S&S" finding, and only contests the reasonableness of the proposed civil penalty assessment of $1,000, 

for the violation (Tr. 71). Under the circumstances, the citation and violation ARE AFFIRi."IED, and my findings and conclusions concerning the mitigation of the proposed civil penalty 

assessment follow below. 

I take note of the respondent's answer to the citation 

and its assertion that at the time of the inspection which led 

to the issuance of the violation, the respondent was doing 

everything humanly possible to expeditiously address the conditions caused by the initial rock fall and that it was addressing the most serious condition first. During oral argwnent at 

the hearing, respondent's counsel confirmed that this was the 

case, and he pointed out that all of the citations issued in 

this case .'.'I.rose out of the same cir cums tance·s, · and that the 

respondent has agreed to pay the full amounts of the civil 

penalty assessments made for the two violations which have 

been settled. Petitioner's counsel asserted that in seeking a 

civil penalty assessment in the full amount of $1,000 for the 

violation, he does not rely on the narrative findings and 

conclusions of MSHA's "special assessment officer," but does 

rely on the testimony o~ the inspector who issued the citation 

{Tr. 73). 

It is cleac that t am not bound by MSHA's proposed penalty 

assessment, nor am I bound by the narrative findings of its 

693 
Office of Assessments. I am free to make my own judgment as to 

the reasonableness and appropriateness of any civil penalty 

assessment based on the credible evidence and testimony adduced 

by the parties, including any mitigating factors which I may 

conclude warrant any adjustments in the proposed civil penalty 

amount. 

As noted earlier, the respondent does not dispute the 

fact of violation, or the existence of the conditions which 

prompted the inspectoc to issue the violation. It has, however, presented credible and probative evidence which in my 

view mitigates its culpability, and the seriousness of the 

possible fire hazard presented by the cited conditions. 

~espondent's former safety manager Grover Fischbeck confirmed that the belt conveyor in question was equipped with · 

workable fire detection devices which would have alerted anyone of any fire on the belt. He also confirmed that the belt 

was provided with a 2-inch water line with fire hose outlets 

spaced periodically throughout the belt line, and that fire 

hoses were located at the working section, as well as the unit 

header, and that all of the fire hoses and detection systems 

were operational (Tr. 96-98). Inspector Pyles confirmed that 

tha belt was pcotected by fire suppression devices consisting 

of a "fire line" equipped with fire sensor heads (Tr. 81). 

Although the inspector noted that he did not particularly 

notice any of these devices, he confirmed that they are 

normally provided on every belt in the mine, and he agreed 

that the existence of these devices would be relevant in any 

gravity determination. He conceded that he did not issue any 

violation for the failure by the respondent to provide any 

such fire fighting devices, and he agreed that they could have 

been in place and operational (Tr. 81-82). with regard to his 

initial imminent danger order which was issued in conjunction 

with the issuance of the section 104Ca> citation in question, 

the inspector conceded that his gravity finding of "reasonably 

likely" in connection with the citation woul_d indicate a 

degree of hazard less than a hazard that is characterized as 

"imminent," and that the cited conditions presented a possibility of a fire (Tr. 83-84). 

Although Mr. Fischbeck conceded that the board which was 

rubbing against the belt was combustible, he also indicated 

that it was saturated with water which was leaking from the 

roof, and he considered the rock which was rubbing the belt as 

a low potential fire source. Accocding to Mr. Fischbeck's 

inspection notes, the belt tailpiece was extremely wet, and 

the belt line was damp in different aceas, including the area 

where the fall had occurred (Tr. 89). Mr. Fischbeck also 

694 
pointed out that in the absence of any tests, or samples, it 

is difficult to determine how much rock dust may be mixed in 

with the coal dust, and that on the day of the inspection no 

rock dust samples were taken (Tr. 89). Mr. Fischbeck also 

believed that in the event of a fire, the miners could have 

escaped by an alternate route (Tr. 91). 

Inspector Pyles confirmed that no rock dust samples were 

taken, and although he indicated that he picked up a handfull 

of float coal dust and squeezed it in his hand and no moisture 

came out, he conceded that he only did this in one area (Tr. 

102). He also agreed with Mr. Fischbeck's testimony that the 

area was damp, but indicated that the float dust he observed 

was lying on top of the damp and wet areas (Tr. 100). 

Mr. Pyles also confirmed that the four stuck belt rollers were 

not turning in any coal accumulations, and that he did not 

issue any separate violation for the stuck roller condition 

because there were not enough stuck rollers to warrant another 

citation (Tr. 103). 

Having viewed the witnesses during the course of the hearing, I consider Mr. Fischbeck to be a credible witness. His 

testimony concerning the presence and availability of fire 

detection and suppression devices on the belt line in question, 

and his observations concerning the damp and wet conditions in 

some of the areas in question mitigate the seriousness or 

gravity connected with a potential fire hazard on the belt line 

in question. 

I take note of the fact that Inspector Pyles made a negligence finding of "moderate," and he confirmed that at the time 

of the inspection most of the rock fall had been loaded out. 

Be conceded that the ~ock which slipped against the belt could 

have slipped after the initial rock fall occurred and had been 

loaded out, and that the sliding rock caused the movement of 

the belt and could have caused some of the coal spillage (Tr. 

101). Mr. Pyles also confirmed that he saw evidence of work 

being done to correct the rock fall conditio"ns. This lends 

credence to the respondent's assertion that it was attempting 

to correct the conditions resulting from the initial fall of 

rock:. 

Mr. Fischbeck testified that on the day of the inspection, 

he was surprised to find that the rock had slipped against the 

belt, and that when he spoke with the belt examiner that same 

day after the inspection, the examiner advised him that the 

rock was not there the day before (Tr. 57). The inspector confirmed that he based his moderate negligence finding on the 

fact that his examination of the belt examiner's reports 

69 5 
reflected that some of the cited conditions had been noted in 

the reports, and he concluded that the examiner should have 

been aware of them. The examiner's reports (exhibit P-12), for 

March 18 to March 21, 1988, contains notations that certain 

areas of the 5-D belt were "dirty" and were in need of rock 

dusting. However, I find nothing to reflect the existence of 

any stuck rollers or the belt rubbing against any rock or 

board. 

The belt examiner did not testify in this case, and 

Inspector Pyles confirmed that he did not speak with him during the course of his inspection. Mr. Fischbeck assumed that 

the conditions noted in the belt examiner's reports had been 

corrected because the subsequent reports made by the last person to walk the belt. did not note the existence of those conditions (Tr. 92). I find no evidence to support any conclusion 

that the conditions associated with the stuck rollers or the 

belt rubbing against the rock were present for any extended 

period of time prior to the inspection. Under all of these 

circumstances, I conclude and find that the respondent's negligence is to some degree mitigated. 

Citation No. 3227259, 30 C.F.R. § 75.1403-S(g) 

The inspector issued the citation after finding that a 

clear travelway of at least 24 inches was not provided on the 

cited belt conveyor (exhibit P-8). The cited mandatory 

criteria for belt conveyors found in 30 C.F.R. § 75.1403-S(g), 

provide as follows: 

A clear tcavelway at least 24 inches wide 

should be provided on both sides of all belt 

conveyors installed after March 30, 1970. 

Where roof supports are installed within 

24 inches of a belt conveyor, a clear travelway 

at least 24 inches wide should be provided on 

the side of such support farthest from the 

conveyor. 

In addition to the conditions observed by the inspector 

which led him to conclude that a clear travelway was not maintained in compliance with the cited standard, the inspector 

cited and relied on a previously issued Safeguard Notice 

No. 2215634, which he served on the respondent at the same 

mine on January 21, 1987 (Exhibit P-9). That notice was issued 

~ursuant to section 75.1403-S(g), and it states as follows: 

A clea~ travelway at least 24" wide was 

not provided on both sides oE the 78 belt 

696 
between xcuts Nos. 88 & 89. There was less 

than 24" on one side of belt betweeri roof 

support (timbers) and rib nor between belt and 

roof support. This is a notice to provide 

safeguard. 

MSHA's regulatory authority for issuing safeguard notices 

which subsequently become mandatory for the mine is found in 

30 C.F.R. § 75.1403, which is the statutory language found in 

section 314{b), of the Act. It provides as follows: 

Other safeguards adequate, in the judgment 

of an authorized representative of the Secretary~ to minimize hazards with respect to transportation of men and materials shall be provided. 

Section 75.1403-1 provides: 

Ca) Sections 75.1403-2 through 75.1403-11 

set out the criteria by which an authorized 

representative of the Secretary will be guided 

in requiring other safeguards on a mine-by-mine 

basis under section 75.1403. Other safeguards 

may be required. 

{b) The authorized representative of the 

Secretary shall in writing advise the operator 

of a specific safeguard which is required pursuant to section 75.1403 and shall fix a time 

in which the operator shall provide and thereafter maintain such safeguard. Ii the safeguard 

is not provided within the time fixed and if it 

is not maintained thereafter, a notice shall be 

issued to the ope~ator pursuant to section 104 

of the Act. 

(c) Nothing in the sections in the section 75.1403 series in this Subpart O ~re~ludes 

the issuance of a withdrawal order because of 

imminent danger. 

In Southern Ohio Coal Company CSOCCO), 7 FMSHRC 509 

(April 1985), the Commission noted that the safeguacd provisions of the Act confer upon the Secretary "unique authority" 

to promulgate the equivalent of mandatory safety standards 

wi~hout resoct to the otherwise formal rulemaking requirements 

of the A.ct. The CoTunission held that a safeguard notice, 

unlike other ordinary safety standards, must be strictly construed, and that the safeguard must give the mine operator 

697 
clear notice of the nature of the hazard and the conduct 

required of the operator to stay in compliance. 

In SOCCO, an inspector issued a citation after finding 

water 10 inches in depth from rib to rib at a stopping located 

along a belt conveyor. Because of the presence of the water, 

the inspector believed that a clear travelway of 24 inches was 

not provided along the conveyor belt as required by a previously issued safeguard notice. The safeguard notice was 

issued after the inspector found fallen rock and cement blocks 

at three locations along a conveyor belt. Addressing the question as to whether the safeguard notice referencing "fallen 

rock and cement blocks at three locations," and requiring 

24 inches of clearance on both sides of the conveyor belt, 

should have put SOCCO on notice that conditions such as the 

water described in the citation fell within the safeguard 1 s 

prohibitions, the Commission concluded that it did not. In 

this regard, the Commission stated as follows at 7 FMSHRC: 

Given the frequency of wet ground conditions in the mine, and the basic dissimilarity 

between such conditions and solid obstructions 

such as rocks and debris, we find that SOCCO 

was not given sufficient notice by the underlying safeguard notice issued in 1978 that 

either wet conditions in general or the particular conditions cited in 1983 by the inspector 

in this case would violate the underlying safeguard notice's terms. 

we do not hold that a safeguard notice 

pertaining to hazardous conditions caused by 

wetness could not be issued. Conditions such 

as those cited by the inspector here, if 

hazardous, can just as readily be eliminated by 

issuance of safeguard notices specifically 

addressing such conditions. By taking this 

approach rather than bootstrapping dis~imilar 

hazards into previously issued safeguard 

notices, the operator's right to notice of 

conditions that violate the law and subject it 

to penalties can be protected with no undue 

infringement of the Secretacy's authority or 

loss of miner safety. 

In a footnote ~t 7 FMSHRC 512, the Commission made the 

following observation: "The requirements of specificity and 

narrow interpretation are not a license for the raising or 

acceptance of purely semantic arguments • . . • We recognize 

698 
that safeguards are written by inspectors in the field, not by 

a team of lawyers." 

In the instant case, the contested citation was issued by 

inspector Pyles after he found that the travelways on either 

side of the number SD conveyor belt for a distance of some 

10 feet at the location where the rock had slipped and fallen 

against the belt did not provide clear access for the passage 

of a belt examiner who was required to walk and examine the 

belt for hazards. The inspector found that the travelways 

were partially obatructed by the rock, and although he believed 

that the belt examiner could still travel through both sides of 

the travelway adjacent to the belt, he would have to walk over 

the top of the fallen rock which he considered to be hazardous 

because of its wet and slippery condition (Tr. 62). The inspector also believed that the obstructed travelways would not 

allow the belt examiner an opportunity to make an adequate 

close examination of the belt because the examiner could not 

position himself at a point which would have enabled him to see 

over the rock into the belt location where the stuck rollers 

were found (Tr. 36-37, 65-66). The inspector believed that any 

attempt by a belt examiner to walk over the slippery rock which 

obstructed the belt travelways would have exposed him to a 

possible fall with serious injuries, and the possibility of his 

falling into the moving belt (Tr. 16). 

Mr. Fischbeck believed that the belt examiner could have 

safely inspected the belt, but he conceded that given the 

10 feet area where the rocK had slipped against the belt, the 

examiner would not be able to walk the belt in its entirety 

(Tr. 46). Mr. Fischbeck believed that the belt examiner could 

have safely examined the belt by walking up to the araa where 

the travelways were obstructed by the rock, viewed the belt, 

and then walked around the crosscut to the other side of the 

belt, and viewed it Ero1n that position (Tr. 46, 50). Although 

Mr. Fischbeck believed that the examiner could have visually 

inspected the belt E-rom these positions, he conceded that in 

one area of the belt the rock, which he esti~ated was 18 inches 

to 2 feet thick, was resting across the top of the belt (Tr. 

53). He confirmed that rock was on both sides of the belt, and 

that more of it was located on the front or supply road side of 

the belt, than on the back side (Tr. 56). 

Mr. Fischbeck agreed that the inspector issued the citation because "there was some stumbling hazards" and that "there 

was so1ne obstructions in it" (Tr. 56-5 7) • Mr. Fischbeck confirmed that during the inspection he observed the belt examiner 

approach the belt area where the rock had slipped, squat down, 

and then proceed out the supply road to the other side of the 

699 
belt (Tr. 54, 57). Although Mr. Fischbeck believed that the 

procedure used by the belt examiner to exa~ine the belt would 

have provided him with a safe means of doing sb, he conceded 

that by doing it in this manner, the belt examiner "would not 

be exposed to walking over the rock that had slid down to the 

belt" (Tr. 46). 

After careful examination of all the testimony and evidence presented with respect to this citation, I conclude and 

find that the travelways along both sides of the belt conveyor 

for a distance of approximately 10 feet where the rock had 

slipped and fallen against the belt were obstructed and were 

not maintained with a clearance of at least 24 inches wide. I 

also conclude and find that the obstructed travelways would 

not allow the belt examiner to make a complete and thorough 

inspection of the belt, and that the wet and slippery rock 

conditions presented a hazard to any belt examiner attempting 

to climb or walk over it, particularly while the belt was 

running. 

Inspector Pyles believed that his previously issued safeguard notice presented the same situation as that which was 

present when he issued the citation in question, namely, the 

obstruction of travelways along a belt conveyor (Tr. 20'). 

Mr. Pyles was of the opinion that regardless of the conditions 

which may cause a belt travelway to be restricted, if a clear 

travelway of at least 24-inches is not provided in accordance 

with the safeguard notice, a violation is established (Tr. 

63-64). 

The respondent's credible testimony by Mr. Fischbeck 

reflects that the obstructed travelways which prompted the 

issuance of the initial safeguard notice were the result of 

the timbering of an area where the belt was out of line, and 

did not involve any fallen or slipped rocks. The location of 

the belt near the rib, coupled with the installation of roof 

timbers, resulted in the restriction of the travelways which 

did not provide for a clearance of at least ~4 inches, and a 

jackhammer had to be used to scale the rib to provide more 

clearance (Tr. 48-49). Inspector Pyles confirmed that this 

was in fact the case (Tr. 64). 

During oral argument on the record, respondent's counsel 

took the position that the citation should be dismissed because 

the previously issued safeguard notice was based on timbering 

conditions which did involve any rock falls or slips (Tr. 23, 

43). Counsel asserted that the prior safeguard concerned 

travelway conditions which were "man made," and that the rock 

slip in connection with the contested citation was not such a 

700 
condition (Tr. 50). In support of his argument, counsel cites 

the decision of the late Judge Ca~lson in Mid-Continent 

Resources, inc., 7 FMSHRC 1457 (September 1985). In that case 

an inspector issued a safeguard notice pursuant to section 

75.1403-SCg), because coal sloughage obstructed a part of a 

24-inch travelway on one side of a belt. Upon a subsequent 

inspection, the inspector found another 24-inch travelway on 

another belt obstructed by coal sloughage, timber, and a 1-foot 

wide trench. Responding to the same argument as that made by 

the respondent in this case, and relying on the COimnission's 

decision in Southern Ohio Coal Company, supra, Judge Carlson 

concluded that the citation was valid with respect t6 the coal 

sloughage, but invalid with respect to the trench and timbers, 

and his reasoning for these conclusions are stated as follows 

at 7 FMSHRC 1461: 

Under the Commission's reasoning in 

Southern Ohio, I am not convinced that either 

the shallow trench or the timbers in the 24-inch 

travelway were encompassed within the limits of 

the underlying notice to provide safeguards. 

The specif ic~tion of "coal sloughage" in the 

original notice was broad enough to embrace the 

casual presence or accumulation of coal or 

similar solid objects in the travelway. It was 

not, however, broad enough to include a wholly 

dissimilar impediment to travel such as a 

shallow trench. The trench differed from ~uch 

solid objects in much the saille way as accumulated -..rnter in Southern Ohio differed from the 

rocks and construction debris which were covered 

by the previous safeguard. 

The status of the timbers which allegedly 

impinged on the walkway space is not so clear. 

Had the timbers been left on the floor to join 

the coal sloughage as tripping-and-falling 

hazards, they should logically be treat"ed as a 

"similar" hazard covered by the underlying safeguard. The inspector's testimony, however, 

indicated that the timbers were not merely a 

loose impediment lying on the floor. ~ather, 

they were upright timbers installed as a part 

of the roof control system (Tr. 29). The timbers therefore constituted what may be referred 

to as an essential part of the underground mine 

structure. In that sense they represented an 

abatement problem far different from the mere 

701 
removal of random obstacles left on the travelway floor. They differed enough from the class 

of objects akin to coal sloughage to remain 

outside the reasonable scope of the inspector's 

notice of safeguard. 

With regard to the assertion that the conveyor referred 

to in the safeguard notices was at a location different from 

that referred to in the citation, Judge Carlson found this 

difference to be of no legal significance because the safeguard notice was directed to all conveyors in the mine, and 

the evidence established that both conveyors were of the sort 

covered by 30 C.F.R. § 75.1403-S(g), 7 FMSHRC 1462. 

In the instant case, the safeguard notice issued by Inspector Pyles on January 21, 1987, citing section 75.1403-S(g), 

specifically addressed the lack of 24 inches of clearance on 

both sides of a conveyor belt travelway which was restricted by 

roof support timbers. The notice stated that thee was less 

than 24 inches on one side of the belt between the roof support 

and the rib, and less than 24 inches on the other side between 

the belt and the roof support. The second sentence of section 

75.1403~5(g}, provides as follows: "Where roof supports are 

installed within 24 inches of a belt conveyor, a clear travelway at least 24 inches wide should be provided on the side of 

such support farthest from the conveyor." 

Inspector Pyles could not recall the circumstances under 

which he issued the safeguard notice. However, he agreed with 

Mr. Fischbeck's explanation that the notice was issued because 

the installation of roof support timbers adjacent to the belt 

travelways restricted the clearance on either side of the belt 

to less than 24 inches. Inspector Pyles also agreed that the 

safeguard notice did not involve any rock falls or slips. 

Although ~e provided credible testimony with respect to the 

slip and fall hazards associated with any attempt by a belt 

examiner to cli~b over the wet and slippery rock which 

obstructed the belt travelways on March 21, ~988, no testimony 

or evidence was pcesented with respect to the hazards associated with a restricted travelway caused by the installation 

of roof support timbers close to a belt conveyor belt, or 

whether oc not a belt examiner would have been [>revented from 

conducting his required examination of the belt because of 

such a condition. 

Given the Commission's decision in Southern Ohio Coal 

Company, supra, and the reasoning by Judge Carlson in 

Mid-Continent Resources, Inc., supra, with which I agree, I 

conclude and Eind that the conditions relied on by Inspector 

702 
Pyles in issuing the initial safeguard notice, conditions which 

came about by the installation of roof timbers too close to a 

belt conveyor which was out of line, and which required the use 

of a jack hammer to shear off a rib to provide more clearance, 

were different from the rock fall and slippage which restricted 

the travelways cited by Mr. Pyles in his citation of March 21; 

1988. In short, I conclude and find that the travelway impediment caused ~Y the installation of roof support timbers ~as 

dissimilar from any impediment caused by the rock which had 

slipped and fallen against the belt and that the safeguard 

notice relied on by Inspector Pyles was not broad enough to 

encompass the conditions cited in the citation. Under the 

circumstances, I further conclude and find that Mr. Pyles' 

reliance on the safeguard notice to support the citation was 

invalid, and that the citation was improperly issued. Accordingly, the citation IS VACATED. 

Based on the stipulations by the parties, I conclude and 

find that the respondent is a medium-to-large size mine operator, and that the civil penalty assessments Eor the violations which have been affirmed will not adversely affect its 

ability to continue in business. I also conclude and find 

that the respondent acted in good faith in timely abating the 

violations in question, and I affirm the inspector's moderate 

negligence findings. I also conclude and find that the violations were serious. 

Civil Penalty Asse9sments 

I have approved settlements for two of the contested citations, and the respondent has agreed to pay the full amount of 

the proposed civil penalty assessments f9r the violations in 

question, as follows: 

Citation No. 

3227255 

3227256 

Date 

03/21/88 

03/21/88 

30 C.F.~. Section 

75.200 

75.200 

Assessment 

$800 

$800 

With regard to Citation No. 3227257, concerning a violation of 30 C.F.~. § 75.400, because of the accumulations of 

float coal dust along the cited belt conveyor line, the respondent admitted to the fact of violation and did not dispute the 

inspector's significant and substantial (S&S) finding with 

respect to the cited conditions. Given the extent of the 

accumulations, which have not been rebutted by the respondent, 

and the potential Eire hazard which existed on the belt line, 

and notwithstanding the existence of Eire detection and 

suppression devices which were on the belt line, I nonetheless 

703 
agree with the inspector's S&S finding which has been conceded 

by the respondent. 

Petitioner's Exhibit P-2 is a computer print-out detailing 

the respondent's prior compliance record for the period 

.March 21, 1986, through March 20, 1988, and the parties have 

stipulated that this print-out reflects the respondent's history of prior violations for the 2-year period prior to the 

issuance of the citations in question in this case. The 

print-out reflects that the respondent was issued 1,012 violations, 746 of which are S&S violations. It also reflect~ that 

the respondent has paid $128,007, in civil penalty assessments 

for 973 of the listed violations. 

The aforementioned print-out also reflects that for the 

2-year period in question, the respondent paid civil penalty 

assessments for 167 prior violations of mandatory safety standard 30 C.F.R. § 75.400. Although I have taken into consideration the mitigating circumstances previously discussed with 

respect t the citation, I conclude and find that for an operation of its size, the respondent does not have a very good 

compliance record, particularly with respect to section 75.400, 

which deals with accumulations of coal dust and float coal dust. 

Accordingly, I have also taken this into consideration in the 

following civil penalty assessment which I have made for the 

citation in question. 

Citation No. Date 30 C.F.R. Section Assessment 

3227257 03/21/88 75.400 $800 

ORDER 

On the basis of the foregoing findings and conclusions IT 

IS ORDERFD ·rHAT: 

1. Section 104(a) S&S Citation Nos. 

3227255, 3227255, and 3227257 ARE AFFIRMED, and 

the respondent shall pay the aforementioned 

civil penalty assessments to the petitioner 

within thirty (30) days of the date of this 

decision and order. 

704 
2. Section 104(a) "S&S" Citation No. 

3227259, March 21, 1988, 30 C.F.R. 

§ 75.1403-5(g), IS VACATED. 

Administrative 

rge .K~~ Law Judge 

Distribution: 

Joseph B. Luckett, Esq., Office of the Solicitor, U.S. 

Department of Labor, 2002 Richard Jones Road, Suite B-201, 

Nashville, TN 37215 (Certified Mail) 

B. R. Paxton, Esq., Paxton & Kusch, 213 E. Broad Street, 

P.O. Box 655, Central City, KY 42330-0655 (Certified Mail) 

/f b 

705 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 2 4 1989 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

IMC FERTILIZER, INC., 

Respondent 

. . CIVIL PENALTY PROCEEDING 

Docket No. SE 88-94-M 

A.C. No. 08-00176-05509 

: Clear Srings Mine & Mill 

DECISION 

Appearances: Kens. Welsch, Esq., Office of the Solicitor, U.S. 

Deparb~ent of Labor, Atlanta, Georgia, for the 

Secretary of Labor (Secretary); George L. Bushn, 

Safety Director, for IMC Fertilizer, Inc. (IMC). 

Before: Judge Broderick 

STATEMENT OF THE CASE 

The Secretary seeks civil penalties for two alleged 

violations of 30 C.F.R. § 56.9003, cited on June 28, 1988, 

because a Caterpillar front end loader and a Clark front end 

loader had inadequate brakes. Pursuant to notice, the case was 

called for hearing in Tampa, Florida, on March 16, 1989. 

Lawrence L. Richardson testified on behalf of the Secretary; 

Clarence L. Williamson, Charles Brown, Jessie Perez and 

Ed Gilmore testified on behalf of IMC. At the conclusion of the 

hearing the parties argued their positions on the record, and 

waived the right to file post-hearing briefs. I have considered 

the entire record and the contentions of the parties, and.make 

the following decision. 

FINDINGS OF FACT 

IMC is the owner and operator of a phosphate mine in Polk 

County, Florida known as the Clear Springs Mine. The operation 

of the mine affects interstate commerce. IMC is a large operator. 

During 1987, 284,195 man hours of work were reported at the Clear 

Springs Mine. During the 24 month period from August 9, 1986 to 

August 8, 1988, seven citations were issued charging violations 

at the mine, including the two contested herein. Two have been 

paid. This history is not such that penalties otherwise 

706 
appropriate should be increased because of it. The violations 

involved in this proceediqg were promptly abated by IMC. 

Lawrence L. Richardson, a Federal mine inspector made an 

inspection of the subject mine on June 28, 1988. Richardson has 

been a Federal mine inspector for approximately eleven years. 

Prior to that time, he worked in the mining industry in Florida 

for about 32 years. He has operated heavy equipment including 

front end loaders, has been employed as a mine superintendent and 

has owned his own contracting business. During his eleven years 

with MSHA, he has inspected the brakes of thousands of front end 

loaders. 

CITATION 3249791-980 CATERPILLAR FRONT END LOADER 

On June 28, 1988, IMC's 980 Caterpillar front end loader was 

in a holding area undergoing repairs for a faulty electrical 

light system. Inspector Richardson inspected the brakes, which 

were air over hydraulic, the back up alarm, the horn and the 

windshield wipers. He asked the mechanic to start the loader and 

drive forward until the inspector dropped his hand and then to 

apply the brakes. The loader came to a "slow stop." Before the 

brakes were applied the loader was travelling at about 10 miles 

an hour. After the brakes were applied it travelled 7 to 8 feet. 

The inspector asked the loader operator if the brakes felt 

"spongy" and the operator replied "yes." Inspector Richardson 

issued the subject citation charging that the brakes were not 

adequate. Approximately one quart of hydraulic brake fluid was 

added to the reservoir. The machine has two reservoirs, each 

holding about two quarts of fluid. The brakes were then tested 

in the same manner as previously, and the vehicle stopped in 2 to 

3 feet. The violation was considered abated, and the citation 

was terminated. IMC's witnesses testified that the stopping 

distance was approximately the same on both tests. The operator 

of the vehicle was on sick leave and did not testify. However, a 

written statement taken from him by IMC Safety Supervisor 

Williamson was a&nitted into evidence. I am accepting as factual 

the testimony of Inspector Richardson based on· his experience and 

expertise in perfocming the inspection. 

CITATION 3249795 CLARK 275 FRONT END LOADER 

On June 28, 1988, Inspector Richardson inspected the brakes 

on IMC's Clark 275 loader in the same manner as the 980 

Caterpillar. The 275 loader is a much larger piece of 

equipment--perhaps twice as large as the Caterpill~r. Again the 

vehicle stopped in approximately 7 to 8 feet af tec the brakes 

were applied. A3ain, in answer to the Inspector's question, the 

loader operator stated that the brakes felt spongy. The 275 

Clark is equipped with an all air brake system; the brake ~edal 

707 
is spring loaded. The mechanic adjusted the brakes--tightening 

the adjuster on one wheel by a half turn, and on the other wheels 

by a quarter turn. Thereafter, the brakes were tested in the 

same manner, the brakes locked, and the machine stopped in two or 

three feet. I accept the Inspector's testimony as factual for 

the same reasons I accepted his testimony concerning the stopping 

distances for the Caterpillar loader. 

~EGULATION 

At the time the citations were issued, 30 C.F.R. § 56.9003 

provided as follows: 

Powered mobile equipment shall be provided with 

adequate brakes. 

ISSUES 

1. Whether the brakes on the cited equipment were adequate? 

2. If violations are established, what are the appropriate 

penalties? 

3. If violations are established, were they significant and 

substantial? 

CONCLUSIONS OF LAW 

Respondent. at all relevant times was subject to the Federal 

Mine Safety and Health Act in the operation of the subject mine, 

and I have jurisdiction over the parties and subject matter of 

this proceeding. 

I have accepted the Inspector's testimony as to the results 

of the tests he made on the two pieces of equipment: the 

equip,nent could be stopped in 7 to 8 feet prior to abatement and 

in 2 to 3 feet after abatement (the addition of fluid in the case 

of the Caterpillar; the adjustments in the cas~ bf the Clark). 

IMC's witnesses were of the opinion that brakes which stopped the 

equipment in 7 to 8 feet were adequate. They deny that the 

adding of fluid or the adjustment performed had any effect on the 

brakes' adequacy. Although the matter is not free from doubt, I 

am accepting the Inspector's opinion that the brakes on both 

pieces of equipment were inadequate when he tested them and 

issued the citations. I base this conclusion largely on the 

Inspector's extensive experience in the industry and as a Federal 

inspector. 

However, the Secretary has not carried her burden of 

establishing that the violations were significant and substantial. 

708 
The inadequacy of the brakes was marginal. There is no evidence 

in the record that in the case of either of the loaders, there 

was a reasonably likelihood of a serious injury. The violations 

were, however, of moderate seriousness. Because of the size of 

the equipment, it is important that adequate brakes be maintained 

at all times. There is no evidence that the violations resulted 

from IMC's negligence. Based on the criteria in section llOCi) 

of the Act, I conclude that an appropriate penalty for each 

violation is $50. 

ORDER 

Based on the above findings of fact and conclusions of law, 

IT IS ORDERED: 

1. Citations 3249791 and 3249795 are AFFIRMED, out the 

significant and substantial finding is VACNr~D. 

2. ·Respondent shall within 30 days of the date of this 

decision pay the following civil penalties: 

CITATION 

3249791 

3249795 

Distribution: 

TOTAL 

PENALTY 

$ 50 

50 

$100 

. . 

4 ·: / •• 

J ..1t!, v1...'6 ;_}f-:J i·c d.-i·l·TCf?__ ·vv - -- ..-

James A. Broderick 

Administrative ·Law Judge 

Kens. Welsch, Esq., U.S. Department of Labor,· Office of the 

Solicitor, Rin. 339, 1371 Peacht.cee St., N.W., .~tlanta, GA 30367 

(Certified Mail) 

Mr. George L. Bushn, Safety Director, IMC Fertilizer, Inc., P.O. 

Box 867, Bartow, FL 33830 (Certified Mail) 

slk 

709 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER. CO 80204 

APR 2 4 1989 

UTAH POWER & LIGHT COMPANY, 

Contestant 

CONTEST PROCEEDING 

v. 

Docket No. WEST 89-161-R 

Order No. 2876489; 3/20/89 

SECRETARY OF LABOR, Cottonwood Mine 

MINE SAFETY AND HEALTH Mine ID 42-01944 

ADMINISTRATION CMSHA), 

Respondent 

DECISION 

Appearances: Susan E. Chetlin, Esq., Timothy M. Biddle, Esq., 

Crowell & Moring, Washi~gton, D.C., 

for Contestant; 

Robert Cohen, Esq., Office of the Solicitor 

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

for Respondent. · 

Before: Judge Morris 

This case :is before me under Section 105(d) of the Federal 

Mine Safety and Health Act of 1977, 30 U.S.C. § 80i, ~seq., 

(the "Act"), to challenge the issuance by the Sec~eta~y of Labor 

of an order charging Utah Power & Light Company C 1'UP&L"}, with a 

violation of the regulatory standard published at 30 C.F.R. 

§ 75.400. 

After notice to the parties a hearing on the merits was held 

in Denver, Colorado· on April 5, 1989. The parties relied on oral 

arguments, waived the filing of post-trial briefs and further 

requested a decision without receiving the transcript of the proceeding. 

Summary of the Case 

Order No. 2876489, issued on March 20, 1989, involved an 

alleged violation of 30 C.F.R. § 75.400. 

The cited regulation provides as follows: 

Subpart E - Combustible Materials and 

Rock Dusting 

§ 75.400 Accumulation of combustible 

materials 

710 
[Statutory Provision] 

Coal dust, including float coal dust 

deposited on rock-dusted surfaces, loose 

coal, and other combustible materials, 

shall be cleaned up and not be permitted 

to accumulate in active workings or on 

electric equipment therein. 

Order No. 2876489 states as follows: 

Accumulations of coal fines (first cuttings) 

was permitted to accumulate along the left 

rib in the #1 Bleeder entry on the 9th East 

working section. 

The accumulations were behind the line curtain 

installed on the left side and measured to be 

104 feet 6 inches in total length and ranged 

between 1) 16 inches deep x 16 inches wide 

starting 40 feet outby the face; 2) 14 inches 

deep x 26 inches wide 52 feet outby the face; 

3) 31 inches deep x 26 inches wide 70 feet 

outby the face; 4) 16 inches deep x 24 inches 

wide 80 feet outby the face; 5) 14 inches 

deep x 20 inches wide 90 feet outby the face; 

6) 20 inches deep x 34 inches wide 100 feet 

outby the face; 7) starting 4 feet outby 

the face at the last row of permanent roof 

supports and extending outby 40 feet 3! inches 

deep x 12 inches wide 4 feet outby the face; 

8) 9 inches deep x 12 inches wide 20 feet 

outby the face; 9) 30 inches deep x 18 inches 

wide 35 feet outby the face. 

The accumulations were damp and had "salt and 

pepper" amounts of rock dust from the mouth 

of the entry and extending inby 60 feet. The 

last 40 feet had not been rock dusted at all 

on the ribs or coal fines. 

Contributing factors: 

1) The section foreman, Bob Wilson, stated 

the day shift Chis shift this day) on 3-17-89 

had mined approximately l! cuts (60 feet). 

711 
2) The afternoon shift (swing shift) had 

mined the next cuts to 108 feet or 48 feet 

on 3-17-89. 

3) The roof bolting machine was in the #1 

entry when crew arrived on section this 

shift and completed installing 4t rows of 

permanent roof supports. 

4) After completing the bolting cycle, the 

roof bolt machine left #1 entry and went to 

#2 entry and the miner was observed tramming 

into the #1 entry. 

5) There was no cleanup down prior to the 

miner entering the #1 entry or while the 

miner was being trammed to the face. There 

was no rock dusting being performed during 

this time. 

6) Mr. Bob Wilson, section foreman, had 

done an onshift while roof bolter in #1 

entry and stated "he saw the last 40 feet 

needed rock dusted but didn't know the 

last 60 feet outby behind the line curtain 

that bad." 

7) The practice of cleaning first cuttings 

has been discussed numerous times with 

management by inspection personnel out of 

this office. 

8) This is an obvious condition and must 

be cleaned and removed from the mine. 

9) First cuttings must be cleaned after 

each bolting and cutting cycle. 

10) There are only 2 working places 

(entries) at the present time due to the 

cutting of "bleeder" entries for a longwall panel being developed. 

712 
11) This was not rib sloughage due to 

the fact that the ribs were straight up 

and down without any fractures being 

observed. 

12) The miner is operated by radio remote 

from the left side. The trailing cable 

for the miner is also on the left side 

(side with accumulations) and is supplying 

the miner 950VAC. 

Issues 

The issues were whether a violation of 30 C.F.R. § 75.400 

occurred7 if it occurred, should the violation be designated 

as S & 57 further, if the violation occurred was it due to the 

unwarrantable failure of the operator to comply with the 

regulation. 

Stipulation 

The parties stipulated as follows: 

1. The Commission and the Administrative Law Judge hearing 

this dispute have jurisdiction to determine the issues herein. 

2. Donald E. Gibson, an MSHA Inspector, was a duly autho~ 

rized representative of the Secretary at the time of the inspection. 

3. The Cottonwood Mine is a large coal mine. 

4. various exhibits can be admitted into evidence without 

further authentication. 

Secretary's Evidence 

RANDY TATTON, chief safety engineer for respondent at the 

Cottonwood mine, was familiar with the 104(d)(l) order issued in 

this case. He is also familiar with this section of the mine but 

did not observe the conditions involved in the order. 

This area was developed in the continuous miner section for 

the purpose of advancing the longwall development entries. 

713 
There was no problem with any ribs sloughing in this 

area. 

Mr. Tatton was questioned about certain allegations in 

UP&L's motion to expedite. 

Mr. Tatton identified the company's cleanup plan (see 

Exhibit C-3). The plan was dated November 16, 1977, and was 

signed by the mine manager. It had been originally forwarded 

to MSHA on March 17, 1987. The MSHA district manager returned 

the plan saying it did not require his approval and he merely 

indicated the company should keep it on file for any MSHA 

inspectors who might inquire about it. 

Company miners are expected to follow the plan and clean 

up after each cut. The first cuttings must be cleaned up as 

part of the mining cycle and this includes a cl~anup close to 

the ribs. The continuous miner itself determines how close you 

can approach the ribs or clean up the cuttings. On the brattice 

side notches will be cut in the rib by the continuous miner. 

This increased the difficulty of a cleanup (see Exhibit C-2 

showing "line curtain" printed on the exhibit). 

The company had been previously advised by Mr. William 

Ponceroff, the local MSHA office supervisor, that the first 

cuttings should be cleaned up as part of the mining cycle. 

The law requires that the company have a cleanup plan and 

they must comply with it. 

Witness Tatton indicated he was familiar with a citation 

issued by Inspector Jones on January 6. However, the company 

was not cited for a violation of § 75.400 at that time. 

Mr. Tatton was not present and did not know the details of 

the Jones' citation (Jones' citation No. 3296223 was issued 

for a violation of§ 75.316, as contained in Exhibit C-4). 

The operator does its initial cleanup by sweeping along the 

ribs with the continuous miner. 

714 
A line curtain keeps the air out of the area of low pressure 

and, thus, the intake air is channeled directly to the working • 

face. (Witness Tatton marks route of air with a red marker on 

Exhibit C-2: witness further marks channeling of air with a blue 

marker showing, by arrows, airflow if the line curtain is not 

installed. ) 

The company must maintain ventilation otherwise a violation 

of the ventilation plan could occur and the health and safety of 

the miners would be affected. 

The operator has encountered burn-out areas in this section 

where the coal has previously burned. Such a rib condition is 

the worst possible situation as far as sloughage of the ribs is 

concerned. 

The company does not want its miners exposed to any fall 

from the ribs. 

The first cuttings occur when coal is dislodged by the 

mining cycle when the initial cut is made. Sloughage occurs 

sometimes thereafter due to pressure on the ribs. 

Mr. Tatton and Inspector Gibson discussed Inspector Jones' 

citation for the violation of § 75.316, relating to approved 

ventilation. Jones cited the company because the line curtain 

was rolled up in order to clean behind it. On the other hand,~ 

Inspector Gibson cited the company for not cleaning the cuttings 

behind the curtain. It is apparent the company cannot do both. 

It cannot roll up the curtain (which Inspector Jones complained 

about) and it cannot clean the cuttings behind the curtain unless 

it rolls it up. It is necessary for the company to leave the 

line curtain intact to maintain ventilation at the face and the 

operator cleans the area after the next crosscut is broken 

through. 

At the time Inspector Gibson issued his order in this case, 

he also read the Jones' citation but it did not have any impact 

on his order. 

Jones' citation was written because there was insufficient 

air movement at the face but the citation does not say anything 

about rolling up the curtain. 

715 
Witness Tatton agrees that the area must be cleaned up but 

it is not necessary that it be done immediately. He particularly 

relies on paragraph 2 of the company's cleanup plan. ~/ 

Inspector Gibson required the company to clean up all first 

cuttings behind the line curtain and the company did that to the 

best of the capability of the continuous miner. 

The company has difficulty complying because they would be 

violating its ventilation plan. There would be no air movement 

at the face. 

DONALD E. GIBSON, an MSHA inspector, is a person experienced 

in mining as well as electrical specialist. 

On March 20, 1989, Inspector Gibson was in the Cottonwood 

mine continuing the inspection he started on March 14, 1989. 

He entered the 9 East working section and saw the condition 

that caused him to issue the 104(d) order. This condition 

involved an accumulation of coal behind the ventilation line 

curtain. He observed the continuous miner cutting the coal 

and he was present when a shuttle car tore down a section of 

the line curtain by the mouth of No. 2 entry (marked with a 

black X on Exhibit C-2 >. 

1/ Paragraph 2 of the operator's cleanup plan provides as 

follows: 

After the day and afternoon production mining 

cycles, section roadways that have been broken 

through will be pushed to the faces (cabs of 

equipment used to clean will not advance past 

last row of bolts). Faces that have not been 

broken through will be cleaned on the off curtain side. The curtain side will be cleaned 

after the connecting crosscut is broken through 

to prevent the short circuiting of the face 

ventilation. All cleaning of section roadways 

and faces other than initial cleanup with continuous miner will be done on graveyard or idle 

shifts. (Exhibit C-3) 

716 
The inspector did not see any rock dust applied behind 

the line curtain and in fact there was no rock dust for 40_feet 

outby the face behind the curtain. From an area 40 feet outbythe face to the corner there were coal accumulations. For 

40 feet outby the accumulations of coal cuttings varied in 

width and depth. - They measured a distance of 104 feet .6 inches 

for a total length and ranged between 16 inches deep x 16 inches 

wide. The greatest accumulation was 2 feet x 34 inches. The 

greatest amount was at a point 65 feet outby the face. The 

inspector-took six different measurements and the depths ranged 

from 14 inches to 31 inches. He estimated that the total amount 

of coal in the area was between 500 and 800 pounds. 

When he observed the accumulations he told the company 

representative that "You have a Cd> Cl) order." The company 

representative was surprised. 

The accumulations were measured and recorded in the order 

issued by Inspector Gibson. ~/ 

11 The order contains the following detail: 

The accumulations were behind the line curtain 

installed on the left side and measured to be 

104 feet 6 inches in total length and ranged 

between 1) 16 inches deep x 16 inches wide 

starting 40 feet outby the face; 2) 14 inches 

deep x 26 inches wide 52 feet outby the face; 

3) 31 inches deep x 26 inches wide 70 feet outby 

the face; 4) 16 inches deep x 24 inches wide 

80 feet outby the face; 5) 14 inches deep x 

20 in_ches wide 90 feet outby the face; 6) 20 

inches. deep x 34 inches wide 100 feet outby 

the face; 7) starting 4 feet outby the face at 

the last row of permanent roof supports _and extending outby 40 feet 3! inches deep x 12 inches 

wide 4 feet outby the face; 8) 9 inches deep x 

12 inches wide 20 feet outby the face; 9) 30 

inches deep x 18 inches wide 35 feet outby the 

face. -

717 
Inspector Gibson questioned the section foreman who said 

he had mad.e an on-shift inspection and he had told the crew to 

rock dust. He said that the area behind the curtain was not that 

bad. The area was not listed in the on-shift book. 

The company had asked Inspector Gibson to do an electrical 

examination on the afternoon shift and he had been in this 

section on March 17. Subsequently, the company rotated the 

shift and the foreman, Bob Wilson, stated that he had cut coal 

on the 17th on the day shift. He also indicated they would clean 

up on tne down shift. 

The company had in faqt not cleaned up the first cuttings 

during the idle shift. 

It took about 45 minutes to remove the accumulations and 

this was accomplished by using a battery-powered scoop. The 

company also had two men shoveling it up. When cleaning up 

the accumulation they were not disturbing the ventilation and 

there was perceptible air movement. 

In the inspector's opinion it is possible to clean up the 

accumulations without disrupting the ventilation. 

The continuous miner would back up 40 feet to 60 feet 

and push the cuttings to the face1 then the miner could get 

within 6 inches to 1 foot of the left and right ribs. 

The ribs were not fractured. The line curtain was 24 to 

30 inches away from the rib. 

Inspector Gibson was familiar with the Cottonwood cleanup 

plan although he did not see the plan before he issued his 

order. After looking at the plan he concluded it conflicted 

with § 75.400. 

This particular entry is a bleeder entry which allows 

air to pass behind the gob of the longwall. 

In the inspector's opinion, leaving 210 feet of coal 

accumulations is a violation of § 75.400. The regulation requires that accumulations be removed immediately. 

The initial cleanup plan applies only to the face area 

and the cleanup plan violates § 75.400. 

718 
This operator had been previously cited for accumulations 

under § 75.400. 

Inspector Gibson issued a 104Cd)(l) order because he thought 

the operator had acted willfully in not removing the accumulations. In June he had previously discussed the removal of first 

cuttings with management and also discussed it with company 

representatives, Lauriska and Baker. 

The company was aware of the first cuttings problem and he 

believed the (d)(l) order was proper because of the amount of 

accumulations and no attempt had been made to remove them. 

The continuous miner generates sparks and it uses a trailing 

cable to supply its power. In the inspector's opinion, the 

accumulations were of a sufficient amount that an explosion could 

result. 

The inspector also described a "salt-and-pepper" float dust 

condition on the accumulations. Some of the accumulations were 

damp, but if a fire occurs any damp coal will quickly dry out. 

The condition was obvious. 

Inspector Gibson's order, which consists of four pages, 

states that the first cuttings must be cleaned after each bolting 

and cutting cycle. The operator can do that without violating· 

the ventilation plan and it could be done while the roof is being 

bolted. 

The operator can also use vent tubing to supply air to the 

face; other mines use that approach. It is also possible to move 

the line curtain to the center of the entry and use a scoop to 

clean the entry and then return the curtain. The ribs here are 

in good shape. In other parts of the mine, however, they do have 

problems concerning loose ribs. 

The inspector did not agree with the company's claim that 

workers were exposed to any loose ribs; however, he understands 

about such conditions and he realizes any loose ribs must be 

supported before the area is cleaned up. 

No accidents have occurred during any cleanup effort in the 

last two years in the Cottonwood mine. 

719 
The inspector considers this a serious violation which 

could affect the safety and health of the entire crew. The 

cuttings were generating coal dust and a 480 volt electrical 

roof bolter was present in the area. 

The operator must have been following some type of cleanup 

plan because they had cleaned up the other entries. 

Inspector Gibson was familiar with the MSHA policy manual 

which addresses clean up. The exhibit is national in scope 

(see page 74 and 75 of Exhibit R-3). The language of the manual 

indicates the operator must have a cleanup program available 

for inspection at the mine. The program does not permit accumulations to exist. Exhibit C-3 does not deal with accumulations 

as required by § 75.400. The inspector has been at the Orangeville off ice for two years and he has been instructed concerning 

accumulations since he began working at MSHA. 

He has also discussed with the operator six other mines 

they inspect from the Orangeville office. 

In the inspector's view, the violation was S & S because 

a violation of § 75.400 occurred. Furthe~, there was a measure 

of safety involved and, in addition, it was reasonably likely 

that an injury could result and that such an injury would be 

serious. Such an injury would involve burns or even a fatality 

of the mining crew. 

In cross-examination, the inspector agreed that the second 

page of the order indicates that the last 40 feet had not been 

rock dusted. But there is no requirement to rock dust when within 

40 feet of the working face. In his order the inspector had not 

relied on the failure of the operator to provide rock dust within 

40 feet of the face. 

Section 75.400 requires accumulations to be cleaned up 

immediately, but immediately is not otherwise defined in the 

MSHA policy manual. 

No mention was made of bolting and cutting cycles and the 

regulations are in the policy manual. But accumulations are not 

defined and the degree of accumulation is a judgment call. 

720 
You anticipate you will find coal in a mine and the 

inspector, when questioned closely, indicated that 30 pieces 

of coal lying together would constitute an accumulation. 

The inspector believed the amount of coal accumulations 

involved here would fill one-third of a 14-ton shuttle car. 

Exhibit R-3, page 52, discusses a cleanup program. MSHA 

approval is not required for a cleanup plan. 

Inspector Gibson felt there was perceptible air movement. 

He did not take any air readings, nor did he take a methane 

reading. 

It is apparent that the company followed.something in the 

nature of a clean up in the area. 

FORREST ADDISON, JR. is a fire boss and mine examiner for 

UP&L. He has been on a UMWA safety committee for three years. 

On March 20, 1989, he accompanied Inspector Gibson. 

Before that date he hadn't seen the company cleanup plan 

but he had seen the roof control and ventilation plans. 

The miners were not told about the cleanup plan. 

He helped the inspector measure the area of the coal 

cuttings and took notes. In Addison's opinion a violation of 

75.400 existed since there was an excessive accumulation of 

coal. 

The union also conducted inspections of the 9th East 

working section on February 24. At that time they found coal 

accumulations behind the curtain from the crosscut back to the 

tailpiece. These accumulations were behind the line curtain 

(see Exhibit R-4 for UMWA inspection on February 24.) 

The committee reported these conditions to the company 

but they do not know what action the company took. 

First cuttings must be cleaned up before the miners leave 

the area. 

721 
Mr. Addison agrees that an unwarrantable failure existed 

because the company should have seen the excessive coal cuttings. 

The operator generally removes accumulations from behind the 

-curtain during the mining cycle and it appeared to have cleaned 

up along the ribs. Coal in the mining sequence is mined for 

40 feet by the continuous miner (see Exhibit C-2 for numbered 

mining sequence printed on the exhibit). 

WILLIAM PONCEROFF, supervisor of the Orangeville field 

office, has discussed first cuttings with company officials and 

particularly with upper management. 

He further discussed cleaning behind the line curtain and 

these discussions began in 1988 when they started the two-entry 

system. Ponceroff recommended to the company that they keep the 

problem under control and the accumulations behind the curtain 

had virtually become nonexistent. In previous discussions the 

company had not mentioned their cleanup program. 

The first time Mr. Ponceroff saw the operator's cleanup 

plan was when Inspector Gibson brought it to him after he 

issued his order in the instant case. 

In Mr. Ponceroff's view the program does not comply with 

§ 75.400. Inspector Jones had issued the previous citation 

(No. 3296223) and the company had been cited for a lack of air 

movement at the face. Further, he had instructed the foremen · 

that they should clean up as they go. 

Inspector Jones made it clear to the operator that it had 

to comply with § 75.316. 

MSHA has been consistent in enforcing its policy regarding 

removal of first cuttings and he agreed with Gibson's order. 

Mr. Ponceroff made it clear to the company that they had 

excessive accumulations although he had never given the company 

anything in writing. 

UP&L's Case 

JAMES BEHLING, a safety specialist for UP&L, is a person 

experienced in mining. He was traveling with Inspector Gibson 

at the time of the inspection. They initially went to the 

kitchen area then walked to the transformer in the face area. 

722 
Normally, the miner helper sets the drilling sites and 

that starts the entire mining cycle. 

They checked the air, rock dust, and they usually rock 

dust the last 40 feet. They would then cut in the sequence 

printed on Exhibit C-2. They make five cuts, then clean the 

left side, and then back up and clean the right side. 

On the left side there are gouges caused by the continuous 

miner because it cannot mine in a straight line. The miner cable 

exits on the left side of the continuous miner and, as a result, 

the miner cannot get close to the left rib. 

Inspector Gibson saw the coal when he walked behind the 

line curtain. He said he was going to write a (d)(l) order. 

The witness disagrees with the measurements taken by 

Inspector Gibson. (The witness illustrates his point in 

Exhibit C-5; he stated that the height and width of the first 

cuttings were in fact irregular.) 

The witness also felt that there was more rock dust present 

than the 'salt-and-pepper' description given by Inspector Gibson. 

The area was also wet and there was a water hole (water 

hole marked on Exhibit C-2 as 'water hole') which was located 

outby the last open crosscut. 

In the witness' opinion there was no violation of § 75.400 

because the cleanup plan provides how they are to cleap up the 

area. 

Supervisor Wilson, in charge of this section, told the 

witness he cleaned up in the best fashion he could; the graveyard 

shift would do the balance. 

The witness asked if there was any way for the inspector 

to write a citation rather than an order. Inspector Gibson 

replied that he was going to write an order. 

The witness' notes indicate that "I showed Don [Gibson] 

the cleanup plan and he said he was going to write the order; 

he made this statement as he was reviewing the plan." 

Gibson wrote the order the following day at 4:00 p.m. 

723 
The witness did not agree with the S & s designation because 

the coal was wet and there was no problem inasmuch as they were 

following the cleanup plan. Accumulations would be removed when 

the crosscut was broken through (Exhibit C-2 at the top shows a 

crosscut not yet broken through and establishes its relation to 

the mining face~} 

In addition, the witness did not agree with the unwarrantable failure feature. The section foreman was cleaning the area 

and the crosscut had not yet been broken through. 

Inspector Gibson said the coal would have to be cleaned up 

before the company could proceed with its mining. 

The witness asked Gibson if they could roll up the curtain 

although they would need acceptable air at the face. 

However, in early January the company received a citation 

for doing the same thing, that is, rolling up the curtain. 

The witness described the instability of burned areas; there 

are such areas in 9th East section. In the witness' opinion, no 

violation occurred because the company was following its cleanup 

plan. 

The witness did not know if the crosscut (located at the_ 

top of Exhibit C-2) had been cut through as of the date of the 

hearing. Under the company's cleanup plan such cuttings could 

still be there if the succeeding crosscut had not been cut 

through. 

Gibson also took notes during his conference. 

The line curtain was 3 feet from the rib. 

DIXON PEACOCK, a safety engineer for UP&L, identified 

Inspector Jones' citation of January 6, 1989, for the violation 

of§ 75.316 (Exhibit C-4). 

The company was in the process of cleaning the No. 1 entry 

when Inspector Jones tested with smoke tubes. He found there 

was no air moving and he stated the company had a violation. 

They discussed the plan and the the violation because of a 

lack of perceptible movement at the face. 

724 
The maintenance crew had to roll up the brattice to 

facilitate the cleaning. 

Inspector Jones felt this permitted the face area to be 

unventilated. At the time of the Jones' citation the last open 

crosscut had not been broken through. 

The operator did not contest the Jones' citation. The 

last portion of the Jones' citation states as follows: "(T)he 

approved cleanup plan states that the curtain side of the entry 

will not be cleaned up until the connecting crosscut has been 

made." 

After the Jones' citation, Peacock made certain the UP&L 

supervisors received a copy of the cleanup plan. 

Peacock did not know how Jones had gotten a copy of the 

plan. Jones did not state that the plan was inadequate, ineffective or that it would have to be changed. 

JOHN c. BOYLEN, JR. is the Mine Manager and responsible as 

head of the mine. 

Witness Boylen identified the present cleanup plan. It 

applies throughout the mine. 

Concerning paragraph 2, the company has spent $2,000,000 

for new roof bolting machines and they also use remote control 

miners. 

Also concerning paragraph 2, the operator uses a line 

curtain to keeps miners away from the ribs. In this mine 

Mr. Boylen is more concerned about the ribs than he is about 

the roof. 

If they shovel the area by the ribs they expose their 

miners to possible sloughing ribs. As a result they try to 

keep the people out of the area and then clean up with the 

continuous miner. 

The company does not intend to change the cleanup plan 

between different sections in the mine. The ribs can become bad 

depending upon which section of the mine you were working in. 

The ventilation tubing is an alternative to the line 

curtain. 

725 
Mr. Boylen worked for Consol Coal in west Virginia for 

18 years where they used vent tubing because of methane and 

because of relatively narrow entries. 

In Mr. Boylen's view line brattice is safer; the company 

does not use tubing. 

Tubing uses a fan and the entries in the Cottonwood mine 

are 20 feet wide, whereas the entries as the Consol mine were 

13 feet wide. 

They could not use a fan because that would create turbulence. The entries are higher here. It is possible to spade 

the curtain while standing on the floor. MSHA has not discussed 

ventilation tubing with him. 

They have talked to the inspectors about first cuttings 

and also about rock dusting the area. Mr. Boylen was familiar 

with the order that was issued in this case. 

A letter from MSHA District Director said the company 

did not have to submit the cleanup plan. The particular plan, 

identified by the witness (Exhibit C-2), was one submitted 

to MSHA after the company's initial submission. 

Mr. Boylen's only contact with the Jones' citation was 

to the effect that the company was not following the cleanup 

plan. 

The witness did not remember discussions of accumulations 

behind the line curtain nor did he remember that they were 

discussed on June 30, 1988. 

Prior to the (d)(l) order issued in this case the company 

was never told its cleanup plan was inadequate. 

Mr. Boylen has no plans to change his cleanup plan. 

He did not recall discussing the plan with Mr. Ponceroff. 

The witness did not go to the section before the condition 

was abated. He does not believe the company violated the regulation. 

In Mr. Boylen's opinion they could have used the curtain to 

remove accumulations, but if you pull out the curtain you disrupt 

ventilation. To facilitate matters you could put an entire new 

curtain in the entry. 

726 
After the order was issued he talked to company supervisor 

Wilson and he required the area to be cleaned up when the 

connecting crosscut was put through. 

The company designed its- cleanup plan for a "worst case" 

scenario whereas the roof control plan is a "minimum case" 

scenario. 

In rebuttal Inspector Gibson identified his notes. He 

also conferenced the citation on the spot. 

Inspector Gibson agrees with Mr. Boylen that there is 

a need to be consistent in the application of the cleanup plan 

as it relates to the condition of the ribs. In other words, 

if the ribs are sloughing in one area, that should be taken 

into account in the cleanup plan. In the inspector's view, 

accumulations should not be permitted to go 300 feet in length 

and 6 inches wide. 

The inspector's measurements were taken every 10 feet behind 

the curtain. 

Discussion 

The initial issue centers on whether a violation of 

§ 75.400 occurred. The evidence on this point is essentially 

uncontroverted. The regulation in its relative portion provides that "loose coal shall be cleaned up and not permitted 

to accumulate in active workings." It is apparent that the 

loose coal involved here was of a substantial amount. The 

total amount of the coal was estimated at 500 to 800 pounds. 

I find the inspector's opinion credible. Permitting 210 feet 

of coal to accumulate along the ribs constitutes a violation 

of § 75.400. See Old Ben Coal Company, 1 FMSHRC 1954 (1979). 

The fact that some of the coal was damp because of water 

does not cause me to reach a different conclusion. Any fire 

will quickly dry out damp or wet coal. In addition, the water 

hole Cas shown on Exhibit C-2) is a relatively small area in 

relation to the total area involved. 

Throughout this case UP&L relied on its cleanup plan to 

justify its action. However, it is apparent that the cleanup 

plan developed pursuant to § 75.400-2 cannot overrule the 

mandatory duties required in § 75.400. 

727 
In short, I agree with the inspector's view that the 

cleanup plan is invalid to the extent it conflicts with 

s 75.400. 

The second issue is whether the violation should be designated as significant and substantial within the meaning of 

the Act. 

I conclude that such a designation is warranted. The 

credible evidence testified to by Inspector Gibson established 

this feature of the case within the Commission's guidelines 

as expressed in Mathies Coal Company, 6 FMSHRC 1 (1984) and U.S. 

Steel Mining Co., 6 FMSHRC 1573-74 (1984); compare Old Ben Coal 

Company, supra. 

The final issue is whether the violation of the regulation was due to the operator's unwarrantable failure to comply. 

In this connection the credible evidence establishes MSHA 

and the operator's upper management personnel had discussed the 

practice of cleaning first cuttings. In fact, the problem had 

been virtually nonexistent. 

With this background the operator nevertheless permitted 

substantial coal accumulations to exist along the ribs in this 

active workings. 

In short, the operator chose to ignore S 75.400 and to rely 

on its cleanup plan. It did not clean the accumulations, nor did 

it intend to clean them until the next connecting crosscut had 

been broken through. 

It is obvious that a cleanup plan cannot overrule a 

mandatory regulation. 

In its defense to the issue of unwarrantability, the 

operator relies on the Jones' citation and states that it is 

faced with the choice of Cl> rolling up the line curtain and 

cleaning behind it and then receiving a Jones' citation for 

inadequate ventilation at the face; or, (2) receive a Gibson 

order for having accumulations behind the curtain. 

728 
The operator's defense is neither credible nor substantial. 

For one thing, the operator could rehang the line curtain at 

a point further out from the rib. In addition, the operator 

must have successfully met this problem before. This was the 

only section involved. Other sections had been cleaned. In 

these other areas coal accumulations were not a problem. As 

MSHA's witness Ponceroff indicated the problem of accumulations 

behind the curtain had become virtually nonexistent. 

Under the operator's scenario once it started to mine the 

entry it would begin to accumulate coal. The accumulation would 

not be removed until the next open crosscut was broken through. 

In Exhibit C-2 the measured distance between crosscuts is 

104 feet. Under these circumstances in excess of 2oa feet of 

loose coal would accumulate on both sides of the return entry. 

(The excess would be generated by the mining sequence of the 

continuous miner). This would be an accumulation prohibited by 

§ 75.400. 

On the other hand if the circumstances are such that only 

the area in the return entry behind the line curtain contained 

loose coal then accumulations in excess of 104 feet would 

exist. (The excess again would be generated by the mining 

sequence of the continuous miner.) This amount would likewise 

be an accumulation prohibited by § 75.400. 

The operator's decision to mine in this manner presented 

here constitutes an unwarrantable failure to comply with 

§ 75.400. Further, such a failure to comply is aggravated 

conduct constituting more than ordinary negligence. Accordingly, 

the Commission doctrine expressed in Emery Mining Corporation, 

9 FMSHRC 1997, 2004 (1987) is not applicable. 

For the foregoing reasons I enter the following: 

ORDER 

The contest of Order No. 2876489 is dismissed. 

Law Judge 

729 
Distribution: 

Susan E. Chetlin, Esq_., Timothy M. Biddle, Esq., Crowell & 

Moring, 1001 Pennsylvania Avenue, N.W., Washington, D.C. 20004 

(Certified Mail) 

Robert Cohen, Esq., Office of the Solicitor, U.S. Department of 

Labor, 4015 Wilson Boulevard, Room 418, Arlington, VA 22203 

(Certified Mail) 

/ot 

730 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 2 6 1989 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

ASSOCIATED ELECTRIC 

COOPERATIVE INCORPORATED, 

Respondent 

. . 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 88-89 

A. C. No. 23-00465-03529 

Associated Electric 

Cooperative Inc. - Mining 

Division 

Appearances: Margaret A. Miller, Esq., Office of the Solicitor, 

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

the Secretary~ 

Gene Andereck, Esq., Stockard, Andereck, Hauck, 

Sharp & Evans, Springfield, Missouri, for the 

Respondent. 

Before: Judge Weisberger 

Statement of the case 

On June 30, 1988, the Secretary (Petitioner) filed a 

Proposal for Penalty seeking the imposition of civil penalties 

for alleged violations of 30 C.F.R. § 77.205Ca) and 30 C.F.R. 

§ 77.205(b). An Answer was filed by the Operator (Respondent) on 

August.12, 1988. Pursuant to notice, the case was heard in 

Springfield, Missouri, on January 24 - 25, 1989. At the hearing, 

Larry Greg Maloney, Jackie Williams, Gary Ronchetto, Gary 

McQuitty, and Randy McQuay testified for Petitioner. Richard 

McClelland, Lennoth Greenwood, and Delbert Gipson testified for 

Respondent 

The Parties each filed a Post Hearing Brief on April 10, 

1989. 

731 
Stipulations: 

1. Associated Electric Cooperative, Inc., is engaged in 

mining and selling of coal in the United States, and its mining 

operations affect interstate commerce. 

2. Associated Electric Cooperative, Inc., is the owner and 

operator of Associated Electric Cooperative, Inc., Mine, MSHA I.D. 

No. 23-00465. 

3. Associated Electric Cooperative, Inc., is subject to the 

jurisdiction of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. §§ 801 et seq. ("the Act"). 

4. The Administrative Law Judge has jurisdiction in this 

matter. 

5. The subject citation was properly served by a duly authorized representative of the Secretary upon an agent of Associated 

Electric Cooperative, Inc., on the date and place stated herein, 

and may be admitted into evidence for the purpose of establishing 

its issuance, and not for the truthfulness or relevance of any 

statements asserted therein. 

6. Associated Electric Cooperative, Inc., is a large mine 

operator with 1,707,757 tons of production in 1987. 

Citation No. 3035355 

Citation 

Citation No. 3035355 provides ~s follows: 

The three crews to the Bee-veer slurry dredge were 

required to travel up & down the approximately 25 ft 

high-face to the slurry pit. The slope of the face was 

approximately .5 to 1 consisting of unconsolidated 

materials and uneven footing. A minimum·of six personnel daily are required to climb the face. The catwalk 

had been removed since at least 2/4/88 and only about 

3 hours of refabrication and welding had been performed 

during that duration • 

.Regulations 

30 C.F.R. § 77.205(a) provides as follows: "Safe means ot 

access shall be provided and maintained to all working places." 

732 
Findings of Fact and Discussion 

I. 

Respondent, an electrical generating cooperative, in connection with its Thomas Hill Energy Center operates a surface coal 

mine. As part of this operation, two employees on each of 

Respondent's three shifts are stationed on a dredge located in a 

slurry pond. The dredge, which is moved by cables, cuts coal 

from below the surface of the pond, and pumps a mixture of coal 

and water to a processing plant. The employees working on the 

dredge reach it by way of a rowboat from the shor~. In general, 

these employees reach the rowboat, left at the edge oi the pohd 

by t:he previous shift, by traveling by vehicle to the embankment, 

and then walldng down to the edge of the pond. 

On February 10, 1988, Larry Greg Maloney, pursuant to a 

request made under section 103Cg) of the Federal Mine Safety and 

Health Act of 1977 (the Act), inspected the above Bee-Vaer Slurry 

Impoundment, and noted se~eral sets of foot prints going up and 

down the bank to and from the embankment to the pond, in an area 

which he estimated as being at an incline of ·.s to 1. He testified, in essence, that in the area where the foot prints were 

observed the embankment was approximately 25 feet above the level 

of the pond. He testified that in the area where he saw the foot 

prints, there was some packed snow, ahd described the ground 

material as containing loose unconsolidated granular coal. He 

indicated, in essence, that due to the condition of the area in 

which he observed the foot prints, and its slope, he did not 

consider it a safe access to the pond. He indicated that there 

was no other access to the pond. According to the uncontradicted 

testimony of Maloney, there was no catwalk or walkway in any area 

from the pond to the top of the embankment. 

Lertnoth Greenwood, Respondent's second shift supervisor at 

the Bee-Veer Slurry Impoundment, indicated that on February 10, 

1988, the employees working on the dredge went from the embankment to the pond by way of a ravine, which he.indicated was to 

the left of the access area denoted by Maloney, and then walked 

along the edge of the water to the rowboat. He opined that this 

means of access was safe. He indicated that on Feb.ruary 9 - 10, 

1988, he observed the workers from the first shift returning from 

the dredge coming up the bank in the same general area as the 

ravine. On cross-examination, he indicated that the ravine was 

approximately 20 feet above the pond, at a slope of about a 30 to 

45 degree angle, and that there was snow in the ravine on 

February 10, 1988. 

Gary Ronchetto, a welder working for Respondent, who is a 

member of the UMWA's Safety Committee, testified on crossexamination, in essence, that on February 10, it was possible to 

733 
go from the embankment to the pond at different places, but on 

redirect examination indicated that he did not see any areas he 

considered safe as an access down to the pond. Ronchetto 

. described the material between the embankment and the pond as a 

slurry made out of coal and earth and said on February 10, the 

bank was "slick across it" (Tr. 187). 

Gary McQuitty, who was Respondent's dredge helper in January 

and February 1988, had the responsibility of working on Lhe 

dredge on the first shift. He indicated that on February 10, 

1988, he went from the top of the bank to the pond along a clay 

road which was "more stable than the slimy fill" (Tr. 271), and 

which he denoted was located at a point to the right of the areas 

denoted by Maloney. He indicated that during the day, if it 

warmed up, the frozen material on the road would thaw and become 

"pretty slick" (Tr. 277). He said that the top of the clay road 

was 20 to 25 feet above the pond and was at slope of .5 to 1. He 

said that in February 1988, he described the footing going down 

to the pond, as "extremely treacherous," that the angle of 

descent was "steep," and he would slip and slide to the edge of 

the water (Tr. 279). He said that there was no other way to get 

down the embankment to the pond. 

I find that on February 10, 1988, access to the pond, from 

the embankment, was only by way of the area taken_ by McQuitty. I 

observed McQuitty's demeanor and found his testimony credible. 

Also, inasmuch as McQuitty's sole responsibility was working on 

the dredge, I place more weight on his testimony with regard to 

the route taken rather than the testimony of Greenwood, who had 

other responsibilities in addition (at times) to being on the 

dredge, and could not recall if he drove men out to the embankment on February 9. He also could not recall if McQuitty worked 

on his shift on February 9 - 10, 1988. I adopt the testimony of 

Maloney that, in essence, there was only one access to the pond 

on February 10 as, in essence, it was corroborated by Ronchetto. 

I adopt Maloney's testimony with regard to the hazards occasioned 

by the steep angle of the access areas, inasmuch as it was 

corroborated by Ronchetto. Also, I found persuasive, the 

testimony of McQuitty, who went daily from the embankment top to 

the pond and back, that the access was "extremely treacherous" 

(Tr. 279), and in February 1988, he would slip and slide going 

from the top to the pond. Also, although Greenwood indicated 

that access to the pond by way of the ravine was safe, he nonetheless characterized the slope as being between 35 to 45 degrees, 

and indicated that on February 10, 1988, there was snow in the 

ravine. For these reasons, I conclude that on February 10, 1988, 

there was no safe access provided from the embankment top to the 

734 
edge of the pond, where a row boat could be utilized to go to t.he 

dredge, the working site of two men per shift. As such, I find 

that Respondent herein has violated section 77.205Ca> ·supra.~/ 

II. 

Taking into account the steepness of the slope of the access 

to the pond, as well as its slick and snow-covered condition as 

discussed above, I., infra, along with McQuitty's testimony that 

the footing was extremely treacherous, and in going up and down 

the slope he would slip and slide, I conclude that the violation 

herein contributed to the hazard of slipping and falling into the 

water which had been estimated by McQuitty to be 15 to 20 feet 

deep. Access from the einbanlttnent top to the impoundment below, 

is utilized daily by two miners on each of the three daily shifts 

going from the embanlcment to the pond and then returning. 

According to McQuitty, in the month of January 1988, ver'lin Niece 

lost his footing going down the bank to the pond to work on the 

dredge, and slid into the water up to his knees and had to be 

pulled out.~/ Taking these factors into account, I conclude that 

I/ In essence, it is the Respondent's position that its Board of 

Directors, as indicated in a safety manual provided to all 

employees, CR-6), that it is dedicated to operate in accord with 

accepted safety rules and procedures, and that its employees, in 

the safety manual, are specifically told not to work "nea~.or 

under dangerous highwalls or banks," and that they're not 

permitted to walk in any area at or near a surge or storage pile 

while a reclaiming operation may expose them to a hazard. CR-6, 

37, 41). As such, Respondent argues that any employee faced with 

the hazard of traveling from the embankmenl: top to the pond, to 

reach a work site on the dredge, had the option of refusing to 

work and being exposed to a hazard pursuant to company policy. I 

do not find merit to Respondent's argument. It is the 

Respondent's responsibility to adhere to all relevant regulations. 

Inasmuch as the evidence e~tablishes that Respondent failed to 

provide a safe means of access from the embaniment top to the 

working area on the dredge, it must be concluded that Respondent 

herein violated section 77.205(a). 

2/ I have adopted this testimony as there is nothing in the ~ecocd to contradict it. I have taken into account the 

acknowledgment by Lennoth Greenwood, Respondent's second shitt 

foreman, that prior to February 9, 1988, he did not know of any 

employee having fallen down the embankment. I find that the lack. 

of knowledge on Greenwood's part does not by itself rebut 

McQuitty's testimony. 

735 
due to the violation herein, the hazard of an employee slipping 

and falling while asc~nding or descending the access to the 

impoundm~nt, was reasonably likely to occur. McQuitty testified 

that the impoundment water was extremely cold, and was 15 to 20 

feet deep. He also indicated that normally employees working on 

the dredge leave their life jackets in the rowboat, and usually 

wear heavy boots and coats. Accordingly, he opined that it would 

be difficult for one to stay afloat after falling into the 

impoundment. None of McQuitty's statements have been rebutted or 

contradicted. Accordingly, I find that, due to the hazard 

created herein, as consequence of the violation, there was a 

reasonable likelihood of the occurrence of a reasonably serious 

injury. Accordingly, I conclude that the violation herein was 

significant and substantial.3/ (Mathies coal Co., 6 FMSHRC 1, 

(January 1984)). -

III. 

According to Greenwood, prior to the issuance of the instant 

citation, he was not confronted with the specific "issue" (Tr. 345) 

of the difficulty of access up and down the embankment. However, 

McQuitty, who worked oo the dredge on the first shift, indicated 

that on "numerous different occasions" he told management there 

were problems with the access (Tr. 282). Furthermore, Ronchetto 

indicated that, in his capacity as member of the safety committee, 

·sometime between Christmas 1987, and January 1988, he received 

complaints from the dredge crew that the walkway was out, and 

pursuant to these complaints, told Bill King, the day shift supervisor, that the diedge crew did not have a safe access. According 

to Ronchetto, and corroborated by McQuitty, later that day 

Ronchetto called Sam Laws, superintendent to the preparation plant 

and slurry impoundment, and advised him that the men needed a safe 

access. Ronchetto. indicated that Laws told him he would try to 

take care of it. Ronchetto said that he then confronted David 

Moehle who said that he would look into it. According to 

Ronchetto, on January 7, 1988, he looked up at the walkway along 

with Moehle, and described it as having a steep angle, and not 

having any cleats. He said that at the steep·angle there was no 

adequate footing. Ronchetto testified that he then told Moehle 

that the walkway needed cleats, and Moehle said that he understood 

and would try to take care of it. In essence, Rochetto's testimony 

was corroborated by Randy McQuay, another safety committee member, 

who also was present. 

3/ In reaching this conclusion, I have taken into account 

Respondent's evidence on this point which essentially consists of 

the testimony of Greenwood that the access was "safe." However, 

in evaluating the condition of the access, and the gravity of the 

violation herein, I place more weight on the testimony of Maloney 

and McQuitty as analyzed above, I. and II., infra. 

736 
According to McQuitty, between January and February 1988, 

the walkway was taken in and out continuously, and one end was so 

steep that ice would accumulate on it. According to McQuitty and 

Greenwood, the walkway had been removed approximately 4 days 

prior to the issuance of the citation. Some welding work was 

then performed on the walkway. But according to Maloney who 

observed it at the Preparation Plant on the date of the citation, 

only a quarter of its distance had steps and he indicated it did 

not have any cleats. This testimony does not appear to have been 

contradicted by Greenwood, who indicated that prior to the 

citation, the walkw~y did not have all its cleats. On 

February 9, 1988, at a safety committee meeting, according to 

Ronchetto and corroborated by McQuay, Moehle was again informed 

that there was no safe access, and he responded that he would 

look into it, and that they were still working in it. 

Based on the above, I conclude that at least as early as 

January 7, 1988, management was made aware of the employees' 

complaints with regard to safe access. Indeed, Ronchetto's testimony was uncontradicted that on January 7, Moehle observed the 

condition, and indicated that he understood it and would try and 

to do something about it. Although efforts may have been made to 

ensure safe access by way of a walkway, the evidence indicates 

that ~hen the walkway was installed it still did not provide safe 

access. Further, although efforts may have been made to improve 

the walkway, by welding material on it, I find that as of the 

date of the citation, February 10, Respondent had failed to 

install sufficient cleats to ensure safe access by way of the 

wall{way. Thus,. taking all of the above into account, I find that 

Respondent's conduct herein was more than ordinary negligence, 

and constituted aggravated conduct. As such, I conclude that the 

violation herein resulted from Respondent's unwarrantable failure. 

(See, Emery Mining Corp., 9 FMSHRC 1197 (December 1987)). 

IV 

Based on the factors discussed above, II., infra, I conclude 

that the gr~vity of the violation herein was ielatively high. 

For the reason set forth above, (III., infra), I conclude that 

Respondent herein acted with a high degree of negligence. Taking 

these conclusions into account, as well as the remaining 

statutory factors stipulated to by the Parties, as well as the 

history of Respondent's violations, as contained in Government 

Exhibit P-1, I conclude that a penalty herein of $500 is 

appropriate. 

Citation No. 3035356 

On February 11, 1988, Citation No. 3035356 was issued which 

provides as follows: 

737 
Air hoses and drop cords were lying on the floor 

in five locations. Machine parts, tools, hoses 

expanded metal and other miscellaneous materials were 

on the floor between six of the bay doors creating 

stumbling hazards. 

Regulation 

30 C.F.R. § 77.205Cb), provides as follows: 

Travel ways and platforms or other means of access 

to areas where persons are required to travel or work, 

shall be kept clear of all extraneous material and 

other stumbling or slipping hazards. 

Findings of Fact and Discussion 

I. 

Respondent operates a maintenance shop which was built in 

approximately March 1983. The interior of the shop contains one 

wash bay and six work bays. Each bay has a door on each side to 

accommodate large pieces of equipment including 160 ton trucks 

that are worked on in the bays. A tire repairman, one shop 

laborer, one welder, and 13 mechanics work in the shop. 

According to Maloney, Cas depicted on Government Exhibit P-3), 

when he inspected the premises, on February 11, 1988, he observed 

air hoses, drop cords, machine parts, tools, and expanded metal, 

at various locations on the floor. He also testified that an 

exit door was completely blocked by hoses. In essence, he said 

that in the middle of the shop where support beams were located 

there were tools, hoses, and drop cords, which created a safety 

hazard, and which he had to step over. He said that, in general, 

there were hoses in the area where personnel were not located. 

Delbert Gipson, Respondent's truck and tractor day shift 

supervisor, testified that, in general, the material observed by 

Maloney are items utilized by the workers at the shop. Thus, he 

said that the air hoses are used to operate the air wrenches and 

blow out dirt, and the extension cords are used for the lights. 

He said that generally, engines that have to be repaired are left 

in a broken condition while awaiting parts. He was asked whether 

the material on the floor created any stumbling hazard and he 

indicated that there were probably parts mechanics laid on the 

floor around where they work, and that these are items that 

mechanics "live with every day" (Tr. 364). He indicated 

essentially that the material was not out of the ordinary and 

that 11 1nost of the 1nate.rial" was being used (Tr. 364). In a 

similar fashion Maloney agreed on cross-examination, that air 

hoses and chains are used in making repairs and that in small 

quantities expanded metal is also used in the shop. 

738 
It appears to be Respondent's position, based upon the 

testimony of Gipson, that no violation should be found herein 

inasmuch as the materials in question are either utilized by 

Respondent's mechanics or left in place pending receipt of the 

replacement part£, and that having material on the floor is part 

of Respondent's normal operation. I do not find merit to 

Respondent's argument. I note that section 77.205Cb), supra, 

requires travel ways and platforms or other means of access to 

areas where persons are required to work "shall be kept clear, of 

••• other stu~bling or slipping hazards." Based on Maloney's 

testimony I find that the materials in question, located on the 

shop floor, were in areas where employees at the shop would have 

to walk to go to various work bays, and to go to the bathroom 

from the bays. I find Maloney's testimony credible that the 

materials on the floor constituted stumbling or slipping hazards, 

as his testimony was essentially corroborated by Jackie Williams, 

Respondent's mechanic who worked in the shop. In this 

connection, it was essentially Williams' uncontradicted testimony 

that there were bolts, nuts, and wheel bearings lying around and 

that he could hardly get around as he had to step over these 

materials. Indeed, he indicated that a motor that had its parts 

taken out, had been sitting on the floor for about a month before 

it was taken out by him and another employee to abate the above 

citation. Also, the testimony of Maloney was corroborated by 

Ronchetto, who also observed the conditions on February 11, and 

indicated he was not able to go from one place to another without 

going around materials and crawling over them. Also Gipson 

admitted on cross-examination that there were "probably" some air 

hoses and trouble lights "strung out" at an exit (Tr. 368, 369). 

Although he indicated that, in his opinion, on February 11, the 

accumulation of material was not too bad to walk around, 

nonetheless he indicated that it "probably" did need to be 

cleaned up (Tr. 376). Thus, I find Respondent herein violated 

section 77.205(b), supra.~/ 

~/ I note that section 77.205Cb), supra, by a plain reading of 

Its language, does not explicitly allow for the accumulation of 

materials constituting a stumbling or slipping hazard if the 

materials accumulate in the ordinary course of the operation, or 

are used in the operation. To read such an exclusion into 

section 77.205Cb), would be unduly restrictive and would render 

meaningless the protective intent behind this regulation. I also 

have considered Respondent's arguments set forth in its Post 

Hearing Brief. I do not find merit to these arguments, for the 

reasons set forth in footnote 1, infra. 

739 
II. 

According to Maloney, the stumbling hazard created by the 

accumulation of materials could result in an injury. It was his 

opinion that an injury occasioned by a fall to the concrete 

surface could range from a bruise to a broken member. Williams 

indicated that he had to step over the material and he could have 

stepped on a ball bearing. Ronchetto indicated a stumbling, 

tripping, and falling hazard and opined that in falling one could 

hit one's head against a beam, part, or heavy equipinent. 

Taking into account the number of employees at the shop, the 

cluttered nature of the material on .the floor, and the need to 

crawl over it, as established by Petitioner's witnesses, I find 

that the violation h~rein contributed to a discrete safety hazard 

of stu1nbling or falling. I also find, based on the these factors 

and taking into account the presence of tools, equipment, and 

beams there existed a reasonable likelihood that the hazard of 

.stu:noling or falling would :result in an injury. Maloney 

indicated that the injury could range· from a bruise to a broken 

member. Ronchetto indicated that a person falling could hit 

his head against a beam or heavy equipment. It is clear a 

serious injury could result, however, inasmuch as there is no 

evidence before me relating to any specific distance between any 

of the materials constituting a hazard, and any sharp or hard 

object, I must concl~de that it has not been established that 

there is any reasonable likelihood that the injury resulting from 

the hazard of slipping or falling would be of a reasonably 

serious nature~· Accordingly, I must conclude that it has not 

been established that the violation herein is significant and 

substantial (See, Mathis Coal Co., supra). 

III. 

According to the uncontradicted testimony of Williams, the 

same conditions observed on February 11, were in existence the 

day before, and had existed for approximately .3 weeks prior to 

the citation. Although Gipson indicated that in his opinion the 

material was not too bad to walk around, he did indicate it 

probably did need cleaning up on February 11. Also, it was 

Ronchetto's uncontradicted testimony that at a February 9, 1988, 

meeting at which time Moehle was present, he (Ronchetto) told 

Moehle that there was an accumulation of parts and hoses, and 

that Moehle indicated that he would try and take care of it. The 

extent of the accumulation of th~ material is indic:ited by the 

testimony of Williams that, in abating the citation, he and six 

or seven other employees worked the entire shift to clean up but 

did not E inish. Based on the above, t conclude that the ac.::u.111ulation of material was considerable and existed for a significant 

740 
period prior to February 11, 1988, and that at least as of 

February 9, 1988, Respondent's management was aware of this 

condition. As such, I find that Respondent acted with a 

moderately high degree of negligence in not having the material 

cited by Maloney cleaned up prior to February 11. Also, as 

discussed above, I conclude that the violation herein was 

moderately serious as it could have resulted in a person 

stumbling and injuring himself. In assessing a penalty, I have 

also taken into consideration the various factors of llOCi) of 

the Act, and the history of violations as indicated in 

Government's Exhibit P-1. Taking all these factors into account, 

I conclude that a penalty herein of $150 is appropriate. 

ORDER 

Respondent shall, within 30 days of this Decision, pay the 

sum of $650 as a civil penalty for the violations found herein. 

Distribution: 

£_,~ Avram Weisberger 

Administrative Law Judge 

Margaret A. Miller, Esq., Office of the Solicitor, U. s. Department of Labor, 1585 Federal Office Building, 1961 Stout Street, 

Denver, CO 80294 (Certified Mail) 

Gene Andereck, Esq., Stockard, Andereck, Hanek, Sharp & Evens, 

1111 s. Glenstone, P. O. Box 4929, Springfield, MO 65808 

(Certified Mail) 

dcp 

741 

ADMINISTRATIVE LAW JUDGE ORDERS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

April 21, 1989 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

CALSPAR DIVISION, 

Respondent 

: 

: 

. . 

. . 

Docket No. WEST 88-347-M 

A. C. No. 04-04114-05511 

Calspar Mine 

DECISION DISAPPROVING SETTLEMENTS 

ORDER TO SUBMIT INFORMATION 

Before: Judge Merlin 

This case is a petition for the imposition of civil 

penalties for nine citations originally assessed at $497. The 

Solicitor recommends substantial reductions for all the violations with the proposed settlements totaling $248.50 As set 

forth herein, I am unable to approve the suggested settlements 

based upon the present record. 

Citation Nos. 3070370, ~070371) 3070372, 

3070373 and 3070377 

These citations were issued for violations of 30 C.F.R. 

§ 56.14001 because head pulleys, tail pulleys and chain and belt 

drives on various pieces of equipment were not guarded. Each 

penalty was originally assessed at $63 and the proposed settlement for each violation is $31.50. The inspector designated all 

the violations as significant and substantial and he described 

gravity as reasonably likely to result in permanent disability. 

Negligence was assessed as moderate. 

The Solicitor offers no support for his proposed settlements 

and for· his assertion "that .the proposed settlement amount ••• 

is reasonabl~ and will effectuate the deterrent purpose of civil 

money asses6ments for violations of the Act ..• ". Without some 

justification I cannot approve such small penalty amounts, when 

the description 0£ the violations as S & S and resulting from 

negligence remains unchanged. Moreover, the proposals represent 

50% reductions from the original amounts which were modest to 

begin with. 

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Citation Nos. 3070375 and 3070376 

These citations were issued for violations of 30 C.F.R. 

§ 56.12032 because cover plates were not in place on two junction boxes. Each penalty was originally assessed at $20 and the 

proposed settlements for each violation are $10. The violations 

were designated as non-significant and substantial with gravity 

described as unlikely to result in lost workdays. Negligence was 

assessed as moderate. 

The Solicitor offers no support for his proposed settlements 

or for his assertion "that the proposed settlement amount ••• is 

reasonable and will effectuate the deterrent purpose of civil 

money assessments for violations of the Act ••• ". The $20 

single penalty assessment is the very modest amount usually 

imposed for non-serious violations. The Solicitor advances no 

reasons why these small amounts should be further reduced by half. 

Citation No. 3070378 

This citation was issued for a violation of 30 C.F.R. 

§ 56.12032 because an electrical conductor leaving a fuse box was 

not properly bushed and that the top electrical tray of the junction box was not covered. The penalty was originally assessed at 

$79 and the proposed settlement is for $39.50. The violation is 

designated as significant and substantial with gravity described 

as reasonably likely to result in a fatality. Negligence is 

described as moderate. 

The Solicitor offers no support for his proposed settlement 

or for his assertion "that the proposed settlement amount. • • is 

reasonable and will effectuate the deterrent purpose of civil 

money assessments for violations of the Act •.• ". Without such 

support I cannot approve such a small penalty, which represents a 

50% reduction from the original amount when the gravity of a projected injury is fatal and the description of it as S & S and 

resulting from negligence remains unchanged. Under such 

circumstances the original assessment appears modest indeed. 

Citation No. 3070379 

This citation was issued for a violation of 30 C.F.R. 

§ 56.14003_because a multiple V-belt drive was not adequately 

guarde_d. __ The penalty was or.iginally assessed at $63 and the proposed settl~ment is for $31.50. The inspector designated the 

violation as- significant and substantial and he described gravity 

as reasonably likely to result in permanent disability. 

Negligence was assessed as moderate. 

744 
The Solicitor offers no support for his proposed settlement 

or for his assertion "that the proposed settlement. • • is reasonable and will effectuate the deterrent purpose of civil money 

assessments for violations of the Act ••• ". Without some justification I cannot approve such a small penalty, when the description of the violation as S & S and resulting from negligence 

remains unchanged. Here too, the settlement represents a 50% 

reduction from the original amount, which was modest to begin 

with. 

Discussion of Settlement Disapprovals 

It is well established that penalty proceedings before the 

Commission are de novo. Neither the Commission nor its Judges 

are bound by the-secretary's regulations or proposed penalties. 

Rather, they must determine the appropriate amount of penalty, if 

any, in accordance with the six criteria set forth in section 

llOCi) of the Act. 30 u. S. C. § 820Ci). Sellersburg Stone 

Company v. Federal Mine Safety and Health Review Commission, 

736 F.2d 1147, (7th Cir. 1984). Wilmot Mining Company, 9 FMSHRC 

686 (April 1987). U. S. Steel, 6 FMSHRC 1148 (May 1984). 

The Commission and its Judges bear a heavy responsibility in 

settlement cases pursuant to section llOCk) of the Act, 30 

U.S. c. § 820Ck), which provides: 

Ck) No proposed penalty which has been 

contested before the Commission under section 

105(a) shall be compromised, mitigated, or 

settled except which the approval of the 

Commission. * * * 

The legislative history makes clear 

Congress' intent in this respect: See s. Rep. 

No. 95-181, 95th Cong., 1st Sess.,~-45 

(1977), reprinted in Senate Subcommittee on 

Labor, Committee on Human Resources, 95th 

Cong., 2d Sess., Legislative History of the 

Federal Mine Safety and Health Act of 1977, 

at 632-633 Cl978>. 

In order to support his settlement recommendations, the 

Solicitor must present the Commission Judge with information 

sufficient to satisfy the six statutory criteria in section 

llOCi) with respect to the instant citations. I accept the 

Solicitor's statistics regarding history and in absence of any 

evidence to contrary, I accept his representations regarding good 

faith abatement and ability to continue in business. 

As already set forth, the information furnished by the 

Solicitor with respect to the violations which were not single 

penalty assessments, indicates substantial gravity. Also, the 

745 
single penalty assessments are already low. The Solicitor cannot 

obtain 50% penalty reductions without supporting his request with 

facts and explanations. Nowhere does the Solicitor discuss the 

factual circumstances for the subject citations. 

ORDER 

In light of .the foregoing, it is ORDERED that the 

recommended settlements be Disapproved. 

It is further ORDERED that within 30 days from the date of 

this order, the Solicitor submit sufficient information for me to 

make proper settlement determinations under the Act. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Felix J. Catena, Esq., Office of the Solicitor, u. s. Department 

of Labor, Room 3247 Federal Building, 300 North Los Angeles 

Street, Los Angeles, CA 90012 (Certified Mail) 

Mr. Louis Ramirez, Division Manager, Calspar Division, Steelhead 

Resources, Inc., 12402 Los Nietos Road, Santa Fe Springs, CA 

90670 (Certified Mail) 

Thomas Mascolino, Esq., Counsel, Trial Litigation, Office of the 

Solicitor, U. s. Department of Labor, 4015 Wilson Boulevard, Room 

414, Arlington, VA 22203 CHandcarried) 

/gl 

* U.S. GOVERNMENT PRINTING OFFICE: 198~ 2 I+ 1 - 1 5 5 ! 0 I+ 7 5 5 

746