JANUARY 1994 

COMMISSION DECISIONS AND ORDERS 

10-25-93 Mid-Continent Resources 

(previously unpbulished) 

01-03-94 Energy West Mining Company 

01-04-94 Keystone Coal Mining Corporation 

01-07-94 Jim Walter Resources v. Sec. Labor 

on behalf of James Johnson & UMWA 

01-10-94 Wyoming Fuel Company 

01-10-94 Sec. Labor on behalf of Perry Poddey 

v. Tanglewood Energy, Inc. 

01-26-94 Southmountain Coals & William Elkins 

01-28-94 Air Products and Chemicals, Inc. 

ADMINISTRATIVE LAW JUDGE DECISIONS 

01-03-94 

01-05-94 

01-05-94 

01-05-94 

01-05-94 

01-07-94 

01-07-94 

01-10-94 

01-11-94 

01-19-94 

01-19-94 

01-24-94 

01-25-94 

01-25-94 

01-25-94 

01-25-94 

01-26-94 

01-31-94 

Sec. Labor on behalf of James Hyles 

and others v. All American Asphalt 

Lynx Coal Company, Inc. 

Peabody Coal Company 

Peabody Coal Company 

Consolidation Coal Company 

Texasgulf Incorporated 

FMC Wyoming Corporation 

Buck Creek Coal Company, Inc. 

R B Coal Company, Inc. 

Cortez Gold Mines 

U.S. Steel Mining Company, Inc. 

Peabody Coal Company 

Island Creek Coal Company 

Mayo Resources, Incorporated 

Sec. Labor on behalf of James Johnson 

& UMWA v. Jim Walter Resources 

Sec. Labor on behalf of Perry Poddey 

v. Tanglewood Energy, Inc. 

Sec. Labor on behalf of James 

Weatherington v. Thomasville Stone 

and Lime Company 

Tanoma Mining Company, Inc. 

ii 

WEST 92-717 Pg. 1 

WEST 91-251 Pg. 4 

PENN 91-1480-R Pg. 6 

SE 93-127-D Pg. 17 

WEST 91-598-R Pg. 19 

WEVA 93-339-D Pg. 26 

VA 93-165 Pg. 28 

PENN 91-1488-R Pg. 28 

WEST 

KENT 

KENT 

KENT 

WEVA 

SE 

WEST 

LAKE 

KENT 

WEST 

WEVA 

KENT 

KENT 

KENT 

SE 

93-194-DM 

92-776 

93-318-R 

93-114 

93-5 

93-254-M 

93-239 

93-241 

93-244 

92-634-M 

93-11 

92-1079 

92-1034 

93-160 

93-127-D 

WEVA 93-339-D 

PENN 93-433-DM 

PENN 93-111 

Pg. 31 

Pg. 40 

Pg. 42 

Pg. 50 

Pg. 54 

Pg. 107 

Pg. 124 

Pg. 133 

Pg. 142 

Pg. 148 

Pg. 161 

Pg. 163 

Pg. 166 

Pg. 170 

Pg. 174 

Pg. 176 

Pg. 178 

Pg. 180 

JANUARY 1994 

Review was granted in the following cases during the month of Janua:r:y: 

Secreta:r:y of Labor, MSHA v. Energy West Mining Company, Docket No. 

WEST 91-251. (Judge Lasher, November 23, 1993). 

Secreta:r:y of Labor, MSHA v. Peabody Coal Company, Docket No. KENT 93-369. 

(Judge Amchan, December 30, 1993). 

Review was denied in the following cases during the month of Janua:r:y: 

Secreta:r:y of Labor, MSHA v. Materials Delive:r:y, Docket No. VA 93-69-M. 

(Judge Amchan, December 7, 1993). 

Slade Vanover v. Shamrock Coal Company, Docket No. KENT 93-359-D. (Judge Koutras, December 16, 1993) . 

Secreta:r:y of Labor, MSHA v. Soutbmountain Coal, Inc., and William R. Elkins, 

Docket No. VA 93-165, 166. (Judge Melick, Interlocuto:r:y Review of December 6, 

1993 Order) . 

i 

COMMISSION DECISIONS AND ORDERS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF IABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

October 25, 1993 

Docket No. WEST 92-717 

MID-CONTINENT RESOURCES, INC. 

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

ORDER 

BY THE COMMISSION: 

In this civil penalty proceeding, arising under Federal Mine Safety and 

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

the Secretary has proposed penalties for 20 citations and orders issued to 

Mid-Continent Resources, Inc. ("Mid-Continent"). The proposed penalties were 

reassessed by the Secretary as a result of the Commission's decision in 

Drummond Co .. Inc., 14 FMSHRC 661(May1992). On January 19, 1993, the 

Secretary and Mid-Continent filed with Administrative Law Judge August F. 

Cetti a Joint Motion to Approve Settlement ("Joint Motion"). The parties 

agreed to reduce the proposed penalty for each citation and order by 40%. 

Included in the Joint Motion was Order of Withdrawal No. 3412700, issued under 

section 104(d)(2) of the Mine Act, which charged Mid-Continent with a 

violation of 30 C.F.R. § 75.400. Judge Cetti approved the settlement on 

February 8, 1993. 

On September 7, 1993, the Secretary filed with the Commission's Docket 

Office a "Corrected Joint Motion to Approve Settlement" ("Corrected Motion"). 

The Corrected Motion states that "[b]y error, Order No. 3412700 issued May 1, 

1990, for an alleged violation of 30 C.F.R. § 75.400, which is the subject 

matter of a discretionary review now pending and at issue before the Federal 

Mine Safety and Health Review Commission ... was included in this reassessment 

case." The parties further state that "this agreement does not include Order 

No. 3412700 issued May 1, 1990, which is pending" review. 

The judge's jurisdiction over these cases terminated when his Decision 

Approving Settlement was issued on February 8, 1993. Commission Procedural 

Rule 69(b), 58 Fed. Reg. 12158, 12171 (March 3, 1993), to be codified at 29 

C.F.R. § 2700.69(b) (1993). Under the Mine Act and the Commission's 

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

l 
petition for discretionary review with the Commission within 30 days of its 

issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.70(a). Neither party 

filed a petition for discretionary review within the 30-day period and the 

Commission did not sua sponte direct this case for review. Thus, the judge's 

order became a final decision of the Commission 40 days after its issuance. 

30 U.S.C. § 823(d)(l). Under these circumstances, we deem the Corrected 

Motion to be a request for relief from a final Commission decision 

incorporating a late-filed petition for discretionary review. See, ~. 

Island Creek Coal Co., 15 FMSHRC 962, 963 (June 1993). 

Guided by Fed. R. Civ. P. 60(b)(l) & (6), the Commission has afforded 

relief from final judgments on the basis of inadvertence, mistake, and other 

reasons justifying relief. See,~. Klamath Pacific Corp., 14 FMSHRC 535, 

536 (April 1992). The Corrected Motion states that the parties settled Order 

No. 3412700 in error. Accordingly, we conclude that the parties should be 

granted relief from Judge Cetti's Decision Approving Settlement. 

For the reasons set forth above, we reopen this proceeding, grant ·the 

Corrected Motion and vacate that part of the Judge's decision that approved 

settlement of Order No. 3412700. 

Arlene Holen: Chairman 

Jo7eA~Commissioner ~(L.~L / 

.'-f (Y L7 / cf.bl:-~ 7 LLt_~, L. Clair Nelson, Commissioner 

2 
Distribution 

Administrative Law Judge August Cetti 

Federal Mine Safety & Health Review Commission 

1244 Speer Boulevard, Suite 280 

Denver, Colorado 80204 

Margaret A. Miller, Esq. 

Off ice of the Solicitor 

U.S. Department of Labor 

1585 Federal Bldg. 

1961 Stout St. 

Denver, CO 80294 

Edward Mulhall, Jr., Esq. 

Delaney & Balcomb, P.C. 

P.O. Drawer 790 

Glenwood Springs, CO 81602 

3 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ENERGY WEST MINING COMPANY, 

Respondent 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

January 3, 1994 

Docket No. WEST 91-251 

DIRECTION FOR REVIEW AND ORDER APPROVING PENALTY 

The joint petition for discretionary review filed by the Secretary of 

Labor and Energy West Mining Company ("Energy West") is granted. 

This case had been remanded to the administrative law judge for 

reanalysis of whether Energy West's violation was significant and substantial 

("S&S") according to the criteria set forth in Mathies Coal Co., 6 FMSHRC 1 

(January 1984). The judge determined that the violation was not S&S but he 

failed to reassess the civil penalty. In their petition, the parties request 

that the Commission assess a penalty and have stipulated that $100 would be an 

appropriate penalty according to the six criteria set forth in section llO(i) 

of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §820(i)(l988). 

In the circumstances of this case and in the interest of judicial 

economy, it is appropriate for the Commission to assess the penalty. See, 

~. Birchfield Minin~ Co., 11 FMSHRC 1428, 1429-30 (August 1989); Southern 

Ohio Coal Co., 4 FMSHRC 1459, 1465 (August 1982). Accordingly, upon review of 

the record and consideration of the six criteria, we approve the stipulated 

penalty of $100. 

4 
Energy West is ordered to pay a civil penalty of $100 to the Secretary 

of Labor within 30 days of the date of this decision. Upon receipt of 

payment, this proceeding is dismissed. 

' .· \. 

L. Clair Nelson, Commissioner 

Distribution 

Tana M. Adde, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd., #400 

Arlington, VA 22203 

Thomas C. Means, Esq. 

Crowell & Moring 

1001 Pennsylvania Ave., N.W. 

Washington, D.C. 20004 

Administrative Law Judge Michael Lasher, Jr. 

Federal Mine Safety & Health Review Commission 

1244 Speer Boulevard, Suite 280 

Denver, Colorado 80204 

5 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

January 4, 1994 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

KEYSTONE COAL MINING CORPORATION 

Docket Nos. PENN 91-1480-R 

PENN 91-1454-R 

PENN 92-54-R 

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

DECISION 

BY THE COMMISSION: 

These contest proceedings arise under the Federal Mine Safety and Health 

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

is whether three citations alleging violations of the respirable dust 

standard, 30 C.F.R. § 70.lOO(a), issued to Keystone Coal Mining Corporation 

("Keystone") pursuant to a "spot inspection program" instituted by the 

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

invalid because MSHA failed to adopt the program through notice-and-comment 

rulemaking. 1 Following an evidentiary hearing, Administrative Law Judge 

1 Section 70.lOO(a) sets forth the following statutory language of 

section 202(b)(2) of the Mine Act, 30 U.S.C. § 842(b)(2): 

Each operator shall continuously maintain the 

average concentration of respirable dust in the mine 

atmosphere during each shift to which each miner in 

the active workings ... is exposed at or below 2.0 

milligrams of respirable dust per cubic meter of 

air .... 

(emphasis added). Section 202(f) of the Mine Act provides: 

For the purpose of this [title], the term 

"average concentration" means a determination which 

accurately represents the atmospheric conditions with 

regard to respirable dust to which each miner in the 

(continued ... ) 

6 
Avram Weisberger sustained the contests and vacated the citations, concluding 

that the spot inspection program, upon which the citations were based, was 

procedurally invalid. 14 FMSHRC 2017 (December 1992)(ALJ). The Commission 

granted the Secretary of Labor's petition for discretionary review, permitted 

the American Mining Congress ("AMC") to participate as amicus curiae and heard 

oral argument. For the reasons that follow, we affirm the judge's decision. 

I. 

Background 

A. Factual and Procedural Background 

On July 17, 1971, the Secretary of the Interior and the Secretary of 

Health, Education, and Welfare published in the Federal Register, pursuant to 

section 202(f) of the Coal Act, a finding that the sampling of mine atmosphere 

during a single shift would not accurately measure the average concentration 

of respirable dust (the "1971 finding"). This notice states in part: 

Notice is hereby given that, in accordance with 

section 101 of the Act, and based on the data 

summarized ... , the Secretary of the Interior and the 

Secretary of Health, Education, and Welfare find that 

single shift measurement of respirable dust will not, 

after applying valid statistical techniques to such 

measurement, accurately represent the atmospheric 

conditions to which the miner is continuously exposed. 

In April 1971, a statistical analysis was 

conducted by the Bureau of Mines, using as a basis the 

current basic samples for the 2,179 working sections 

in compliance with the dust standard on the date of 

the analysis .... [R]esults of the comparisons ... 

[show] that a single shift measurement would not, 

1 ( ... continued) 

active workings of a mine is exposed (1) as measured, 

during the 18 month period following December 30, 

1969, over a number of continuous production shifts to 

be determined by the Secretary and the Secretary of 

Health and Human Services, and (2) as measured 

thereafter, over a single shift only, unless the 

Secretary and the Secretary of Health and Human 

Services find, in accordance with the provisions of 

section [101 of this Act], that such single shift 

measurement will not, after applying valid statistical 

techniques to such measurement, accurately represent 

such atmospheric conditions during such shift. 

30 U.S.C. § 842(f). Section 202(f) of the Mine Act was carried over without 

significant change from section 202(f) of the Federal Coal Mine Health and 

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

7 
after applying valid statistical techniques, 

accurately represent the atmospheric conditions to 

which the miner is continuously exposed. 

36 Fed. Reg. 13286 (July 17, 1971). 

Keystone operates the Margaret No. 11 and Emilie No. 1 underground coal 

mines in Pennsylvania. On August 14, August 21, and September 20, 1991, MSHA 

Inspector Brady Cousins issued citations to Keystone alleging violations of 30 

C.F.R. § 70.lOO(a)(n.l supra), because respirable dust concentrations of 4.4 

milligrams per cubic meter of air ( "mg/m3 ") , 2. 8 mg/m3 , and 4. 7 mg/m3 had been 

found. 14 FMSHRC at 2024. Each citation was based upon a respirable dust 

sample taken by MSHA during a single shift on the previous day. G. Exs. 1, 3, 

5. The citations were terminated after Keystone submitted three sets of five 

samples, each with an average dust concentration below 2.0 mg/m3 • Keystone 

contested the citations and the matter proceeded to hearing before Judge 

Weisberger. 

Judge Weisberger concluded that the spot inspection program was invalid 

because it had not been promulgated through notice-and-comment rulemaking. 14 

FMSHRC at 2024. He determined that the 1971 finding precluded the Secretary 

from making compliance determinations based on single-shift samples. Id. at 

2024-25. The judge also determined that, when promulgating final respirable 

dust regulations in 1980, the Secretary had not superseded the 1971 finding. 

Id. at 2025-26. The judge concluded that, because the 1971 finding had been 

made in accordance with the notice-and-comment rulemaking provisions of 

section 101 of the Coal Act, it could be rescinded only through the 

corresponding rulemaking provisions of section 101 of the Mine Act, 30 U.S.C. 

§ 811. Id. at 2027. Applying principles articulated in Drummond Co., 14 

FMSHRC 661 (May 1992), the judge also determined that the spot inspection 

program had been implemented in contravention of rulemaking provisions of the 

Administrative Procedure Act, 5 U.S.C. § 551 et seq. (1988)("APA"). Id. at 

2027-29. Accordingly, ·the judge vacated the citations. Id. at 2029-30. 

B. Enforcement of Respirable Dust Standards 

In order to determine compliance with the Mine Act's respirable dust 

standards, MSHA and mine operators collect samples of the atmosphere in 

underground coal mines. 

1. MSHA's sampling program 

a. Multiple-shift sampling 

In enforcing the respirable dust standards under the Coal Act and Mine 

Act, MSHA and its predecessor agency in the Department of the Interior have, 

for more than 20 years, based determinations of non-compliance on multipleshift respirable dust samples. Tr. I 92; Tr. II 31; G. Ex. 17, p. 24 (1992 

MSHA Task Group Report); K. Ex. 18, pp. 1.11-1.13. (1989 MSHA Handbook for 

inspectors). The operator is cited if the average dust concentration of five 

8 
samples, 2 i.e. taken over five shifts, exceeds the applicable dust standard. 3 

K. Ex. 18, pp. 1.11-1.13; Tr. I 120-25. Noncompliance specifically cannot be 

determined on the basis of a single-shift sample. K. Ex. 18, p. 1.12; Tr. I 

120. Samples are voided for various reasons, including the presence of 

oversized particles, larger than 10 microns. G. Ex. 17, p. 19; K. Ex. 18, pp. 

1.9-1.10. If a filter shows a weight gain of 1.8 mg. or greater over its presample weight, an inspector examines it for oversized particles. Tr. I 97, 

126; K. Ex. 19, p. IV-11 (MSHA Guidance Document). 

b. Single-shift sampling: the spot inspection program 

Since July 15, 1991, MSHA has conducted spot inspections at selected 

mines. Tr. II 61, G. Ex. 12. Respirable dust has been sampled for five 

occupations in each mechanized mining unit, during one full eight-hour 

shift. 4 G. Exs. 12, 14. MSHA developed a table for inspectors, setting 

forth the level of a single-shift dust sample that would require an inspector 

to issue a citation. G. Ex. 12, pp. 2-3. Inspectors were instructed not to 

examine samples for oversized particles and not to void samples except for 

pump malfunctions. Tr. I 162-63; Tr. II 29, 33-36; Tr. III 16; G. Ex. 14, p. 

2. These spot inspection procedures were not published in the Federal 

Register, Code of Federal Regulations, in MSHA's Program Policy Manual, or in 

any other public document. 5 

2 Two to four samples can give rise to a citation if the average 

concentration is such that additional samples could not bring a five-shift 

average within the standard. K. Ex. 18, p. 1.12; Tr. I 120-125. 

3 If a mine has significant quartz in the atmosphere, its applicable 

dust standard may be lower than 2.0 mg/m3 • 30 C.F.R. § 70.101. 

4 Following MSHA's issuance of numerous citations for alleged tampering 

with respirable dust samples, the Secretary of Labor, in April 1991, directed 

MSHA to review the respirable dust program and to make recommendations for 

improving it. G. Ex. 17, p. 5. The Assistant Secretary for Mine Safety and 

Health formed the Coal Mine Respirable Dust Task Group, which developed the 

spot inspection program. G. Ex. 17, pp. 5-6. Part I of the program 

established the spot inspection system, which included collection of dust 

samples on a single-shift basis, review of dust control plans and sampling 

parameters, and interviews of mine personnel; Part II established monitoring 

of operators' sampling activities. G. Exs. 12, 13. 

5 MSHA issued an information bulletin announcing that nearly 600 mines 

had been targeted for spot inspections to provide the Task Group with data for 

improving the sampling program. G. Ex. 18, pp. 1-2. This bulletin also 

stated; "Although the primary purpose of the spot inspection program is to 

evaluate current mining procedures in order to improve the overall dust 

sampling program, ... MSHA inspectors will write citations on safety or health 

violations they may find." G. Ex. 18, p. 2. 

9 
2. Operator sampling program: multiple shift sampling 

Pursuant to 30 C.F.R. Part 70, operators are required to collect, 

bimonthly, designated occupation dust samples over five full shifts for each 

mechanized mining unit. 6 30 C.F.R. §§ 70.201, 70.207. The five samples must 

be collected on consecutive normal production shifts or normal production 

shifts on consecutive days. Section 70.207. The samples are submitted to 

MSHA for analysis and compliance determinations. 30 C.F.R. § 70.209; G. Ex. 

17, p. 16. Multiple-shift sampling by operators was not affected by MSHA's 

spot inspection program. 

II. 

Disposition 

A. Whether the Spot Inspection Program Required Rulemaking under 

Section 202(f) 

The Secretary argues that the judge erred in finding that rulemaking was 

required under section 202(f) of the Mine Act for implementation of the spot 

inspection program. He contends that the spot inspection program did not 

rescind the 1971 finding and, alternatively, that rulemaking was not required 

under the Mine Act because section 202(f) requires rulemaking only if the 

Secretary finds that single-shift sampling will not accurately measure 

respirable dust exposure. Keystone and AMC respond, in essence, that the spot 

inspection program was an attempt to circumvent the 1971 finding, and that the 

1971 finding constitutes a legislative-type rule that may be amended only 

through notice-and-comment rulemaking. 

1. The spot inspection program attempted to rescind the 1971 

finding 

The Secretary contends that the 1971 finding pertained to operator 

sampling and that the spot inspection program involves only MSHA sampling and, 

therefore, the 1971 finding and the spot inspection program are not 

contradictory. 7 The 1971 finding was issued pursuant to section 202(f) of 

6 A designated occupation is the work position determined to have the 

greatest respirable dust concentration. 30 C.F.R. § 70.2(f). 

7 Citing the review restrictions in section 113(d)(2)(A)(iii) of the 

Act, 30 U.S.C. § 823(d)(2)(A)(iii), Keystone argues that the Secretary has 

improperly raised this argument for the first time on review and that the 

Commission may not consider it. Although the Secretary did not present this 

specific argument before the judge, the Secretary had argued that the spot 

inspection program and the 1971 finding differed. S. Post-Hearing Br. at 23-

25. On review, the Secretary has essentially enlarged that contention by 

presenting another reason to show that they differ. The arguments raised by 

the Secretary on review are sufficiently related to those presented to the 

judge that, in effect, they were passed on by the judge. See Dewey v. Des 

Moines, 173 U.S. 193, 197-98 (1899); United States v. Speers, 382 U.S. 266, 

(continued ... ) 

10 
the Coal Act, which defined the phrase "average concentration" of respirable 

dust for purposes of Title II. This title was carried over to Title II of the 

Mine Act, which includes the mandatory standards for respirable dust in 

underground coal mines. Title II applies to both operator sampling and to 

MSHA actions to ensure compliance, including sampling by MSHA. Section 202(g) 

specifically provides for MSHA spot inspections. 8 Nothing in section 202(f) 

or section 202(g) suggests that section 202(f) applies differently to MSHA 

sampling. Thus, the 1971 finding, issued for purposes of Title II, applies 

broadly to both MSHA and operator sampling of mine atmosphere. 

A consistent regulatory history over 20 years also belies MSHA's current 

assertion that the 1971 finding applied only to operator sampling. MSHA 

manuals indicate that, apart from the spot inspections begun in 1991, MSHA has 

never based determinations of non-compliance on single-shift samples. See K. 

Ex. 18, pp. 1.11-1.13 (1989 MSHA Handbook for inspectors); K. Ex. 21, pp. II47 through II-54 (1978 MSHA Underground Manual for inspectors). 

We reject the Secretary's additional contention that the spot inspection 

program did not supersede the 1971 finding because the finding pertained to 

compliance determinations while the program pertained to a broad perspective 

on dust exposure in mining. It is clear that the spot inspection program also 

resulted in compliance determinations and the issuance of citations -- as the 

present case illustrates. 

Finally, we reject the Secretary's argument that the spot inspection 

program did not rescind the 1971 finding because the finding had already been 

superseded by the preamble to the Secretary's final respirable dust rules 

issued in 1980. 9 The 1980 preamble contains no indication that a new finding 

7 ( ••• continued) 

277 n.22 (1965); Beech Fork Processing. Inc., 14 FMSHRC 1316, 1320-21 (August 

1992)(citations omitted). Therefore, we consider the argument. 

8 Section 202(g) of the Mine Act, 30 U.S.C. § 842(g), was carried over 

without significant change from the Coal Act. 

9 In pertinent part, the preamble states: 

The Secretary of the Interior and Secretary of 

Health, Education, and Welfare conducted continuous 

multi-shift sampling and single-shift sampling and, 

after applying valid statistical techniques, 

determined that a single-shift respirable dust sample 

should not be relied upon for compliance determinations when the respirable dust concentration being 

measured was near 2.0 mg/m3 • Accordingly, the 

Secretary of the Interior and the Secretary of Health, 

Education, and Welfare prescribed consecutive multishift samples to enforce the respirable dust standard. 

45 Fed. Reg. 23990, 23997 (April 8, 1980). 

11 
on single-shift sampling was being made under section 202(f) of the Mine Act. 

Indeed, the preamble as a whole is replete with language indicating that the 

final respirable dust standards contemplate multiple-shift samples. See, 

~. 45 Fed. Reg. at 23997. (Multiple samples "upon which compliance 

determinations are made will more accurately represent dust in the mine 

atmosphere than would the results of only a single sample .... ") The 1980 

preamble and regulations reaffirmed the 1971 finding that multiple-shift 

samples were more reliable than single-shift samples for determining 

compliance with applicable dust standards. 10 Moreover, MSHA's subsequent 

enforcement actions continued to be based exclusively on multiple-shift 

sampling until July 1991. 

We conclude that the spot inspection program, in basing compliance 

determinations on single-shift samples, attempted to rescind the 1971 finding 

in an improper manner. Moreover, as discussed below, we agree with the judge 

that the attempted rescission was invalid because it was not effected through 

formal rulemaking. 

2. Notice-and-comment rulemaking is required for rescission of 

the 1971 finding 

The Secretary argues, in the alternative, that section 202(f) of the 

Mine Act requires rulemaking in accordance with section 101 of the Act only 

when a determination is made that single-shift sampling is not a reliable 

means of testing atmospheric conditions. S. Br. at 15-16. Invoking Chevron 

U.S.A .. Inc. v. Natural Resources Defense Council. Inc., 467 U.S. 837, 842 

(1984), the Secretary contends that this is the clear and unambiguous meaning 

of section 202(f), and that the Commission must give effect to it. S. Br. at 

16-17. 

Generally, the first inquiry in statutory construction is "whether 

Congress has directly spoken to the precise question at issue." Chevron, 467 

U.S. at 842. If a statute is clear and unambiguous, effect must be given to 

its language. Id. at 842-43. Deference to an agency's interpretation of a 

statute may not be applied "to alter the clearly expressed intent of 

Congress." K Mart Corp. v. Cartier. Inc., 486 U.S. 281, 291 (1988)(citations 

omitted). Traditional tools of construction, including examination of a 

statute's text and legislative history, may be employed to determine whether 

"Congress had an intention on the precise question at issue," which must be 

10 AMC challenged the 1980 respirable dust regulations on the basis of 

inherent sampling variability. The Tenth Circuit Court of Appeals upheld the 

regulations, stating: 

The Secretary did take steps to reduce the potential 

for variability. The rule provides for multiple shift 

sampling.... All compliance determinations are based 

on the average dust concentration of five samples. 

American Mining Congress v. Marshall, 671 F.2d 1251, 1259 (10th Cir. 

1982)(citations omitted). 

12 
given effect. Coal Employment Project v. Dole, 889 F.2d 1127, 1131 (D.C. Cir. 

1989)(citations omitted). The examination to determine whether there is such 

a clear Congressional intent is commonly referred to as a "Chevron I" 

analysis. Id. at 1131. If, however, a statute is ambiguous or silent on a 

point in question, a second inquiry, a "Chevron II" analysis, is required to 

determine whether an agency interpretation of the statute is a reasonable one. 

Id. 

Section 202(f) expressly requires notice-and-comment rulemaking with 

regard to a finding that would reject single-shift sampling. Congress's 

evident intent, that such a finding be made in accordance with notice-andcomment rulemaking, bespeaks an equal intent that, once such a finding is 

made, it may be rescinded only through the same formal process. See 

Homemakers North Shore. Inc. v. Bowen, 832 F.2d 408, 413 (7th Cir. 1987). The 

Secretary's argument fails to take into account the fact that the 1971 finding 

was made. 

In the alternative, if section 202(f) is not plain, a Chevron II 

analysis reveals that the Secretary's interpretation of it as asserted in this 

litigation is not a reasonable one. Section 202(f) addresses the accurate 

measurement of respirable dust in a mine's atmosphere and the requirement for 

notice-and-comment rulemaking if single-shift measurement will not provide 

such accurate measurement. The Secretary's interpretation here rests on his 

inference that sampling over a single shift will accurately measure dust 

exposure. But under the earlier, identical language of the Coal Act, the 

Secretaries, in the 1971 finding, unequivocally rejected single-shift sampling 

on the grounds that it does not "accurately represent the atmospheric 

conditions to which the miner is continuously exposed." 36 Fed. Reg. at 

13286. Further, as discussed above, the preamble to the Secretary's final 

respirable dust rules reaffirmed that multiple-shift samples were more 

reliable than single-shift samples. Except for inspections conducted under 

the spot inspection program, the Secretary continues, in both the operator 

sampling program and the MSHA sampling program, to base compliance 

determinations on multiple-shift sampling. 11 The Secretary's litigation 

position here is inconsistent with his other formal statements issued in 

accordance with notice-and-comment procedures and with his other enforcement 

actions. 

We agree with the judge that the 1971 finding may be rescinded only 

according to notice-and-comment rulemaking requirements. 

B. Whether the Spot Inspection Program is Exempt from APA Rulemaking 

Requirements 

The Secretary argues that the judge erred in concluding that rulemaking 

was required under the APA because the spot inspection program is exempt as a 

rule of agency practice or procedure or, alternatively, as an interpretative 

11 30 C.F.R. §§ 70.201, 70.207; K. Ex. 18, pp. 1.11-1.13; G. Exs. 12, 

13. 

13 
rule. 12 S. Br. at 18-29. Keystone and AMC respond that the program is not 

procedural because it has a substantial impact on operators and that it is not 

interpretive because it seeks to change the definition of "average 

concentration" rather than merely to explain or clarify existing law. K. Br. 

at 21-23; AMC Br. at 16-17. 

Section 553 of the APA requires agencies to provide notice of proposed 

rulemaking and an opportunity for public comment prior to a rule's 

promulgation, modification, amendment, or repeal. 5 U.S.C. § 553. Under the 

APA, a "rule" is defined as "an agency statement of general or particular 

applicability and future effect designed to implement, interpret, or prescribe 

law or policy or describing the organization, procedure, or practice 

requirements of an agency .... " 5 U.S. C. § 551(4). The APA provides, however, 

that the notice-and-comment process does not apply to "interpretive rules, 

general statements of policy, or rules of agency organization, procedure, or 

practice." 5 U.S.C. § 553(b)(3)(A). 

1. Spot inspection program is not a procedural rule 

In Drummond, the Commission explained the procedural rule exemption to 

APA requirements: "it covers agency actions that do not themselves alter the 

rights or interests of parties, although [they] may alter the manner in which 

parties present themselves or their viewpoints to the agency." 14 FMSHRC at 

688, quoting Batterton v. Marshall, 648 F.2d 694, 707 (D.C. Cir. 1980). The 

exception does not apply where agency action encroaches on substantial private 

rights and interests. 14 FMSHRC at 688 (citation omitted). 

The spot inspection program does not merely alter the manner in which 

parties present themselves or their viewpoints, nor does it merely set 

enforcement strategy or targets. Rather, it changes the standard of review 

for determining compliance with respirable dust requirements, resulting in a 

substantial impact on the rights and interests of operators. See Brown 

Express. Inc. v. United States, 607 F.2d 695, 702 (5th Cir. 1979); National 

Ass'n of Home Health Agencies v. Schweiker, 690 F.2d 932, 949 (D.C. Cir. 

1982), cert. denied, 459 U.S. 1205 (1983). Under the spot inspection program, 

an operator can be cited in circumstances under which it otherwise could not 

be cited. 

Contrary to the Secretary's argument (S. Br. at 21), the APA's 

procedural rule exemption does not apply to the spot inspection program under 

American Hosp. Ass'n v. Bowen, 834 F.2d 1037 (D.C. Cir. 1987). The directives 

at issue in American Hosp. Ass'n improved the chances of detecting noncompliance with federal reimbursement standards by increasing the "frequency 

12 Keystone argues that the Secretary makes this argument for the first 

time on review. APA exemptions were explicitly raised before the judge by 

Keystone and were implicitly raised by the Secretary. K. Post-Hearing Br. at 

18-21 & n.11; S. Reply Br. to ALJ at 8. The argument made by the Secretary on 

review is substantially related to issues that were before the judge. See n.7 

supra. Accordingly, we consider the Secretary's argument. 

14 
and focus of . . . review. 1113 Id. at 1050. The court based its determination 

that the procedural rule exemption applied on the fact that this was "not a 

case in which HHS has urged its reviewing agents to utilize a different 

standard of review in specified medical areas .... " Id. at 1051. It noted 

further that "[w]ere HHS to have inserted a new standard of review governing 

... scrutiny of a given procedure ... , its measures would surely require 

notice and comment .... " Id. In this case, the Secretary has sought to 

establish a new standard of review in determining compliance with the 

respirable dust requirements based on single-shift samples and on altered 

criteria for determining valid samples, a standard that may not accurately 

determine the quantity of respirable dust in the atmosphere. 14 

2. Spot inspection program is not an interpretive rule 

In Drummond, the Commission stated that an interpretive rule is an 

agency statement "as to what [the agency] thinks the statute or regulation 

means," which "seeks merely to clarify or explain existing law." 14 FMSHRC at 

684-85 (citations omitted). In American Mining Congress v. MSHA, 995 F.2d 

1106, 1112 (D.C. Cir. 1993), the U.S. Court of Appeals for the D.C. Circuit 

stated, in relevant part, that a purported interpretive rule has legal effect 

and is, therefore, substantive if it effectively amends a prior legislative 

rule. 

The spot inspection program does not, as argued by the Secretary, merely 

interpret section 202(f). S. Br. at 26. Rather, as we have shown, the 

program attempts to rescind the 1971 finding that single-shift samples are not 

accurate in determining the "average concentration" of respirable dust in a 

mine. The 1971 finding was issued as a legislative rule as required under 

section 202(f), and the spot inspection program attempted substantively to 

rescind the finding. Accordingly, we reject the Secretary's contention that 

the spot inspection program is exempt from APA rulemaking requirements as an 

interpretive rule. 

13 The operator in this case has not challenged the selection of mines 

for spot inspection. Thus, the Secretary's reliance on United States Dep't of 

Labor v. Kast Metals Corp., 744 F.2d 1145 (5th Cir. 1984), which addresses 

targeting of employers for inspection under the Occupational Safety and Health 

Act, is also misplaced. 

14 The 1971 finding unequivocally rejected single-shift sampling on the 

grounds that such sampling was inaccurate, and the preamble to the Secretary's 

final respirable dust rules reaffirmed that multiple-shift samples were more 

reliable than single-shift samples. Also, as noted earlier, under the spot 

inspection program inspectors were instructed not to examine samples for 

oversized particles and not to void samples except for pump malfunctions. Tr. 

I 162-63; Tr. II 29, 33-36; Tr. III 16; G. Ex. 14, p. 2. 

15 
III. 

Conclusion 

The spot inspection program constitutes a legislative-type rule. The 

1971 finding, which it seeks to contravene, was issued in accordance with the 

Mine Act's notice-and-comment rulemaking procedures and may be rescinded only 

in the same manner. We agree with the judge's determination that, because the 

Secretary failed to implement the spot inspection program in accordance with 

section 202(f) of the Mine Act and the rulemaking provisions of the APA, 

compliance determinations under the program are invalid. For the foregoing 

reasons, we affirm the judge's vacation of the three citations issued under 

the Secretary's spot inspection program. 

Distribution 

Susan Long, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

R. Henry Moore, Esq. 

Buchanan Ingersoll 

600 Grant St., USX Tower 

57th Floor 

Pittsburgh, PA 15219 

Kevin Burns, Esq. 

Edward M. Green, Esq. 

American Mining Congress 

1920 N Street, N.W. 

Washington, D.C. 20036 

Arlene Holen, Chairman 

d-c_~-:,~-:!4,£_y Richard V. Backley, Commissioner 

~d,~ o;ce:DOYle, ComrniSSiOTl;r 

L. Clair Nelson, Commissioner 

Administrative Law Judge Avram Weisberger 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, VA 22041 

16 
FEDERAL .DINE SAFETY AND HEALTH REVIEW C01UllSSION 

1730 K Street NW, 6th Floor 

Washington, D.C. 20006 

January 7, 1994 

JIM WALTER RESOURCES, INC. 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

on behalf of JAMES JOHNSON 

and 

UNITED MINE WORKERS OF AMERICA 

Docket No. SE 93-127-D 

ORDER 

On December 16, 1993, Jim Walter Resources, Inc. ("Jim Walter"), filed a 

petition with the Federal Mine Safety and Health Review Commission under 

Section 113(d)(2) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 823(d)(2)(1988). The Administrative Law Judge presiding in this 

discrimination proceeding has not yet issued his final order on damages. The 

Commission has dismissed as premature petitions seeking review of a judge's 

decision finding liability in discrimination cases before the decision on 

damages is issued. See Kenneth A. Wiggins v. Eastern Associated Coal Co., 

5 FMSHRC 1668 (October 1983). Jim Walter's petition is premature and is 

dismissed without prejudice. Jim Walter may file a petition for discretionary 

review after issuance of the judge's decision on damages. 

~~man 

L. Clair Nelson, Commissioner 

17 
Distribution 

David M. Smith, Esq. 

J.A. Truitt, Esq. 

Maynard, Cooper & Gale, P.C. 

1901 Sixth Avenue North 

2400 AmSouth/Harbert Plaza 

Birmingham, AL 35203 

Stanley Morrow, Esq. 

Jim Walter Resources. Inc. 

P. 0. Box 13 3 

Brookwood, AL 35444 

William Lawson, Esq. 

Office of tile Solicitor 

U.S. Department of Labor 

150 Chambers Bl<lg. 

ilighpoint Office Center 

100 Centerview Drive 

BirEJ.ingharn AL 35216 

Robert Strapp, Esq. 

UMvJA 

900 15th St., N.W. 

Washington, D.C. 20005 

Administrative Law Judge William Fauver 

Federal Mine Safety and Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, VA 22041 

18 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

WYOMING FUEL COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

January 10, 1994 

Docket Nos. WEST 91-598-R 

WEST 92-335 

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

DECISION 

BY THE COMMISSION: 

This consolidated contest and civil penalty proceeding arises under the 

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

("Mine Act" or "Act"). Following an evidentiary hearing, Administrative Law 

Judge John J. Morris found that Wyoming Fuel Company ("Wyoming Fuel") violated 

its ventilation plan and that the violation was significant and substantial in 

nature ( "S&S") . 1 14 FMSHRC 1758 (October 1992) (ALJ). The Commission granted 

Wyoming Fuel's petition for discretionary review, which challenges these 

findings, and heard oral argument. For the reasons that follow, we affirm the 

judge's decision. 

I. 

Factual and Procedural Background 

Wyoming Fuel owns and operates the Golden Eagle Mine, an underground 

coal mine, near Trinidad, Colorado. On July 28, 1991, Inspector Melvin 

Shiveley of the Department of Labor's Mine Safety and Health Administration 

("MSHA"), accompanied by Wyoming Fuel fireboss 2 Gene Castillo, inspected the 

northwest longwall of the mine. 

1 The S&S terminology is taken from section 104(d)(l) of the Act, 30 

U.S.C. § 814(d)(l), which distinguishes as more serious in nature any 

violation that "could significantly and substantially contribute to the cause 

and effect of a ... mine safety or health hazard .... " 

2 A fireboss is "[a] person designated to examine the mine for gas and 

other dangers." Bureau of Mines, U.S. Dept. of Interior, Dictionary of 

Mining. Mineral and Related Terms at 429 (1968). 

19 
Inspector Shiveley observed water on the headgate side of the longwall 

between crosscuts 70 and 75 in the No. 3 entry, between crosscuts 73 and 74 in 

the No. 2 entry, and in various places in the No. 1 and No. 2 bleeder rooms. 

On the tailgate side, he found water "basically everywhere" in the No. 1 and 

No. 2 bleeder rooms. Tr. 21. Shiveley determined that the water was 

generally between 4 and 28 inches in depth. Castillo, wearing waders, walked 

in waist-deep water in the No. 2 bleeder room between crosscuts 68 and 69. On 

the basis of these observations, Shiveley concluded that Wyoming Fuel violated 

its approved ventilation plan, which requires that pumps be installed to 

remove water accumulations presenting a hazard. The inspector issued an order 

pursuant to section 104(d)(2), 30 U.S.C. § 814(d)(2), alleging a violation of 

30 C.F.R. § 75.316, which requires the adoption of ventilation plans. 3 The 

order stated that water conditions would prevent the fireboss from safely 

examining and evaluating the performance of the bleeder system. Shiveley 

designated the violation S&S and determined that it was the result of Wyoming 

Fuel's unwarrantable failure to comply with the cited ventilation plan 

provision. 

The judge found that the water accumulations were hazardous and credited 

the testimony of Shiveley and other MSHA witnesses as to the nature of the 

hazards presented. 14 FMSHRC at 1761-63. The judge determined that the 

testimony of Wyoming Fuel's witnesses regarding the "water accumulations and 

related hazards" was "not persuasive." 14 FMSHRC at 1762. In addition, the 

judge noted that Wyoming Fuel's preshift examiners' reports listed the water 

in the bleeders as a "hazardous condition." Id. The judge also determined 

that the violation was S&S, but that it was not the result of Wyoming Fuel's 

unwarrantable failure. 14 FMSHRC at 1764-65. 

3 Section 75.316 states: 

A ventilation system and methane and dust 

control plan and revisions thereof suitable to the 

conditions and the mining system of the coal mine and 

approved by the Secretary shall be adopted by the 

operator and set out in printed form. . . . The plan 

shall show the type and location of mechanical 

ventilation equipment installed and operated in the 

mine, such additional or improved equipment as the 

Secretary may require, the quantity and velocity of 

air reaching each working face, and such other 

information as the Secretary may require. Such plan 

shall be reviewed by the operator and the Secretary at 

least every 6 months. 

The coal mine ventilation standards were significantly revised, effective 

August 16, 1992. See 57 Fed. Reg. 20868 (May 15, 1992). References in this 

decision are to the Secretary's former ventilation standards, found at 30 

C.F.R. Part 75.300 et seq. (1991), which were in effect at the time of the 

alleged violation. 

20 
II. 

Disposition of Issues 

A. Whether Wyoming Fuel violated the ventilation plan provision 

Wyoming Fuel submits that it did not violate its ventilation plan 

because: (1) pumps had been installed and operated; (2) the weekly examiner 

did not need to travel in areas of significant accumulations of water to check 

the integrity of the bleeder system; 4 and (3) the water did not present a 

hazard in any event. The Secretary argues that the judge correctly determined 

that Wyoming Fuel violated its ventilation plan by permitting water to 

accumulate in sufficient quantity and depth to present a hazard. 

Wyoming Fuel's ventilation plan requires that "[p]umps will be installed 

to remove water that accumulates in sufficient quantity or depth to present a 

hazard." Ex. S-2. It is undisputed that Wyoming Fuel had installed pumps and 

that they had been operating. It appears, however, that the pumps were 

inoperativ~ at the time of Shiveley's inspection because of a problem with the 

compressor. Tr. 35-36, 49, 66. It is also undisputed that the presence of 

water in the bleeders does not, by itself, violate the plan. The plan is 

violated, however, when water accumulations that present a hazard are not 

removed. We reject Wyoming Fuel's argument that it complied with the plan by 

operating pumps in an attempt to remove water from the area. The Mine Act is 

a strict liability statute and an operator may be held liable for violations 

without regard to fault. Asarco. Inc. - Northwestern Mining Dep't, 8 FMSHRC 

1632, 1634 (November 1986), aff'd, 868 F.2d 1195 (10th Cir. 1989). 5 

Wyoming Fuel also argues that the plan provision is satisfied because 

the weekly examiner was able to examine the bleeder system to ensure that it 

was functioning properly without walking through hazardous accumulations of 

water. Wyoming Fuel's interpretation of the provision limits its 

applicability to the weekly examiner. The provision, however, does not 

contain language limiting its application to certain miners. Ex. S-2. We 

agree with the Secretary that the plan is violated if water is allowed to 

accumulate in sufficient quantity or depth to present a hazard to those 

entering the bleeders. We conclude that the plan provision applied to 

4 Wyoming Fuel was required to have the bleeder system examined at least 

once each week by a certified person. See 30 C.F.R. § 75.316-2(f)(2). The 

latest weekly examination took place on July 26, 1991, two days before 

Shiveley's inspection. 

5 Wyoming Fuel's efforts to remove the water are relevant, however, to 

the degree of negligence that should be attributed to a violation. We note 

that, while Inspector Shiveley had designated the degree of negligence as 

high, the judge found Wyoming Fuel's negligence to be moderate. 14 FMSHRC at 

1766. 

21 
Castillo, whose assigned duties required him to travel through significant 

water accumulations. 6 

Finally, we conclude that substantial evidence7 supports the judge's 

finding that water accumulations in the bleeder system on July 28 presented a 

hazard. 14 FMSHRC at 1761-63. As the judge noted, Castillo's use of waders 

in traversing the bleeder system is indicative that the excessive water 

presented a hazard, since waders are not standard issue clothing in a coal 

mine. 14 FMSHRC at 1761. 

The judge's finding was also based on his explicit credibility 

determinations 8 in favor of MSHA's witnesses, especially Inspector Shiveley. 

14 FMSHRC at 1761-62. Shiveley testified that the mine floor was uneven and 

that pieces of loose coal and cribbing were submerged below the water on the 

mine floor. Tr. 38-39. See also Tr. 99 (MSHA Inspector Ned Zamarripa). 

These conditions presented a stumbling hazard. Tr. 39. He also testified 

that a miner attempting to walk the rib line to avoid water accumulations 

could pull down the rib if he were forced to grab it. Tr. 30-32, 37, 41. See 

also Tr. 104 (Zamarripa). Shiveley further testified that the coal in the 

mine is soft and tends to "sluff." Tr. 30, 41. In addition, water 

accumulations in bleeder systems can impede ventilation and increase the 

danger of hazardous methane accumulation. Tr. 37, 46, 98-99, 103, 213. 

6 Castillo was in the bleeder system to inspect the pumps and perform 

preshift examinations. W.F. Br. at 7, 10; Ex. W.F.-2. Castillo described his 

duties as a fireboss as follows: 

Tr. 193-94. 

Checking the pumps, make sure the water is being 

pumped out of the mine, checking the lift stations, 

the bleeders, make sure those pumps are running, 

checking the -- checking the bleeders to make sure 

they're doing what they're suppose to do. 

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

substantial evidence test when reviewing an administrative law judge's 

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

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

support [the judge's] conclusion." Rochester & Pittsburgh Coal Co., 11 FMSHRC 

2159, 2163 (November 1989), quoting Consolidated Edison Co. v. NLRB, 305 U.S. 

197, 229 (1938). 

8 The Commission has recognized that a "judge's credibility findings and 

resolutions of disputed testimony should not be overturned lightly." 

Robinette v. United Castle Coal Co., 3 FMSHRC 803, 813 (April 1981); Quinland 

Coals. Inc., 9 FMSHRC 1614, 1618 (September 1987). 

22 
B. Whether the violation was S&S. 

A violation is properly designated as being S&S "if, based on the 

particular facts surrounding that violation, there exists a reasonable 

likelihood that the hazard contributed to will result in an injury or an 

illness of a reasonably serious nature." Cement Division. National Gypsum 

Co., 3 FMSHRC 822, 825 (April 1981). In Mathies Coal Co., 6 FMSHRC 1 (January 

1984), the Commission explained: 

In order to establish that a violation of a mandatory 

safety standard is significant and substantial under 

National Gypsum, the Secretary of Labor must prove: 

(1) the underlying violation of a mandatory safety 

standard; (2) a discrete safety hazard -- that is, a 

measure of danger to safety -- contributed to by the 

violation; (3) a reasonable likelihood that the hazard 

contributed to will result in an inJury; and (4) a 

reasonable likelihood that the injury in question will 

be of a reasonably serious nature. 

6 FMSHRC at 3-4 (footnote omitted). See also Austin Power Co. v. Secretary, 

861 F.2d 99, 103-04 (5th Cir. 1988), aff'g 9 FMSHRC 2015, 2021 (December 

1987)(approving Mathies formula criteria). The Commission has held that the 

third element of the Mathies formula "requires that the Secretary establish a 

reasonable likelihood that the hazard contributed to will result in an event 

in which there is an injury." U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 

(August 1984)(emphasis in original). 

Wyoming Fuel argues that the S&S finding is erroneous because the third 

Mathies element was not established and that the judge erred in relying on the 

Commission's decision in Eagle Nest. Inc., 14 FMSHRC 1119 (July 1992). 

Wyoming Fuel emphasizes that the maximum water depth in the mine, 28 inches, 

was limited to one discrete area and that the water was clear. The Secretary 

contends that the judge's S&S finding is supported by substantial evidence. 

We agree with the Secretary that substantial evidence supports the 

judge's S&S finding. In finding the third Mathies element satisfied, the 

judge credited Shiveley's testimony. 14 FMSHRC at 1764, citing Tr. 40, 43. 

Shiveley testified that it was reasonably likely that an injury of a 

reasonably serious nature would result from the violation. Tr. 40-41. He 

testified that people have drowned by falling in water while walking in 

waders. Tr. 39-40. The inspector also indicated that a miner could stumble 

and hit his head or twist an ankle, or that a loose rib could strike someone, 

·possibly causing drowning. Tr. 41. The judge also found that waders by 

themselves can cause the wearer to slip, particularly where the mine floor is 

not easily seen. 14 FMSHRC at 1764. Finally, Shiveley's testimony 

contradicts Wyoming Fuel's contention that the water was clear. Tr. 38-39. 

In any event, the Commission's decision in Eagle Nest did not suggest that 

accumulations less murky, deep or extensive than the accumulations in that 

23 
case might not be S&S. 9 We reject Wyoming Fuel's argument to that effect. 

Determination of whether a violation is S&S must be based on the particular 

facts surrounding the violation. Texasgulf. Inc., 10 FMSHRC 498, 501 (April 

1988). 

III. 

Conclusion 

For the foregoing reasons, we affirm the judge's decision that Wyoming 

Fuel violated its ventilation plan and that the violation was S&S. 

Arlene Holen, Chairman 

ci:.A~i'f~:V Richard V. Backley, Commission;r 

L. Clair Nelson, Commissioner 

9 In Eagle Nest, water accumulations were murky, up to four feet deep, 

extensive, and had to be traversed to permit an examination. 14 FMSHRC at 

1120-21. The judge, on remand, found the violation to be S&S. 14 FMSHRC 1800 

(November 1992)(ALJ). 

24 
Distribution 

Charles W. Newcom, Esq. 

Sherman & Howard 

3000 First Interstate Tower North 

633 Seventeenth Street 

Denver, Colorado 80202 

Colleen A. Geraghty, Esq. 

Off ice of the Solicitor 

U S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Adiilinistrative Law Judge John J. Horris 

Federal Mine Safety & Health Review Commission 

1244 Speer Boulevard, Suite 280 

Denver, Colorado 80204 

25 
FEDERAL :GINE SAFETY AND BEAT.TH REVIEW CO:mlISSION 

1730 K Street NW, 6th Floor 

Washington, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

on behalf of PERRY PODDEY 

v. 

TANGLEWOOD ENERGY, INC., 

January 10, 1994 

Docket No. WEVA 93-339-D 

On December 29, 1993, the Secretary of Labor ("Secretary"), filed a 

petition with the Federal Mine Safety and Health Review Commission under 

Section 113(d)(2) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 823(d)(2)(1988). The Administrative Law Judge presiding in this 

discrimination proceeding has not yet issued his final order on damages. The 

Commission has dismissed as premature petitions seeking review of a judge's 

decision finding liability in discrimination cases before the decision on 

damages is issued. See Kenneth A. Wiggins v. Eastern Associated Coal Co., 

5 FMSHRC 1668 (October 1983). The Secretary's petition is premature and is 

dismissed without prejudice. The Secretary may file a petition for 

discretionary review after issuance of the judge's decision on damages. 

· 

~ Richard v. Backley, commISSiOOer\..---.. 

~~e, tlissib:;4 

L. 

~~ Clair Nelson, Commissioner 

26 
Distribution 

Susan E. Long, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Paul 0. Clay, Esq. 

Conrad & Clay 

P.O. Drawer 958 

Fayetteville, WV 25840 

Administrative Law Judge Arthur Ali1clun 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, VA 22841 

27 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K Street, N. w., Sixth Floor 

Washington, D. c. 20006 

January 26, 1994 

SECRETARY OF LABOR, MINE SAFETY 

AND HEALTH ADMINISTRATION (MSHA) 

v. 

SOUTHMOUNTAIN COAL, INC. 

AND 

WILLIAM RIDLEY ELKINS 

Docket Nos. VA 93-165 

VA 93-166 

Southmountain Coal Company, Inc., (#Southmountain#) has filed a petition 

seeking review by the Commission of the December 6, 1993, order of 

Administrative Law Judge Gary Melick in which he denied Southmountain's motion 

for certification for interlocutory review. Southmountain's motion requested 

that the judge certify to the Commission his ruling that the Secretary had 

established #adequate cause# to excuse a four-day delay in assessing a 

proposed penalty under Commission Rule 28(a), 58 Fed. Reg. 12158, 12167 (March 

3, 1993), to be codified at 29 C.F.R. §2700 (1993). Southmountain styled and 

referenced its petition to the Commission #pursuant to Commission Rule 70#, 

although it apparently is seeking interlocutory review under Commission Rule 

76, 58 F.R. at 12172. 

Upon consideration of Southmountain's petition and the Secretary's 

response, we conclude that Southmountain has failed to establish a basis for 

granting interlocutory review and, therefore, we deny the petition. 

Arlene Holen, Chairman __ ..,.._.,.,..,... 

. ,/ .;1 / .. ·· ,/ ,,/ '-<_--r ___ --.-:_.--L---1 _ __,- ,~-. _.·/ (--::i"L-r' :<L-_,....., 

/ 

Richard V. Hackley, Commissioner j/ 

~~o!y[.,~/f&::;'--L28 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

January 28, 1994 

AIR PRODUCTS AND CHEMICALS, INC. 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Docket No. PENN 91-1488-R 

BEFORE: Holen, Chairman; Backley and Doyle, Commissioners 

ORDER 

BY THE COMMISSION: 

On January 12, 1994, Air Products and Chemicals, Inc. ("Air Products") 

filed with the Commission a Motion for Stay Pending Appeal of the Commission's 

December 9, 1993, decision in this matter. 15 FMSHRC 2428 (December 1993).* 

The Secretary fi\ed opposition to the motion on January 21, 1994. 

Air Products filed its motion pursuant to Rule 18 of the Federal Rules 

of Appellate Procedure, which provides that "[a]pplication for a stay of a 

decision or order of an agency pending direct review in the court of appeals 

shall ordinarily be made in the first instance to the agency." Section 

106(a)(l) of the Mine Act, 30 U.S.C. § 816(a)(l), provides that, upon appeal 

of a final decision of the Commission, the court of appeals shall have 

exclusive jurisdiction in the proceeding at such time as the record before the 

Commission is filed with the court. Because the record has not yet been 

filed, the Commission has jurisdiction to consider Air Products' motion. See 

Helen Mining Co., 14 FMSHRC 1993, 1994 (December 1992). 

Upon consideration of Air Products' motion and the Secretary's 

opposition, we conclude that Air Products has failed to establish that a stay 

should be granted. See Virginia Petroleum Jobbers Ass'n v. FPC, 259 F.2d 921, 

925 (D.C. Cir. 1958); Jim Walter Resources, 9 FMSHRC 1312 (August 1987). In 

view of this conclusion, we need not discuss the Secretary's arguments 

* Air Products filed its notice of appeal with the United States Court 

of Appeals for the Third Circuit on December 22, 1993 (No. 93-3646). 

29 
concerning "temporary relief" under sections 105 and 106 of the Mine Act, 30 

U.S.C. §§ 815 & 816. Accordingly, Air Products' motion is denied. 

Distribution: 

R. Henry Moore, Esq. 

Buchanan Ingersoll 

USX Tower, 57th Floor 

600 Grant Street 

Pittsburgh, PA 15219 

Elizabeth Hopkins, Esq. 

U.S. Department of Labor 

Office of the Solicitor 

200 Constitution Ave., N.W. 

Room N-2700 

Washington, DC 20210 

Richard V. Backley, Commissioner 

• 

30 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

(303) 844-5266/FAX (303) 844-5268 

January 3, 1994 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

on behalf of 

JAMES HYLES, 

DOUGLAS MEARS, 

DERRICK SOTO, 

GREGORY DENNIS, 

Complainants 

v. 

ALL AMERICAN ASPHALT, 

Respondent 

TEMPORARY REINSTATEMENT 

PROCEEDING 

Docket Nos. WEST 93-194-DM 

WEST 93-195-DM 

WEST 93-196-DM 

WEST 93-197-DM 

All American Aggregates 

ORDER OF TEMPORARY REINSTATEMENT 

Appearances: Gretchen M. Lucken, Esq., Office of the Solicitor, 

U.S. Department of Labor, Arlington, Virginia, 

for Complainants; 

Naomi Young, Esq., Los Angeles, California, 

for Respondents. 

Before: Judge Cetti 

These consolidated temporary reinstatement proceedings arise 

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

§ 801 et seq. {1988} {"Mine Act"). Section 105(c} of the Mine 

Act, 30 u.s.c. § 815(c} (1988}, prohibits operators of mines from 

discharging or otherwise discriminating against a miner who has 

filed a complaint alleging safety or health violations at a mine 

or engaged in other protected activity. If a miner believes that 

he has been laid off or otherwise discriminated against by any 

adverse action in violation of this section, he may file a complaint with the Secretary of Labor ("Secretary") who is required 

to initiate a prompt investigation of the alleged violation. If 

the Secretary finds that the miner's complaint was "not frivolously brought." he must apply to the Federal Mine Safety and 

Health Review Commission {"Commission") for an order temporarily 

reinstating the miner to his job, pending a final order on the 

complaint. The Commission is required to grant such an order if 

it finds that the statutory standard (not frivolously brought} 

has been met. 

31 
Although the Act does not require a hearing on the Secretary's application for temporary reinstatement, the Commission's 

regulations Procedural Rule 45(c) provide an opportunity for a 

hearing upon request of a mine operator, prior to the entry of a 

reinstatement order. The scope of such a hearing is limited to a 

determination by the Administrative Law Judge "as to whether the 

miner's complaint is frivolously brought," with the Secretary 

bearing the burden of proof on this standard. Jim Walter 

Resources v. Federal Mine Safety and Health Review Commission, 

920 F.2d 738 (11th Cir. 1990). 

I 

Procedural History 

In January 1993 the Secretary of Labor (Secretary) filed an 

application for an order temporarily reinstating the Complainants 

James Hyles, Douglas Mears, Derrick Soto and Gregory Dennis to 

the positions they had, heavy equipment operators, with Respondent All American Asphalt. 

The Secretary's application for the reinstatement order 

stated the Complainants had been discharged in retaliation for 

engaging in protected safety activity and that the facts and 

circumstances of the case support a finding that the complaints 

of discrimination are non-frivolous under Section 105(c) of the 

Act. 

The Secretary attached to his application the affidavit of 

James E. Belcher, the Chief of the Division of Technical Compliance and Investigation, Metal and Nonmetal Safety and Health. 

The affidavit states in part that investigation discloses the 

following facts: 

a. At all relevant times, Respondent All American Asphalt 

engaged in the production of aggregate, and is therefore an 

operator within the meaning of Section 3{d) of the Mine Act; 

b. At all relevant times, Applicants James Hyles, Douglas 

Mears, Derrick Soto and Gregory Dennis were employed by 

Respondent as miners within the meaning and scope of Section 3(g) 

of the Mine Act; 

c. All American Aggregates Mine, located near Corona, 

Riverside County, California, is a mine as defined by section 

3{h) of the Mine Act, the products of which affect interstate 

commerce; 

d. The alleged act of discrimination occurred on or after 

July 7, 1992, when Applicants Hyles, Mears, Soto and Dennis were 

effectively discharged by Respondent's Vice-President Michael 

Ryan; 

32 
e. Applicant James Hyles engaged in protected activity by 

filing a hazardous condition complaint with MSHA in April 1991 

which resulted in 29 citations and orders and closure of the 

plant and by giving a statement to the MSHA special investigator 

in the subsequent Section 110(c) investigation in May 1991; 

f. Applicants Douglas Mears, Derrick Soto and Gregory 

Dennis engaged in protected activity by giving statements to the 

special investigator in the Section 110(c) investigation in May 

1991; 

g. All four Applicants worked during the weekend in April 

1991 when the hazard complaint was filed; 

h. Respondents Ryan and Sisemore had knowledge of the 

Applicants' protected safety activity; 

i. Respondents made statements to Applicants and other 

employees indicating that the person who filed the hazard complaint would be fired or forced to quit, demonstrating open 

hostility toward Applicants' protected safety activity; 

j. Applicant Soto was threatened with lay-off shortly after 

the Section 110(c) special investigation was completed in May 

1991; 

k. In October 1991, Applicant Hyles was demoted from 

leadman on the second shift to loader operator on the first shift 

and his working conditions deteriorated; 

1. Respondents' articulated basis for the demotion is 

pretextual; 

m. On July 7, 1992, Applicants Hyles, Mears, Soto and 

Dennis were laid off along with 12 other miners, allegedly due to 

a drop in production; 

n. By August 31, 1992, every other laid-off miner was 

recalled for work except Applicants Hyles, Mears, Soto and 

Dennis; 

o. Other less senior miners were recalled to perform jobs 

which Applicants were entitled to pursuant to the union contract; 

p. Applicants were subject to disparate treatment with 

respect to the operator's lay-off/recall policy; 

q. On July 24, 1992, Respondents received MSHA's Notice of 

Proposed civil penalties for the 29 orders and citations issued 

as a result of the hazard complaint against All American Asphalt 

($45,000.00) and against Respondent Ryan as a corporate agent 

($9,500.00); 

33 
r. Respondents' articulated basis for laying-off and 

refusing to recall Applicants is pretextual. 

In view of the foregoing facts, I have determined that 

Applicants Hyles, Mears, Soto, and Dennis were effectively 

discharged in retaliation for engaging in protected safety 

activity and the complaints filed by them are not frivolous. 

s 

James E. Belcher 

On January 19, 1993, All American Asphalt filed a timely 

request for a hearing on the application for temporary reinstatement of the complainants. A hearing on the application was set 

by agreement of the parties on February 10, 1993, in Riverside, 

California. At the joint request of the parties this hearing was 

canceled on February 9, 1993. The parties stated that they had 

agreed on a voluntary reinstatement of the Complainants at the 

same wage and to the same or similar positions Complainants held 

at the time of their July 1992 layoff. It was also agreed that 

there would be compliance with the collective bargain agreement 

(Operating Engineers Local 12) with respect to any possible 

future layoff. The cases were not dismissed pending the filing 

of a written settlement with specific terms that both parties 

were willing to sign off on, particularly with respect to 

seniority. 

On March 29, 1993, the Secretary filed a motion to Renew the 

Application for Temporary Reinstatement. The motion states in 

part the following: 

Respondent has not complied in good faith with the terms of 

the settlement agreement, effectively voiding the agreement and 

necessitating a Temporary Reinstatement hearing and Order of 

Reinstatement by the Commission in order to enforce the Applicants' right to temporary reinstatement under the Mine Act. 

From the date of voluntary temporary reinstatement, 

Respondent refused to assign Applicant Douglas Mears to his 

former position as a plant operator, assigning him to shovel 

manually instead of operating crushing equipment. 

On March 24, 1993, Respondent laid-off all four Applicants 

under circumstances demonstrating that Respondent deliberately 

planned the layoff and manipulated the collective bargaining 

agreement in order to achieve the layoff of the four Applicants. 

By_its actions, Respondent continues to deny the four Applicants 

the bona fide temporary reinstatement to which they are entitled. 

On April 9, 1993, Respondent filed a timely request for a 

hearing on the Secretary's motion to renew application for tempo34 
rary reinstatement. The matter was therefor set for hearing on 

the date agreed by the parties April 29 and 30, 1993, in Riverside, California. 

This hearing was canceled when on April 23, 1993, the 

Secretary filed a motion to stay the application for temporary 

reinstatement, stating that on "April 22, 1993 counsel for All 

American notified counsel for the Secretary that All American 

plans to recall the four applicants to return to work on Monday, 

April 26, 1993." 

on April 27, 1993, the Secretary filed a revised Motion to 

stay Temporary Reinstatement Proceedings with a cover letter 

stating "the parties agree that the hearing scheduled for April 

29 and 30, 1993, will not be necessary and requesting that the 

temporary reinstatement proceeding be stayed. Respondents 

opposed the motion to stay on the grounds that their proposed 

voluntary reinstatement should be approved. 

Pursuant to the request of the parties the April 29-30 

hearing was canceled and the parties were ordered to jointly file 

a written Temporary Reinstatement Agreement. 

The parties discussed such an agreement but were never able 

to reach agreement on some of the necessary terms. In any event 

a joint written reinstatement settlement agreement was never 

filed. Reinstatement was apparently continued on a voluntary 

basis but not without controversy. 

On October 5, 1993, the Secretary filed a motion entitled 

"Secretary of Labor's Motion for Order Requiring Bona Fide 

Temporary Reinstatement." 

In the motion the Secretary alleges in part that Respondents 

have refused to employ the Complainants on a regular, full-time 

basis, have limited the regular hours worked and by refusing to 

recognize the original seniority dates of the four complainants 

as agreed by the parties. 

On receipt of the Secretary's October 5, 1993, motion these 

reinstatement proceedings were set for hearing along with the 

hearing on the discrimination complaints WEST 93-336-DM through 

WEST 93-339-DM and WEST 93-436-DM through WEST 93-439-DM which 

were set by agreement of the parties on November 16 through 

November 19, 1993, and when time ran out on Friday November 19th 

the proceeding was continued for further hearing on December 13 

through December 17, 1993. 

35 
II 

At the conclusion of the hearing on December 17, 1993, the 

presiding undersigned Judge from the bench made an oral decision 

finding that the discrimination complaints were not frivolously 

brought and issuing an Order of Temporary Reinstatement. I 

ordered Respondent to immediately reinstate Complainants to the 

same position from which they were laid off at the same rate of 

pay and with the same or equivalent duties assigned to them prior 

to their layoff. 

I hereby affirm in writing my bench decision and Order. 

III 

At the hearing on the Application for an Order of Temporary 

Reinstatement evidence was presented that the Complainants were 

employed by All American Asphalt primarily as heavy equipment 

operators, members of the Operating Engineers Union Local 12. In 

April 1991 All American Asphalt was in process of having work 

completed on the construction of its new finishing plant, a new 

addition to its rock crushing operation. The new finishing plant 

was run during the start-up weekend April 19-21, 1991, before 

many of the basic safety items were installed. Complainant James 

Hyles was employed as leadman at the time. Evidence was presented that he complained to Respondent's vice president and plant 

supervisor that the plant was not safe to run in its unfinished 

condition due to the fact that guarding on moving equipment, 

handrails, stop cords and catwalks were not completed. Each of 

the Complainants also complained to their leadman about running 

the plant in its unsafe condition. 

The leadman, Complainant Hyles, videotaped the unsafe 

conditions during the start-up weekend and reported the unsafe 

conditions to the MSHA San Bernardino field office on Monday 

morning, April 22, 1991. The other Complainants encouraged him 

to do this. That same day MSHA responded by conducting a hazard 

complaint investigation which resulted in a closure order and the 

issuance of approximately 29 unwarrantable failure citations and 

orders for lack of guarding, handrails, and other safety equipment. MSHA subsequently conducted a Section llO(c) investigation 

of Vice-President Michael Ryan for authorizing the activity that 

resulted in the unwarrantable violations cited during the hazard 

complaint investigation. 

In June 1991 each of the four Complainants were interviewed 

and gave a statement to MSHA Special Investigator Ronald Mesa 

during the Section llO(c) investigation. 

The interviews were conducted in Mr. Mesa's vehicle which 

was parked in front of the main office at the plant. 

36 
Evidence was presented that after the hazard complaint 

investigation which resulted in closure of the mine, Complainants 

experienced adverse changes in working conditions. Complainant 

Soto was threatened with layoff and Complainant Hyles was demoted 

from his leadman position. 

Evidence was also presented that in July 1992 All American 

Asphalt laid-off the four Complainants along with most of the 

work force. complainants were initially told that the layoff 

would be for approximately one week while the crusher was moved 

and that only a few employees were needed to move the equipment. 

When the complainants called in to inquire when they could return 

to work, Respondent informed them that no work was available 

because of a slowdown in production. Respondent had in fact 

recalled almost the entire work force and worked some employees 

overtime during July and August 1992 when the Complainants were 

told no work was available. Complainants assert that the only 

employees not recalled were the four Complainants and loader 

operator Martin Hodgeman. 

Complainants presented evidence that in late August 1992, 

two of the complainants went to the mine and observed that lesssenior employees were working at the mine and that employees were 

working overtime, contrary to repeated statements of Respondent 

that no work was available. 

In July 1992, MSHA issued the Notices of Proposed Civil 

Penalties totaling $45,000.00 against All American Asphalt for 

the violations cited during the hazard complaint investigation. 

On March 3, 1993, Respondent implemented a third shift for 

production, assigning four senior plant repairmen to perform 

production jobs during the third shift. Respondent presented 

evidence that the third shift was implemented on a temporary 

basis in order to run wet ~aterial through the plant. 

After assigning the plant repairmen to perform the production jobs for three weeks, on March 24, 1993, Respondent announced a layoff which resulted in only the four complainants 

being laid off. 

With respect to the March 1993 layoff, it is the Secretary's 

position that Respondent deliberately manipulated the assignment 

of employees to different shifts and working hours in order to 

terminate the four complainants. The Complainants had returned 

to work pursuant to a voluntary temporary reinstatement agreement 

on February 11, 1993. Respondent changed the production shift to 

the day shift and changed the maintenance shift to the second 

shift. The four Complainants were assigned to production jobs on 

the day shift. 

37 
The Secretary asserts that rather than simply discontinuing 

the temporary third shift and reassigning the four senior plant 

repairmen to their regular positions on the maintenance shift, 

Respondent required all of the third shift employees participate 

in a formal layoff and bid on jobs held by less senior employees. 

Each of the four Complainants was "bumped" (replaced} by a senior 

plant repairman, even though plant repair positions were available on the seniority list. 

It is the Secretary's position that the facts support a 

strong inference that Respondents coerced the senior plant 

repairmen into bidding on the four Complainant's production jobs, 

in order to ensure the Complainants would be laid off. 

The record contains a great deal more relevant evidence. 

There were eight days of testimony of 20 witnesses and over 100 

exhibits. There is more than 2,000 pages of testimony which as 

yet has not been transcribed. There is a considerable amount of 

the evidence that tends to rebut or refute portions of the 

Secretary's evidence. I have not attempted to recite or discuss 

all the relevant evidence. The only issue to be decided in this 

reinstatement proceeding is whether the complaints of discrimination are frivolously brought. My ruling in this matter is limited to that single issue, keeping in mind that the Secretary has 

the burden of proof on that issue. I make no attempt to weigh 

the evidence or make any findings on the ultimate issues. Upon 

the basis of the record as a whole I find that the complaints of 

each of the four miners, James Hyles, Douglas Mears, Derrick Soto 

and Gregory Dennis, is not frivolous and is not frivolously 

brought. 

ORDER 

Respondent, All American Asphalt, is hereby ORDERED to 

reinstate James Hyles, Douglas Mears, Derrick Soto and Gregory 

Dennis to the positions from which they were discharged or laid 

off or to an equivalent position, at the same rate of pay and 

with equivalent duties. 

38 

F. Cetti 

istrative Law Judge 
Distribution: 

Gretchen M. Lucken, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

(Facsimile) 

J. Mark Ogden, Esq. Office of the Solicitor, U.S. Department of 

Labor, 3247 Federal Building, 300 North Los Angeles Street, Los 

Angeles, CA 90012 (Facsimile) 

Naomi Young, Esq., GARTNER & YOUNG, P.C., 1925 Century Park East 

#2050, Los Angeles, CA 90067-2709 (Facsimile) 

Eve Chesbro, Esq., Ontario Airport Center, 337 North Vineyard 

Avenue #400, Ontario, CA 91764-4453 

Mr. James Hyles, 15986 Nancotta Road, Apple Valley, CA 92307 

Mr. Douglas Mears, 18212 Brightman Avenue, Lake Elsinore, CA 

92503 

Mr. Derrick Soto, 15394 Dakota Road, Apple Valley, CA 92307 

Mr. Gregory Dennis, 1128 Amarillo Street, Alta Coma, CA 91701 

sh 

39 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 5 1994 

SECRETARY OF LABOR CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. KENT 92-776 

A.C. No. 15-16728-03511 

v. 

LYNX COAL COMPANY, 

INCORPORATED, 

Respondent 

No. 2 Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Barbour 

Statement of the Proceeding 

This proceeding concerns proposals for assessment of civil 

penalties filed by the Petitioner against the Respondent pursuant 

to Section llO(a) of the Federal Mine Safety and Health Act of 

1977, 30 u.s.c. § 820(a), seekin~civil penalty assessments for two 

alleged violations of certain mandatory safety standards found in 

Part 75, Title 30, Code of Federal Regulations. The Respondent 

filed a timely answer denying the alleged violations and the case 

was docketed for hearing on the merits in Prestonsburg, Kentucky. 

The parties now have decided to settle the matter, 

and they have filed a motion pursuant to Commission Rule 31, 

29 C.F.R. § 2700.31, seeking approval of the proposed settlement. 

The citations, initial assessments, and the proposed settlement 

amounts are as follows: 

Citation/Order No. 

3818391 

3813892 

Date 

1/21/91 

1/21/91 

30 C.F.R. § 

75.1722(b) 

75.1728(c) 

Assessment 

$2500.00 

$3000.00 

.settlement 

$2000.00 

$2500.00 

In support of the proposed settlement disposition of this 

case, the parties have submitted information pertaining to the six 

statutory c.ivil penalty criteria found in Section llO(i) of the 

Act, included information regarding Respondent's size, ability to 

continue in business and history of previous violations. 

In particular, with regard to Citation No. 3818391, which was 

issued for the failure of Lynx Coal Company to provide guards to 

prevent persons from coming in contact with the tail roller system 

serving a low conveyor belt, the parties state that although the 

violation resulted in the section foreman being severely injured, 

there was a guard in place at the time of the accident that 

40 
partially restricted access to the pinch point between the belt and 

pulleys and that the operator's negligence was tempered by the fact 

the foreman acted outside the scope of his duties in placing 

himself in the situation in which he suffered injury. 

With regard to Order No. 3818392, which was issued because 

coal spilled beneath a conveyor belt was removed while the belt was 

operating and which contributed to the severe injury of the section 

foreman, the parties state that the operator's negligence was 

tempered by the fact the foremen had been instructed in the proper 

procedures for removing such coal and nonetheless was acting 

outside his training and instructions. 

CONCLUSION 

After review and consideration of the pleadings, arguments, 

and submissions in support of the motion to approve the proposed 

settlement of this case, I find that approval of the suggested 

reduction in the penalties assessed for the subject violations is 

warranted and that the proposed settlement disposition is 

reasonable and in the public interest. Pursuant to 30 C.F.R. 

§ 2700.31, the motion IS GRANTED, and the settlement is APPROVED. 

ORDER 

Respondent has paid civil penalties in the settlement amounts 

shown above in satisfaction of the violations in question. This 

proceeding is DISMISSED. 

Distribution: 

(_eJvv/d/(_~~ David F. Barbour 

Administrative Law Judge 

(703)756-5232 

Mary Sue Taylor, Esq., Office of the Solicitor, 

U.S. Department of Labor, 2002 Richard Jones Road, Suite B-201, 

Nashville, TN 37215 (Certified Mail) 

Mr. Link Chapman, Safety Director, Lynx Coal Company, Incorporated, 

Box 301, Warfield, KY 41267 (Certified Mail) 

\epy 

41 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 

PEABODY COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

PEABODY COAL COMPANY, 

Respondent 

5 1994 

CONTEST PROCEEDING 

Docket No. KENT 93-318-R 

Citation 3551261; 1/6/93 

Docket No. KENT 93-319-R 

Order 3551262; 1/6/93 

Docket No. KENT 93-320-R 

Order No. 3551263; 1/20/93 

Camp No. 1 Mine 

Mine ID 15-02709 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 93-437 

A. C. No. 15-02709-03840 

Camp No. 1 Mine 

Mine ID 15-02709 

DECISION 

Appearances: Anne T. Knauff, Esq., Office of the Solicitor, 

u. s. Department of Labor, Nashville, Tennessee, 

for the Secretary of Labor; 

David R. Joest, Esq., for Peabody Coal Company. 

Before: Judge Amchan 

statement of the Case 

On January 6, 1993, MSHA inspector Arthur Ridley went to the 

office of Respondent's Camp 1 mine and reviewed the results of 

Respondent's bimonthly sampling for respirable dust for the 

period November - December 1992 (Tr. 16 - 18). Respondent's 

42 
records indicated that for the 5 samples taken during this 

period, the average exposure of the continuous miner operator on 

mechanized mining unit 044 (MMU) was 2.4 mg/m3 (Jt. Exh. 4). 

Upon review of these samples, Ridley issued citation 3551261 

alleging a violation of 30 C.F.R. § 70.lOO(a), which requires 

that: 

Each operator shall continuously maintain the average 

concentration of respirable dust in the mine atmosphere 

during each shift to which each miner in the active 

workings of each mine is exposed at or below 2.0 

milligrams of respirable dust per cubic meter of air ... 

This citation was issued pursuant to section 104(d) (1) of 

the Act in that it alleged that the violation was "significant 

and substantial" and due to the unwarrantable failure of 

Respondent to comply with the standard. A $4,000 civil penalty 

was proposed for this alleged violation. 

On January 6, 1993, Inspector Ridley also reviewed the 

results of Respondent's sampling of the continuous miner operator 

on mechanized mining unit 056 for the bimonthly sampling period 

of November - December 1992 (Tr. 58, 63). These 5 samples also 

averaged 2.4 mg/m3 (Tr. 63, Jt. Exh. 5). Ridley issued 

Respondent order number 3551262 pursuant to section 104(d) (1) of 

the Act. A $6,000 penalty was proposed for the alleged violation 

on MMU 056. 

On January 20, 1993, Ridley returned to Camp 1 and reviewed 

the respirable dust samples taken between January 4, and January 

6, for the January - February 1993 bimonthly sampling period on 

mechanized mining unit 047 (Tr. 77 - 78, Jt. Exh. 6). These 

samples averaged 2.2 mg/m3. The inspector then issued order 

3551263 pursuant to section 104(d) (2) of the Act. The Secretary 

subsequently proposed another $6,000 penalty for the excessive 

respirable dust exposure on MMU 047. 

Respondent in this case concedes that the violations 

occurred as alleged and that the violations were "significant and 

substantial" pursuant to presumptions enunciated in Consolidation 

Coal Co. v. FMSHRC, 824 F.2d 1071, 1084 (D. C. Cir. 1987). The 

issues in this case are whether the violations are due to 

Respondent's unwarrantable failure to comply with the standard, 

whether the violations were due to a high degree of negligence on 

the part of Respondent, and what are the appropriate penalties to 

be assessed for the violations. The Secretary's allegations of 

unwarrantable failure and high negligence are predicated on the 

number of citations issued within the prior 2 years for violation 

of the respirable dust standard with regard to each of the 

mechanized mining units cited in January, 1993 (Tr. 34 - 39, 65, 

43 
74 - 75, 83 - 85, 100 - 102). 1 The Secretary did not consider 

Respondent's compliance record with regard to respirable dust as 

a whole in determining whether the January 1993 citation and 

orders should be deemed to have resulted from high negligence and 

"unwarrantable failure (Tr. 74 - 75, 100 - 102) ." 

In the two years prior to January 1993, Unit 044 had been 

sampled in 10 of the 12 bimonthly sampling periods. Respondent 

had been out of compliance with regard to the MMU 044 on 4 of 

those occasions. On February 8, 1991, Respondent received a 

citation because the samples on unit 044 averaged 3.3 mg/m3 for 

the January - February 1991 bimonthly sampling period (Exhibit G1). On March 28, 1991, a section 104(b) order was issued because 

the samples for the March - April 1991 bimonthly period averaged 

2.2 mg/m3. On December 2, 1991, a section 104(a) citation was 

issued because the samples for the November - December 1991 

bimonthly period averaged 2.7 mg/m3 (Exhibit G-2, page 2). On 

February 11, 1992, another citation was issued because the 

samples for the January - February 1992 bimonthly period averaged 

2.8 mg/m3 (Exhibit G-2, page 3). 

In the 12 bimonthly sampling periods during calendar years 

1991 and 1992, mechanized mining unit # 056 was out of compliance 

with 30 C.F.R. § 70.lOO(a) 5 of the 12 times it was sampled. In 

February 1991, Respondent was cited because the January -

February samples averaged 2.2 mg/m3 (Exhibit G-2). 

In July 1991, Peabody was cited again because the May - June 

samples averaged 2.7 mg/m3. In February 1992, another citation 

was issued because the January - February samples averaged 2.9 

mg/m3 (Exhibit G-2, page 3). In April 1992, MSHA cited Peabody 

again because the samples for the March - April period averaged 

2.6 mg/m3. The fifth violation during 1991 - 1992 was in the 

November - December 1992 sampling period and is addressed by 

order number 3551262. 

Mechanized mining unit 047 was available for sampling in 

only four of the 12 bimonthly sampling periods during calendar 

years 1991 and 1992. In May 1991, Respondent was cited because 

the March - April samples averaged 3.0 mg/m3 (Exhibit G-3). The 

next time it was sampled was for the July - August 1992 sampling 

period and it was barely in compliance with an average 

concentration of 1.9 mg/m3 (Exhibit G-3, page 3). For the 

September - October sampling period the average concentration was 

2.4 mg/m3 precipitating another citation (Exhibit G-3, page 4). 

MMU 047 was in compliance for the period November - December 

1992, and then out of compliance for the January - February 1993 

sampling period, which is addressed by order number 3551263. 

1

At the time of the January 1993 citation and orders, 

Respondent had 6 mechanized units in operation. 

44 
The Secretary's position is that the number of violations of 

the respirable dust standard on each of these machines during a 

two year period indicates more than ordinary negligence and is 

sufficiently "aggravated" to constitute an unwarrantable failure 

to comply with the standard. Peabody, on the other hand, points 

to a number of steps it took, beginning in January 1992, to 

improve dust control, which it contends establishes that it was 

not "highly negligent" and makes the characterization of 

unwarrantable failure inappropriate. 

Respondent's evidence in this regard consists primarily of 

the uncontroverted testimony of Michael W. Kirtley, who came to 

Camp 1 in July 1992 to be Compliance Manager at this facility 

(Tr. 173-74). The steps taken to remedy the excessive dust 

problem at Camp 1 were as follows: 

Beginning in January 1992, Respondent installed water 

flow gauges on its continuous miners. This project, 

which took 6 months to complete, allows the miner 

operator to continuously monitor the amount of water 

coming through his machine (Tr. 179); 

In February 1992, Respondent began a 6 - 7 month 

project to increase the size of the fittings on the 

water lines leading to the continuous miners from 1/2 

inch fittings to 2 inch fittings (Tr. 181 - 182); 

In March 1992, Peabody increased the water volume on 

its four continuous miners that are shuttle car units 

by 25 percent. The water volume of its two continuous 

miners that are continuous haulage units was increased 

by 50 percent (Tr. 182 - 83); 

Beginning in February 1992, Respondent replaced the 2-

inch plastic pipe in its water lines with 2-inch metal 

pipe, which allows for the use of greater water 

pressure (Tr. 183); 

In March 1992, Peabody undertook to increase the size 

of the water lines going to the miners from 1 inch to 

1 1/2 inches (Tr. 184); 

In a 6 week period during November and December 1992, 

Peabody installed water sprays inside the ductwork of 

the scrubbers on the continuous miners to improve 

scrubber efficiency (Tr. 185); 

In July 1992, the company replaced its water pumps with 

pumps that allowed for increased water pressure and, 

therefore, an increased volume of water (Tr. 188). 

45 
Peabody has also been working with Joy, the manufacturer of 

its continuous miners, since January 1992, to reduce the 

restrictions in the water lines on the mining machines (Tr. 187). 

Since the issuance of the citations at issue in this case, 

Peabody has acted upon a suggestion from inspector Ridley that it 

assign additional supervisory personnel to monitor its employees 

while they are being sampled for respirable dust exposure (Tr. 72 

- 73, 96, 190). These supervisors insure that the sampled 

employee positions himself where he can minimize his dust 

exposure. The supervisor also checks on ventilation and water 

pressure (Tr. 191). 

Assessment of civil Penalties 

Section llO(i) requires the Commission to consider 6 factors 

in assessing penalties. Having considered these factors I 

conclude that a $5,000 penalty is appropriate for each of the 

violations at issue in this case. 

The first factor, the operator's history of previous 

violations is the most important consideration is this case. 

Citation 3551261 was the fifth respirable dust violation on MMU 

044 in a 2-year period. Order 3551262 was the fifth on MMU 056. 

Order 3551263 was the third of out 5 sampling periods on MMU 047. 

Although MSHA appears to have considered each MMU in isolation, I 

believe that consideration must be given to the fact that~ in 

January 1993, after numerous prior respirable dust violations, 3 

of Respondent's 6 mechanized mining units were in violation of 

the respirable dust standard. The number of violations of this 

standard, which in protecting miners from respiratory diseases, 

lies at the heart of the Act warrants a relatively high penalty, 

regardless of whether these violations meet the criteria of 

"unwarrantable failure." 

By analogy, I would note that the Occupational Safety and 

Health Act, a statute with almost identical purposes to the Mine 

Safety and Health Act, provides for much higher civil penalties 

for repeated violations than for first time violations. Under 

the OSH Act, an employer may be penalized up to $7,000 for a 

"serious" or "other-than-serious" violation but may be assessed a 

penalty of up to $70,000 for a willful or repeated violation 29 

u.s.c. 666 (a), (b}, and (c}. I would deem it contrary to the 

purposes of the Mine Act to assess a penalty in the instant case 

which did not impose a significantly higher penalty given the 

number of respirable dust violations on all of Respondent's 

mechanized mining units. 

I find a $5,000 penalty for each violation in this case 

appropriate, given Peabody's size. Peabody produces in excess of 

$10,000,000 tons of coal a year and is, thus, a relatively large 

mine operator. The parties have stipulated that penalties of 

this magnitude will not effect Peabody's ability to stay in 

46 
business. 

The gravity of the violations in this case are quite high. 

The parties have stipulated that the violations are "significant 

and substantial." However, I would note that the record in this 

case suggests that Respondent's employees have been regularly 

exposed to respirable dust levels above those allowed by the 

standard for a 2 year period. A penalty of anything less than 

$5,000 would not be consistent with Congress' intent of using the 

full panoply of the Act's enforcement mechanisms to effectuate 

the goal of preventing respiratory disease Consolidated.Coal 

Company v. FMSHRC, 824 F.2d 1071, 1086 (D.C. Cir. 1987). 

Respondent demonstrated good faith in following the 

suggestions of inspector Ridley in terminating the instant 

violations and, thus, should not be penalized for not 

demonstrating such good faith. However, inspector Ridley's 

suggestions for abatement and Respondent's implementation of 

those suggestions leave something to be desired in terms of 

complying with the Act. 

Section 70.lOO(a) requires that each operator shall 

continuously maintain the average concentration of respirable 

dust at or below 2.0 mg/m3. Pursuant to 30 C.F.R. § 70.207, 

sampling is to be taken during a normal production shift. This 

suggests that the sampling is to be representative of an 

employee's regular, daily exposure to respirable dust (Compare 

OSHA's standards such as 29 C.F.R. § 1910.1025(d) (iii)). 

Sampling that is artificially low because supervisory 

personnel are constantly watching and directing the sampled 

employees would appear to be violative of section 70.207. If 

Respondent is taking other steps, such as frequent unannounced 

spot checks on the work practices of its continuous miner 

operators to assure that they minimize dust exposure as a regular 

practice, the company's abatement measures would appear to comply 

with the regulation. However, if the samples are under 2.0 mg/m3 

only because Respondent is taking unusual steps while the 

bimonthly sampling is in progress, Peabody appears to be in 

violation of section 70.207. 

On this record, it appears rather problematical that 

Peabody's current sampling techniques comply with the Act. While 

supervisors now make it a regular practice to watch employees 

during sampling, there is little indication that anything is 

being done to insure that employees follow the proper procedures 

when they are not being sampled. There is an indication that the 

requirements of Respondent's dust control plan has been discussed 

with employees at annual refresher training and on one other 

occasion {Tr. 213 - 215). However, nothing else indicates that 

Peabody has done anything to assure that employees on a regular 

and daily basis follow proper procedures with regard to 

47 
positioning themselves and using the line curtain or brattice to 

direct intake air to the working face (Tr. 213 - 215). 

Degree of Negligence and Unwarrantable Failure 

The sixth factor for penalty assessment is whether the 

operator was negligent. Inspector Ridley, when characterizing 

the instant violations as due to a high degree of negligence and 

Respondent's "unwarrantable failure" to comply with the standard, 

did so on the assumption that the company had failed to take any 

action to alleviate the situation (Tr. 39, 85, 141). Thus, the 

question is whether this record establishes a high degree of 

negligence and/or "unwarrantable failure" in light of measures 

testified to by Mr. Kirtley. 

Analytically, I find the issues as to the degree of 

negligence and whether Respondent's conduct constitutes 

"unwarrantable failure" to be inseparable. I conclude that 

despite the measures taken by Peabody prior to the citation and 

orders in this case, Respondent's violations were due to more 

than ordinary negligence and that its conduct constitutes 

"unwarrantable failure." 

First of all, it is unclear what, if any, relationship 

exists between the measures taken by Respondent to increase water 

supply to its working sections and the numerous citations issued 

to it for respirable dust violations. Given the numerous 

citations received, a prudent employer would undertake a 

comprehensive investigation of the reasons its sampling results 

exceeded the permissible exposure limit on a regular basis. 

Had Respondent done this they would have discovered, as they 

discovered after the instant citation and orders, that the work 

practices of its employees were deficient. The recognition that 

its employees were not positioning themselves to minimize dust 

exposure and were improperly using line curtains could have been 

discovered (Tr. 213 - 215) before the issuance of the withdrawal 

orders. 

Commission caselaw makes it quite clear that ordinary 

negligence does not constitute "unwarrantable failure." Emerv 

Mining Corporation, 9 FMSHRC 1997 (December 1987); Rochester & 

Pittsburgh Coal Company, 13 FMSHRC 189 (February 1991). However, 

when a company has repeated respirable dust violations on a 

number of mechanized mining units, its failure to do a 

comprehensive analysis of what is causing this problem is more 

than ordinary negligence. Given the importance in the statutory 

scheme of preventing respiratory diseases, the failure to leave 

any stone unturned in discovering the source of these violations 

is "aggravated." Finally, for Inspector Ridley to show up at 

Camp 1 in January 1993 and find 3 of the 6 mechanized mining 

units in violation of the respirable dust standard, should, in 

48 
light of Respondent's compliance record during 1991 and 1992, 

create a rebuttable presumption that the violations were due to 

an unwarrantable failure to comply. 

Had Respondent established that it had taken every 

conceivable step to rectify the problem, I would be inclined to 

find that the company's negligence was of an ordinary nature--if 

that. However, from the sampling done by MSHA in 1991 and 1992, 

(Tr. 48, 89) which indicated that compliance with the standard 

was achievable with the equipment already on site, Respondent was 

on notice that something else, such as closer attention to proper 

work practices, was necessary. 

ORDER 

1. Citation 3551261 is affirmed as a section 104(d) (1) 

citation. Order 3551262 is affirmed. Order 3551263 is affirmed. 

2. Peabody Coal Company shall, within 30 days of the date 

of this decision, pay to the Secretary $15,000 for the violations 

found herein. 

Distribution: 

~ ~v~e--t~ ;:;.t!.if ur J . Amchan 

Administrative Law Judge 

703-756-6210 

Anne T. Knauff, Esq., Office of the Solicitor, U. s. Department 

of Labor, 2002 Richard Jones Rd., Suite B-201, Nashville, TN 

37215 (Certified Mail) 

David R. Joest, Esq., 1951 Barrett Court, P. O. Box 1990, 

Henderson, KY 42420-1990 (Certified Mail) 

/jf 

49 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 5 1994 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) I Docket No. KENT 93-114 

Petitioner A.C. No. 15-11012-03521 

v. 

Camp No. 9 Prep Plant 

PEABODY COAL COMPANY, 

Respondent 

Appearances: 

DECISION 

MaryBeth Bernui, Esq., Office of the Solicitor, 

u. s. Department of Labor, Nashville, Tennessee, 

for the Petitioner; 

earl B. Boyd, Jr., Esq., Henderson, Kentucky, for 

the Respondent. 

Before: Judge Amchan 

Statement of Facts 

This matter arises from an inspection conducted on 

September 18, 1992, by MSHA Electrical Inspector Michael Moore at 

Respondent's Camp 9 Preparation Plant. The September 18 

inspection was a follow-up to an inspection he had performed on 

September 10, 1992 (Tr. 12-13, 27 - 28). On September 10, 

Mr. Moore sampled for methane underneath the cover of a conveyor 

belt at the bottom of the raw coal storage silo at the 

Preparation Plant and had obtained readings of 5.2 percent and 

5.4 percent methane. 

As the result of these readings, he issued an imminent 

danger order and a citation alleging a violation of 30 C.F.R. 

§ 77.201, which prohibits a methane concentration of more than 1 

percent in a structure, enclosure, or facility. Respondent 

contested this citation and order, both of which were ultimately 

vacated pursuant to a decision by Administrative Law Judge Roy J. 

Maurer, Peabody Coal Company, 15 FMSHRC 746 (ALJ April 1993). 

50 
As part of its effort to abate the citation and order of 

September 10, Respondent installed piping and a 25 horsepower fan 

to draw air out from under the cover of the raw coal belt 

conveyor. The fan was located inside the piping, 3 to 5 feet 

from and outside of the raw coal silo, 60 feet from the covered 

conveyor (Tr. 14, 65-66). When Inspector Moore examined the fan 

on September 18, he found two things wrong with it. First of 

all, it was plugged in with a flexible cord and secondly, its 

motor was not approved for a Class I location, in that it was not 

explosion-proof. 

On September 18, Inspector Moore issued Respondent 2 

citations alleging violation of 30 C.F.R. § 77.516. That 

standard requires that all wiring and electrical equipment 

installed after June 30, 1971, meet the requirements of the 

National Electrical Code (NEC) then in effect. 

Citation 3547316 alleges a non significant and substantial 

violation of the standard in that the cord to the fan drawing air 

from the raw coal conveyor did not meet the requirements of 

Article 400-4 of the NEC. This article forbids the use of 

flexible cord as a substitute for the fixed wiring of a structure 

(Exh. G-2). MSHA contends that rigid conduit was required 

because the raw coal silo is a permanent structure (Tr. 15, 56). 

Citation 3547318 alleges a significant and substantial 

violation of section 501 of the NEC. Pursuant to section 501-8, 

motors in Class I, Division 1 and in Class I, Division 2 

locations must be explosion proof (Exh. G-4). A Class I location 

is defined by section 500-4 of the NEC as "those in which 

flammable gases or vapors are or may be present in the air in 

quantities sufficient to produce explosive or ignitable 

mixtures." (Exh. R-1) 

The Issues 

Respondent contends that citation 3547316 is invalid because 

its exhaust fan was not a permanent installation. The fan was 

installed solely to terminate the imminent danger order and 

citation issued on September 10, which Peabody contested 

(Tr. 91). Upon vacation of this order and citation by Judge 

Maurer, Respondent removed the fan (Tr. 39). 

It is unclear whether Petitioner's theory is that rigid 

conduit was required because the fan was a permanent installation 

or because the flexible cord constituted part of the wiring of 

the raw coal silo, which is a permanent structure (Tr. 14 -15). 

In either case, I conclude that the Secretary has failed to prove 

a violation of Article 400-4. 

I find nothing in the record that would permit me to 

conclude that the flexible cord was part of the wiring of the raw 

51 
coal silo. Similarly, when the citation was written, Mr. Moore 

may have regarded the presence of the fan permanent; but 

Respondent did not. Respondent installed the fan only to 

terminate the September 10 citation and order, and fully intended 

to remove it if it prevailed before the Commission. Therefore, I 

vacate citation 3547316. 

Citation 3547318 was also issued pursuant to Mr. Moore's 

findings on September 10. Judge Maurer has made a finding that 

the results of his sampling under the belt cover were invalid. 

However, the question remains whether the Secretary has 

established that the fan was located in a Class I location. 

There is no dispute that the fan was not explosion-proof, as 

required if it was located in a Class I location. 

The record establishes that methane is released, at least 

some of the time, when coal is fed onto the covered belt conveyor 

(Tr. 97). The record does not establish anything definitive 

about the concentration of methane or potential concentration of 

methane underneath the cover. More importantly, there is nothing 

definitive concerning methane concentrations or potential 

concentrations at the fan. The methane readings at the fan on 

September 18 were zero (Tr. 41). All of Peabody's methane 

readings in the vicinity of the fan were zero (Tr. 88-89). 

The Secretary's case is predicated on the theory that, if 

there is methane under the cover of the belt conveyor, you can 

never tell when you might have an ignitable or explosive 

concentration of methane at the end of the ductwork where the fan 

was located (Tr. 43-44). Respondent contends that the airflow of 

the belt conveyor and the effect of the fan itself removed 

whatever methane was present at the feeder (Tr. 104 - 108). 

I conclude that, based on the record in this case, the 

Secretary's evidence is far too speculative to establish that the 

fan was located in a Class I location. The Secretary has not 

established that methane could have been present in explosive or 

ignitable concentrations at the location of the cited fan motor. 

Therefore, I vacate citation 3547318. 

ORDER 

Citations 3547316 and 3547318 are hereby VACATED and this 

case is dismissed. 

52 

fJA~~ 

~~~r J. Amchan 

Administrative Law Judge 

703-756-6210 
Distribution: 

MaryBeth Bernui, Esq., Office of the Solicitor, u. s. Dept. of 

Labor, 2002 Richard Jones Rd., Suite B-201, Nashville, TN 37215-

2862 (Certified Mail) 

Carl B. Boyd, Jr., Esq., Suite A, 120 N. Ingram St., Henderson, 

KY 42420 (Certified Mail) 

/jf 

53 
PBDBRAL lllBB SAPB'l'Y DD HEALTH RBVJ:BW COlllllSSJ:Oll 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 5 1994 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. WEVA 93-5 

A.C. No. 46-01452-03901 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

Docket No. WEVA 93-92 

A.C. No. 46-01452-03916 

Appearances: 

Before: 

Docket No. WEVA 93-100 

A.C. No. 46-01452-03918 

Arkwright No. 1 Mine 

Docket No. WEVA 93-164 

A.C. No. 46-01968-04084 

Blacksville No. 2 Mine 

DECISIONS 

Charles M. Jackson, Esq., Office of the Solicitor, 

U.S. Department of Labor, Arlington, Virginia, for 

the Petitioner; 

Daniel E. Rogers, Esq., Consolidation Coal 

Company, Pittsburgh, Pennsylvania, for the 

Respondent. 

Judge Koutras 

Statement of the Proceedings 

These proceedings concern proposals for assessment of civil 

penalties filed by the petitioner against the respondent pursuant 

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

1977, 30 u.s.c. § 820(a), seeking civil penalty assessments for 

several alleged violations of certain safety standards found in 

Part 75, Title 30, Code of Federal Regulations. The respondent 

filed timely answers and contests and hearings were conducted in 

Morgantown, West Virginia. The parties filed posthearing briefs, 

and I have considered their arguments in the course of my 

adjudication of these matters. 

Issues 

The issues presented in these cases are (1) whether the 

conditions or practices cited by the inspectors constitute 

violations of the cited mandatory safety standards, (2) whether 

54 
the alleged violations were "Significant and Substantial" (S&S), 

(3) whether the alleged violations were the result of an 

unwarrantable failure by the respondent to comply with the cited 

standards, and (4) the appropriate civil penalties to be assessed 

for the violations, taking into account the civil penalty 

assessment criteria found in section llO(i) of the Act. 

Stipulations 

The parties stipulated as follows in these matters 

(Tr. 9-11). 

1. The presiding judge has jurisdiction to hear 

and decide these cases. 

2. The subject coal mine is owned and operated 

by the respondent, and the mine is subject to 

the Act. 

3. The inspectors who issued the contested 

violations were acting in their official 

capacity as MSHA inspectors and 

representatives of the Secretary of Labor. 

4. True copies of the orders were properly 

served to the respondent's agents. 

5. Payment of the proposed civil penalty 

assessments will not adversely affect the 

respondent's ability to continue in business. 

6. The citations and orders contained in the 

petitioner's initial civil penalty proposal 

pleadings, including all appropriate 

modifications and abatements, are true copies 

of the citations and orders issued in these 

proceedings. 

7. The preliminary requirements for the issuance 

of the section 104(d) (2) orders, have been 

met, and the section 104(d) "chain" applies 

to the subject mine. 

Discussion 

Docket No. WEVA 93-100 

This proceeding concerns a section 104(d)(2) non-"S&S" Order 

No. 3718918, issued by MSHA Inspector Robert Huggins on July 27, 

1992, citing an alleged violation of mandatory safety standard 

30 C.F.R. § 75.514, and two section 104(d) (2) "S&S" orders 

(3720838 and 3718252), issued by MSHA Inspector Spencer A. 

55 
Shriver on August 12, and September 4, 1992, citing alleged 

violations of mandatory safety section 75.400. The respondent 

admitted and conceded the fact of violations with respect to the 

·August 12, and September 4, 1992, orders, but denied that it 

violated the cited section 75.514, as stated in the July 27, 1992 

order (Tr. 11-12). 

The contested section 104Cdl (2) non-"S&S" Order No. 3718918, 

July 27, 1992, citing an alleged violation of 30 C.F.R. § 75.514, 

states as follows: 

The supply track on the 2 south section is not provided 

with mechanically and electrically efficient·track 

bonding. The track is 350 feet long with no track 

bonds on any of the joints. The 300 volt D.C. trolley 

wire has been installed and is energized. There are 

man trips and supply cars on the track. At the end of 

the track the Galis D.C. roof bolter and the "Ako" D.C. 

rock duster is grounded to the track by ground clamps. 

The Galis roof bolter and the "Ako" rock duster is not 

energized at this time. When talking with the UMWA 

representative he informed me that the track had been 

laid for at least two months. Track motors use this 

track to place up supply cars on the section. The mine 

floor which the track is laid on is dry and rock 

dusted. A citation was also issued along with this 

order for inadequate preshift examination. The 

preshift examination book shows that the track had been 

examined and no violations were found or reported. The 

previous order which this order was written on is 

No. 3107321 dated 4-11-88. 

Petitioner's Testimony and Evidence 

MSHA Inspector Robert Huggins confirmed that he issued the 

violation and order after observing that none of the rail joints 

on the cited supply tracks were bonded. He stated that he asked 

company representative L.A. Smith, who accompanied him during his 

inspection, about the matter, and Mr. Smith stated that "they had 

messed up" (Tr. 20). Mr. Huggins stated that there were 

approximately fifteen 30-foot lengths of track rails over the 

cited 350 feet of rails which lacked track bonding {Tr. 21). 

Mr. Huggins stated that he had no special training as an 

electrician, and he relied on MSHA's section 75.514, July 1, 

1988, Program Policy Manual guidelines (Exhibit P-7), which state 

as follows (Tr. 23): 

This section requires that conductors be joined 

together with clamps, connectors, track bonds or other 

suitable connectors to provide good electrical 

connections. 

56 
At least one rail on secondary track haulage rails 

shall be welded or bonded at every joint, and crossbonds shall be installed at intervals of not more than 

two hundred feet. 

Mr. Huggins confirmed that the cited supply track was 

secondary haulage and that there were no welds at any of the 

track joints and no cross bonding. He believed that the MSHA 

policy provision was readily available to the respondent. He 

confirmed that mantrips, a rock duster, and a roof bolter were on 

the supply track and that the ground clamps were connected to the 

rail at the end of the track with "alligator like clamps". The 

power supplied to the track was 300 volt D.C. current 

(Tr. 25-27). Mr. Huggins described the condition of the track 

rails, and he was told that they had been installed for over two 

months and some of them were "surface bent" (Tr. 28). The track 

rails were connected with fishplates, which are strips of metal 

that are attached rail-to-rail with bolts (Tr. 27-28). 

Mr. Huggins described the hazards associated with the cited 

conditions, and he explained that he designated the violation as 

an "S&S" violation, but that this was later modified to a "non-

"S&S" violation by an MSHA conference officer" and that he 

(Huggins) was never notified of the conference or contacted by 

the conference officer (Tr. 28-32). 

Mr. Huggins confirmed his "high negligence" and 

unwarrantable failure findings, and he stated that mine 

management knew about the cited conditions because the matter of 

track bonding was discussed during the first day of his 

inspection of the mine. He estimated that this was "probably 

right after the fourth of July. The fifth or sixth, somewhere in 

there" (Tr. 32-33). He also stated that preshift examiners at 

other mine locations had noted the absence of track bonding, that 

superintendent Terry Suder indicated that the track had been 

installed prior to the development of the section and that they 

forgot to go back in and bond it, and that L.A. Smith "said they 

screwed up. Not those exact words" (Tr. 34). Mr. Huggins also 

indicated that it was quite obvious that the required track bonds 

were not in place, and that anyone walking the track should have 

observed the conditions (Tr. 35). He confirmed that the preshift 

books for the specific cited track area did not reflect the 

missing track bonds, and that he issued a citation for an 

inadequate preshift examination which was paid and not contested 

by the respondent (Tr.36). He further confirmed that people 

would walk the track numerous times during the day and that the 

track was used on all three shifts. Preshift examiners would 

also have occasion to be in the area, and other management 

personnel would have occasion to pass by the area (Tr. ·37-42). 

On cross-examination, Mr. Huggins stated that he took a 

class in electricity for non-electrical inspectors. He confirmed 

57 
that at the time he observed the cited track conditions nothing 

was moving on the track and he observed no arcing or sparking 

(Tr. 44). He observed no change in the operation of the jeep or 

jitney that he was riding on while traveling on the track, nor 

did he see any jeep lights go out or fade, and he did not feel 

any of the joints to determine if they were warm or hot. He 

confirmed that steel ties placed on wood were being used on the 

track in question (Tr. 45). 

Mr. Huggins stated that the steel ties held the track 

sections together, but he did not consider the fishplates to be 

electrical connections between the rails. He confirmed if there 

were no efficient current return on the tracks, the equipment on 

the tracks would not have been able to operate. Since the 

equipment was able to operate, he agreed that current was moving 

through the track (Tr. 47-49). 

Mr. Huggins stated that he could not identify any one 

specific individual who was highly negligent with respect to the 

violation, but that "a good number of management people had been 

up and down the track". He believed that one or two people, as 

well as the preshift examiners, should have seen the cited 

conditions. He conceded that the same preshift examiners are not 

used every day, and that an examiner could miss a condition. 

However, he considered the fact that nothing was done after he 

discussed track bonding with management when he began his mine 

inspection, and Mr. Smith's admission that the respondent 

"screwed up" (Tr. 54-55, 59). 

Mr. Huggins stated that the steel ties he observed were used 

ones and that they are usually rusty and dirty when they are 

installed and that "common sense" would indicate that "you 

wouldn't have an effective ground anyway" (Tr. 63). He did not 

consider a steel tie to be a suitable cross-bond because MSHA has 

never considered them to be acceptable and the entire mine is 

cross-bonded with regular cross bonds welded to the mine rail 

(Tr. 64) • 

Mr. Huggins described a "track bond" as a piece of copper 

twisted together like a wire rope with ends that are pounded onto 

the edge of the bottom of the rail and welded and tacked to make 

an efficient bond (Tr. 64). Mr. Huggins stated that he has never 

been in a mine that did not use track bonds and he confirmed that 

they are used on the tracks throughout the respondent's mine. He 

had never before the hearing in this case heard management take 

the position that fishplates and cross-ties were electrically 

sufficient pursuant to section 75.514, and in his opinion, there 

were no other suitable electrical connectors on the supply track 

at the time o.f his inspection (Tr. 65) • 

Mr. Huggins admitted that he made no determination as to 

whether or not the use of f ishplates as bonding rendered the 

58 
cited track less than mechanically or electrically efficient, and 

only knew that the normal type of copper wire bonding that he had 

observed in other areas of the mine was not being used. He 

concluded that the use of copper wires was the acceptable method 

of bonding, and that the method being used was unusual 

(Tr. 68-69). 

Mr. Huggins was of the opinion that the use of a fishplate 

as a track bond is not a good electrical connection because two 

pieces of rusted steel put together cannot make good contact for 

electrical connections. He conceded that he did not conduct any 

test to determine whether the use ·Of the f ishplates was an 

electrically efficient connection (Tr. 76). Mr. Huggins stated 

that an acceptable definition of a track bond is a piece of 

copper that goes either in front of or behind the fishplate and 

is welded to both ends of the rail (Tr. 76). He stated that when 

he discussed track bonding with management he did not 

specifically discuss the cited supply track but only spoke 

generally about bonding (Tr. 87). 

MSHA Insoector Soencer Shriver testified that he is an 

electrical engineer and has bachelor's and master's degrees in 

electrical engineering from the West Virginia University 

(Tr. 89). He stated that he was familiar with the mine and had 

conducted prior electrical inspections and spot inspections at 

the mine. He stated as follows with respect to the use of track 

bonds (Tr. 91-93): 

A. A track bond, it varies in length. It's 

about one and a half to two feet long. It 

has a metal clamp on the end which is pounded 

onto the flange of the rail, then welded in 

place. Then this piece of wire is welded 

across the track bond -- excuse me -- across 

the track joint to get an electrically 

efficient connection. 

Q. Now, is this term, track bond -- Well, first 

of all, is the term, track bond, an accepted 

term for this device in the mining industry? 

A. Yes, sir. I've never heard it called 

anything else, a track bond or bond, in the 

fifteen years I've been involved in it. 

Q. When the term, track bond or rail bond, is 

used in the mining industry, is there any 

doubt as to what the reference is to? 

A. Not in my opinion. 

59 
Mr. Shiver was of the opinion that the conditions cited by 

Inspector Huggins constituted a violation of section 75.514, and 

in particular, the sentence that states "all electrical 

connections or splices in conductors shall be mechanically and 

electrically efficient". He explained that the fishplates that 

hold the track rails together may be rusted or corroded and that 

"no matter how tight you get them, there is still some resistance 

in that connection" (Tr. 92). 

Mr. Shiver explained the direct current circuitry used on 

the supply track in question and the application of MSHA's policy 

manual interpretation of section 75.514. He confirmed that in 

terms of compliance, MSHA considers the clamp and copper wire 

bond as the only acceptable means of insuring electrical and 

mechanical efficiency at all times (Tr. 95-102). 

Mr. Shiver stated that he did not observe the cited track 

area because he was on the four right track conducting an 

inspection. He issued a citation at that track because two of 

the track joints had not been bonded. The track was connected 

with fishplates but was not bonded like all of the tracks in the 

mine. He confirmed that the track had been bonded to a point but 

personnel were called off that job and were dispatched to the 

track cited by Mr. Huggins (Tr. 105-107). 

Mr. Shriver did not believe it likely that the use of 

f ishplates provided electrically efficient connections because of 

the increased resistance caused by rusty rails. He confirmed 

that a voltage drop test can be conducted to determine the 

electrical efficiency of a conductor and that he has conducted 

such tests on several occasions at various mines. He stated 

that the hazards presented by the cited conditions included the 

possibility of electrocution, a fire due to hot joints, and a 

short circuit not being interrupted by reduced short circuit 

currents (Tr. 108-111). He further explained the injuries that 

could result from the hazards, and he believed that it was 

reasonably likely that a fatality could occur, irrespective of 

the MSHA conference officer's non S&S finding (Tr. 113-121). 

On cross-examination, Mr. Shriver confirmed that he never 

observed the cited track before or during Mr. Huggins inspection 

and he did not conduct a voltage drop test on that track. When 

asked if the track connections in question were electrically 

inefficient, Mr. Shriver responded "not having been there and 

based on what I've been told, in my judgment, they would be 

electrically inefficient" {Tr. 124). He confirmed that the never 

observed the connections before they were bonded (Tr. 125). 

Mr. Shriver stated that he was not familiar with the use of 

stud terminals to attach a rail bond to a track (Exhibit P-8), 

and that he has only seen welded connections. He confirmed that 

the inspection of track joints is not required during weekly 

60 
electrical examinations (Tr. 127). Mr. Shriver further explained 

the theory of track resistance, the hearing effects of welded 

bonding, and the application of MSHA's policy (Tr. 128-137). 

Respondent's Testimony and Evidence 

William Runyan. section foreman, confirmed that he escorted 

Mr. Huggins during his inspection and he described what occurred. 

He confirmed that there was a supply car, portal bus, two jeeps, 

a rock duster, and a roof bolter on the track in question, and 

that except for forty feet of the track which one could observe 

visually, the remaining portion was filled with the equipment he 

described. Mr. Runyan observed no evidence of any track heating, 

arcing, or sparking, and he stated that the roof bolter and rock 

duster were used on the section and operated efficiently and he 

had no reason to believe that there were any problems with the 

return electrical feed for these machines. He confirmed that 

Mr. Smith was not with the inspection party initially, but may 

have met it later at an intersection (Tr. 138-143). 

Mr. Runyon confirmed that no tests were made to determine 

the efficiency of the connections on the cited supply track, and 

the respondent immediately responded to the order by bringing 

two people from the four right track section to begin bonding the 

rails in question (Tr. 144-145). 

On cross-examination, Mr. Runyon stated that Mr. Smith was 

with inspector Shriver on the four right track section but he 

could not recall whether he met them underground or outside of 

the mine. Mr. Runyon believed that the track had been laid for 

at least four weeks prior to the inspection by Mr. Huggins, and 

he confirmed that the saw no track bonds on the cited section of 

supply track (Tr. 145-147). 

In response to further questions, Mr. Runyon stated that the 

tracks in the mine are general bonded with the copper bonding 

device described by Mr. Huggins and Mr. Shriver. He confirmed 

that the cited tracks were connected with fishplates, and given 

the absence of water, the dry conditions, and the length of track 

that had been laid, he believed the use of fishplates was an 

acceptable bonding method. If more track had been laid, the 

fishplates may have presented a problem. Although it was hard to 

see under the cars on the track, he acknowledged that the people 

who laid the track would know it was not bonded. He did not know 

why the track was not bonded in the manner required by the 

inspectors (Tr. 148-154). 

Robert L. Mabin testified that he was the section foreman on 

the two south section at the time of the inspection and had 

worked there for about a month. He confirmed that equipment had 

operated on the track without any indications of problems with. 

the return cirtuit for the equipment. He never observed any 

61 
track arcing or sparking, and saw no visual evidence of heated 

track joints (Tr. 155-159). 

On cross-examination, Mr. Mabin stated that the roof bolter 

may have been used four or five times during a two-month period 

on his shift, and he assumed that the cited supply track was not 

bonded because it only covered 350 feet (Tr. 162-164). 

Section 104Cdl (2) "S&S" Order No. 3720838, issued on 

August 12, 1992, cites an alleged violation of 30 C.F.R. 

§ 75.400, and the condition or practice is described as follows: 

At 4 right transfer, coal has spilled on outby side of 

headroller and chute, accumulating 4 feet high and 

forcing back under bottom belt of Main South No. 2 

Belt. This condition was reported in the preshift 

examination book, and this hazardous condition was not 

promptly corrected. Persons shoveling accumulation 

stated that accumulations occur once or twice a week, 

and review of preshift examination book disclosed that 

accumulation was listed about ten times in last three 

weeks. Violation therefore occurred due to failure of 

operator to correct the underlying condition which 

permitted the accumulations to repetitiously occur. 

The violation was left uncorrected for three hours 

after being listed in preshift examination book. The 

violation is particularly serious, since there have 

been many belt fires from such accumulations, 

warranting increased attention from operator to correct 

it. 

The violation was listed several times in preshift 

examination book, indicating an underlying problem. 

The operator knew of violation and failed to promptly 

correct it. Therefore, operator had high negligence, 

and a serious accident is reasonably likely to occur. 

Petitioner's Testimony and Evidence - Order No. 3720838. 

Inspector Shriver confirmed that he issued the contested 

order on August 12, 1992, for coal accumulations that he observed 

at the locations described in his order, and he explained what he 

observed. The section foreman informed him that "he had been 

broke down and had not dumped any coal at all". Based on this 

statement, Mr. Shriver concluded that the accumulations had been 

present at least during the previous shift (Tr. 186-189). 

Mr. Shriver stated that the cited coal spill was roughl¥ waist 

deep, five or six feet wide, and probably ten feet long 

("Tr. 190). 

62 
Mr. Shriver had no knowledge of any fires or injuries caused 

by coal accumulations at the mine in question. He identified a 

summary report of fires at other mines during the past five 

years, and he described the hazards associated with the cited 

accumulations and the reasonable likelihood of injuries resulting 

from the hazards. 

Mr. Shriver stated that three belt rollers were turning in 

the coal accumulations and that the belt was "massaging the 

coal". He believed it was reasonably likely that a fire would 

start from that source. He stated that it was not uncommon for a 

roller to break or stick, and the belt rubbing on the roller 

would generate enough heat to ignite coal. In the event of a 

fire, it could reasonably be expected that serious burns from an 

explosion, or smoke inhalation from a fire would result 

(Tr. 192, 197-199). 

Mr. Shriver stated that mine management knew about the cited 

accumulations because coal spillage at the four right transfer 

point had been recorded "about ten times the previous few weeks" 

in the preshift books which were countersigned by several company 

officials. Accordingly, Mr. Shriver concluded that the recurrent 

accumulations problems should have been known to these 

individuals. He also indicated that there was "a rather obvious 

big hole" in the sideboard at the transfer point which should 

have been detected by the onshift and preshift examiners 

(Tr. 200). 

Mr. Shriver reviewed the preshift books for August 12, 1992, 

and explained some of the entries. He believed that the 

recurring spillage was caused by coal falling through the hole in 

the side board (Tr. 203). Mr. Shriver stated that he returned to 

the area a few days after the issued the order and found that the 

condition had reoccurred. He issued a citation, and the hole was 

repaired and the spillage has become practically nonexistent 

(Tr. 204) . 

Mr. Shriver stated that he has had occasion to issue 

citations for coal accumulations along the belts four or five 

times prior to the issuance of his order, and it was his 

understanding that the sideboard hole had existed since it was 

cut out to install a belt scraper, "probably about six weeks" 

(Tr. 207). 

In response to a question concerning the "aggravated 

conduct" by the respondent in support of his unwarrantable 

failure finding, Mr. Shriver stated as follows at (Tr. 211). 

A. The fact that it had been recorded, I think, 

about ten times. I leafed back through the 

63 
fire boss book and I observed about ten 

occasions when a problem had been reported. 

And the comments of the two men who came to 

shovel up the problem that they would have to 

shovel it up once or twice a week. And the 

fact that the belt examiners -- the on-shift 

is done by the section foreman. 

And several times, in my opinion, the onshift examination disclosed this problem and 

they were able to clean it up before the next 

shift start, in which case it would not be 

entered in the fire boss book. So there were 

actually times when it was there, but not 

recorded. 

And based on all these factors, but mainly 

the fact that the mine foreman and the 

superintendent had countersigned the fire 

boss book, the running of the coal appeared 

to me to be more important than to fix the 

problem that was causing the accumulations. 

On cross-examination, Mr. Shriver reviewed the relevant 

preshift examination book and explained some of the entries, and 

he confirmed that each time the accumulations were noted in the 

book they were cleaned up every time (Tr. 219). He confirmed 

that he considered the violation to be an unwarrantable failure 

because the accumulations continued to repeatedly occur and not 

because they were not cleaned up (Tr. 219). 

Mr. Shriver confirmed that he did not test for methane, and 

he identified the ignition sources as the three rollers turning 

in coal and the belt rubbing on coal. He observed no hot 

rollers, and he considered it reasonably likely that death or 

serious injury would have resulted from the cited conditions 

(Tr. 220). Mr. Shriver confirmed that he did not observe any of 

the coal spilling out of the chute at the location of the hole, 

but when he next returned to that location, there was no spillage 

there (Tr. 224). 

Mr. Shriver conceded that his order does not mention that 

any belt rollers were turning in coal, and after referring to his 

notes he stated that they say nothing about rollers turning in 

coal, but do indicate that "coal worked under the belt" 

(Tr. 228-229). The shift reports reflect that the accumulations 

that were reported and recorded were cleaned up each time, but 

that on August 12, 1992, when he was there, the individuals 

assigned to clean up the cited accumulations had not reached that 

area before he did (Tr. 237). 

64 
Mr. Shriver estimated that the cited spillage 

accumulation had been present for half of the preceding midnight 

shift, and that "it would take it a couple of hours to accumulate 

that much coal spillage" (Tr. 238). He confirmed that he 

reviewed the preshift books (Exhibit P-12) for ninety-five shifts 

prior to his order, and that spillage was reported twelve times. 

He agreed there would be many shifts where no spillage was 

reported because "the on-shift people apparently cleaned it up 

before they had to call it out". He also stated that "there was 

spillage there and people were cleaning it up on-shift, but if 

they couldn't get it all, then they would call it out as an entry 

in the preshift book" (Tr. 240). 

Respondent's Testimony and Evidence 

John G. Blue, shift foreman, stated that he was present at 

the cited area after Mr. Shriver issued his order. He confirmed 

that he reviews the preshift reports from the prior shift in 

order to determine the number of people needed to correct any 

recorded violative conditions within a reasonable time (Tr. 243). 

He stated that he assigned two people to clean up the spillage at 

the cited four right transfer location because the foreman who 

conducted the preshift told him the chute had plugged, that he 

found it and cleared the plug, but that there was spillage on the 

floor and around the ribs. The two men in question stopped along 

the way to drag another belt that was more of a priority because 

of float dust, and the foreman told him that the spillage in 

question was not touching any belt or rollers, and that it was 

not an immediate problem, but needed to be cleaned up 

(Tr. 243-244). 

Mr. Blue stated that the spillage entries shown in the 

preshift books were not for the same cited conditions and that 

there were six different areas where spillage may occur 

(Tr. 247). He confirmed that the coal spillage, as well as all 

of the coal on the section, is damp and that the transfer point 

is "extremely wet". He further stated that he observed no 

ignition sources in the cited area, and he found it highly 

unlikely that the wet coal could have ignited (Tr. 250). 

Mr. Blue believed that the cited accumulations had existed 

for no more than two hours and ten minutes under "a worst case 

scenario" (Tr. 250). He explained that the preshift examiner 

found the spill and told him about it when he came outside. 

Mr. Blue believed the spill occurred between 6:30 and 7:00, and 

he stated that the two men who were dispatched to the area to 

clean up the spill stopped at another belt area on their way to 

the cited location. He made the clean up assignment at· 

8:00 a.m., at the beginning of the shift (Tr. 253). 

On cross-examination, Mr. Blue agreed that the cited 

accumulations had existed for at least two hours. He confirmed 

65 
that he met with the foreman of the prior night shift who 

informed him of the spillage and that he immediately assigned 

personnel to clean it up (Tr. 258). He agreed that there were 

accumulations at the cited location during the prior month, but 

he believed the cited accumulations may have been caused by a 

plugged chute (Tr. 260). However, he stated that "anything can 

cause spillage," that it was not uncommon, and that no rollers 

were turning in coal and no coal was in contact with the belt 

(Tr. 2 61 , 2 6 9 ) • 

Robert c. Andersch. Jr., confirmed that he accompanied the 

inspector and that he was served with the order. He stated that 

the cited transfer point was "very wet" and that the spillage was 

caused by "some kind of a backup into the chute, some wet coal or 

muck" (Tr. 273). He did not notice any ignition sources, and 

although the belt was running, no coal had been mined prior to 

their arrival and there was no coal on the belt. He observed no 

belt rollers turning in coal or the belt touching and rubbing 

coal (Tr. 274). 

Section 104Cdl (2) Order No. 3718252, September 4, 1992, 

cites an alleged violation of 30 C.F.R. § 75.400, and the cited 

condition and practice states as follows: 

At Main Butts No. 1 drive there is accumulation of fine 

coal and dust under the bottom belt from the tail 

roller to the drive roller nearest tipple. There is 

accumulation of wet coal and dust under and around a 

piece of belt over the north drive motor, with dry coal 

and dust under the connection box and packed against 

motor. Heat from motor had dried this material out, 

possibly resulting in spontaneous combustion. on the 

frame between the two motors, fine coal was packed so 

tightly that a pick hammer was required to dig it 

loose. The 4/0 AWG cable serving the drive motor 

nearest tipple had the nut come loose from the fitting 

into the junction box, and the cable had pulled out of 

the box, leaving opening into connections. Substantial 

dust had accumulated in the box. When the motor 

junction boxes were opened, the pilot and ground 

conductors in both motors were connected to same stud. 

The possibility of a fire from friction and motor heat, 

fire or explosion from dust, and water in the motor 

junction box with opening, and improperly wired ground 

monitor circuits, make a lost workday accident 

reasonably likely. 

The record of preshift examinations revealed that 

spillage was reported on this belt from the tail 

(piece) to tipple. Nobody was working at the drive, 

which is the most likely location for a fire to result 

66 
from accumulation of coal. Operator therefore had high 

negligence in permitting these accumulations to exist. 

Petitioner's Testimony and Evidence 

MSHA Inspector Spencer A. Shriver testified that he was 

accompanied on his inspection of September 4, 1992, by the 

respondent's Safety inspector Fred Morgan. Mr. Shriver stated 

that an accidental spill had occurred two days earlier at another 

location and that he returned on September 4, to check on that 

cleanup and found the accumulations that he cited that day. He 

confirmed that the accumulations were all located in the same 

general location, but were different types of accumulations 

(Tr. 274-279). 

Mr. Shriver described the locations and extent of the 

accumulations and stated that they ranged from damp to dry 

(Tr. 279-282). He believed the accumulations presented a fire 

hazard through spontaneous combustion at the location of the 

motors, and he described the hazards at the other locations 

(Tr. 282-285). 

Mr. Shriver believed that the accumulations at the 

connection box had existed for "several days" or "several shifts" 

(Tr. 285-286). He believed that it was reasonably likely that an 

injury would result from the hazards presented by the accumulations, and he explained what could have occurred if normal 

mining operations were allowed to continue (Tr. 286-288). 

Mr. Shriver stated that he based his "high negligence" 

finding on his belief that the accumulations between the motors 

had existed for several shifts and that he "had discussed this 

situation there with Mr. Cole couple of days earlier and he said 

that he would clean it up" (Tr. 288). Mr. Shriver also stated 

that the preshift examiner would travel the area each shift and 

should be looking for accumulations at the drives, tail pieces, 

and transfers, but that the location of the motors were not among 

the previous locations mentioned by mine foreman Cole (Tr. 289). 

Mr. Shriver believed that the accumulations along the No. 1 

belt drive rib had existed "over a period of time" and that it 

was cleaned up from the drive and left by the rib. The 

accumulation at the bottom belt had accumulated for "several days 

from normal accretion of dust and fine coal" (Tr. 291). He 

confirmed that none of the cited areas were the areas reported to 

him by Mr. Cole (Tr. 291-293). Mr. Shriver could not recall 

reviewing the preshift books to determine whether the cited 

accumulations had been recorded (Tr. 295). He also confirmed 

that he did not ask Mr. Cole about the cited accumulations 

(Tr. 296). He later remembered reviewing the preshift books and 

found that spillage was reported on the belt in question from the 

tailpiece to the tipple (Tr. 299). 

67 
On cross-examination, Mr. Shriver confirmed that the coal 

material packed against the motor was black and dry, that he 

did not sample it, and did not check for methane in the area 

(Tr. 306-307). He believed that the main ignition source was the 

junction box. He stated that the cable entered the box through a 

fitting that had "backed off" from the inside, but he saw no bare 

wires. The insulation was somewhat damaged, and with the 

continued vibration, he believed it would have cut through into 

the energized wires over several shifts. He confirmed that the 

area "was fairly damp" and was equipped with a sprinkler fire 

suppression system (Tr. 308). He confirmed that the material 

between the drive tipple was the result of a spill, and he 

conceded that he did not include the accumulations along the rib 

as part of his order (Tr. 309). 

Respondent's Testimony and Evidence 

Frederick D. Morgan. Sr., respirable dust foreman, confirmed 

that the spillage under the belt tailpiece and tipple had been 

reported and called out and two men and a foreman were working 

on it. The area was damp and well rock dusted (Tr. 312-316). 

Mr. Morgan confirmed the existence of the accumulations cited by 

the inspector (Tr. 317-323). 

Robert L. Mabin, testified that he was the regular section 

foreman at the two south section on September 4, 1992. He 

confirmed that there was a large spill at the belt transfer 

point, that the section was idled, and that he assigned two men 

to work on the spillage that had been reported on the preshift 

(Tr. 327). He explained what work was done to address the 

spillage, and he stated that the area is always wet and is 

equipped with an operable fire suppression system (Tr. 329-330). 

Docket No. WEVA 93-5 

This proceeding concerns a section 104(d)(2) "S&S" Order 

No. 3121715, issued by Inspector Spencer A. Shriver on June 18, 

1992, citing an alleged violation of 30 C.F.R. § 75.400. The 

cited conditions are described as follows: 

On 3 right section, ID No. 028, the tailpiece of the 3 

right belt, the tail roller is turning in fine dry coal 

about 18 inches high and 18 inches long. Area was 

covered with red dust. Float dust had covered 4 inch 

water pipe and belt structure for about 35 feet outby 

to inby rib of next crosscut. Float dust became 

suspended in air when water pipe was patted. 

Section foreman said he had made last check at 

10:30 A.M., and due to problems with section equipment, 

68 
had only dumped half-dozen or less buggies of coal on 

belt. Accumulations of fine coal and dust had occurred 

at least during previous midnight shift, and probably 

much earlier. 

Most belt fires are caused by rollers turning in coal. 

An accident is therefore reasonably likely. Such a 

fire would generate dense smoke which would affect 

persons working on belt. Accident would reasonably 

result in lost workdays. Section Foreman should have 

found and corrected violation between arrival on 

section at 8:30 a.m. and issuance of order at 

11:50 a.m. 

Assistant Mine Superintendent was on section for 

20 minutes before inspector knowing authorized 

representative of secretary was heading for section. 

He and section foreman were at feeder, 20 feet from 

tailpiece, when violation was observed. Operator 

therefore had high negligence in permitting violation 

to exist. 

The respondent's counsel conceded that the cited 

accumulations existed and constituted a violation of 

section 75.400, and that the crux of this case is the his dispute 

with the inspector's unwarrantable failure and "S&S" findings 

(Tr. 9-10). 

Petitioner's Testimony and Evidence 

Inspe9tor Shriver stated that he conducted the inspection on 

June 18, 1992, and he explained what he found. He stated that 

there was a considerable amount of red coal dust on the ribs and 

belt structures and that "anytime I had seen that red dust in the 

past, it usually meant that a roller was turning in coal for some 

length of time". He believed that the dust had turned red 

because "it was slightly oxidized by the friction of the roller 

grinding in the coal" (Tr. 11-19). The accumulations next to 

the roller were dry and the area under the belt drive was wet 

(Tr. 26). 

Mr. Shriver stated that the hazards associated with the 

violation included the roller turning in the coal and generating 

heat which turned the dust red, and the possibility of smoke 

inhalation exposure to people in the area. He was also concerned 

about a methane ignition on the section and believed that the 

face was two to three hundred feet from the accumulations 

(Tr. 30). He believed that an injury was reasonably likely, and 

that persons in the area would be exposed to smoke inhalation, 

or severe burns in the event of a float coal dust ignition 

69 
(Tr. 31-32). He also believed that it was reasonably likely that 

a fire would have resulted if normal mining operations continued 

and the roller continued turning in the accumulations (Tr. 32). 

Mr. Shriver believed that the accumulations under the roller 

existed for "several shifts" because the material "was more like 

it had been gradually dribbled down into this area, and it would 

have taken a few days to get to this point" (Tr. 33). He 

confirmed that only "a couple of buggies" of coal had been mined 

before he arrived, and he did not believe this was sufficient to 

have cause the accumulations in question. 

Mr. Shriver stated that the cited area was required to be 

preshifted, and he checked the morning report and found that the 

conditions had not been reported. He estimated that the 

accumulations had existed for "several days", "fifteen or twenty 

shifts", or "six days" (Tr. 33-36). He further stated that it wa~ difficult to determine how long the accumulations existed, 

but since little coal had been mined, "it would have had to have 

been accumulated during the previous midnight shift" (Tr. 37). 

Mr. Shriver believed that the assistant mine superintendent 

should have known about the conditions because the conditions 

were obvious and he went into the section ahead of him for an 

inspection, and the section foreman told him that he had examined 

the area approximately an hour and twenty minutes earlier. Under 

the circumstances, Mr. Shriver concluded that "the company's 

agents did know about it" and that "combined with the length of 

time it had been in place", he believed that this constituted 

aggravated conduct (Tr. 39). Mr. Shriver conceded that he had no 

evidence that the superintendent and foreman actually saw the 

cited accumulations, and no one admitted going by the area and 

seeing the accumulations (Tr. 41-43). 

Mr. Shriver explained the "aggravated factors" amounting to 

an "unwarrantable failure" violation as follows (Tr. 43-44): 

A. The fact that there was an accumulation there 

and, in my opinion, it had been there for a 

substantial length of time; the fact that the 

condition was obvious to a competent 

observer, such as a section foreman; that he 

told me he had made his check of the area at 

ten thirty; and also that the assistant 

superintendent was in the area. I felt at 

the time he should have observed it. 

Q. Now, during those preceding six days which 

you felt this accumulation had been present, 

was this an area that mine management would 

have passed through often? 

70 
A. The section foreman on each section should 

have examined the area for the preshift 

examination for the following shift. 

Q. The preshift. Would any other members of 

mine management have been through this area 

during the preceding six days? 

A. It's difficult to say. They frequently do go 

through there, but to pinpoint any specific 

person at any specific time, I could not do 

that. 

On cross-examination, Mr. Shriver stated that when he has 

found similar red dust conditions in the past "it is a condition 

that requires several shifts to achieve", and that "we would find 

it had been there for several shifts" (Tr. 49). He was not sure 

that the red dust was combustible, and he has never tested it 

(Tr. 49). The material contacting the belt "was not smoking and 

it was not on fire", and he did not test or feel it for heat 

content (Tr. 55). 

Mr. Shriver stated that he made no methane checks and had no 

indication of any methane problems. He was satisfied that the 

section foreman checked for methane, and Mr. Shriver could not 

recall seeing any areas inby the crusher, feeder and belt 

tailpiece that were not adequately rock dusted (Tr. 57). He 

explained his "S&S" finding as follows at (Tr. 55-59): 

A. If there were an ignition of methane on the 

section and we have an accumulation of float 

dust like we had on the structures here as 

has happened in same other mines, the 

concussion of the methane ignition can 

suspend the float dust and cause a coal dust 

explosion which is very severe. As in, I 

believe it was the south mountain mine, we 

had several fatalities in that case. 

* * * * 

A. Well, it's reasonably likely there would be a 

serious accident either from a methane 

ignition or from the roller turning in the 

coal, causing a fire. 

Q. Is that a second ignition source that you're 

hypothesizing here? It could start with a 

methane ignition somewhere up near the face, 

or it could come from an ignition of the coal 

being contacted by the roller? 

71 
A. That is right. 

Q. But you did not see any indication of heat 

with respect to that roller turning in coal. 

A. Other than the condition of the dust I 

observed. 

Q. No smoke, though. 

A. No. 

Q. No smell of combustion. 

A. No. 

* * * * 

Q. The second hypothetical source of ignition, 

the ignition of the coal by the roller, the 

friction between the coal and the roller, 

that wouldn't cause the kind of concussion 

that would mobilize float dust, would it? 

A. I don't believe it would. 

In response to further questions, Mr. Shriver stated that he 

detected no permissibility violations at the face that would 

constitute potential ignition sources, and saw no ventilation 

problems (Tr. 63-64). He conceded that when he makes an "S&S" 

determination, he considers "a worst case scenario" if mining 

were allowed to continue (Tr. 64). 

Mr. Shriver stated that he checked the preshift book and 

found no recorded violative conditions, but he did not check the 

preshift books for the five or six days prior to his inspection 

(Tr. 67). When asked if the accumulations had not been cleaned 

up, and if mining were allowed to continue, whether the tail 

roller turning in the accumulations would have ignited the coal, 

he replied as follows at (Tr. 69): 

A. I think it's reasonably likely that it would 

have ignited. I base that on conversations 

with people I work with up at the District. 

Most of them have been at least section 

foreman or mine foreman and they indicate 

that rollers turning in coal, if left for a 

long period of time, will frequently result 

in a fire. 

72 
Respondent's Testimony and Evidence 

Leonard J. Lewandoski, section foreman, testified that he 

worked the midnight shift on June 18, 1992, and conducted the 

preshift examination of the belt and tailpiece, commencing at 

5:15 a.m. Upon examination, he found that the tailpiece "was 

clean" (Tr. 71-72). 

On cross-examination, Mr. Lewandoski stated that he saw no 

"red coal" when he traveled the area, and he observed no tail 

roller turning in fine, dry coal. He has served as section 

foreman since December, 1981, and has observed "a brownish red" 

dust that results from rusty belt rollers. He observed no 

accumulations of any kind when he conducted his examination 

(Tr. 72-77). 

Robert c. Andersch. Jr., stated he served as the inspection 

escort for Mr. Shriver on June 18, 1992, when he conducted his 

electrical inspection. He confirmed that two accumulations were 

found at the tail roller of the three right section tailpiece, 

one on each side of the roller. He estimated the accumulations 

to be 12 inches high, with 3 to 5 inches submerged in water, and 

they were "brownish" in color (Tr. 79). Mr. Andersch described 

the materials as "residue coming off of the belt since our water 

sprays down at the drive were inoperative" (Tr. 80). 

Mr. Andersch stated that he observed the tops of the 

accumulations "barely rubbing on the belt," but not onto the 

roller. He also observed accumulations and brown dust at a 

V-scraper located 10 feet outby the tail roller, and the tops 

were dry, but the bottoms were wet. He further stated that he 

has never seen any "red dust" as described by the inspector, and 

he would classify it as "brown" (Tr. 81-83). 

John E. Godwin, stated that he was the assistant mine 

superintendent on June 18, 1992, and that between 9:30 and 

10:00 A.M., the belt was reported as being dry (Tr. 84). Upon 

inspection of certain belt sprays he found that the belt was dry, 

and he described what occurs when the belt runs "off-center" 

(Tr. 86-89). 

Mr. Godwin stated that the section had been moved two days 

prior to the inspector's arrival, and he believed the 

accumulations could not have been present for more than two days 

(Tr. 90). He believed that the "orangish brown dust" on each 

side of the v-scraper was caused by the black and orange colored 

rubber material used in the construction of the scraper and that 

it was "residue and belt deposits" from the dry running belt 

(Tr. 95-96). 

73 
Mr. Godwin conceded that accumulations were present, but 

he did not believe that a (d) order was justified because the 

pile was small and he observed no roller turning in the dust 

(Tr. 98-100). He attributed the brown color of the accumulations 

to the dry belt and not oxidation, and he believed that coal can 

accumulate in seconds with the belt running off at the tailpiece 

(Tr. 101) . 

Inspector Shriver was recalled by the presiding judge and 

stated in part as follows at (Tr. 109): 

This type of dust 

I've found when I 

nearest tailpiece 

usually find that 

turning in coal. 

that I observed in the area, 

see that dust - I didn't go to the 

or what have you on the belt -- I 

there is coal there, the rollers 

That has been my experience. 

Q. When you see red dust, the rollers are turning 

in coal? 

A. Reddish dust. Whether it's brown or red -- I'm 

not that good at distinguishing colors, but 

I've found on several occasions that when I 

seen that color material in the area --

Q. Could it have been brownish or orange or brown? 

A. Reddish brown. 

On cross-examination, Mr. Shriver was of the opinion that 

the "reddish dust" was caused by the tail roller, and he 

explained as follows at (Tr. 113): 

A. Turning in the coal and suspending the reddish 

dust into the air and depositing it on the ribs 

and bottom; primarily because on several 

occasions in by inspecting experience, I've 

found a similar type of dust, and when I got to 

the cause of it, it was a roller turning in 

dust -- or a roller turning in coal. 

Mr. Shriver stated that the longer a roller turns in coal 

dust, the more dust is generated, and that a roller turning in 

dust for a half-hour to two hours could turn the dust brown. He 

confirmed that the cited dust accumulations consisted of "a light 

coating of the ribs" rather then piles of material, and in his 

opinion, they had existed "at least in the preceding shift and 

probably much longer". He confirmed that his unwarrantable 

failure finding was based on how long the condition existed and 

the fact that the section foreman told him he had examined the 

74 
area (Tr. 116-120). Mr. Shriver believed that the foreman should 

have observed the condition, and in his opinion, the foreman 

didn't examine the area very closely (Tr. 124). 

Mr. Shriver confirmed that he did not measure the 

accumulations in question and only "eyeballed it across the back 

of the tail roller". In his judgment it was "one and a half feet 

in length in the direction of the belt" (Tr. 125). He believed 

that it took 25 minutes for two men to clean it up with a shovel, 

but that they were doing other work as well (Tr. 127-128). 

Docket No. WEVA 93-92 

This proceeding concerns four (4) section 104(a) "S&S" 

citations issued by Inspector Spencer A. Shriver. Citation 

No. 3720837, issued on August 12, 1993, citing an alleged 

violation of 30 C.F.R. § 75.400, was settled by the parties and 

the respondent agreed to pay the full amount of the proposed 

civil penalty assessment of $506. The proposed settlement was 

approved from the bench, and my decision in this regard is herein 

reaffirmed (Tr• 131-132). 

The three remaining contested citations are as follows: 

Section 104(a) "S&S" Citation No. 3718250, issued on 

September 3, 1992, cites an alleged violation of 30 C.F.R. 

§ 75.701-3(a), and states as follows: 

At No. 45 pump on main haulage, the 250 volt DC fuse 

box does not have a frame grounding conductor. The 

conductors in and out of the fuse box are subject to 

vibration from passing locomotives, so possibility of 

abraded insulation and an energized box is reasonably 

likely. There have been several fatalities from 

contacting trolley in past year: however, area at fuse 

box was dry, so injury could reasonably be lost 

workdays. These boxes have been changed from AC to DC 

for over a year, and have had several weekly electrical 

examinations. This box has never had a frame-grounding 

conductor. Operator therefore had moderate negligence 

in permitting violation to exist. 

Section 104Cal "S&S" Citation No. 3718251, issued on 

September 3, 1992, cites an alleged violation of 30 C.F.R. 

§ 75.518, and states as follows: 

At 35 Jug Pump on Main Haulage the fuse in fuse holder 

is TRS 20R ampere rated. The pump is new and covered 

with blue paint, and name plate could not be found. 

However, this type of pump is 1 horse power or less, 

requiring a 5 ampere fuse. If pump became overloaded 

toxic fumes could be emitted, traveling about 2 miles 

75 
to lynch air shaft. Two motormen are in this area 

shuttling loads and empties back and forth. A lost 

workdays accident involving two motormen is therefore 

reasonably likely. Weekly electrical examiner 

checklist calls for 5 ampere fuse on this pump. 

Operator therefore had moderate negligence in 

permitting violation to exist. 

Section 104Cal "S&S" Citation No. 3718256, September 4, 

1992, cites an alleged violation of 30 C.F.R. § 75.512, and 

states as follows: 

An inadequate examination of electrical equipment is 

being made at this mine. The following violations 

which were abundantly obvious were cited: 

1. The fuse box at No. 45 pump had never had a 

frame grounding conductor. Box has been 

installed about a year - 104(a) No. 3718250. 

2. The fuse protecting No. 35 pump was 

10 ampheres. The weekly examiner check list 

calls for a 5 ampere fuse for this pump - 104(a) No. 3718251. 

3. The cable in the belt drive junction box at 

main butts drive was pulled out of the box. 

Condition was extremely obvious - 104(a) 

No. 3718253. 

4. The pilot and ground conductors on the cables 

to the main butts drive motors were connected 

to one stud. Motors have been installed for 

about two years. Weekly examination should 

include check of pilot circuit - 104(a) 

No. 3718254. 

Weekly examinations which permit these kinds of 

violations to go undetected is reasonably 

likely to result in lost workday accidents. 

These examinations have been made over several 

months with no follow up to determine adequacy. 

Operator therefore had moderate negligence. 

Petitioner's Testimony and Evidence 

Citation No. 3718250. Inspector Shriver stated that he 

issued the citation after finding that a 250 volt o.c. Square -D 

fuse box located along the main haulage at the location of the 

No. 45 pump was not properly frame grounded to hold the potential 

76 
on the box to a low value approaching zero volts if the box 

became energized. The condition constituted a violation of 

section 75.701-3(a), because none of the grounding methods 

stated in the regulation were used to frame ground the box 

(Tr. 139-143) • 

Mr. Shriver described the hazards associated with the lack 

of proper frame grounding and the likelihood of deterioration of 

the grommet holding the conductor entering the box. He explained 

that the power conductor entering the box could become abraded 

over time, and if it were cut through to the insulation the fuse 

box could be energize and would subject someone to "a fairly 

severe shock" (Tr. 143-150). 

Mr. Shriver stated that the grommet holding the power 

conductor in place was "in good shape", and that it was "a tight 

fit" as the conductor entered the hole in the box. The cited 

condition concerned the one wire that entered the hole and was 

not tied or grounded to the box to complete the circuit 

(Tr. 151-154). 

Mr. Shriver identified copies of prior citations issued at 

the mine for missing frame grounds and fittings (Exhibits P-6 

through P-10). He confirmed that the cited box in this case 

would be subject to vibration by a passing locomotive, and that 

persons conducting a weekly examination of the box could not see 

that the frame grounding conductor that entered the box was not 

connected or grounded to the frame. He was not aware of any 

injuries at the mine in the past five years because of failure to 

ground a fuse box. He further testified about his reasons for 

his "S&S" finding (Tr. 160-184). 

Citation No. 3718251. Inspector Shriver confirmed that he 

issued the citation after finding that a fuse providing short 

circuit protection for the one horsepower D.C. pump was four 

times the capacity of what it should have been. The fuse that he 

found was a 20 ampere fuse, and it should have been one that 

ranged from five to six amperes to provide proper short circuit 

or overload protection. He stated that the cited standard 

section 75.518, was violated because the proper fuse type was not 

used and the respondent's counsel did not dispute this (Tr. 187). 

Mr. Shriver described the hazards associated with the cited 

condition, and he stated that the oversized fuse would not 

deenergize the pump if it "seized up or stalled for any reason". 

If the pump were to overheat it would be the source of toxic 

fumes or smoke or it would start a fire by igniting the coal, 

exposing two motormen who normally shuttle through the-area to 

these hazards (Tr. 187-188). Mr. Shriver believed that it was 

reasonably likely that the pump motor would seize and overheat 

because the bearings go bad and mud or rocks that do not go 

77 
through the pump strainer could become wedged in the motor and 

cause it to stall (Tr. 188-189). 

With regard to any injuries resulting from the hazards 

presented, Mr. Shriver stated as follows at (Tr. 189-190): 

Q. What injuries could these persons be reasonably 

expected to suffer from the fumes and other 

hazards you've described? 

A. Smoke inhalation, which can be lost workdays. 

Q. How serious would you reasonably expect those 

injuries of smoke inhalation to be? 

A. Lost workdays. 

Q. Now, what was the likelihood that a serious 

injury would have resulted from the condition 

you found if normal mining operations had 

continued? 

A. I think it's reasonably likely. 

Mr. Shriver did not know how long the oversized fuse had 

been in the box, and he stated that the respondent knew the 

required fuse size because of a chart posted in the safety off ice 

(Tr. 191). 

Citation No. 3718256. Inspector Shriver stated that when he 

next returned to the mine on September 4, 1992, he found two 

electrical violations at the connection box on the drive motor at 

the main butts number one belt drive. He found a cable pulled 

out of the box and a ground conductor and pilot conductor 

connected to one stud, and he issued citations for these 

conditions (Exhibits P-13 and P-14). These violations, coupled 

with the two previous fuse violations, led him to conclude that 

the required weekly electrical examinations were not adequate, 

particularly since the first three conditions were quite obvious 

(Tr. 195). 

Mr. Shriver believed that at least three of the cited 

violative conditions would have been present at the last weekly 

electrical examination and he described the hazards associated 

with inadequate electrical equipment examinations, and the 

injuries that would reasonably likely result (Tr. 196-200). 

Mr. Shriver did not know when management first knew that 

electrical examinations were inadequate and he stated that 

inadequate examinations have been "a chronic problem" at the mine 

for several years. He confirmed that he has issued several 

citations and orders in the past for the same conditions, and 

78 
also supplied the maintenance supervisor with references from the 

electrical inspector's manual as guidance for making the 

examinations (Exhibits P-15 through P-20; Tr. 201-205). 

On cross-examination Mr. Shriver stated that it was his 

practice in most cases to cite the respondent for inadequate 

electrical examinations after he has issued citations for the 

individual electrical violations. He explained that he does this 

"If I find a significant number of violations and if it is spread 

over a large part of the mine" (Tr. 206-210). 

Mr. Shriver further clarified and explained the violative 

condition associated with Citation No. 3718250. He explained 

that the failure to connect the grounding conductor did not 

provide for "a solid connection to the mine track" for purposes 

of providing proper grounding protection as required by the cited 

standard (Tr. 214-222). Mr. Shriver further explained that 

vibration caused by passing trolleys would subject the power 

conductor insulation to abrasion at the point where the conductor 

entered the No. 45 pump box (Tr. 223-226). 

With regard to the inadequate fuse on the No. 35 portable 

"Jug pump", Mr. Shriver stated that he did not know how often the 

pump would clog or blow fuses (Tr. 228). Mr. Shriver could not 

recall if the 20 ampere fuse was put back after he found it, and 

he "suspected" that it was because there were none readily 

available and he allowed time for the respondent to obtain a new 

fuse. He could not recall if the No. 35 pump were tagged out of 

service, and he confirmed that the No. 45 pump was not taken out 

of service (Tr. 230). He did not believe that the two pumps were 

in unsafe operation condition requiring their removal from 

service pursuant to section 75.1725(a) (Tr. 232). 

Respondent's Testimony and Evidence 

Insoector Escort Frederick D. Morgan. Sr., confirmed that he 

is not an electrician. He stated that the area in question was 

dry, that the pumps themselves are all grounded, and that a 

rubber mat was provided for the No. 45 pump fuse box which was 

mounted securely to the wall. The power wire conductor was 

suspended from an insulated spad and there is very little 

vibration (Tr. 243-249). He conceded that the failure to connect 

the frame ground wire was a violation (Tr. 249). 

With regard to the No. 35 jug pump, Mr. Morgan stated that 

the closest coal was ten feet away, and if a pump fire had 

occurred, he found it unlikely that it would ignite the coal .. He 

confirmed that Mr. Shriver re-installed the oversized fuse after 

checking it and the pump was reenergized (Tr. 250-251). 

Donald s. Buckalew, maintenance foreman for 25 years, 

confirmed that he was familiar with all of the citations issued 

79 
by Mr. Shriver. Mr. Buckalew stated that the examination of 

electrical equipment is his responsibility. He stated that there 

are 80 pumps located over seventeen miles, and that each pump has 

17 different permissibility items that need to be checked. He 

identified a check list and instructions that he gives to his 

personnel for checking the pumps (Exhibit R-2; Tr. 257-259). 

Mr. Buckalew stated that both of the pumps in question are 

included on the check list and they are included as part of the 

required weekly electrical examinations. He believed that the 

pump installations in question were included as part of the 

weekly examinations conducted just prior to the issuance of the 

citations, and he identified a form that reflects that both pumps 

were examined by a certified electrician on August 27, 1992, and 

that "no dangerous conditions were found" (Exhibit R-1; Tr. 263). 

Mr. Buckalew confirmed that the ungrounded No. 45 pump fuse 

box had been in that condition for six to eight weeks 

(Tr. 264). He stated that he has preventative maintenance and 

electrical inspection programs in place, and grommets and 

bushings are included. He confirmed that the pump with the 

20 ampere fuse could burn up or quit functioning if it were stuck 

or a rock fell into the impeller, or the fuse blew (Tr. 266). 

On cross-examination, Mr. Buckalew confirmed that he 

observed the fuse box prior to the issuance of the citation and 

the ground connection had not been made (Tr. 217). He agreed 

that the condition should have been detected during the 

electrical examination (Tr. 274). 

Findings and Conclusions 

Docket No. WEVA 93-100 

Fact of Violations 

This case concerns three contested section 104(d) (2) orders. 

The respondent admits that the two orders issued by Inspector 

Shriver on August 12, and September 4, 1992, citing accumulations 

of coal and coal dust, constituted violations of section 75.400 

(Citation Nos. 3720838 and 3718252). The respondent's dispute is 

with the inspector's special "significant and substantial" and 

unwarrantable failure findings. Under the circumstances, I 

conclude and find that the respondent's admissions, coupled with 

the inspector's testimony and evidence, establish the two 

violations of section 75.400 and they ARE AFFIRMED. 

80 
Section l04Cdl (2) non-"significant and substantial" Order 

No. 3718918. July 27. 1992. 30 C.F.R. 75.514 

In this instance the respondent is charged with an alleged 

violation of mandatory safety standard 30 C.F.R. 75.514, a 

statutory provision which provides as follows: 

All electrical connections or splices in conductors 

shall be mechanically and electrically efficient, and 

suitable connectors shall be used. All electrical 

connections or splices in insulated wire shall be 

reinsulated at least to the same degree of protection 

as the remainder of the wire. 

MSHA's July 1, 1998, Program Policy Manual, Volume V, 

Part 75, with respect to section 75.514, states in relevant part 

as follows (Exhibit P-7): 

This section requires that conductors be joined 

together with clamps, connectors, track bonds, or 

other suitable connectors to provide good electrical 

connectors. 

Where track is used as power conductor, efficient 

connections require that: 

1. 

2. At least one rail on secondary track-haulage 

rails shall be welded or bonded at every joint, 

and cross bonds shall be installed at intervals 

of not more than 200 feet. 

3. 

4. In rooms where electric equipment is dependent upon 

the room track rails as a power conductor, rail joints 

shall be secured by means of fish plates, angle bars, 

or the equivalent, and at least one rail shall be 

bonded at each joint. 

Visible arcing or heating at rail joints indicates poor 

connections or poor bonding. 

In the case of Secretary of Labor CMSHA) v. North American 

Coal Company, 1 FMSHRC 1895 (November 1979), Commission Chief 

Judge Paul Merlin vacated fourteen (14) citations alleg~ng 

violations of mandatory safety standard 30 C.F.R. 75.514, after 

concluding that this standard did not apply to track haulage 

bonds and fishplates as alleged in the citations. 

81 
Judge Merlin took note of the fact that the legislative 

history of section 75.514, refers to electrical connections "in 

wiring," and that there is no reference to track haulage or to 

bonding "although such references easily could have been made if 

this had been what Congress intended," 1 FMSHRC at 1897. 

Judge Merlin also took note of the fact that bonding and 

track haulage are dealt with separately and specifically in a 

companion situation pursuant to MSHA's Part 57, safety standards 

for underground metal and nonmetal mines (30 C.F.R. 57.12042), 

and he suggested that MSHA should have undertaken rulemaking to 

cover the situation in coal mines pursuant to MSHA's Part 75 

safety standards. Noting the absence of any evidence to 

establish that the cited haulage system was not "electrically 

efficient," and the conflicting testimony of MSHA's own experts, 

Judge Merlin further commented that"··· MSHA itself does not 

really believe 75.514 applies to track haulage bonds and 

fishplates, but is selectively applying this mandatory standard 

only where it wants to," 1 FMSHRC at 1899. 

In the instant case, the parties are in agreement that the 

critical issue is whether or not the track "bonding" or 

connecting devices used by the respondent at the cited secondary 

haulage area constituted suitable mechanically and electrically 

efficient connections in satisfaction of the requirements found 

in the cited mandatory section 75.514 (Tr. 51). 

The burden of proof in this case lies with the petitioner. 

In order to establish a violation, the petitioner must prove by a 

preponderance of the credible and probative evidence that the 

connection devices that were being used when the inspector found 

them were unsuitable and did not provide the required 

mechanically and electrically efficient electrical connections 

for the cited haulage track in question. 

The petitioner takes the position that the testimony of 

Inspector Shriver, which is based for the most part upon the 

observations of Inspector Huggins, the individual who issued the 

violation, establishes that the electrical connections between 

the cited supply track rails were electrically inefficient. The 

petitioner also take the position that in the absence of one of 

the connection methods outlined in MSHA's policy, the conditions 

of the tracks in question prevented the existence of an 

electrically efficient connection. 

The respondent takes the position that the use of 

fishplates, bolts, and steel ties as connecting devices for the 

cited 350 feet of secondary supply track provided suitable or 

good electrical connections in compliance with section 75.514, 

and were in fact "other suitable connectors" that provided good 

electrical connections within the meaning of MSHA's stated 

policy. 

82 
Inspector Huggins, found that the devices used by the 

respondent to provide the track rail connections were "unusual 

and new" to him. He did not believe that they provided any 

electrical connection on the tracks, and he obviously believed 

that a track bonding device comprised of a copper wire rope that 

is pounded and welded onto the track was the "normal" bonding 

method for insuring an efficient bond and connection (Tr. 64-65). 

Inspector Huggins, who is not an electrician, and who lacked 

any special electrical training other than a course for nonelectrical inspectors, testified that he relied on MSHA's policy 

manual in issuing the violation. I am convinced by his testimony 

that he would accept nothing short of the "normal" copper track 

bonding device that he observed in his experience as an inspector 

as compliance with section 75.514. Indeed, the parties agreed 

that if Mr. Huggins had found the type of track bond that he was 

familiar with he would not have issued the violation. 

Mr. Huggins confirmed that the tracks were grounded with a 

clamp, that they were connected together with fishplates and 

bolts, were installed on wood supports, and were tied together 

with steel ties (Tr. 25, 28, 45). Although he confirmed that he 

did not have a good view of the tracks under the supply cars that 

were parked on the track, he described the track as "old, rusty, 

and surface bent." These track conditions, coupled with the 

absence of the type of "track bond" that he was familiar with, 

led Mr. Huggins to conclude that there was "a lack of efficient 

return of electrical current back through the current source" 

(Tr. 27, 48). In short, he concluded that in the absence of the 

track bond that he was used to seeing, the connections provided 

by the fishplates, bolts, and steel ties, were not suitable to 

insure an efficient mechanical and electrical connection. 

Mr. Huggins conceded that the steel ties holding the track 

rails together were properly installed. He confirmed that he saw 

no evidence of any track sparking or arcing, and when he rode 

into the area on the track jitney he noticed no change in its 

operation or performance, and did not notice any fading of the 

lights (Tr. 45, 47). Notwithstanding his testimony that the lack 

of track bonds and the existing track conditions would prevent 

efficient current return on the tracks and would render the 

equipment on the track inoperable, Mr. Huggins conceded that 

since the equipment was able to operate, current had to be moving 

through the track (Tr. 47-49). 

Inspector Huggins candidly admitted that he conducted no 

tests to determine whether the use of f ishplates provided an 

electrically efficient connection and that he simply relied on 

MSHA's policy which he believed mandated the use of a welded 

copper track bond as an acceptable method of bonding on secondary 

track haulage. Mr. Huggins further conceded that he made no 

determination as to whether the devices being used by the 

83 
respondent to connect and bond the tracks rendered them less than 

mechanically and electrically efficient. He admitted that he 

could not make such a determination without testing, but still 

was of the opinion that the cited connections were inefficient 

(Tr. 75-76). As noted earlier, Mr. Huggins has no electrical 

expertise, and I have given little or no weight to his opinion. 

Although Mr. Huggins described the tracks as rusty and dirty 

and suggested that an efficient connection was impossible under 

those conditions, he confirmed that the steel ties that connected 

the rails together will conduct electricity if they are installed 

correctly, and he conceded that they were so installed (Tr. 47). 

He also conceded that there were electrical connections on the 

tracks and stated that "there had to be some or it wouldn't run" 

(Tr. 74) . 

Inspector Shriver, an electrical engineer, stated that the 

clamp and copper wire bond is the only acceptable means of 

insuring electrical and mechanical efficiency at all times. 

However, I note that under MSHA's policy, fishplates are 

permitted as a means of securing rail joints in rooms where 

electric equipment is powered by a track rail that functions as a 

conductor. 

Mr. Shriver was of the opinion that the conditions cited by 

Inspector Huggins constituted a violation of 75.514, because the 

fishplates may be rusted or corroded, resulting in a resistance 

in the connection and a loss of efficiency. However, Mr. Shriver 

did not observe the cited supply track and he had no personal 

knowledge as to whether the tracks were in fact rusty or 

corroded. Even if he did, I give little wight to his suggestion 

that the electrical efficiency of a connection may be determined 

by simply looking at it. Indeed, Mr. Shriver testified that a 

voltage drop test could be conducted to determine the electrical 

efficiency of a conductor and he confirmed that he had conducted 

the tests on several occasions. He later recanted, and stated 

that a voltage drop test was not necessary to determine an 

electrically efficient connection. I find this testimony to be 

contradictory and rather equivocal. 

Mr. Shriver conceded that he never viewed the cited 

connections before abatement, and even though he was not present 

when the violation was issued, he was of the opinion that "based 

on what I've been told, in my judgment, they would be 

electrically inefficient" (Tr. 124). I conclude and find that 

Mr. Shriver's opinion is highly speculative and lacking in any 

evidentiary support, and I have given it little weight. 

As noted earlier, as a condition precedent to establishing a 

violation of section 75.514, the evidence must prove that the 

type of connections alleged to be out of compliance are in fact 

electrically and mechanically inefficient. Relying on, and 

84 
citing the absence of a welded bond of the kind provided for in 

MSHA's Policy, which does not have the force and effect of a 

mandatory standard that does not even mention track bonding, is 

insufficient "evidence" to establish a violation. In this case, 

I find no credible probative evidence to establish a violation. 

Accordingly, the contested order is VACATED. 

Signif i~ant and Substantial Violations 

A "significant and substantial" violation is described in 

section 104(d) (1) of the Mine Act as a violation "of such nature 

as could significantly and substantially contribute to the cause 

and effect of a coal or other mine safety or health hazard." 

30 C.F.R. § 814(d) (1). A violation is properly designated 

significant and substantial "if, based upon the particular facts 

surrounding the violation there exists a reasonable likelihood 

that the hazard contributed to will result in an injury or 

illness of a reasonably serious nature." Cement Division, 

National Gypsum Co., 3 FMSHRC 822, 825 (April 1981). 

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

Commission explained its interpretation of the term "significant 

and substantial" as follows: 

In order to establish that a violation of a 

mandatory safety standard is significant and 

substantial under National Gypsum the Secretary of 

Labor must prove: (1) the underlying violation of a 

mandatory safety standard; (2) a discrete safety 

hazard--that is, a measure of danger to safetycontributed to by the violation; (3) a reasonable 

likelihood that the hazard contributed to will result 

in an injury; and (4) a reasonable likelihood that the 

injury in question will be of a reasonably serious 

nature. 

In United States Steel Mining Company, Inc., 7 FMSHRC 1125, 

1129, the Commission stated further as follows: 

We have explained further that the third element of 

the Mathies formula "requires that the Secretary 

establish a reasonable likelihood that the hazard 

contributed to will result in an event in which there 

is an injury." U.S. Steel Mining Co., 6 FMSHRC 1834, 

1836 (August 1984). We have emphasized that, in 

accordance with the language of section 104(d) (1), it 

is the contribution of a violation to the cause and 

effect of a hazard that must be significant and 

substantial. U.S. Steel Mining Company, Inc., 6 FMSHRC 

1866, 1868 (August 1984); U.S. Steel Mining Company. 

Inc., 6 FMSHRC 1573, 1574-75 (July 1984). 

85 
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). Further, any determination of the significant 

nature of a violation must be made in the context of continued 

normal mining operations. National Gypsum, supra, 3 FMSHRC 327, 

329 (March 1985). Halfway, Incorporated, 8 FMSHRC 8, (January 

1986) . 

Order No. 3720838 

The respondent concedes that the cited coal accumulations at 

the transfer point where the belts came together and dumped coal 

constituted a violation of section 75.400. Inspector Shriver's 

credible and unrebutted testimony establishes that there was a 

substantial accumulation of coal, approximately four feet deep, 

or "waist high", extending over an area five to six feet wide and 

ten feet long. According to Mr. Shriver, the coal was piled up 

to the edge of the main south belt, which was at a forty-five 

degree angle to the other belt, and it had accumulated and backed 

up under the main south belt where the bottom belt turned over 

the tail roller, and that some of the coal had backed up on the 

belt chute (Tr. 188-191). Mr. Shriver stated that the 

accumulations were damp, but that the coal that had accumulated 

and backed up under the main south belt had dried out at the 

location where the bottom belt turned over the tail roller. 

Inspector escort Andersch described the accumulations as "a 

considerable amount of coal spillage" (Tr. 273). Mr. Andersch 

and shift foreman Blue testified that the accumulations were very 

wet, and Mr. Blue agreed that the extent of the spillage was such 

that the spilled coal had covered over the wet coal to the point 

where the wet coal may not have been noticeable (Tr. 249). 

Mr. Shriver testified that two belt rollers and the tail 

roller of the main south belt were turning in the coal that had 

accumulated and backed up under the belts, and that the main 

south belt "actually humped up a little bit from the coal being 

under it" (Tr. 192). Mr. Shriver considered the three rollers 

turning in coal, and the belt "massaging the coal", as ignition 

sources for a fire that he believed was reasonably likely to 

occur (Tr. 192). If a fire had occurred, Mr. Shriver believed 

that anyone working on the section where the air ventilation 

traveled from the belt transfer point in question to another belt 

location and regulator would be exposed to smoke inhalation, and 

if an explosion were to occur, serious burns could be reasonably 

expected (Tr. 197-199). 

Mr. Andersch and Mr. Blue testified that they observed no 

rollers turning in the coal and no coal that was in contact with 

86 
the belt. However, Mr. Blue agreed that belt rollers turning in 

coal would dry out the coal if the roller was warm and caused 

friction (Tr. 269). Further, Mr. Blue confirmed that he arrived 

at the scene at approximately the same time that the men who were 

assigned to clean up the spill did, and he conceded that 

Mr. Shriver may have already ordered the belt shut down and that 

he (Blue) would not have seen any rollers turning in the coal 

(Tr. 271). All of the witnesses agreed that the belt was in 

operation and moving, but that no coal had been mined before the 

inspector observed the accumulations, and no coal was being moved 

on the belts at that time. 

Inspector Shriver conceded that his order does not specify 

that any belt rollers were turning in the coal, and that his 

notes do not reflect that this was the case. However, 

considering the extent of the accumulations, the fact that they 

were pushed up and under the tail roller and belt rollers, and 

had backed up through the chute, and the fact that the belt was 

moving over the turning rollers, Mr. Shriver concluded that the 

rollers were turning in the coal. Mr. Shriver reiterated that 

the coal that had accumulated and was pushed back under the main 

south belt where the two belt rollers and tail roller were 

located caused the belt to be "humped up a little bit from the 

coal" (Tr. 230). Having viewed Mr. Shriver during his testimony, 

he impressed me as credible on this issue and I find his 

testimony regarding the rollers turning in the coal accumulations 

to be consistent and believable, particularly in light of the 

extent of the accumulations as described by Mr. Shriver, and as 

corroborated by the respondent's witnesses. 

Mr. Shriver confirmed that he made no tests for methene, and 

that and the coal producing face was approximately 1,000 feet 

from the cited belt transfer point where he found the coal 

accumulations {Tr. 219, 221). Under the circumstances, and in 

the absence of any other evidence reflecting the existence of 

conditions that could present an explosion hazard, I cannot 

conclude that an explosion was reasonably likely to occur as a 

result of the cited accumulations. 

I conclude and find that the cited coal accumulations 

presented a discrete fire hazard. Although the evidence reflects 

that the accumulations ranged from damp to very wet, Mr. Shriver 

did not believe that the dampness of the coal would have affected 

the likelihood of an injury because the heat from the rollers 

turning in the coal would dry it out rapidly, and if an ignition 

occurred, the coal would dry out further and burn (Tr. 193). As 

noted earlier, Mr. Blue agreed that a warm roller subject to 

friction would dry out the coal, and he confirmed that xhe 

spillage and accumulations that were present covered up the wet 

coal to the point where the wet coal was not readily observable, 

and Mr. Shriver's credible testimony that the accumulations under 

the main south belt had dried out is unrebutted. 

87 
In view of the foregoing, I conclude and find that in the 

normal course of continued mining at the time the inspector 

observed the cited coal accumulations, it was reasonably likely 

that an ignition would have occurred as the coal continued to 

accumulate and turn in the rollers of the moving belts, and that 

a belt fire was reasonably likely to occur as a result of these 

accumulations and ready sources of ignition that were present. I 

further conclude and find that in the event of a belt fire, it 

would be reasonably likely that the men on the section would 

suffer smoke inhalation, and fire related injuries of a 

reasonably serious nature. Under the circumstances, I conclude 

and find that the violation was significant and substantial 

(S&S), and the inspector's finding in the regard IS AFFIRMED. 

Order No. 3718252 

In its posthearing brief, the respondent admits that while 

the violation did not result in any serious injuries or deaths, 

it was still significant and substantial because the spill was of 

major proportions, it had resulted in on electrical cable being 

pulled from a junction box, and it required the efforts of a 

number of miners to reestablish a walkway along the belt, 

exposing then to slip and trip hazards. Under the circumstances, 

and taking into account the testimony of the inspector in support 

of his "S&S" finding, which I find credible, I conclude and find 

that his finding was properly made and IT IS AFFIRMED. 

Unwarrantable Failure Violation Issue 

The governing definition of unwarrantable failure was 

explained in Zeigler Coal Company, 7 IBMA 280 (1977), decided 

under the 1969 Act, and it held in pertinent part as follows at 

295-96: 

In light of the foregoing, we hold that an inspector 

should find that a violation of any mandatory standard 

was caused by an unwarrantable failure to comply with 

such standard if he determines that the operator 

involved has failed to abate the conditions or 

practices constituting such violation, conditions or 

practices the operator knew or should have known 

existed or which it failed to abate because of a lack 

of due diligence, or because of indifference or lack of 

reasonable care. 

In several recent decisions concerning the interpretation 

and application of the term "unwarrantable failure," the 

Commission further refined and explained this term, and concluded 

that it means "aggravated conduct, constituting more than 

ordinary negligence, by a mine operator in relation to a 

violation of the Act." Energy Mining Corporation, 9 FMSHRC 1997 

(December 1987) ; Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007 

88 
(December 1987): Secretary of Labor v. Rushton Mining Company, 

10 FMSHRC 249 (March 1988). Referring to its prior holding in 

the Emery Mining case, the Commission stated as follows in 

Youghiogheny & Ohio, at 9 FMSHRC 2010: 

We stated that whereas negligence is conduct that is 

"inadvertent," "thoughtless" or "inattentive," 

unwarrantable conduct is conduct that is described as 

"not justifiable" or "inexcusable." Only by construing 

unwarrantable failure by a mine operator as aggravated 

conduct constituting more that ordinary negligence, do 

unwarrantable failure sanctions assume their intended 

distinct place in the Act's enforcement scheme. 

In Emery Mining, the Commission explained the meaning of the 

phrase "unwarrantable failure" as follows at 9 FMSHRC 2001: 

We first determine the ordinary meaning of the 

phrase "unwarrantable failure." "Unwarrantable" is 

defined as "not justifiable" or "inexcusable." 

"Failure" is defined as "neglect of an assigned, 

expected, or appropriate action." Webster's Third New 

International Dictionary (Unabridged) 2514, 814 (1971) 

("Webster's"). Comparatively, negligence is the 

failure to use such care as a reasonably prudent and 

careful person would use and is characterized by 

"inadvertence," "thoughtlessness," and "inattention." 

Black's Law Dictionary 930-31 (5th ed. 1979). Conduct 

that is not justifiable and inexcusable is the result 

of more than inadvertence, thoughtlessness, or 

inattention. * * * 

Order No. 3720838 

The petitioner argues that the recurrent nature of the 

accumulations, as evidenced by Mr. Shriver's multiple 

observations of accumulations occurring in the same location 

from the same cause, as well as the numerous entries in the 

preshift books that evidenced the recurrent problem at this 

location, both serve to establish Consol's indifference to this 

recurrent safety problem and establishes the unwarrantable nature 

of the violation. 

The respondent asserts that coal spills and accumulations at 

belt transfer areas are not unusual repetitive problems in any 

mine using conveyor belt haulage, and acknowledging that such 

accumulations might be violations of section 75.400, the 

respondent maintains they do not constitute unwarrantable 

violations unless they are allowed to remain in place for 

extended time periods and are not taken care of within a 

reasonable period of time. In this case, the respondent believes 

89 
that the cited accumulations, as well as the prior accumulations 

relied on by the inspector, were promptly cleaned up. 

In support of its position that the violation was not 

the result of its unwarrantable failure to comply with 

section 75.400, the respondent points out that the spillage cited 

by Mr. Shriver occurred because of a clogged belt chute which 

caused a backup of coal when it spilled out through the open 

space at the top of the chute, and not because of any "hole" 

deliberately cut into the chute by the respondent. The 

respondent acknowledged that it was aware of the spillage because 

it had been reported by the preshift examiner, and that the 

foreman had promptly assigned two miners to clean up the spillage 

on the very next shift. 

Inspector Shriver confirmed that the prior coal 

accumulations that had occurred at the four right transfer point 

as reflected by the entries in the preshift examiner's book, 

"were probably cleaned up every time" (Tr. 219). He further 

confirmed that he considered the violation to be an unwarrantable 

failure because the accumulations repeatedly occurred, and not 

because they occurred and were not cleaned up (Tr. 219, 226). 

With respect to the coal spillage conditions recorded in the 

preshift books as early as July 12, 1992, at the four right 

transfer point, Mr. Shriver agreed that these conditions would 

have been cleaned up and that this prior spillage was not the 

same spillage he observed at the time of his inspection on 

August 12, 1992 {Tr. 225). 

Mr. Shriver believed that the coal accumulation that he 

observed had to have occurred before 5:00 A.M. on the morning of 

his inspection or during the midnight shift. Considering the 

amount of spillage, he estimated that the accumulation had been 

there during half of the midnight shift because "it would take a 

couple of hours or more to accumulate that much coal spillage" 

{Tr. 238). Based on his review of the fire boss books, 

Mr. Shriver believed that the recurring spillage was being 

cleaned up on-shift, and if all of it could not be cleaned up, it 

would be called out as an entry in the preshift book and "the 

next shift would have to catch up" {Tr. 240). 

Shift foreman Blue testified that under the worst case 

scenario, "there is no way this coal could have been present far 

more than two hours and ten minutes" {Tr. 250). Mr. Blue's 

credible and unrebutted testimony reflects that the midnight 

shift foreman advised him of the spillage situation and that 

Mr. Blue assigned two men to clean it up during the morning 

shift. Mr. Blue explained that the men were on their way to 

clean up the spillage but stopped at another area to take care of 

another problem, and that this delayed them {Tr. 252, 255). 

90 
I take note of the fact that Mr. Shriver's order itself 

makes reference to "persons shovelling accumulations". 

Petitioner's counsel conceded that coal accumulations were being 

cleaned up in another area, that the cited transfer point was 

scheduled to be cleaned up by the cleanup personnel dispatched by 

Mr. Blue, but they had not reached that location before the 

inspector (Tr. 254). Counsel agreed that if the cleanup crew had 

started cleaning up at the cited transfer point, rather than 

stopping along the way to address another problem, they would 

have arrived and started shovelling before the inspector arrived 

and it was possible that the violation would never have been 

issued (Tr. 254-255). 

The petitioner's suggestion that a violation may have been 

avoided if the shovelling crew had been in action when the 

inspector arrived undercuts the petitioner's position that 

recurrent accumulations constitutes indifference amounting to 

aggravated conduct. Insofar as the recurrent nature of the 

accumulations is concerned, it seems clear to me that the 

respondent promptly addressed these conditions as they occurred, 

including the accumulations cited by Mr. Shriver in this 

instance. · 

Recurrent coal accumulations are inherent by-products of 

large scale mining operations and they are not unusual events 

justifying unwarrantable failure orders simply because no one is 

shovelling them up when an inspector happens on the scene and 

finds them. Each case must be decided on its own facts. Here, 

the evidence dearly establishes that the respondent acted with 

reasonable promptness to address the accumulations in question. 

Under the circumstances, I agree with its position and cannot 

conclude that the petitioner has established a case of aggravated 

conduct in supporting of the inspector's unwarrantable failure 

finding. Accordingly, that finding IS VACATED, and the contested 

order IS MODIFIED to a section 104(a) "S&S" citation. 

Order No. 3718252 

The petitioner concludes that it has clearly established the 

unwarrantable failure nature of the violation in that the cited 

accumulations had been present "for a few days in a location that 

is more likely than others to be involved in serious problems and 

fires" and that the preshift and weekly examiners "did not 

recognize these obvious violations". The petitioner further 

concludes that this amounts to aggravated conduct supporting the 

inspector's unwarrantable failure finding. 

The respondent suggests that when the order was issued the 

inspector was dissatisfied with where people were working to 

clean up the massive spill that had occurred in that he noted in 

his order that nobody was working at the drive where he believed 

91 
it was most likely that a fire would occur from the 

accumulations. The respondent further suggests that in order 

to support his unwarrantable failure finding, the inspector, at 

the hearing, testified that the reason the respondent was highly 

negligent was the fact that its management knew about the 

accumulations for several days. 

The respondent asserts that the fact that the respondent 

knew about the coal spill on the beltline should not be 

considered an aggravated situation in that mine foreman Cole had 

discussed the spill with the inspector and had assigned people to 

work on the cleanup at the time the inspector arrived on the 

scene. The respondent maintains that with the exception of the 

solidified material around the belt drive, the other 

accumulations cited by the inspector were materials that had 

resulted from the massive spill a few days earlier. 

The respondent acknowledges that the material around the 

drive motors had apparently been there for some period of time 

prior to the spill, but that its combustibility was undermined, 

and its consistency was such as to make it unlikely that it could 

go into suspension. Since the combustible content of the 

material was not known, the respondent concludes that it would be 

impossible to base a violation entirely upon this accumulation 

alone, and that it should not be viewed as a basis for an 

unwarrantable failure charge based on an accumulation of inert 

material in proximity of a couple of electric motors. Conceding 

that the existence of inert materials may be a violation of 

section 75.1725(a), if the materials rendered the motors unsafe 

to operate, the respondent maintains that the material must be 

shown to be combustible before section 75.400, can be cited. 

The respondent acknowledges that a massive spill occurred at 

a critical mine location, but points out that management knew 

about the spill and promptly began work to correct the situation. 

The respondent asserts that cleanup could not be accomplished in 

a matter of hours starting at all locations at once, and it 

points out that the section foreman had to first establish a 

walkway to facilitate the cleanup in an orderly and safe manner 

and he did not consider the belt drive area to be a critical 

problem that needed to be taken care of before anything else. 

The respondent concludes that the inspector decided that he would 

have cleaned' up the spill differently by starting at the belt 

drive, and that since this was not done, he decided to issue the 

order for an unwarrantable failure to properly address the spill. 

Inspector Shriver's order cited the main Butts No. 1 belt 

drive, and it describes fine coal and dust accumulations under 

the bottom belt from the tail roller to the drive roller nearest 

the tipple, accumulations of wet coal and dust under and around a 

piece of belt over the North drive motor, with dry coal and dust 

under the connection box and packed against the motor, fine coal 

92 
packed tightly between the two motors, and "substantial dust" 

accumulations inside the drive motor junction box. 

The evidence reflects that for approximately two days before 

the September 4, 1992, inspection an accidental massive spill had 

occurred on the belt. Two men were assigned to clean up the 

spill, and Mr. Shriver did not issue any citation for that spill 

because mine foreman Cole was aware of it and Mr. Shriver gave 

him an opportunity to clean it up. Upon his return to the area 

on September 4, Mr. Shriver found one man shovelling and a 

"sizeable" portion of the spill still remained. He issued a 

citation for that spill and proceeded with foreman Morgan to the 

main butts drive where he found the accumulations cited in his 

order (Tr. 294-295). 

Mr. Shriver estimated that the accumulations between the 

motors had existed for "several days" or "several shifts" 

(Tr. 285-286, 288). He based his "high negligence" finding on 

his belief that the respondent knew about the accumulations in 

that they had existed for several days and "he had discussed the 

situation there with Mr. Cole a couple of days earlier and he 

said that he would clean it up" (Tr. 288). He also considered 

the fact that the tipple operator who was with him as the miner's 

representative when they walked up to the drive on September 4, 

"said that he had worked some on it the day before. In fact, 

there was a guard.left off where he had shoveled on it" 

(Tr. 288-289). Mr. Shriver later testified that the 

accumulations discussed with Mr. Cole were not the same ones he 

cited at the drive, and that he found those independent of any 

conversations with Mr. Cole (Tr. 293-295). 

Although the order states that the preshift examination 

records reflected reported spillage on the belt from the tail 

piece to the tipple, Mr. Shriver initially could not remember 

whether he reviewed the preshift book (Tr. 295). When reminded 

of the statement in his order, Mr. Shriver repeated it on the 

record (Tr. 299). 

Mr. Shriver confirmed that the distance from the tail roller 

to the drive roller, which encompasses the area described in his 

order, was less than 100 feet, and that the belt was shut down 

for approximately an hour and fifteen minutes to clean up the 

accumulation (Tr. 304). 

Although Mr. Shriver believed that the preshift and weekly 

examiners should have observed the cited accumulations, there is 

no evidence that he spoke with these individuals, and they were 

not called to testify. Further, even though mine foreman Cole 

may have known about the spillage at the drive, Mr. Cole did not 

speak with him at the time the order was issued, and Mr. Cole was 

not called to testify (Tr. 296). 

93 
When asked to describe the "aggravated conduct" that 

prompted him to issue the order, Mr. Shriver replied "permitting 

the condition to exist for a long period of time" (Tr. 298). 

When asked to explain how long a period of time he had in mind, 

Mr. Shriver responded "probably on the order of weeks" (Tr. 298). 

Dust foreman and inspector escort Morgan testified that the 

coal spillage from the tailpiece to the tipple had been called 

out and reported in the preshift book and that a foreman and two 

men were working on it when he and Inspector Shriver arrived at 

the scene (Tr. 314). Aside form the fresh spill, Mr. Morgan 

confirmed that the cited accumulations at the motors had been 

there prior to the spill that had occurred two days earlier and 

it had accumulated in the process of cleanup with water hoses. 

Mr. Morgan described the material as "a mixture of rock dust, and 

ground up coal" that had become wet and then dried out and had 

become hard (Tr. 317-318). 

Mr. Morgan also acknowledged the presence of some spillage 

that had been dragged back from the large spill along the 

beltline and he indicated that the foreman decided that he first 

had to establish a safe walkway along the beltline and clean up 

the spilled coal before moving on to the belt drive area. He 

confirmed that foreman Mabin shut down the section in order to 

have enough people to address the situation and they were in the 

process of cleaning up the area from the tail roller to the 

tipple when he and Mr. Shriver arrived at the area. Mr. Morgan 

acknowledged that no one was working at the belt drive at that 

time (Tr . 3 19 ) . 

Mr. Morgan testified that the accumulations between the 

cited motors could have been part of the spillage that had been 

called out because the coal that spills between the belts is 

carried back to the drive area and is dragged off into that area 

(Tr. 320) Mr. Morgan stated that there was an appreciable amount 

of materials packed between the motors, and he conceded that if 

he had made the preshift examination he would have called it out 

as needing cleaning up (Tr. 320). Mr. Morgan was of the opinion 

that the material was not combustible (Tr. 321). 

Mr. Morgan described the material packed between the motors 

as "a mixture of rock dust and coal and stuff" (Tr. 323). A pick 

hammer was used to break the material loose and scrape it out and 

he characterized the consistency of the material as "powder that 

had gotten wet, and packed" and that he could have dug into it 

with his finger (Tr. 323-324). 

Section foreman Mabin confirmed that the section was idled 

because of the coal spill at the main South belt transfer. The 

spill had been reported on the preshift examination and he and 

two of his crew members proceeded to clean up the area from the 

main butts tailpiece to the tipple. Mr. Mabin testified that he 

94 
walked the entire length of the belt, and concluded that he first 

had to establish a walkway where the spillage was over five high 

before doing anything else. He conceded that there was spillage 

at the drive, and stated "the most important thing was to take my 

two men and establish a walkway. And the drive was not the 

problem" {Tr. 327-329). 

After careful review of all of the evidence in this matter, 

I conclude and find that the petitioner has failed to make a case 

of aggravated conduct on the part of the respondent. In this 

regard, I find the testimony of the inspector to be rather 

confusing and conflicting with respect to the question of 

management's knowledge of the conditions and the length of time 

that the cited accumulations existed. 

Mr. Shriver first testified that the accumulations had 

existed for several days or several shifts and that he had 

discussed them with the mine foreman. He later testified that 

the cited accumulations were not the same ones he discussed with 

the foreman, and that they had existed "for weeks". 

Although Mr. Shriver stated that the respondent's allowing 

the cited accumulations to exist "for a long period of time" 

amounted to aggravated conduct, I find no evidentiary support for 

this conclusion. Although Mr. Shriver generally alluded to the 

preshift reports, which he initially could not remember 

reviewing, and copies of several reports covering a period from 

mid-July, 1992, to mid-August, 1992, were introduced as evidence 

{exhibit P-12), I find them of little value and weight, and none 

of these reports cover the immediate three week period before the 

issuance of the order on September 4, 1992. Further, the 

"spillage" reported in these reports cover a number of mine 

areas, and such generalized, non-specific book entries are of 

little or no evidentiary value, particularly when they remain 

unexplained. 

The respondent's credible and unrebutted evidence 

establishes that at least two days before the inspector 

discovered the accumulations that he cited, a massive spill had 

occurred in the same general area and the respondent was 

addressing the spill by first establishing a walkway to allow 

further work to continue before doing any other work. The 

section had shut down for this work, and I find nothing 

unreasonable about the manner in which the respondent was 

proceeding to clean up. On the facts of this case, I believe 

that one could reasonably conclude that the accumulations cited 

by Mr. Shriver in the midst of the respondent's clean up efforts 

in connection with the larger spill, would have been addressed 

and taken care of before full coal production was again started. 

Under all of these circumstances, I conclude and find that the 

petitioner has failed to establish the unwarrantable failure 

95 
nature of the violation, and the inspector's finding in this 

regard IS VACATED. The citation is modified to a section 104(a) 11 s&s 11 citation. 

Findings and Conclusions 

Docket No. WEVA 93-5 

As noted earlier, the respondent has conceded that the cited 

coal accumulations at the tailpiece of the 3 right belt 

constituted a violation of 30 C.F.R. § 75.400, as stated in the 

section 104(d) (2) 11 S&S 11 Order No. 312175, issued by Inspector 

Shriver on June 18, 1992. Accordingly, the violation IS 

AFFIRMED. 

Significant and Substantial Violation 

I conclude and find that the credible testimony of the 

inspector supports his "S&S" finding. The respondent has 

conceded the violation, and I conclude and find that the belt 

tail roller turning in the fine dry coal constituted a discrete 

fire hazard. Although the inspector did not check for, or find 

any methane, I find that the roller turning in the coal 

constituted a potential source of ignition that could have 

ignited a fire if normal mining operations were to continue and 

the roller continued to turn in the accumulations. I further 

conclude and find that in the event of a belt fire, it would be 

reasonably likely that the men on the section, including the face 

area approximately two to three hundred feet away, would suffer 

at least smoke inhalation, and fire related injuries of a 

reasonably serious nature. Accordingly, the inspectors 11S&S11 

finding IS AFFIRMED. 

Unwarrantable Failure Violation 

Inspector Shriver based his unwarrantable failure finding on 

the length of time that he believed the accumulations had 

existed, his belief that the section foreman should have found 

and corrected the violation between his arrival on the section at 

8:30 a.m. and 11:50 a.m., when the order was issued,· and the fact 

that the assistant mine superintendent was on the section for 

twenty minutes he (Shriver) arrived, and knew that he was on his 

way to the section. 

The presence of the assistant superintendent on the section, 

and the fact that the section foreman should have observed the 

conditions, is insufficient evidence of aggravated conduct, and 

at most may support an ordinary negligence finding. Further, 

Mr. Shriver conceded that there was no evidence that the 

superintendent or the foreman actually saw the accumulations. 

96 
Mr. Shriver estimated that the accumulations had existed for 

time periods ranging from "the prior midnite shift", to "several 

shifts", "fifteen or twenty shifts," "several day's", or "six 

days" (Tr. 33-37). These estimates were based on the fact that 

as little as "two buggies" of coal had been produced on the 

section, and Mr. Shriver's opinion that the "red" or "brownish" 

color of the coal dust was the result of the belt roller turning 

in the coal accumulations "for some length of time". 

Section foreman Lewandoski testified credibly that he worked 

the midnight shift on June 18, 1992, and preshifted the belt and 

tailpiece at 5:15 a.m., and he found no accumulations and 

indicated that the belt was "clean". Assistant mine 

superintendent Godwin conceded that the accumulations were 

present, but he indicated that the section had been moved two 

days prior to the inspection, and that the accumulations could 

not have existed for more than two days. He attributed the 

"orangish brown" coal dust color to the residue and dry deposits 

from a belt scraper of similar colors. 

Althougn Inspector Shriver checked the preshift book for the 

shift in question, he did not check the books for the previous 

days (Tr. 67-68). I conclude and find that Mr. Shriver's time 

estimates based on the color of the coal dust that he observed 

are speculative and lacking in probative value. I believe that 

Mr. Shriver's order was prompted by his belief that the section 

foreman or assistant mine foreman who were on the section before 

he arrived for his inspection should have found them and had them 

cleaned up. Even if this were established, I would find no basis 

for concluding that this amounted to aggravated conduct 

warranting an unwarrantable failure order. Under these 

circumstances, I conclude and find that the petitioners evidence 

does not support the inspectors unwarrantable failure finding, 

and IT IS VACATED. The order IS MODIFIED to a section 104(a) 

"S&S" citation. 

Docket No. WEVA 93-92 

Findings and Conclusions 

Fact of Violations 

As noted earlier, section 104(a) "S&S" citation No. 3720837, 

August 12, 1992, citing a violation of 30 C.F.R. § 75.400, was 

settled by the parties and the respondent agreed to pay the full 

amount of the proposed civil penalty assessment of $506. 

With respect to section 104 (a) "S&S" Citation No •. 3718250, 

September 3, 1992, citing a violation of 30 C.F.R. § 75.701-3(a), 

for failure to provide frame grounding for the cited fuse box, 

and section 104(a) "S&S" citation No. 3718251, September 3, 1992, 

citing a violation of 30 C.F.R. § 75.518, for having an oversized 

97 
fuse in the fuse holder of the 35 Jug pump, the respondent does 

not dispute the fact that the cited conditions constituted 

violations. Under the circumstances, the respondent's 

admissions, coupled with the testimony of the inspector who 

issued the citations, establishes the violations as charged. 

Accordingly, the two citations in question ARE AFFIRMED. 

Section 104Cal "S&S" Citation No. 3718256 

In support of his conclusion that the examinations of 

electrical equipment at the mine were inadequate, Inspector 

Shriver relied on the two electrical violations that the found 

the day before on September 3, 1992, concerning the oversized 

fuse for the No. 35 Jug pump, and the lack of frame grounding for 

the No. 45 pump fuse box (Citation Nos. 3718250 and 3718251). He 

also considered two additional electrical violations that he 

issued in the course of his inspection on September 4, 1992, for 

a belt drive junction box cable that had been pulled out of the 

box, and the connection of a pilot conductor and a ground 

conductor of a drive motor to a single stud. 

Mr. Shriver stated that it was his practice to issue a 

violation for inadequate electrical examinations after he has 

issued separate citations for the individual electrical 

violations. In this instance, having found four electrical 

violations in two successive days of inspections, he concluded 

that the electrical examinations that either failed to detect, or 

ignored, the violative conditions, were inadequate. He also 

believed that inadequate electrical examinations have been "a 

chronic problem" at the mine for several years, and he alluded to 

the fact that he has issued several violations in the past for 

the same conditions that he cited during his inspections of 

September 3, and 4, 1992. 

Exhibits P-15 and P-17 through P-19, are copies of prior 

citations for violations of section 75.512, issued by Inspector 

Shriver in 1990 and 1991, for inadequate examination of 

electrical equipment. Exhibits P-6 through P-10, are copies of 

citations issued by Mr. Shriver on February 28, 1990, for various 

electrical violations of sections 75.701, and 75.515. Although 

the petitioner did not produce any more recent prior citations 

covering the period from February, 1990, and January, 1991 to 

September, 1992, these prior citations do lend some support to 

inspector Shriver's assertion that the respondent has had 

problems with the sufficiency and adequacy of its electrical 

examinations required by section 75.512. 

The respondent is charged with making inadequate e1ectrical 

examinations of its electrical equipment. The relevant and 

applicable language of section 75.512, is found in the first 

sentence which requires that "all electric equipment shall be 

98 
frequently examined, tested, and properly maintained by a 

qualified person to assure safe operating conditions". 

The respondent's unrebutted evidence reflects that both of 

the pump locations cited by Inspector Shriver on September 3, 

1993, were examined by a certified electrician on August 27, 

1992, and they were included on a check list used for the 

required weekly electrical examinations. Although I find nothing 

in section 75.512, that makes reference to "adequate" or 

"inadequate" examinations, I believe the clear intent of the 

standard is to insure that the required examinations are 

conducted in such a manner to insure that potentially hazardous 

electrical conditions are timely detected, corrected, and 

maintained in safe operating condition. 

Inspector Shriver's credible and unrebutted testimony 

reflects that at least three of the four electrical violations 

that he discovered and relied on when he issued the violation in 

question were quite obvious. Respondent's maintenance foreman 

Buckalew admitted that the ungrounded No. 45 pump fuse box had 

been in that\condition for a long period of time, and that the 

ground connection had not been made. He agreed that the 

condition should have detected during the electrical examination. 

Although I recognize the fact that electrical equipment 

conditions may change between examinations, and that a violative 

condition, standing alone, may not reflect that the examinations 

are inadequate, on the facts of this case where the inspector 

cited three or four violations within a relatively short period 

of time, and had in the past cited the respondent for a number of 

electrical violations, as well as violations for failure to 

adequately examine its electrical equipment, I cannot conclude 

that the inspector here acted unreasonably. Considering the 

intent of section 75.512, and the unrebutted fact that the 

violative conditions had existed for some time and should have 

been detected and corrected by the respondent before the 

inspector found them, I conclude and find the required electrical 

examinations were inadequate, and that the petitioner has 

established a violation of section 75.512. Accordingly, the 

citation IS AFFIRMED. 

Significant and Substantial Violations 

Section 104(a) 11 s&s 11 Citation No. 3718250 

Inspector Shriver cited the violation because the fuse box 

was not grounded in that the frame grounding conductor inside the 

box was not attached and there was no external frame ground 

attached to the box going back to the track. 

Mr. Shriver stated that a hazard would exist if the grommet 

where the conductor entered the box were to pop out and 

99 
distintergrate due to a vibration of the trolley wire from 

passing motor cars. If the grommet failed, the conductor would 

abrade against the sharp edge of the hole in the box and would 

cut through the insulation to the bare copper wire inside the 

conductor, energizing the fuse box (Tr. 143). When asked how 

likely it was that a grommet would come loose under normal mining 

operations, Mr. Shriver stated that on prior occasions at 

different locations on the same haulage he has found grommets 

that either failed or disintegrated (Tr. 144). In his opinion, 

once a grommet has popped out, it would take about a week before 

the insulation would be worn through (Tr. 146). 

Inspector Shriver made reference to several prior violations 

that he issued in 1990 for missing or improper fittings, and he 

indicated that the cables or conductors would be subject to the 

same type of haulage vibrations as in the instant case 

(Exhibits P-6 through P-10; Tr. 155-160). I take note of the 

fact that in one instance where Inspector Shriver cited a 

violation of section 75.515, and noted that a sharp edge of the 

hole through which a conductor passed had abrated the conductor 

insulation, he found that the violation non-"S&S" (Exhibit P-9). 

In the instant case, Inspector Shriver conceded that there 

was nothing wrong with the grommet or fitting through which the 

power conductor entered the fuse box, and that it provided a 

tight fit where the conductor entered the box (Tr. 151). 

Mr. Shriver agreed that the fact that the ground wire inside the 

box was not tied to the box did not, of itself, present any 

injury hazard (Tr. 152). He also agreed that the area was dry 

and did not likely present a fatal injury hazard if the box were 

energized, and he was aware of no accidents at the mine related 

to the cited condition (Tr. 162). Further, Mr. Shriver believed 

that the box had been without a frame grounding conductor, which 

was the cited condition in this case, for approximately a year 

and that nothing happened during all of this time (Tr. 166). 

Under all of these circumstances, I cannot conclude that it was 

reasonably likely that the grommet or fitting in question, which 

was in fact installed and in good condition, and which provided a 

good tight fit for the cable which entered the box, would 

disintegrate or pop out due to any vibrations from any passing 

haulage traffic. That event would have to occur before the 

completion of any "S&S" chain of events sufficient to establish 

an "S&S" violation. In this instance, the condition which 

prompted the citation had existed for a year according to the 

inspector, yet the grommet or fitting showed no sign of 

deterioration. Mr. Shriver confirmed that the fuse box was not 

tagged out or removed from service, and it continued in use 

(Tr. 230). Under all of these circumstances, I conclude and find 

that the inspector's "S&S" finding was speculative and 

unsupported, and IT IS VACATED. The citation IS MODIFIED to 

a non-"S&S" citation. 

100 
Section 104Cal "S&S" Citation No. 3718251 

Mr. Shriver did not believe that the cited pump in question 

was in an unsafe condition requiring it to be immediately removed 

from service (Tr. 232). He believed that an "S&S" violation 

could range from "dangerous" (bad roof and bare, energized 

conductors), to "medium grade and low grade S&S violations where, 

for a few hours, they can remain in service" (Tr. 232). 

Mr. Shriver believed that the oversized fuse was replaced in its 

holder after the rating was checked and the pump was allowed to 

continue in service for nearly six hours in order to allow the 

respondent time to replace the fuse with one of proper size 

(Tr. 229). Inspector Escort Morgan confirmed that Mr. Shriver 

put the fuse back after checking it, and that the pump was 

re-energized (Tr. 251-252). 

Mr. Morgan stated that the pump was installed in a pit or a 

hole, and that it was ten feet from the closest coal rib and 

approximately fifteen feet from the mine roof (Tr. 250). 

Mr. Morgan described the pump motor as "small" and he believed 

that any fire in the motor would only damage the pump itself and 

would not ignite the rib or roof coal (Tr. 251). 

Inspector Shriver described the "jug" pump in question as a 

small portable pump approximately one-foot in diameter that could 

readily be moved by one person (Tr. 227). His principal concern 

was that the pump motor could "seize up" or stall, causing a fire 

that would ignite the rib coal and result in noxious fumes from 

the motor windings or smoke inhalation from the coal fire 

(Tr. 188). Although Mr. Shriver indicated that the motor pump 

bearings may go bad or that small rocks may become wedged in the 

motor, causing it to stall (Tr. 189), when asked how often this 

was likely to occur, or how often such a pump becomes clogged, 

stuck, or blows a fuse, Mr. Shriver responded "I don't have any 

specific knowledge in that area" (Tr. 228). 

I find no credible evidence to establish that it was 

reasonably likely that the pump motor in question would seize or 

stall, thus causing it to burn up the motor. Even if a motor 

fire were to occur, given the small size of the motor and the 

fact that the motor was installed in a pit, some ten to fifteen 

feet from the coal rib and roof, I find it unlikely that any fire 

would ignite the rib and roof coal. Aside from the motor 

winding, there is no evidence that other combustible materials 

were near the pump. Under the circumstances, I cannot conclude 

that the violation was "S&S", and the inspector's finding in this 

regard IS VACATED. The citation IS MODIFIED to a non-"S&S" 

citation. 

101 
Section 104(a) "S&S" Citation No. 3718256 

Inspector Shriver testified that the hazards associated with 

the failure to perform adequate electrical examinations "are 

almost without limit", and he cited several examples of missing 

and overlooked frame grounds, inadequate short circuit and 

overload protection, fine dust inside a motor box, and other 

undetected conditions that may develop into serious and hazardous 

permissibility violations, some of which could develop into 

situations presenting potential electrocution and shock hazards 

(Tr. 197-200). 

I agree with the inspector's "S&S" finding in this 

instance. The failure to adequately examine electrical equipment 

to make certain that it is in safe operating condition presented 

a discrete safety hazard in that miners who work around the 

equipment might not be aware of hazards and potential hazards. 

Ignorance of these hazards would reasonably likely result in 

injuries of a reasonably serious nature. Accordingly, the 

inspector's "S.&S" finding IS AFFIRMED. 

Docket No. WEVA 93-164 

This case concerns a section 104(a) "S&S" Citation 

No. 3716846, issued on October 21, 1992, by MSHA Inspector 

Robert L. Huggins, citing an alleged violation of 30 C.F.R. 

§ 75.514, and it states as follows: 

The supply track is not mechanically and electrically 

efficiently bonded for approximately 150 feet for the 

3-5 section MMU 067-0. This area is from the end of 

the supply track to approximately 150 feet outby. There 

was grounding clamps connected to the end of the rail 

which provide grounding protection for electrical 

equipment which is being used to clean up and support 

roof around the fall area at the end of the track. A 

track bolter is being used to bolt top in this area 

along this track area. 

This case was assigned to me on October 19, 1993, after the 

hearing in Docket No. WEVA 93-100, which also involved an alleged 

violation of section 75.514, issued by Inspector Huggins. The 

parties agreed that my decision in the prior case would apply in 

this case (See Chief Judge Merlin's October 19, 1993, Order of 

Assignment) . 

In the prior case I vacated the violation after finding and 

concluding that the petitioner failed to prove that the· 

respondent's track bonding method was not mechanically and 

electrically efficient. Assuming that the evidence in this case 

would be the same, and in light of the agreement by the parties 

that my decision in Docket No. WEVA 93-100, would be dispositive 

102 
of this case, I incorporate by reference my findings and 

conclusions in the prior case and conclude that the citation here 

should be vacated on the ground that the petitioner has failed to 

prove the alleged violation. Accordingly, the citation in 

question here IS VACATED. 

Size of Business and Effect of Civil Penalty Assessment on the 

Respondent's Ability to Continue in Business 

I conclude and find that the respondent is a large mine 

operator and the parties have stipulated that payment of the 

civil penalty assessments for the violations in question will not 

adversely affect the respondent's ability to continue in 

business. 

History of Prior Violations 

The petitioner's computer print-outs for the Arkwright No. 1 

Mine, reflect that for the period covering June 18, 1990, through 

September 3, 1992, there were seventy-nine (79) violations of 

section 75.4QO, including those contested in these proceedings. 

Sixty-nine o~these violations were issued as section 104(a) 

citations. For an operation of its size, I cannot conclude that 

this is a particularly egregious compliance record. However, 

given the number of past accumulations violations, the respondent 

needs to continually address its cleanup practices. 

The computer print-outs also reflect four (4), prior paid 

citations of 30 C.F.R. § 75.518, and twelve (12), prior paid 

citations of 30 C.F.R. § 75.512, all of which were issued as 

section 104(a) citations. I cannot conclude that this is a 

particularly bad compliance record. 

Good Faith Abatement 

In the absence of any evidence to the contrary, I conclude 

and find that the respondent timely abated the violations in good 

faith. 

Gravity 

Based on my "S&S" findings and conclusions, I conclude and 

find that those violations affirmed as "S&S" violations were 

serious violations, and those modified and affirmed as non-"S&S" 

were non-serious violations. 

Negligence 

I conclude and find that all of the section 75.400, 

violations that I have affirmed resulted from the respondent's 

failure to exercise reasonable care amounting to a moderately 

103 
high degree of negligence, and that the remaining violations 

resulted from a moderate and ordinary degree of negligence. 

ORDER 

In view of the foregoing findings and conclusions, IT IS 

ORDERED AS FOLLOWS: 

Docket No. WEVA 93-100 

1. Section 104{d) (2) non-"S&S" Order No. 3718918, 

July 27, 1992, citing an alleged violation of 

30 C.F.R. § 75.514, IS VACATED, and the 

proposed civil penalty assessment IS DENIED 

AND DISMISSED. 

2. Section 104{d) (2) "S&S" Order No. 3720838, 

August 12, 1992, citing a violation of 

30 C.F.R. § 30 C.F.R. § 75.400, IS MODIFIED 

to a section 104(a) "S&S" citation, and the 

citation IS AFFIRMED. 

3. Section 104(d) (2) "S&S" Order No. 3718252, 

September 4, 1992, citing a violation of 

30 C.F.R. § 75.400, IS MODIFIED to a 

section 104(a) "S&S" citation, and the 

citation IS AFFIRMED. 

Taking into account the civil penalty assessment criteria 

found in section llO(i) of the Act, I conclude and find that the 

following civil penalty assessments are reasonable and 

appropriate for the violations that have been affirmed, and 

the respondent IS ORDERED TO PAY THEM. 

Citation No. 

3720838 

3718252 

8/12/92 

9/4/92 

Docket No. WEVA 93-5 

30 C.F.R. Section 

75.400 

75.400 

Assessment 

$1,200 

$1,500 

Section 104(d) (2) "S&S" Order No. 312175, June 18, 1992, 

citing a violation of 30 C.F.R. § 75.400, IS MODIFIED to a 

section 104{a) non-"S&S" citation, and as modified, IT IS 

AFFIRMED. The respondent IS ORDERED to pay a civil penalty 

assessment of $1,000, for the violation. 

104 
Docket No. WEVA 93-92 

1. Section 104(a) "S&S" Citation No. 3720837, 

August 12, 1992, citing a violation of 

30 C.F.R. § 75.400, has been settled. The 

respondent IS ORDERED to pay the agreed upon 

settlement amount of $506 in settlement of the 

violation. 

2. Section 104(a) "S&S" Citation No. 3718250, 

September 3, 1992, citing a violation of 

30 C.F.R. § 75.701-3(a}, IS MODIFIED to a 

section 104(a) non-"S&S" citation, and as 

modified IT IS AFFIRMED. The respondent IS 

ORDERED to pay a civil penalty assessment of 

$250, for the violation. 

3. Section 104(a) "S&S" Citation No. 3718251, 

September 3, 1992, citing a violation 

of 30 C.F.R. § 75.518, IS MODIFIED to a 

section 104(a) non-"S&S" citation, and as 

modified, IT IS AFFIRMED. The respondent IS 

ORDERED to pay a civil penalty assessment of 

$250 for the violation. 

4. Section 104(a) "S&S" Citation No. 3718256, 

September 4, 1992, citing a violation of 

30 C.F.R. § 75.512, IS AFFIRMED, and the 

respondent IS ORDERED to pay a civil penalty 

assessment of $500, for the violation. 

Docket No. WEVA 93-164 

Section 104(a) "S&S" Citation No. 3716846, October 21, 1992, 

citing an alleged violation of 30 C.F.R. § 75.514, IS VACATED, 

and the petitioner's proposed civil penalty assessment IS DENIED 

AND DISMISSED. 

IT IS FURTHER ORDERED that payment of the aforementioned 

civil penalty assessments, including the settlement amount, shall 

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

date of these decisions and Order. Upon receipt of payment, 

these matters are dismissed. 

~~~ Administrative Law Judge 

105 
Distribution: 

Charles M. Jackson, Esq., Roberts. Wilson, Esq., Office of the 

Solicitor, U.S. Department of Labor, 4015 Wilson Blvd., Rm. 516, 

Arlington, VA 22203 (Certified Mail) 

Daniel E. Rogers, Esq., Joan W. Yoho, Consol Inc., 

1800 Washington Road, Pittsburgh, PA 15241-1421 (Certified 

Mail) 

/ml 

106 
l'BDBRAL XZllB SUETY DD llBALTJI RBVJ:BW COIDUSS:IOB 

OFFICE OF ADMllllSTRATIVE LAW DGES 

2 SKYLlllE, 10th FLOOR 

5203 LEESBURG PllCE 

FALLS CllJRCH, VJRGllllA 22041 

JAN 7 1994 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. SE 93-254-M 

A.C. No. 31-00212-05542 

v. 

Lee Creek Mine 

TEXASGULF INC. , 

Respondent 

Appearances: 

Before: 

DECISION 

Leslie John Rodriguez, Esq., Office of the 

Solicitor, U.S. Department of Labor, Atlanta, 

Georgia, for the Petitioner; 

T. Carlton Younger, Jr., Esq., Texasgulf, Inc., 

Raleigh, North Carolina, for the Respondent. 

Judge Koutras 

statement of the Case 

This is a civil penalty proceeding initiated by the 

petitioner against the respondent pursuant to section llO(a) 

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

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

amount of $50 for an alleged violation of mandatory safety 

standard 30 C.F.R. § 56.12067. The respondent filed a timely 

answer contesting the alleged violation, and a hearing was held 

in Raleigh, North Carolina. The parties waived the filing of 

posthearing arguments, but I have considered their oral arguments 

at the hearing in my adjudication of this matter. 

Issues 

The issues presented in this proceeding are (1) whether 

the respondent has violated the cited standard as alleged in 

the proposal for assessment of civil penalty; and (2) the 

appropriate civil penalty that should be assessed for the 

violation based upon the civil penalty assessment criteria found 

in section llO(i) of the Act. Additional issues raised by the 

parties are identified and disposed of in the course of this 

decision. 

107 
Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 

1977; Pub. L. 95-164, 30 u.s.c. § 801 et seq. 

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

§ 820(i). 

3. 30 C.F.R. § 56.12067. 

4. Commission Rules, 29 C.F.R. § 2700.1 et seq. 

stipulations 

The parties stipulated to the following (Tr. 5-6): 

1. The respondent is subject to the jurisdiction 

of the Mine Act. 

2. The presiding judge has jurisdiction to hear 

and decide this matter. 

3. The respondent is a large mine operator. 

4. The cited conditions were timely abated by 

the respondent in good faith. 

5. The respondent's history of prior violations 

is reflected in an MSHA computer printout 

(Exhibit P-18). 

Discussion 

Section 104(a) non-"S&S" Citation No. 4094761, issued on 

February 2, 1993, by MSHA Inspector Terry Scott, cites an alleged 

violation of 30 C.F.R. § 56.12067, and the cited condition or 

practice is described as follows: 

The transformer casing at the "I" portable substation 

(high voltage) was within 3 feet of the chain link 

fence. 

Petitioner's Testimony and Evidence 

Billy B. Foster, respondent's General Foreman, was called as 

an adverse witness and testified that he is an electrical 

engineer and is the second line supervisor over the electrical 

maintenance personnel. Referring to photographic Exhibits P-1, 

P-2, and P-3, Mr. Foster pointed out the cited transformer casing 

in question and described its component parts. He also explained 

and described the other electrical equipment shown in the 

photographs. He stated that the transformer casing appears to be 

108 
"butted right up against" the chain link fence shown in the 

photographs and that there is little space been the transformer 

casing "fins" and the fence (Tr. 11-19). 

Mr. Foster stated that in his 34 years of experience he 

has never seen or heard of an energized transformer casing 

(Tr. 20). Mr. Foster identified and marked the energized parts 

shown in Exhibit P-1, and the energized wires, insulators, and 

small transformers shown in Exhibit P-2 (Tr. 20-24). 

Petitioner's counsel stated that the photographs depict 

substation "J", which is representative of the identical 

equipment located at substation "I" and the remaining nonconforming substations on mine property that include equipment 

less than three feet horizontal from the fence (Tr. 26). Counsel 

further explained that Inspector Scott observed 26 transformers 

at the time of his inspection and issued the citation citing only 

one of the substations because of MSHA's current policy not to 

issue multiple citations for similar violations (Tr. 27). 

Respondent's counsel contended that all of the transformers 

are not similar, and he pointed out that the inspector only cited 

substation "I" and that the evidence should focus on that 

particular equipment. Counsel further pointed out that the 

configuration for substation "I" is substantially different from 

those shown in the photographs in question (Tr. 29-30). 

Petitioner's counsel stated that MSHA does not have a 

photograph of the cited substation "I" and he could not explain 

why one was not obtained. Counsel stated that the respondent's 

photographs, Exhibits R-1 through P-5 depict the cited substation 11 I" (Tr. 3 o- 31) . 

Mr. Foster confirmed that photographic Exhibits R-1 and R-2 

represent substation "I" with the MSHA approved abatement, and 

that Exhibits R-3 through R-5, show the conditions found by 

Inspector Scott. The cited transformer casing, which includes 

the "radiator" type fins, and the "skin and body" of the 

transformer, is shown in Exhibit R-3 (Tr. 31-32). After viewing 

the photographs, and confirming that he made no measurements, 

Mr. Foster "assumed" that the casing in question is less than 

three feet from the fence and he stated that "I'd have to go by 

what the citation says" (Tr. 31-33). 

Mr. Foster stated that the fence shown is six feet high and 

he did not recall the distance from the height of the fence to 

the inside of the transformers. He stated that the incoming 

voltage on the "I" substation is 23,000 volts and that the 

outgoing voltage is 4,160 volts (Tr. 34). 

109 
Respondent's counsel confirmed that photographic 

Exhibits R-1 through R-5, are of the cited substation "I". He 

explained that the substation is mounted on a skid and that the 

fence immediately surrounding the substation is installed around 

the perimeter of the skid. The skid is used to facilitate the 

moving of the substation from one location to another. The outer 

fence shown in Exhibits R-1 and R-2, was installed to achieve 

compliance and abate the citation. 

Petitioner's counsel confirmed that if the skid-mounted 

fence were moved further away from the transformer and other 

substation equipment to provide three-feet of clearance, or a 

"walkway" between the equipment and the fence, MSHA would 

consider this to be in compliance with the cited standard 

(Tr. 34-36). Respondent's counsel stated that this could be 

done, but that it would require the reconstruction of the skids. 

However, he believed that the cited substation was in compliance 

with only the skid-mounted fence around it (Tr. 34-38). 

On cross-examination, Mr. Foster stated that an ungrounded 

transformer casing could present a dangerous hazard if it became 

energized. However, the grounding would prevent this from 

happening and this is the primary consideration in the design and 

maintenance of a substation. Mr. Foster pointed out the 

energized parts in Exhibits R-1 through R-5, and he stated that 

measurements taken established that the nearest distance from the 

fence to any energized parts was three-feet three-inches. He 

also indicated that the six-foot high fence distance does not 

include the. barbed wire installed at the top of the fence 

(Tr. 41) . 

Dennis H. Miller, respondent's safety and health supervisor, 

was called as an adverse witness. He stated that the substations 

have always been mounted on skids without the fence mounted 

directly on the skid. The fence was installed on the ground and 

it was grounded. He confirmed that the skid-mounted fence shown 

in Exhibit R-3, was the one cited by Inspector Scott, and that 

the additional outer fence was installed to abate the citation. 

Both fences are still in place (Tr. 42-44). 

Mr. Miller stated that the purpose of the fence is to keep 

unauthorized and unqualified persons from the substation. 

Referring to Exhibit R-3, Mr. Miller could not state the distance 

between the transformer casing and the fence, or from the "high 

voltage" sign on the fence to the coils, and he confirmed that he 

made no measurements (Tr. 45). Assuming that the fence were less 

than three-feet away, Mr. Miller did not believe that there was a 

hazard of employees reaching and touching the transformer casing. 

Mr. Miller stated that he has never heard of an energized 

transformer casing (Tr. 45). 

110 
In response to further question, Mr. Miller stated that the 

outer fencing gate is locked and precludes access to the skid 

mounted substation (Tr. 47). He stated that the transformer 

casing for substation "I" is not energized and that if someone 

touched it nothing would happen (Tr. 51-52). 

MSHA Inspector Terry A. Scott, testified as to his 

experience, which included work as a high voltage lineman, an 

underground electrician repairman, and work with transformers 

similar to the ones at issue in this case. He has also had 

transformer training and completed a two-year course in 

industrial electricity at Mayo State Vocational School in 

Paintsville, Kentucky (Tr. 54-58). 

Mr. Scott stated that when he observed the transformer on 

February 2, 1993, it was mounted on a skid that was approximately 

12 to 14 inches high, and that the fence was mounted on the skid 

as shown in photographic Exhibit R-3 (Tr. 58). Referring to the 

photograph, Mr. Scott testified that he measured the distance 

from the fence to the "Danger-High Voltage" sign, and that the 

distance to the fence from one side of the transformer casing was 

14 to 18 inches, and on the other side, the distance to the fence 

was 8 to 12 inches (Tr. 58-59). An additional substation "J" 

shown in photographic Exhibit P-4, was also measured and the 

measurements were similar (Tr. 60). The petitioner's counsel 

confirmed that since the measurements reflected that the 

transformer parts were less than three feet from the fence, there 

was a violation of section 56.12067 (Tr. 60). 

Mr. Scott stated that he issued the citation because the 

transformer casing was less than three feet from the fence that 

was installed on the skid around the substation (Tr. 62). He 

believed that the intent of the three-feet clearance requirement 

in section 56.12067, between the fence and the transformer "is 

for working inside the area," and "to keep anyone from poking or 

sticking any kind of objects in toward the transformer or into 

the energized parts" (Tr. 62). 

Mr. Scott stated he abated the citation after the respondent 

installed a portable outside fence that eliminated the hazard 

when the gate is locked, and that the purpose of the fence is to 

keep unauthorized personnel out of the substation, (Exhibits R-1 

and R-2; Tr. 62). The outside portable fence prevents anyone 

from touching the transformer live parts because it is more than 

three feet away (Tr. 63). 

Mr. Scott stated that he was aware of a ground fault that 

occurred on a transformer. He explained that a ground fault 

occurs when a live wire touches a part of the grounded frame 

(Tr. 63) . 

111 
Mr. Scott stated that during his inspection he spoke with 

Karl Simons, respondent's electrical engineer, and safety 

superintendent Howell Miller, and Mr. Simons contended that the 

cited transformer was totally enclosed because it had a fence 

around it. However, Mr. Scott believed that a "totally enclosed" 

transformer was one with no terminals on the exterior (Tr. 66). 

In response to further questions, Mr. Scott stated that the 

abatement shown in Exhibits R-1 and R-2, which still includes the 

skid mounted fence less than three inches from the transformer 

casing, is still is compliance even though no one is able to work 

on the transformer because of the lack of clearance, because he 

was informed that no one goes inside the fence to work (Tr. 68). 

He confirmed that if the skid mounted fence were taken down, and 

the exterior portable fence with a locked gate were kept in 

place, it would comply with section 56.12067 (Tr. 68). 

Mr. Scott confirmed that he cited only the transformer 

casing for being less than three feet of the skid mounted fence, 

and that he did not contend that any transformer energized parts 

or wiring were,within three feet of the fence (Tr. 69). The 

respondent's counsel took the position that the three items noted 

in the standard must be considered together, and that the casing, 

as well as the energized parts or wiring, must all be in fact 

energized in order for the standard to apply (Tr. 69-70). 

On cross-examination Mr. Scott confirmed that he issued the 

citation because the transformer casing was within-three feet of 

the skid mounted fence (Tr. 71). He was of the opinion that the 

standard applies to unenergized casings, and stated that "anybody 

that knows anything about electricity knows that transformer 

casings are not energized" (Tr. 72). He explained that an 

ungrounded or improperly grounded casing is not energized unless 

a ground fault occurred (Tr. 73). 

Mr. Scott explained his understanding of the meaning and 

intent of the words used in the cited standard, and he indicated 

that the word "casing" is independent of the words "energized 

parts" and "wiring" (Tr. 73). He also indicated that his 

supervisor concurred in his interpretation (Tr. 76). He 

confirmed that if the fence were less than three feet from any 

wiring, energized or not, it would be a violation (Tr. 76). 

Mr. Scott confirmed that he measured the distance from the 

fence to the transformer casing with a wooden ruler from outside 

the fence, and he doubted that he could get his hand through the 

fence and confirmed that the only way to access the fence would 

be with a key to the lock (Tr. 80). 

Mr. Scott believed that the intent of the standard was to 

protect people working in the particular area and to prevent 

people from poking anything into energized parts. He indicated 

112 
that his primary concern is to prevent the casing or energized 

parts from being close to the fence where someone was able to 

touch it with some foreign object (Tr. 82). 

Mr. Scott confirmed that he has discussed the moving of the 

substations with company officials and agreed that mounting the 

fence on the skid is solving some problems. However, he believed 

that the skids need to be extended to move the fence three feet 

from the transformer casing, and he did not believe that this 

would be a problem and that the skids could be fabricated in the 

mine shop (Tr. 85-86). 

Mr. Scott further stated that section 56.12067, pertains to 

transformers, the transformer casing, and wiring, regardless of 

whether it is energized or deenergized wire (Tr. 87). He 

confirmed that he later learned from the National Electrical Code 

about the three-foot work area clearance requirement between a 

transformer casing and the fence (Tr. 88). When asked to 

reconcile the fact that the skid-mounted fence with less than 

three-foot clearance between the fence and transformer casing is 

still in place after abatement, Mr. Scott responded "I made a 

mistake. I should have had this fence removed. That's about all 

I can say about that" (Tr. 89). He believed that the abated 

conditions as depicted in photographic Exhibits R-3, R-4 and R-5, 

are not in compliance with the standard (Tr. 89). 

Terrance D. Dinkel, electrical engineer and technical 

adviser, MSHA Safety and Health Technology Center, Denver, 

Colorado, holds a Bachelor's Degree in electrical engineering 

from the university of Colorado and a Master's Degree in 

Management from the American Technology University. He confirmed 

that he did not view the cited transformer substation "I", but 

did view the others that were photographed, including 

substation "J". He identified a copy of an MSHA letter of 

interpretation relating to mandatory safety standard 30 C.F.R. 

§ 77.509, applicable to surface coal mines, and which contains 

language substantially identical to that found in the cited 

standard section 56.12067 (Exhibit P-16; Tr. 101-106). 

Mr. Dinkel identified a copy of a U.S. Bureau of Mines 

Information Circular regarding fences or barriers for outdoor 

transformer stations (Exhibit P-17). He stated that he has never 

known of an "energized casing", but that it can theoretically 

exist. If a transformer casing elevated on a pole becomes 

energized there is no hazard if no one can reach it. In his 

opinion, the intent of the eight foot fence elevation found in 

section 56.12067, is to keep unauthorized personnel and 

bystanders away from the transformer installation, and the 

three-foot clearance requirement is to assure sufficient 

clearance for qualified people when they go in and do their work 

(Tr. 113-114). He stated that photographic Exhibits R-1 and R-2, 

which show the skid-mounted fence and the second outer fence, do 

113 
not reflect total abatement of the cited condition because of the 

still existing restricted clearance for people who have to work 

around the transformer (Tr. 115). 

On cross-examination, Mr. Dinkel stated that the Bureau of 

Mines circular information is no longer in effect (Tr. 116). He 

confirmed that the respondent's transformer stations are secured 

with locked fences and fence doors (Tr. 116-117). 

Respondent's Testimony and Evidence 

Dennis H. Miller testified that he discussed the citation 

with Inspector Scott when he issued it and there was a 

disagreement as to whether the transformer casing was an 

energized piece of equipment. Mr. Miller stated that the 

discussion took place in his off ice and that electrical 

superintendent Karl Simons was present (Tr. 125). Mr. Miller 

confirmed that the transformers need to be on skids because 

they are moved often as mining advances. There are about 

30 skid-mounted transformers at the site and they are moved at 

least twice a year (Tr. 126). 

Mr. Miller explained that at one time the skid had no fence 

around it, but that in 1988 or 1989, he had a discussion with 

MSHA inspector Thel Hill, and as a result of this the fencing was 

installed on the skids (Tr. 128-129). He stated that the height 

of the fence from the ground to the top is six feet, and with the 

added barbed wire, it is higher. According to the measurements 

taken, the distance from the energized transformer parts to the 

closest part of the fence is 3.3 feet. He believes that the 

cited substation is in compliance with the standard in question 

(Tr. 130). 

On cross-examination, Mr. Miller stated that at the time of 

his conversation with Mr. Hill, Mr. Hill was shown a substation 

and was informed about what the company intended to do "and that 

proposal was agreed with" (Tr. 132). Mr. Miller further 

explained that the company proposal was made orally to Mr. Hill 

(Tr. 133) • 

Billy Foster was recalled by the respondent, and he 

confirmed that he accompanied Mr. Hill and Company safety 

specialist Billy Salter to look at a fenced substation as part 

of the respondent's proposal to install fences around the skidmounted transformers. Mr. Foster stated that additional MSHA 

inspectors viewed the skids on different occasions, and he 

identified them as Ed Jusso and Ron Lilley (Tr. 135). He 

confirmed that the work was done with some outside help from 

a fencing and welding contractor, at an estimated total cost 

of $90,000 to $120,000 (Tr. 137). 

114 
On cross-examination, Mr. Foster could not recall the 

particular substation that was shown to the inspectors "because 

they were coming in at different times, and we had different 

units out of service each time" (Tr. 137). He stated that no 

reference was made to section 56.12067 when the inspectors viewed 

the substation, and he could not state whether the cited 

substation "I" was ever viewed {Tr. 139). Mr. Foster confirmed 

that after the inspectors stated "that looks okay to me, 11 

he believed it was sufficient for compliance (Tr. 139). He 

confirmed that nothing was reduced to writing, that the 

discussions with the inspectors were informal, and the skid 

mounted fenced configuration was not questioned further until 

the contested citation in this case was issued (Tr. 141). 

Johnny B. Dagenhart, electrical engineer, Clapp Research 

Associates, Raleigh, North Carolina, was accepted as an expert 

witness in electricity and electrical engineering {Tr. 143). He 

stated that he was "somewhat familiar" with the respondent's 

operations and visited the mine site on one occasion the week 

prior to the hearing. He confirmed that he was familiar with the 

transformer f~ncing and the MSHA regulation in question, and he 

is of the opinion that the respondent is in compliance with that 

regulation {Tr. 143-144). 

Mr. Dagenhart was of the further opinion that only energized 

transformer casings and wirings and energized parts should be 

covered by the regulation. He believed that the skid-mounted 

transformer installation as installed by the respondent supplies 

equivalent protection. He stated that the overriding concern in 

installing fences around transformers and substations is "to 

protect from inadvertent contact of persons with exposed 

energized parts" (Tr. 145) . 

Upon review of the MSHA letter of April 4, 1985 

(Exhibit P-16), which mentions the application of 

section 110-34(e) of the National Electric Code, Mr. Dagengart 

stated that this section does not apply to transformer 

substations because it refers to working spaces in front of 

switches, cabinets, and other such devices. He further stated 

that "utility-like functions" are covered by the National 

Electrical Safety Code (Tr. 147). 

On cross-examination, Mr. Dagenhart stated that there are 

exposed energized bushings on the top of the transformer, but 

that the casing is not energized. In the event of a ground 

fault, if the casing is not grounded, it may become energized 

{Tr. 149). He further explained as follows at (Tr. 153): 

A. Well there -- If you're in physical contact 

with a transformer that is properly grounded, 

there's not gonna be a problem under normal 

circumstances. If a ground fault occurs, 

115 
naturally that equipment casing becomes 

energized for a brief period of time, the 

time it takes for a fuse or a breaker to 

deenergize that transformer, for that period 

of time. 

However, with the grounding of a transformer 

and the grounding of a fence, the two are 

simultaneously grounded to the same point. 

And electrically, there's no difference 

between the casing of that transformer and 

the fence around it. 

So the argument about touching a transformer 

during a ground fault, the same thing can 

happen if you're leaning up against the fence 

when a ground fault occurs. So it's really a 

difficult situation to say that -- It's 

impossible to say that the transformer is 

more hazardous than the fence in this case. 

And under normal circumstances they're both 

fine. 

Mr. Dagenhart stated that other than location, the outer 

fence installed on the ground is no different than the skidmounted fence and it has to the grounded back to the transformer 

and the transformer casing (Tr. 156). 

Thel Hill, retired MSHA inspector, was called in rebuttal by 

the petitioner. He confirmed that he inspected the respondent's 

operations from 1978 through 1989, but that he did not recall any 

conversations concerning the skid mounted transformers. He 

confirmed that Mr. Salter always accompanied him during his 

inspections, and he could not recall seeing any transformer 

protection plans or designs (Tr. 158-159). 

Background 

The respondent operates an open pit phosphate mine, and its 

electrically operated equipment is frequently moved to different 

mining areas at the site as they are being developed. Electrical 

service is provided by transformers mounted on "sleds" so that 

they can readily be moved to the new mining locations. The 

respondent originally relocated its transformers by preparing a 

new site, moving the skid mounted transformers to the new site, 

and building a separate fence around the relocated transformers. 

In order to move the facility again, a crane was used to lift the 

fence so that the skid-mounted transformer could be moved to the 

next location. However, out of concern for overhead power lines, 

the respondent concluded that it would be more prudent and safe 

to erect a fence around the skid on which the transformer is 

located, thus avoiding the possibility of the crane contacting 

116 
the overhead power lines. 

attached fence around it, 

location. The respondent 

transformer configuration 

who has since retired. 

The skid-mounted transformer, with the 

would then be moved to the new 

maintains that this procedure and 

had the approval of an MSHA inspector 

The cited alleged violative condition in this case was 

abated by leaving the skid-mounted fence in place and simply 

installing a second portable fence with a locked gate around the 

skid-mounted fence enclosing the transformer substation. The 

substation is now surrounded by two fences; an "inner" fence 

mounted on the transformer substation skid that still does not 

provide a three-foot access clearance to the transformer, and a 

second "outer" portable fence that has a locked gate preventing 

access to the skid altogether. 

Petitioner's Arguments 

The petitioner asserts that since the cited skid-mounted 

transformer casing was less than three feet from the fence, a 

violation of section 56.12067, has been established. The 

petitioner takes the position that the regulatory language 

"energized parts, casings, or wiring" should be interpreted and 

applied alternatively or separately, and that the cited 

transformer casing in question was properly cited, regardless of 

whether it was energized or not. Assuming that I find that the 

standard does not apply to the transformer, petitioner's counsel 

asserted that it can be established that "energized parts and 

wiring" were within three feet of the fence, and that this 

establishes a violation (Tr. 8-9; 151-152). 

Respondent's Arguments 

The respondent takes the position that the present skidmounted transformer configuration, with the protective fence 

around the perimeter of the skid, complies with the requirements 

of section 56.12067, and provides an equivalent and practical 

safe method for relocating the frequently moved transformer and 

keeping unauthorized personnel out. 

The respondent further argues that section 56.12067, should 

be construed to apply to energized parts, energized casings, and 

energized wires. Since the cited transformer casing is not, and 

was not energized, the respondent concludes that a violation has 

not been established (Tr. 9-10; 77). 

117 
Findings and Conclusions 

Fact of Violation 

The respondent is charged with an alleged violation of 

30 C.F.R. § 56.12067, which provides as follows: 

Installation of transformers. 

Transformers shall be totally enclosed, or shall be 

placed at least 8 feet above the ground, or installed 

in a transformer house, or surrounded by a substantial 

fence at least 6 feet high and at least 3 feet from any 

energized parts, casings, or wiring (Emphasis Added). 

Contrary to the petitioner's suggestion that energized parts 

and wiring were also within three feet of the fence, the 

inspector confirmed that he only cited the transformer casing and 

that he was not contending that any energized parts or wiring 

were within three feet of the fence (Tr. 69). Under the 

circumstances, and in the absence of any amended citation, the 

petitioner is bound by the citation as issued, and it has the 

burden of proving that the transformer casing, which I find was 

less than three feet from the fence, was in violation of 

section 56.12067. 

The respondent's suggestion that the petitioner is estopped 

from citing it with a violation because a former inspector 

approved the transformer configuration in question IS REJECTED. 

The inspector in question could not recall any discussions with 

the respondent concerning the transformers. Even if he had 

approved the installation of the skid-mounted fence in question, 

MSHA would not be bound by this and at most, it would only serve 

to mitigate any penalty assessment if a violation were found. 

In Secretary of Labor v. King Knob Coal Company, Inc .. , 3 FMSHRC 1417 (June 1980}, the Commission rejected the doctrine 

of equitable estoppel with respect to a mine operator's liability 

for a violation. However, the Commission viewed the erroneous 

action of the Secretary (mistaken interpretation of the law 

leading to prior non-enforcement) as a factor which may be 

considered in mitigation of the civil penalty. Further, 

Commission Judges have consistently rejected an operator's 

reliance on prior inspections and the lack of citations, and have 

held that the lack of prior inspections and the lack of prior 

citations does not estop an inspector from issuing citations 

during subsequent inspections. See: Midwest Minerals Coal 

Company, Inc., 3 FMSHRC 1417 (January 1981): Missouri Gravel Co., 

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

1359 (July 1983); Emery Mining Corporation v. Secretary of Labor, 

5 FMSHRC 1400 (August 1983), aff'd, 10th Cir. U.S. Court of 

Appeals, 3 MSHC 1585. 

118 
The inspector believed that the intent of section 56.12067, 

is (1) to provide and maintain at least a three-foot clearance 

between the transformer and related equipment and the fence so as 

to provide ready access to the equipment for anyone working on 

it, and (2) to prevent anyone from poking or sticking objects 

through the fence into the transformer or energized parts 

(Tr. 62). The inspector further believed that the installation 

of an additional outside portable fence with a locked gate around 

the skid mounted fence that enclosed the substation to abate the 

violation eliminated the hazard, and as long as the outer fence 

gate is locked, he concluded there would be no violation because 

"the purpose of the fence now is to keep unauthorized personnel 

out of the substation", and "no one can touch the live parts. No 

one can touch the transformer casings" (Tr. 62-63). 

The inspector confirmed that the installation of the second 

portable fence would effectively prevent anyone from entering the 

transformer substation. However, notwithstanding this abatement 

action, he further confirmed that the skid-mounted fence is still 

in place and is still less than three feet from the transformer 

casing, and is not in compliance with section 56.12067. He 

earlier testified that the fence was in compliance, even though 

there was a lack of clearance because he was told that no one 

works inside the fenced area (Tr. 68). When asked to reconcile 

these rather contradictory enforcement and abatement actions, the 

inspector stated that he had made a mistake and should have had 

the skid-mounted fence removed (Tr. 89). 

MSHA's technical adviser Dinkel was of the opinion that the 

fence height requirement stated in section 56.12067, is intended 

to keep unauthorized personnel and others away from the 

transformer installation, and that the three-foot clearance 

requirement is intended to assure sufficient clearance for 

qualified personnel while working on the equipment. 

MSHA's policy manual guidelines do not address 

section 56.12067, or section 77.509(a), a standard that 

applies to transformer installations at a surface coal mine 

with language substantially identical to that found in 

section 56.12067. However, the petitioner introduced a copy 

of an April 14, 1985, letter by MSHA's Coal Mine Safety and 

Health Administrator in response to an inquiry from a 

manufacturer of skid-mounted substations (Exhibits P-16). 

The inquiry by the manufacturer states as follows: 

Most substations have a high voltage house and a low 

voltage house throat connected to a transformer or a 

high voltage structure connected to cover-mounted 

bushings then throat connected to the low voltage 

119 
house. In the first case, there are no exposed live 

parts on the transformer- they are throat enclosed. In 

the second case, exposed live parts are above NEC 

requirements or throat enclosed. 

For these two instances and in trying to comply with 

Section 77.509, part{a) of the code, is a fence 

necessary? If so, is it necessary to maintain three 

feet clearance around the cooling radiators when they 

are in a different segment than the bushings? 

MSHA's response to the inquiry states in relevant part as 

follows: 

• . • • In the first case, a substation fence is not 

required by 30 C.F.R. § 77.509, provided there are no 

exposed live parts on the high-voltage house, lowvoltage house, or power transformer. However, if any 

of these components of the substation contain exposed 

live parts, then the entire substation is required by 

30 C.F.R. t 77.509 to be enclosed by a fence. 

{Emphasis added). 

In the second case, • • • • a substation fence is 

required by 30 C.F.R. § 77.509 because the power 

transformer contains exposed live parts. {Emphasis 

Added). 

Finally, the intent of the clearance requirements 

specified in 30 C.F.R. § 77.509{a) is to provide 

adequate work space around all equipment in a 

substation. Consequently, the three-foot clearance 

requirement in 30 C.F.R. § 77.509{a) applies to cooling 

radiators on power transformers even when they are in a 

different segment than the bushings. 

Petitioner's counsel conceded that the aforesaid letter is 

an "opinion letter" and not an MSHA policy statement {Tr. 104). 

He further asserted that it was introduced in support of his 

position that the intent of the standard is also to provide a 

three-foot clearance for any work performed on the transformer 

{Tr. 105) . 

The citation issued by the inspector in this case simply 

states that the transformer casing was within three feet of the 

fence. It seems to me that if the inspector intended to cite the 

respondent with a failure to maintain a three-foot "walkway" 

clearance around the transformer substation, he should have said 

so in his citation and supported it with some credible evidence 

that work is in fact performed on the transformer inside the 

fenced area. He did neither. 

120 
I take note of the possible application of more appropriate 

standards that may apply to inadequate work clearances. For 

example, section 56.11001, found in subpart J, dealing with 

travelways, requires a safe means of access to all working 

places. Section 56.11008, requires the conspicuous marking of 

restricted clearances that create hazards to persons. 

Section 56.12019, requires suitable clearance where access is 

necessary at stationary electrical equipment or switch gear. 

Although the respondent's counsel suggested that any 

transformer repair work is not done on location, that the fence 

is taken down and the transformer is moved elsewhere for this 

work, that the transformer configuration does not allow for 

anyone to do work inside the skid-mounted fence area, and that a 

switch is simply thrown (Tr. 50, 120), he elicited no testimony 

or evidence to support these proffers. 

The burden of proof in this case lies with the petitioner, 

and it was incumbent on the petitioner to prove its case. The 

petitioner presented no evidence to establish that work was in 

fact performed.inside the skid-mounted transformer fenced area, 

or that mine personnel do in fact venture inside that area to 

perform work. The only sworn testimony on this issue is the 

inspector's admission that "they told me they don't go in there 

to work" (Tr. 67), and this is supportive of the respondent's 

position. 

I conclude and find that a piece of electrical equipment, 

such as a transformer, would be considered "energized" when the 

electricity supplying it with electric power is turned on. 

Insofar as the transformer casing is concerned, the evidence 

reflects that under normal operating conditions the transformer 

casing itself is not considered to be energized, notwithstanding 

the fact that the transformer is supplied with electricity and is 

energized. 

Respondent's electrical expert Dagenhart believed that the 

installation of a fence around the transformer substation was 

intended to prevent persons from inadvertently contacting exposed 

energized transformer parts (Tr. 145). Mr. Dagengart does not 

consider a transformer casing to be an energized part unless it 

is ungrounded, in which case he would consider the casing to be 

"energized under any circumstances" (Tr. 149). He also agreed 

that in the event of a ground fault, the casing would become 

energized during the time it would take a fuse or circuit breaker 

to deenergize the transformer, and that in the event of any 

grounding or fuse breaker failure the casing could remain 

energized indefinitely (Tr. 153, 155). 

The inspector believed that the three-foot clearance 

requirement found in section 56.12067, is intended to provide 

working space between the fence and the transformer and to keep 

121 
anyone from poking or sticking objects into the transformer or 

energized parts (Tr. 62). He confirmed that his belief in this 

regard was based on his understanding of the National Electrical 

Code (Tr. 88). Petitioner's counsel conceded that the code is 

not incorporated by reference as part of.section 56.12067, 

(Tr. 98-90; 110). 

The inspector believed that a transformer casing would only 

be energized if there were a ground fault,and that this would 

constitute a hazard (Tr. 61, 72-74). He confirmed that the 

casing is considered a part of the transformer and that there is 

wiring inside the casing (Tr. 74). The inspector agreed that he 

could not place his hand through the fence, and he confirmed that 

his primary concern was that in the event of a ground fault, and 

with the casing close to the fence, someone would be able to 

touch the casing with a foreign object (Tr. 80, 82, 88-89). 

MSHA technical Advisor Dinkel, an electrical engineer, 

believed that an energized casing within reach of someone would 

be a hazard. He further believed that the 8-foot fence 

requirement found in section 56.12067, is intended to keep 

unauthorized persons away from the transformer substation, and 

that the 3-foot clearance requirement is to provide adequate work 

space when work is performed inside the.fenced substation. 

Although I have some doubt that the clear intent of the 

three-foot clearance requirement found in section 56.12067, is to 

provide a walkway or ready access to the equipment, I cannot 

conclude that the inspector's belief in this regard was an 

unreasonable interpretation and application. However, in the 

absence of any evidence that the respondent ever performed any 

work on the transformer inside the skid-mounted ·fenced substation 

area, or that such work would be performed at that location in 

the normal course of mining operations, I cannot conclude that 

the petitioner has proved that the failure to provide such an 

access area inside the skid-mounted fence around the transformer 

constituted a violation of section 56.12067. 

I conclude and find that the primary intent of section 

56.12067, in requiring a substantial fence around the transformer 

station is to prevent unauthorized persons from venturing inside 

the fenced area and inadvertently contacting exposed energized 

parts. The respondent's suggestion that the words "energized 

parts, casings, or wiring" must be read together, and that in 

order to establish a violation in this case it must first be 

established that the cited transformer casing was energized 

before a fertce may be required IS REJECTED. The petitioner's 

credible and unrebutted evidence establishes that ground faults 

that may energize a transformer casing do occur, and that when 

they do, they present a potential hazard of shock or 

electrocution. Under the circumstances, I believe that 

interpreting and applying the standard to require a fence only 

122 
after a casing becomes energized would be less than prudent and 

unreasonable. However, on the facts of this case, and even 

though the cited casing was within three feet of the fence, I 

cannot conclude that it was unprotected and presented a hazard. 

As noted earlier, there is no evidence that anyone worked in and 

around the skid-mounted transformer substation, and the inspector 

conceded that he could not place his hand through the fence to 

reach the transformer casing. Under all of that circumstances, I 

conclude and find that the petitioner has failed to establish a 

violation, and the citation IS VACATED. 

ORDER 

In view of the foregoing findings and conclusions, 

section 104(a) non-"S&S" Citation No. 4094761, February 2, 1993, 

citing an alleged violation of 30 C.F.R. § 56.12067, IS VACATED, 

and the petitioner's civil penalty proposal IS DENIED AND 

DISMISSED. 

Distribution: 

./~~A. 

.;/ ii~ Koutras 

Administrative Law Judge 

Leslie John Rodriguez, Esq., Office of the Solicitor, 

u.s. Department of Labor, Room 339, 1371 Peachtree St., N.E., 

Atlanta, GA 30367 (Certified Mail) 

T. Carlton Younger, Jr., Esq., Vice-President, Law, Texasgulf 

Inc., 3101 Glenwood Avenue, P.O. Box 30321, Raleigh, NC 27622-

0321 (Certified Mail) 

/ml 

123 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

(303) 844-5266/FAX (303) 844-5268 

JAN 7 1994 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. WEST 93-239 

A.C. No. 48-01052-03515 

v. FMC - Skull Point Mine 

FMC WYOMING CORPORATION, 

Respondent 

Appearances: 

BEFORE: 

DECISION 

Margaret A. Miller, Esq., Office of the Solicitor, 

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

for Petitioner; 

Matthew F. McNulty III, Esq., VAN COTT, BAGLEY, 

CORNWALL & McCARTHY, Salt Lake City, Utah, 

for Respondent. 

Judge Morris 

The Secretary of Labor, on behalf of the Mine Safety and 

Health Administration ("MSHA") charges Respondent FMC Wyoming 

Corporation ("FMC") with violating safety regulations promulgated under the Federal Mine Safety and Health Act, 30 u.s.c. 

§ 801, et .§filL.. (the "Act"). 

A hearing on the merits was held in Salt Lake City, Utah on 

September 1, 1993. 

The parties filed post-trial briefs. 

Stipulation 

At the commencement of the hearing the parties stipulated as 

follows: 

A. FMC is engaged in mining and selling bituminous coal in 

the United States and its mining operations affect interstate 

commerce. 

124 
B. FMC is the owner and operator of Skull Point Mine, MSHA 

I.D. No. 48-01052. 

c. FMC is subject to the jurisdiction of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. §§ 801 et~ ("the 

Act") . 

D. The Administrative Law Judge has jurisdiction in this 

matter. 

E. The subject citations were properly served by a duly 

authorized representative of the Secretary upon an agent of 

respondent on the dates and places stated therein, and may be 

admitted into evidence for the purpose of establishing their 

issuance, and not for the truthfulness or relevancy of any 

statements asserted therein. 

F. The exhibits to be offered by Respondent and the 

Secretary are stipulated to be authentic but no stipulation is 

made as to their relevance or the truth of the matters asserted 

therein. 

G. The proposed penalties will not affect Respondent's 

ability to continue in business. 

H. The operator demonstrated good faith in abating the 

violations. 

I. FMC is a medium size mine operator with 839,453 tons of 

production in 1991. 

J. The certified copy of the MSHA Assessed Violations History accurately reflects the history of this mine for the two 

years prior to the date of the citations. 

Citation No. 3243012 

This citation, issued under section 104(a) of the Act, alleges FMC violated 30 C.F.R. § 77.501. 1 

The cited regulation provides: 

77.501 Electric distribution circuits and equipment; 

repair. 

No electrical work shall be performed on electric 

distribution circuits or equipment, except by a 

qualified person or by a person trained to perform 

electrical work and to maintain electrical equipment 

under the direct supervision of a qualified person. 

Disconnecting devices shall be locked out and suitably 

tagged by the persons who perform such work, except 

125 
The citation reads: 

Electrical repairs were being performed on 

a 70 amp 3 phase 480 VAC lighting distribution circuit circuit breaker located in the 

tipple motor control center panel, Mee 2 

(equipment #508). Disconnect devices for the 

circuit were not locked out and suitably 

tagged by the person performing such work. 

Citation No. 3243013 

This citation, issued under section 104(a) of the Act, 

alleges FMC violated 30 C.F.R. § 77.1710(c). 2 

The citation reads: 

Protective gloves were not being worn by an 

electrician while trouble-shooting and/or 

making repairs on a 70 amp 3 phase 480 VAC 

lighting distribution circuit circuit 

breaker. 

Based on the credible evidence I enter the following: 

FINDINGS OF FACT 

1. MICHAEL MOE, an hourly employee, was employed by FMC for 

seven years as a master electrician. (Tr. 11, 80). 

2. On March 10, 1992, Moe grounded a screw driver in the 

circuit breaker; this caused a panel flash. (Tr. 12). 

2 

that in cases where locking out is not possible, such 

devices shall be opened and suitably tagged by such 

persons. Locks or tags shall be removed only by the 

persons who installed them or, if such persons are 

unavailable, by persons authorized by the operator or 

his agent. 

77.1710 Protective clothing; requirements. 

Each employee working in a surface coal mine or in 

the surface work areas of an underground coal mine 

shall be required to wear protective clothing and 

devices as indicated below. 

(c) Protective gloves when handling materials or 

performing work which might cause injury to the hands, 

however, gloves shall not be worn where they would 

create a greater hazard by becoming entangled in the 

moving parts of equipment. 

126 
3. As a result of the grounding Moe was not shocked but he 

sustained.burns to his hands, face and neck; he was unable to 

work for two months and was hospitalized for 8 or 10 days. 

(Tr. 12, 13, 17) . 

4. Moe began his work by shutting off a 480 volt circuit 

breaker in order to tighten some loose connections on the bottom 

side of the breaker. Turning the breaker to "off" de-energizes 

the lower half but not the upper side of the breaker. (Tr. 16; 

Exhibit R-4 shows the breaker box; the burned area is shown at 

the left edge of the left breaker slightly to the left of the 

left screw shown in the center of R-4). 

5. In his trouble-shooting Moe determined one of the leads 

in the circuit breaker was loose. (Tr. 14). 

6. The motor controlled by the electricity was not running; 

the breaker had functioned properly because it had tripped. {Tr. 

14) . 

7. When Moe was using the amp meter to check the equipment 

he was not wearing gloves. {Tr. 15). 

8. The equipment Moe was working on was a motor control 

panel containing a motor starter, a circuit breaker and thermal 

overloads. Its function was to reduce voltage to start 480 volt 

motors. {Tr. 16) . 

9. The screw driver was ten inches long. As Moe was tightening the loose wire he leaned the screw driver against the metal 

frame of the motor control center. (Tr. 16). 

10. There was a disconnect device on the motor control 

panel. (Tr. 18). To de-energize the top portion of the panel 

you could go to a different building and de-energize a large 

breaker that shuts down the entire system. As an alternative 

each individual unit can be de-energized by pulling out one or 

all of the 12 individual units. (Tr. 19, 25). 

11. Moe did not lock or tag out the equipment when working 

on the top part of the motor control center. (Tr. 19). 

12. Moe remembered receiving an FMC policy manual (Ex. R-2) 

that talks about lock-out and de-energization policies. (Tr. 

22) . 

13. As a result of this accident Moe was disciplined by FMC. 

(Tr. 23) . 

14. Troubleshooting is finding any problem and fixing it. 

The fixing of any problem would constitute a repair. (Tr. 23, 

127 
24). Moe thought he was repairing the equipment when he was 

injured. (Tr. 25). 

15. RONALD J. RUDY accompanied Moe on the date of the 

accident. (Tr. 29, 30). 

16. Moe was not wearing gloves on March 10th. (Tr. 32) . 

17. PAUL PRICE has been an MSHA electrical engineer for over 

13 years. His duties include the investigation of electrically 

oriented accidents. (Tr. 34, 35). 

18. The motor control panel is an electrical distribution 

circuit. Basically it takes a larger amount of electricity and 

distributes it as reduced loads. (Tr. 36). 

19. When an electrician is working on a distribution circuit 

MSHA requires that the circuits be locked out and tagged; further, when troubleshooting a worker must wear gloves. (Tr. 36). 

20. When he was using the meter and examining the system Moe 

was troubleshooting. For such work gloves are required. (Tr. 

37) . 

21. Gloves would protect someone from being electrocuted 

while troubleshooting. MSHA's records indicate workers have been 

hurt while troubleshooting without using gloves. (Tr. 38). 

22. It is illegal to troubleshoot while the circuits are 

energized . (Tr . 3 9 ) . 

23. As a result of not de-energizing the equipment there are 

three hazards: burns, electrocutions, and blasts. (Tr. 42). 

24. In this case a loose connection caused a wire to be warm 

to the touch. (Tr. 43). 

25. MSHA's program policy manual does not require gloves 

while an electrician is working. (Tr. 44). 

26. The use of gloves would not have prevented Moe's 

accident. (Tr. 45). 

27. Moe did not lock out or tag out before working on the 

energized portion. (Tr. 48). 

28. RON HALE testified for FMC. He is in charge of all 

maintenance at the mine. In addition, he is a master electrician. (Tr. 55-56) . 

128 
29. In his investigation Hale found leather gloves three and 

one half feet from the electrical panel. The gloves were next to 

Moe's volt meter and hard hat. (Tr. 75). 

30. FMC's lockout procedure is contained in Exhibit R-2. 

Moe was familiar with the procedure. (Tr. 61). 

31. During the annual refresher training, lockout procedures and de-energization were discussed. (Tr. 65). 

DISCUSSION AND FURTHER FINDINGS 

AS TO CITATION NO. 3243012 

Moe grounded his screwdriver when he tightened the loose 

screw shown in the recessed portion of the upper part of the 

circuit breaker in Exhibit R-4. At the time he was performing 

electrical work on the distribution circuits. The evidence further shows that while performing this work the disconnecting 

devices were not locked out. Moe indicated the disconnecting 

device is located in a different building. An alternative disconnect could have been accomplished by removing the breaker can, 

but neither was done. 

It is true that the breaker switch was in the "off" position 

(see Ex. R-4). However, even with the breaker lever on the "off" 

position the upper portion of the breaker remained energized. 

The loose screw being tightened by Moe and the blast scar were in 

the upper portion of the can. 

The Judge is aware of the testimony of Ron Hale. From his 

investigation Hale concluded Moe was working on the "T leads" 

which were de-energized. (Tr. 59, 69). 

At some point, as Hale contends, Moe was also most likely 

working on the de-energized "T-leads" located in the bottom half 

of the breaker can. However, when Moe caused the panel flash, he 

could only have been working on the top energized portion of the 

circuit breaker. (See Fact, par. 4). Hale confirms this scenario, since he did not dispute the fact that the top half was 

energized. He further identified the burn mark shown on Exhibit 

R-4. (Tr. 76-78). 

In its oral argument FMC has confused the upper and lower 

portion of the breaker can. I find that electrical work was being performed on the energized upper portion when Moe tightened 

the loose screw. Moe admits he did not lock out or tag the 

equipment when he was performing such work. (Tr. 19). 

The facts establish that a violation of 30 C.F.R. § 77.501 

and Citation No. 3243012 should be affirmed. 

129 
DISCUSSION AND FURTHER FINDINGS 

AS TO CITATION NO. 3243013 

The uncontroverted evidence shows Moe was not wearing protective gloves while troubleshooting. Moe was troubleshooting 

when he was using the amp meter to check the equipment. 

On the uncontroverted evidence, Citation No. 3243013 should 

be affirmed. 

SIGNIFICANT AND SUBSTANTIAL 

The citations herein where denominated by the Secretary as 

"Significant and Substantial." 

An "S&S" violation is described in section 104(d) (1) of the 

Mine Act as a violation "of such nature as could significantly 

and substantially contribute to the cause and effect of a coal or 

other mine safety or health hazard." A violation is properly 

designated significant and substantial "if, based upon the particular facts surrounding the violation there exists a reasonable 

likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious nature." Cement Division, National Gypsum co., 3 FMSHRC 822, 825 (April 1981). 

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

Commission explained its interpretation of the term "Significant 

and Substantial" as follows: 

In order to establish that a violation of a 

mandatory safety standard is significant and 

substantial under National Gypsum the Secretary of Labor must prove: (1) the underlying 

violation of a mandatory safety standard; (2) 

a discrete safety hazard--that is, a measure 

of danger to saf ety--contributed to by the 

violation; {3) a reasonable likelihood that 

the hazard contributed to will result in an 

injury; and (4) a reasonable likelihood that 

the injury in question will be of a reasonably serious nature. 

In United States Steel Mining Company, Inc. 7 FMSHRC 1125, 

1129, the Commission stated further as follows: 

130 
We have explained further that the third 

element of the Mathies formula "requires that 

the Secretary establish a reasonable likelihood that the hazard contributed to will result in an event in which there is an injury." U.S. Steel Mining Co., 6 FMSHRC 1834, 

1836 (August 1984). We have emphasized that, 

in accordance with the language of section 

104(d) (1), it is the contribution of a violation to the cause and effect of a hazard that 

must be significant and subtantial. U.S. 

Steel Mining Company, Inc., 6 FMSHRC 1866, 

1868 (August 1984); U.S. Steel Mining Company, Inc., 6 FMSHRC 1573, 1574-75 (July 

1984) . 

In considering the Mathies formula, I find there were underlying violations of two mandatory safety regulations, namely 

§ 77.501 and § 77.1710. Further, a measure of danger was contributed to bythe violations. The third facet, a reasonable 

likelihood that the hazard contributed to will result in an 

injury is established as to Citation No. 3243012 by the injury 

and hospitalization of electrician Moe. 

The reasonable likelihood that the injury in question will 

be reasonably serious is established by the hospitalization of 

electrician Moe. 

FMC contends the S&S allegations cannot be sustained. However, the facts and Commission precedent establish a contrary 

conclusion as to the failure to de-energize(§ 77.501). The S&S 

allegations as to Citation No. 3243012 should be affirmed. 

The failure to wear gloves is a separate violation from the 

failure to de-energize. It is true that MSHA requires workers to 

wear gloves only when troubleshooting the equipment. (Tr. 36, 

37). I further agree he was repairing but not troubleshooting 

when the panel flash occurred. However, part and parcel of Moe's 

activities at the time of this accident included troubleshooting 

without gloves and, since workers have been hurt, even electrocuted in such circumstances, an S&S violation is established as 

to citation No. 3243013. 

OK and vw Coal Company, 13 FMSHRC 1063, 1067 (July 1991), 

relied on by FMC is not inopposite the views expressed here. 

CIVIL PENALTIES 

The statutory criteria for assessing civil penaltfes are 

contained in section llO(i) of the Act, 30 u.s.c. § 820(i). 

131 
FMC's favorable history indicates it was assessed 11 violations for the two years ending March 11, 1992. (Ex. M-1). 

The proposed penalties will not affect FMC's ability to 

continue in business. (Stipulation). 

The S&S allegations as to Citation No. 3243013 should be 

vacated. 

FMC was not indifferent to de-energizing electrical equipment and it also furnished gloves to its electricians. In view 

of this evidence, I conclude the assertion of moderate negligence 

must be reduced for this non-supervisory employee. 

As previously discussed, the gravity of the violations was 

high. 

FMC demonstrated good faith in attempting to achieve prompt 

abatement. 

On balance, I believe the penalties set forth in this order 

are appropriate. 

For the foregoing reasons I enter the following: 

ORDER 

1. Citation No. 3243012 is affirmed and a penalty of 

$2,000.00 is ASSESSED. 

2. Citation No. 3243013 is affirmed and a penalty of $1000 

is ASSESSED. 

Judge 

Distribution: 

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) 

Matthew F. McNulty III, Esq., VAN COTT, BAGLEY, CORNWALL & 

McCARTHY, 50 South Main St., Suite 1600, P.O. Box 45340, Salt 

Lake City, UT 84145 (Certified Mail) 

ek 

132 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 1 0 1994 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. LAKE 93-241 

A.C. No. 12-02033-03593 

v. 

Buck creek Mine 

BUCK CREEK COAL COMPANY, INC., 

Respondent 

Appearances: 

Before: 

DECISION 

Lisa A. Gray, Esq., Office of the Solicitor, U.S. 

Department of Labor, Chicago, Illinois for 

·Petitioner; 

Patrick A. Shoulders, Esq., Ziemer, Stayman, 

Weitzel & Shoulders, Evansville, Indiana for 

Respondent. 

Judge Hodgdon 

This case is before me on a petition for assessment of civil 

penalty filed by the Secretary of Labor against Buck Creek Coal 

company, Inc. pursuant to Sections 105 and 110 of the Federal 

Mine Safety and Health Act of 1977, 30 u.s.c. §§ 815 and 820. 

The petition alleges a violation of Section 75.360(a), 30 C.F.R. 

§ 75.360(a), of the Secretary's mandatory safety standards. For 

the reasons set forth below, I find that Buck Creek committed the 

violation alleged, that the violation was not of such nature as 

could significantly and substantially contribute to the cause and 

effect of a coal mine safety hazard, but that the violation was 

caused by Buck Creek's unwarrantable failure to comply with the 

mandatory safety standard. 

The case was heard on October 26, 1993, in Sullivan, 

Indiana. Inspectors John D. Stritzel and Michael A. Bird 

testified on behalf of the Petitioner. Mr. H. Michael McDowell, 

Vice President of Human Resources, testified for the Respondent. 

The parties have also filed post hearing briefs which I have 

considered in my disposition of this case. 

FINDINGS OF FACT 

The essential facts are not contested. Mine Safety and 

Health Administration Inspectors Stritzel and Bird arrived at 

133 
Respondent's Buck Creek mine in Sullivan County, Indiana, at 

6:45 A.M. on Monday, April 26, 1993, for the purpose of making a 

ventilation technical investigation. The mine had been idle 

since the completion of the day shift at 3:30 P.M. on Saturday, 

April 24, 1993. 

On arriving at the mine office, the inspectors discovered 

that the next shift did not begin until 9:00 A.M. While waiting, 

they checked Buck Creek's preshift book and noted that the 

preshift examination for the next shift had not been recorded. 

Further investigation indicated to the inspectors that there 

were miners in the mine other than the preshift examiners. The 

preshift examination of the north side of the mine had begun at 

6:22 A.M., was completed at 7:22 A.M. and was called to the 

surface at 7:30 A.M. The examination of the south side began at 

7:00 A.M., was completed at 7:30 A.M. and was called out at 

7:35 A.M. 

Inspector Stritzel spoke on the phone with Charles Austin, 

the mine manager and one of the preshift examiners, when Austin 

called out at 7:35 A.M., and asked him who was in the mine. When 

Austin acknowledged that there were miners in the mine in 

addition to the preshift examiners, Stritzel told him to come out 

of the mine and to "bring everyone in the mine with you out. 11 

The inspector also told Austin that he was "issuing a 104-D code 

order." 

Inspector Stritzel interviewed everyone who had been in the 

mine: Austin and Charles Chin, who were performing preshift 

examinations of the north and south sides of the mine, and 

Carlos Maggard, Dave Sales and Terry O'Bannon, who were 

performing maintenance on a disabled mantrip at the foot of the 

slope of the mine. The maintenance crew had gone into the mine 

at 6:45 A.M. 

Inspector Stritzel issued a withdrawal order under Section 

104(d) (2) of the Act, 30 u.s.c. § 814(d) (2), 1 alleging a 

Section 104(d) (2) provides in pertinent part: 

If a withdrawal order with respect to any area in a coal 

••• mine has been issued pursuant to paragraph (1), a 

withdrawal order shall promptly be issued by an 

authorized representative of the Secretary who finds upon 

any subsequent inspection the existence in such mine of 

violations similar to those that resulted in the issuance 

of the withdrawal order under paragraph (1) until such 

time as an inspection of such mine discloses no similar 

violations. 

134 
violation of Section 75.360(a) of the Regulations in that 

"[t]hree miners entered the mine at 6:45 A.M. without a valid 

pre-shift examination of the mine being completed" (Joint Ex. 1, 

Tr. 31-34). The order was terminated at 9:00 A.M. when "all 

miners were instructed by Gary Timmins, Safety Dir. to not enter 

[the] mine until the pre-shift exam for the on coming shift is 

completed and the results called out and entered into book" 

(Joint Ex. 1, TR. 39). 

Respondent argues in his Proposed Findings (RPF) and 

Memorandum in Support (Memo) that the maintenance crew was not 

part of the "coal mining" shift beginning at 9:00 A.M., entered 

the mine during "idle hours" and was working in an "idle" area of 

the mine so that no preshift examination was required {RPF 7-9, 

Memo 2). This argument, with its references to "every working 

section" and "active workings" of the mine, apparently relies on 

a former version of the Regulations. At any rate, the argument 

does not hold up under either the old or the new Regulation. 

FURTHER FINDINGS OF FACT 

AND 

CONCLUSIONS OF LAW 

Section 75.360{a) provides that: 

Within 3 hours preceding the beginning of any shift and 

before anyone on the oncoming shift, other than 

certified persons conducting examinations required by 

this subpart, enters any underground area of the mine, 

a certified person designated by the operator shall 

make a preshift examination. 

Section 75.360 is similar, but not identical, to Section 

303{d) (1) of the Act, 30 u.s.c. § 863(d) (1). It replaced Section 

75.303(a), 30 C.F.R. § 75.303(a), in 1992, when subpart D was 

revised. Section 75.303(a) was identical with the Act. 2 

"Shift" is not defined in Part 75 or anywhere else in the 

Regulations or the Act. However, it seems apparent that just 

because the men were entering to perform maintenance rather than 

2 The main differences between the new regulation and the old 

regulation and the Act are that Section 75.360 is separated into 

various subsections while Section 75.303(a) and the Act consisted 

of one continuous paragraph, some of the language in the new 

Regulation has been updated and changed and the new regulation is 

more specific and requires more areas of the mine to be inspected. 

135 
to mine coal does not mean that they were not part of the shift. 3 

Nor does the fact that they began work before the of.ficial start 

of the shift mean that they were not part of the shift. They 

were undoubtedly part of the group of miners coming to work that 

morning and would be working during the shift (Tr. 214). In 

fact, the evidence indicates that the repair of the mantrip was 

necessary before the rest of the shift could go into the mine 

(Tr. 167). Moreover, any doubt whether the crew was part of the 

shift must be resolved in favor of inclusion since the purpose of 

the Act and the Regulation is to insure as nearly as possible 

that the mine is safe to enter. Secretary of Labor & UMWA v. 

Jones & Laughlin Steel Corp. & Vesta Mining, 7 FMSHRC 1058, 1062 

(July 1986). 

Respondent both at the hearing and in his Findings and Memo 

argues that the maintenance crew were not in the "active 

workings" of the mine, apparently in the belief that such areas 

were the only areas into which entry was prohibited prior to 

completion of the preshift examination. A superficial reading of 

Section 75.303{a) could lead to that conclusion, however, under 

Section 75.360(a) there is no question of distinguishing between 

"active workings" and "idle" areas of the mine. It prohibits 

entry into any underground area of the mine. 

Furthermore, even under the old regulation, Respondent's 

argument fails because when Section 75.303(a) was in effect, 

Section 75.2(g) (4), 30 C.F.R. S 75.2(g) (4), defined "active 

workings" as "any place in a coal mine where miners normally work 

or travel" (emphasis added) . 4 It is undisputed that the three 

maintenance men were at the foot of the slope, a place where 

anyone entering or leaving the mine had to travel (Tr. 171-172, 

207). Thus, they were in an area into which entry was prohibited 

prior to completion of the preshift examination even under the 

old rule. 

3 Section 70.2(1), 30 C.F.R. S 70.2(1), defines "production 

shift" in terms of the work done on the shift and not the crew 

make-up of the shift. This would argue against Respondent's 

assertion that there is a distinction between coal producers and 

others as to whether they are part of a "shift," since it is 

undisputed that the oncoming shift in this case was going to be 

producing coal. 

4 Section 75.2 was revised, effective August 16, 1992. "Active 

workings" is defined exactly the same in the revised section. See 

also Section 318(g) (4) of the Act, 30 u.s.c. § 878(g) (4), ('"active 

workings' means any place in a coal mine where miners are normally 

required to work or travel"). 

136 
Having concluded that the maintenance crew was part of the 

oncoming shift, Respondent's argument that the crew entered the 

mine during "idle hours" and, therefore, that no preshift 

examination was required before entering need not be addressed. 

According to Respondent, this contention is based on Section 

303 (d) (2) of the Act, 30 u.s.c. § 863 (d) (2), (RPF 9-11, Memo 2) . 5 

However, it is noted in passing that it is undisputed that an 

examination satisfying the requirements of Section 303(d) (2) had 

not been made within eight hours of the crew's entry (Tr. 209). 

Consequently, this argument must rest on the inconsistent premise 

that an uncompleted preshift examination, which does not permit 

entry into the mine until it is completed, can satisfy the 

requirements of Section 303(d) (2) and permit entry into the mine 

before it is completed. 

Fact of Occurrence 

Section 75.360(a) provides that "before anyone on the 

oncoming shift, .•. , enters any underground area of the mine" 

(emphasis added) a preshift examination must be made. Section 

75.360(g) further requires that: 

A record of hazardous conditions and their locations 

found by the examiner during each examination and of 

the results and location of air and methane 

measurements shall be made in a book provided for that 

purpose on the surf ace before any persons other than 

certified persons conducting examinations required by 

this subpart enter any underground area of the mine. 

(Emphasis added). 

Obviously then, a preshift examination has not been completed and 

miners cannot enter the mine until the results of the preshift 

examination have been entered in the preshift book on the 

surface. It is unchallenged that Maggard, Sales and O'Bannon 

entered the mine before the results of the preshift examination 

had been recorded. Therefore, I conclude that Respondent 

violated Section 75.360(a) as alleged. See Secretary of Labor v. 

Birchfield Mining Company, 11 FMSHRC 31, 35 (January 1989). 

Siqnif icant and Substantial 

The violation was cited as being "significant and 

substantial." A "significant and substantial" (S&S) violation is 

described in Section 104(d) (1) of the Act as a violation "of such 

nature as could significantly and substantially contribute to the 

5 Section 303 (d) (2) provides: "No person ••. shall enter any 

underground area, except during any shift, unless an examination of 

such area as prescribed in this subsection has been made within 

eight hours immediately preceding his entrance into such area." 

137 
cause and effect of a coal or other mine safety or health 

hazard." A violation is properly designated S&S "if, based upon 

the particular facts surrounding that violation, there exists a 

reasonable likelihood that the hazard contributed to will result 

in an injury or illness of a reasonably serious nature." Cement 

Division. National Gypsum co., 3 FMSHRC 822, 825 (April 1981). 

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

Commission explained: 

In order to establish that a violation of a 

mandatory safety standard is significant and 

substantial under National Gypsum, the Secretary of 

Labor must prove: (1) the underlying violation of 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 (August 1985), the Commission stated further as follows: 

We have explained further that the third element of the 

Mathies formula 'requires that the Secretary establish 

a reasonable likelihood that the hazard contributed to 

will result in an event in which there is an injury.' 

U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August 

1984). We have emphasized that, in accordance with the 

language of section 104(d) (1), it is the contribution 

of a violation to the cause and effect of a hazard that 

must be significant and substantial. U.S. Steel Mining 

Company, Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S. 

Steel Mining Company, Inc., 6 FMSHRC 1573, 1574-75 

(July 1984). 

The question of whether a particular violation is 

significant and substantial must be based on the particular facts 

surrounding the violation. Texasgulf. Inc., 10 FMSHRC 498 (April 

1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 1007 (December 

1987) • 

In his Brief in Support of Proposed Findings (Sec. Brief), 

the Secretary takes the position that a violation of Section 

75.360 is per se a "significant and substantial" violation 

because "[i]t stands to reason that until a preshift examination 

has been conducted to prove otherwise, the mine contains 

138 
conditions which could reasonably be expected to cause an injury 

of a reasonably serious nature to anyone who enters those areas 

unaware" of the conditions present (Sec. Brief 14). While this 

may be true as a general proposition, based on the facts of this 

case and existing case law, I cannot agree that the violation in 

this case was "significant and substantial." 

Applying the Mathies formula, I have already found that 

there was (1) a violation of a mandatory safety standard. I also 

find that there was (2) a discrete safety hazard in that the mine 

had been idle since Saturday, April 24 and had a history of roof 

falls and high methane levels (Tr. 35, 118). 

However, I do not find (3) a reasonable likelihood that the 

hazard contributed to would result in an injury because: (a) two 

of the three men on the maintenance crew were certified preshift 

examiners (Tr. 164-65) who, it can be inferred, would have been 

more acutely aware of potential hazards than the average miner; 

(b) they only entered the mine as far as the foot of the slope; 

and (c) the preshift examination of the north side of the mine 

began at 6:22 A.M. so that when the three men entered at about 

6:45 A.M. the area into which they went had already been examined 

and no hazards were noted. 6 Accordingly, I conclude that the 

violation was not "significant and substantial." Birchfield, 

supra, at 34-5. 

unwarrantable Failure 

The violation was cited as having been caused by Buck 

Creek's unwarrantable failure to comply with the mandatory safety 

standard. The Commission has held that unwarrantable failure is 

aggravated conduct constituting more than ordinary negligence by 

a mine operator in relation to a violation of the Act. Emery 

Mining Corp., 9 FMSHRC 1997, 2004 (December 1987); Youghiogheny & 

Ohio Coal Co., 9 FMSHRC 2007, 2010 (December 1987). 

In Emery Mining, supra at 2001, the Commission stated that: 

"Unwarrantable" is defined as "not justifiable" cir 

"inexcusable." "Failure" is defined as "neglect of an 

assigned, expected, or appropriate action." Webster's Third 

New International Dictionary (unabridged) 2514, 814 (1971) 

(Webster's). Comparatively, negligence is the failure to 

use such care as a reasonably prudent and careful person 

would use and is characterized by "inadvertence," 

6 Mr. McDowell's testimony that the area at the foot of the 

slope had been examined at 6:10 A.M. (Tr. 177) is clearly 

erroneous. Despite that, I am satisfied that the area had been 

examined by the time the three maintenance men entered the area. 

139 
"thoughtlessness," and "inattention." Black's Law 

Dictionary 930-31 (5th ed. 1979). conduct that is not 

justifiable and inexcusable is the result of more than 

inadvertence, thoughtlessness or inattention. 

A preshift examination of a mine has been required at least 

since the 1952 Coal Act. 30 u.s.c. § 479(d) (7)&(8) 

(1964) (repealed 1969). Entry into the mine of persons, other 

than the preshift examiners, before the results of the 

examination are recorded in the preshift book at the surf ace has 

also been prohibited since the 1952 Coal Act. Id. In fact, the 

preshift examination is so fundamental to mine safety and such an 

established requirement that it would be astonishing to find any 

miner who was not aware of it. Certainly the miners at Buck 

Creek were aware of the requirement (Tr. 186-87, 210). 

Accordingly, I conclude that failure to follow the requirement in 

this case was the result of more than inadvertence or 

thoughtlessness and, thus, the result of an unwarrantable failure 

on Buck Creek's part. 7 Cf. Birchfield, at 38 (finding a 

violation of 30 C.F.R. § 75.303(a) to have resulted from the 

operator's unwarrantable failure). 

CIVIL PENALTY ASSESSMENT 

The Secretary has proposed a penalty of $5,500.00 in this 

case. In making my own assessment, I have considered the 

criteria set forth in Section llO(i) of the Act, 30 u.s.c. § 

820(i). The pleadings indicate that as of July 12, 1993, the 

mine had an annual production of 1,126,362 tons which was the 

overall production of Respondent's mines. I conclude that 

Respondent is a large operator and that imposition of a civil 

penalty will not affect its ability to continue in business. In 

view of its size, I cannot conclude that Respondent's 317 

violations in the past two years is excessive. Based on my 

finding that the violation was not "significant and substantial" 

I conclude that the gravity of the violation was not high, 

however, I do find that Respondent demonstrated a high degree of 

negligence in allowing the violation to occur. Finally, I find 

that the Respondent demonstrated good faith in abating the 

violation. Under these circumstances, I find that a civil 

penalty of $3,000.00 for the violation is appropriate. 

7 In reaching this conclusion, I do not decide what difference, 

if any, McDowell's self-serving, uncorroborated, hearsay testimony 

that the three men called into the mine before entering to 

determine if it was safe to go in (Tr. 180, 195) makes, since I do 

not credit that testimony. 

140 
ORDER 

Buck Creek Coal Company is ORDERED to pay a civil penalty of 

$3,000.00 for a violation of Section 75.360(a) of the mandatory 

safety standards within 30 days of the date of this decision. 

Upon receipt of payment, this proceeding is DISMISSED. 

Distribution: 

~~~ T. Todd H~~~~--' Administrative Law Judge 

(703) 756-4570 

Lisa A. Gray, Esq., Office of the Solicitor, U.S. Department of 

Labor, 230 s. Dearborn Street, 8th Floor, Chicago, IL 60604 

(Certified Mail) 

Patrick A. Shoulders, Esq., Ziemer, Stayman, Weitzel & Shoulders, 

P.O. Box 916, Evansville, IN 47706 (Certified Mail) 

/lbk 

141 
FEDERAL BIRB SAPB'1'Y DD BBALTll RBVIElf COllllISSIOH 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 1 1 1994 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

RB COAL COMPANY, INC., 

Respondent 

. . 

Docket No. KENT 93-244 

A.C. No. 15-08293-03556 

Docket No. KENT 93-608 

A.C. No. 15-08293-03563 

No. 4 Mine 

DECISION 

Appearances: Donna E. Sonner, Esquire, Office of the Solicitor, 

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

for the Petitioner; 

Before: 

Richard D. Cohelia, Safety Director, R B Coal 

Company, Pathfork, Kentucky, for the Respondent 

Judge Melick 

These cases are before me upon the petitions for civil 

penalties filed by the Secretary of Labor pursuant to 

Section 105(d) of the Federal Mine Safety and Health Act of 

1977, 30 u.s.c. § 801, et seg., the "Act," charging RB Coal 

Company, Inc. (R B) with three violations of mandatory standards 

and seeking civil penalties of $7,700 for those violations. The 

general issue is whether R B violated the cited standards and, 

if so, what is the appropriate civi.l penalty to be assessed. 

Additional specific issues are addressed as noted. 

Docket No. KENT 93-608 

At hearing the Secretary moved for approval of a settlement agreement for the one Section 104(d)(l) order at issue 

in this case, Order No. 3829445. The operator agreed to pay 

the proposed penalty of $2,600 in full. I have considered 

the representations and documentation of record in support 

of the motion and I conclude that the proffered settlement 

is appropriate under the criteria set forth in Section 110(i) 

of the Act. The order following this decision will incorporate 

that settlement. 

142 
Docket No. KENT 93-244 

Citation No. 3832908, issued pursuant to Section 104(d)(l) 

of the Act, 1 alleges a "significant and substantial" violation 

of the mine operator's roof control plan under the standard at 

30 C.F.R. § 75.220 and charges that "the approved roof control 

plan was not being complied with in No. 4 right brake [sic] 

where the depth of the cut was measured 26 feet deep." Order 

No. 3832910, also issued under Section 104(d)(l) of the Act, 

similarly alleges a violation of the roof control plan and 

charges that "the approved roof control plan was not being 

complied with in No. 3 entry of 001 section the depth of the 

cut was 24 feet deep from the last row of roof bolts." The 

violations were alleged to have occurred on August 29, 1992. 

It is undisputed that the relevant roof control plan 

provides that "continuous miner runs shall not exceed 20 feet 

in depth" (Gov't Exhibit No. 4, p. 7). It is also undisputed 

that the admitted continuous miner runs of 26 feet and 24 feet 

were in violation of the roof control plan. R B maintains, 

however, that·. the violations were neither "significant and 

substantial" nor the result of its "unwarrantable failure." 

Section 104(d)(l) of the Act provides as follows: 

"If, upon any inspection of a coal or other mine, 

an authorized representative of the Secretary finds 

that there has been a violation of any mandatory 

health or safety standard, and if he also finds that, 

while the conditions created by such violation do 

not cause imminent danger, such violation is of such 

a nature as could significantly and substantially 

contribute to the cause and effect of a coal or other 

mine safety or health hazard, and if he finds such 

violation to be caused by an unwarrantable failure of 

such operator to comply with such mandatory health or 

safety standards, he shall include such finding in any 

citation given to the operator under this Act. If, 

during the same inspection or any subsequent inspection 

of such mine within 90 days after the issuance of such 

citation, an authorized representative of the Secretary finds another violation of any mandatory health 

or safety standard and finds such violation to be also 

caused by an unwarrantable failure of such operator to 

so comply, he shall forthwith issue an order requiring 

the operator to cause all persons in the area affected 

by such violation, except those persons referred to in 

subsection (c) to be withdrawn from, and to be 

prohibited from entering, such area until an authorized 

representative of the Secretary determines that such 

violation has been abated." 

143 
Roger Dingess, a roof control specialist for the Mine 

Safety and Health Administration (MSHA), has significant 

roof control experience and, in the mining industry, has 

been a roof bolter and supervisor. Pursuant to a code-aphone complaint on August 28, 1992, the MSHA District office 

manager directed Dingess to conduct an investigation at the 

R B No. 4 Mine. The mine was not operating on August 28 so 

Dingess returned the following day and observed two miners 

working underground. Mine Superintendent Paul Goins accompanied 

Dingess as they proceeded to the No. 5 face. Dingess measured 

with a tape a place that had been cut on the left hand side 

and found it to be 26 feet deep. Thereafter proceeding to the 

No. 3 entry Dingess measured a cut on the left side at 24 feet. 

Noting that the roof control plan allows for a maximum 20 foot 

cut, Dingess proceeded to issue the citation and order at bar. 

Dingess concluded that the violations were "significant 

and substantial." He noted that the mine roof in both areas 

consisted of thick "draw rock" and the roof was fractured. 

Dingess described "draw rock" as a massive rock layer between 

the mine roof and coal seam which tends to "let loose and 

fall out. 11 Because of these conditions Dingess opined that 

it was highly likely for fatal injuries to occur to the roof 

bolter operator and to a miner operator operating from the 

deck. According to Dingess the roof bolter would be particularly vulnerable as he would be the next person to enter the 

excessively deep entries in the mining cycle. 

Dingess testified the roof was so bad in some areas outby 

the deep cuts that some roof had fallen and had been rebolted. 

Even Superintendent Goins acknowledged that there had been 

cracks appearing between the roof bolts and they had "bad roof." 

Goins testified that "you never know when it's [the roof in 

this mine] is going to go bad." 

A violation is properly desigl,lated as "significant and 

·substantial" if, based on the particular facts surrounding 

that violation, there exists a reasonable likelihood that the 

hazard contributed to will result in an injury or illness of 

a reasonably serious nature. Cement Division, National Gypsum 

Co., 3 FMSHRC 822, 825 (1981). In Mathies Coal Co., 6 FMSHRC 1, 

3-4 (1984), the Commission explained: 

In order to establish that a violation of a 

mandatory standard is significant and substantial 

under National Gypsum the Secretary must prove: 

(1) the underlying violation of a mandatory safety 

standard; (2) a discrete safety hazard -- that is, 

a measure of danger to safety -- contributed to by 

the violation, (3) a reasonable likelihood that the 

144 
hazard contributed to will result in an injury; and 

(4) a reasonable likelihood that the injury in 

question will be of a reasonably serious nature. 

See also Austin Power Co. v. Secretary, 862 F.2d 

99, 103-04 (5th Cir. 1988), aff'g 9 FMSHRC 2015, 1021 

(1987) (approving Mathies criteria). 

The third element of the Mathies formula 

requires that the Secretary establish a reasonable 

likelihood that the hazard contribute to will result 

in an event in which there is an injury. (U.S. Steel 

Mining Co., 6 FMSHRC 1834, 1836 (1984), and also that 

in the likelihood of injury be evaluated in terms of 

continued normal mining operations (U.S. Steel Mining 

co •. Inc., 6 FMSHRC 8, 12 (1986) and southern Ohio 

Coal Co., 13 FMSHRC 912, 916-17 (1991). 

Within this framework of law and evidence it is clear that 

both violations herein were "significant and substantial" and 

quite serious. I reach this conclusion based on a combination 

of factors, including the excessively deep cuts, the undisputed 

fractures and "draw rock" in the mine roof and the previous 

recent history of problems with "draw rock" in this area of 

the mine. I have also considered the Mine Superintendent's 

acknowledgement of the existence of bad roof in this mine and 

the unpredictability of roof falls therein. 

The Secretary also alleges that the violations were the 

result of the operator's "unwarrantable failure" to comply 

with the cited standard. Inspector Dingess concluded that both 

conditions should have been observed by the foreman during the 

course of his preshift examination. It is not disputed that, 

in fact, no preshift examination had been performed prior to the 

shift in which the violations were discovered by the inspector. 

It is further undisputed that the roof had been cut on the 

evening shift of August 28 and that a preshift examination, if 

required for the shift at issue (the 6:00 a.m. to 2:30 p.m. day 

shift) should have been performed between 3:00 and 6:00 a.m. on 

the morning of August 29. 

In Emery Mining Corp., 9 FMSHRC 1997, 2004 (1997), the 

Commission determined that unwarrantable failure is aggravated 

conduct constituting more than ordinary negligence. Unwarrantable failure is characterized by such conduct as "reckless 

disregard," "intentional misconduct," "indifference," or a 

"serious lack of reasonable care." Rochester and Pittsburgh 

Coal co., 13 FMSHRC 189 (1991). The Commission has also stated 

that use of a "knew or should have known test by itself would 

make unwarrantable failure indistinguishable from ordinary 

145 
negligence," and accordingly the Commission rejected such an 

interpretation. See Secretary v. Virginia Crews Coal Co., 

15 FMSHRC 2103 (1993). 

In support of his "unwarrantable" findings the Secretary first argues that the miners working on the shift during which 

the deep cuts were made were not task-trained on the specific 

continuous miner used to create those cuts. This argument is 

apparently advanced to rebut R B's contention that the continuous miner used to cut these deep cuts, a Simmons Rand 500 model, 

was about 18 inches higher and four feet longer than the miner 

the crew was familiar with and that its controls were two feet 

further away from the cutter head. According to R B the 

continuous miner operator was unaware of the two-foot difference 

in the machines and while using the remote control misjudged the 

depth of the cuts. 

While I agree with the Secretary that the absence of 

appropriate task training may have been a factor in this misjudgment, it is unclear whether the position of the controls 

in relation to the cutter head of the machine would necessarily 

be covered in such training and, in any event, I do not find 

that such failure amounts to such an aggravated omission as to 

constitute "unwarrantable failure." While the Secretary also 

maintains that the deep cuts were readily visible to the 

continuous miner operator, the evidence is inconclusive in 

this regard. Moreover, the negligence of the miner operator 

alone could not under the circumstances be imputed to R B. 

The Secretary also maintains that the failure of R B 

to have performed a preshift examination of the cited entries, 

amounted to such an aggravated omission as to constitute 

"unwarrantable failure." The Secretary maintained at hearing 

that under the standard at 30 C.F.R. § 75.3032 the operator 

was required to inspect during the preshift examination, among 

other areas, the cited entries. The failure to perform such 

an examination of the cited entries was, according to the 

Secretary, therefore a particularly aggravated omission 

constituting "unwarrantable failure." 

R B maintains, however, that only two miners were 

underground at the time and that those miners were working 

on brattice at the tailpiece outby the section. R B argues 

that since no one was scheduled to work that shift in the area 

of the cited faces, there was no need to perform a preshift 

examination of those face areas. R B's position is clearly 

correct. Nothing in 30 C.F.R. § 75.360 requires that the 

2 The preshift examination requirements under 30 C.F.R. 

§ 75.303 were superseded effective July 1, 1992 by 30 C.F.R. 

§ 75.360. 

146 
face areas at issue in this case be subject to a preshift 

examination when persons are neither working nor expected to 

work there during the shift. Accordingly, the failure to have 

conducted a preshift examination of the cited face areas may 

not be considered as a basis for "unwarrantable failure" or 

high negligence findings. 

While the Secretary further argues that the cited conditions should also have been discovered by management during 

an on-shift examination, it is not disputed that, even if an 

on-shift examination was required in the cited areas, the time 

for conducting such an exam had not yet expired when the 

conditions were cited. Accordingly, the argument is vacuous. 

In the absence of any other evidence of unwarrantability 

or high negligence, I conclude that the Secretary has failed 

to meet her burden of proof in this regard. Accordingly, the 

citation and order at bar must be modified to citations under 

section 104{a) of the Act. 

considering the criteria under Section llO{i) of the Act, 

the penalties .. noted in the following order are deemed 

appropriate. 

ORDER 

Citation No. 3832908 and Order No. 3832910 are hereby 

modified to citations under Section 104{a) of the Act. R B Coal 

company, Inc. is hereby directed to pay civil penalties of $500 

each for the violations charged in these citations within 30 days 

of the date of this decision. In addition, Order No. 3829445 is 

affirmed and R B Coal Company, Inc. is directe to pay a civil 

penalty of $2,600 for the violation charged th rein within 

30 days of the date of this decisiam. 

J Gar¥ :r:ie i ick. 

Adm1n1s rative 

Distribution: 

Donna E. Sonner, Esq., Office of the Solicitor, 

U.S. Department of Labor, 2002 Richard Jones Road, 

Suite B-201, Nashville, TN 37215-2862 {Certified Mail) 

Richard D. Cohelia, Safety Director, R B coal Company, 

HC 61, Box 610, Pathfork, KY 40863 {Certified Mail) 

/lh 

147 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMI.SSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

(303) 844-5266/FAX (303) 844-5268 

JAN 1 9 1994 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA}, 

Petitioner 

Docket No. WEST 92-634-M 

A.C. No. 26-00827-05519 

v. Cortez Gold Mine 

CORTEZ GOLD MINES, 

Respondent 

Appearances: 

Before: 

DECISION 

Steven R. Desmith, Esq., Office of the Solicitor, 

U.S. Department of Labor, San Francisco, 

California, 

for Petitioner; 

Laura E. Beverage, Esq., JACKSON & KELLY, Denver, 

Colorado, 

for Respondent. 

Judge Morris 

The Secretary of Labor on behalf of the Mine Safety and 

Health Administration ("MSHA"} charges Respondent with violating 

safety regulations promulgated under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801, et .§fill.:.. (the "Act"). 

A hearing on the merits was held in Elko, Nevada, on October 6, 1993. The parties filed post-trial briefs. 

148 
Citation No. 3928117 

This citation issued under Section 104(a) of the Act alleges 

Respondent violated 30 C.F.R. § 56.14207. 1 It is further alleged 

the citation was significant and substantial. 

The citation reads as follows: 

The # M-6 pickup truck was observed parked on 

a grade while the wheels were not chocked or 

turned into the bank. This vehicle was left 

unattended. The vehicle transmission was 

placed in netural (sic) and the park brake 

released, at this time t~e vehicle started to 

roll down the grade. 

STIPULATION 

The parties stipulated as follows: 

1. The mine site and history of violations is as contained 

in the proposed assessment. (Tr. 8). 

2. Cortez showed good faith in abating the violation. 

3. Payment of the proposed penalty will not adversely 

affect the operator's ability to continue in business. (Tr. 8). 

4. Cortez is covered by the Act and subject to its 

regulations. (Tr. 56). 

MSHA's EVIDENCE 

JERRY MILLARD, an authorized representative of the Secretary 

of Labor, has conducted several hundred inspections over 13 

years. (Tr. 9, 10). 

On June 10, 1992, he inspected the Cortez site. (Tr. 10). 

In the inspection he observed a half-ton pickup truck (F-150) 

The cited regulation reads as follows: 

§ 56.14207 Parking Procedures for unattended 

equipment. 

Mobile equipment shall not be left unattended unless 

the controls are placed in the park position and the 

parking brake, if provided, is set. When parked on a 

grade, the wheels or tracks of mobile equipment shall be 

either chocked or turned into a bank. 

149 
located on an access road between the thickner tanks and the 

grinding plant. (Tr. 11, 15). 

The truck was parked facing downhill on 5 to 6 degree grade. 

The inspector did not see any chocks and the vehicle's wheels 

appeared to be in a straight forward position. 

The inspector asked company representative Pruitt to test 

the vehicle by putting it in neutral and then releasing the brake 

to see if it would roll. These functions verify whether there 

was a grade that would permit the truck to roll. {Tr. 11, 15). 

The inspector was concerned because in the past six to eight 

months there had been three fatalities in MSHA's Western District. All three fatalities were related to small vehicles and 

service type vehicles. 

In cross-examination Mr. Millard clarified that he could not 

say if the brakes on the vehicle failed, but he could only determine that the vehicle had rolled. {Tr. 19). 

The inspector believes that if a truck is parked unattended 

on a grade the park brake should be set and the transmission put 

in the "park" position. In addition, the wheels should either be 

turned into a berm or chocked. 

The vehicle here lacked chock blocks. There was a berm two 

feet away but the truck wheels were not turned into it. (Tr. 

12) • 

When the described test was performed by Mr. Pruitt the 

vehicle started rolling forward and picking up speed. It rolled 

about 50 feet. {Tr. 13, 14) . 

After the described test they repositioned the vehicle; the 

front wheels were turned into the berm and parked within two feet 

of it. (Tr. 13, 28). 

The inspector then issued a citation. (Tr. 14, Ex. P-1). 

When the inspector parked his vehicle on the day of the 

inspection a similiar test indicated his vehicle would not roll. 

{Tr. 17). 

The inspector admitted he couldn't say if the fatal accidents he referred to involved a vehicle with a park brake failure. However, the vehicles had rolled. 

Mr. Millard's MSHA supervisor originally brought the matter 

of chocking to the inspector's attention. (Tr. 19). 

150 
The inspector's first citations for similiar violations were 

issued between 1988 and the early 1990's after the three fatalities had been reviewed. (Tr. 22). 

Mr. Millard designated citation No. 3928117 as an S&S violation. (Tr. 29). This evaluation was based on the gravity 

involved and an injury could reasonably be expected. (Tr. 29). 

The standard is intended to protect against a vehicle rolling. (Tr. 30). 

Prior to 1992, the inspector did not issue citations for 

this type of violation involving pickup trucks such as the Cortez 

Ford F-150. (Tr. 23, 24). 

Mr. Millard was not aware of performance standards for parking brakes applicable to self-propelled mobile equipment. He always goes by the manufacturer's recommendations but he did know 

what they were on the F-150. (Tr. 27). 

The issuance of a citation in this situation was a change in 

enforcement policy ordered by his supervisor, Paul Belanger. 

(Tr. 24). 

Mr. Millard had not seen any written documentation advising 

operators of the change in enforcement policy. (Tr. 24). There 

was nothing in writing concerning the change in applying such a 

standard to require manual chocking to F-150 type vehicles. (Tr. 

24-25). 

When the inspector came on the stationary vehicle at the 

Cortez site it was in a parked position and the park brake was 

set. (Tr. 25, 26). He did not have any reason to suspect the 

parking brake was not adequate to hold the vehicle. (Tr. 26). 

PAUL BELANGER, a supervisory special investigator, is 

employed at MSHA's office in Vacaville, California. (Tr. 33). 

He is required to carry out all of the mandates of the 1977 Mine 

Act. 

He reviews citations issued by the inspectors as well as the 

characterizations of negligence, gravity and S&S. (Tr. 34). 

Mr. Belanger assumed the vehicle in question was a half-ton 

pickup or three-quarter ton, standard sized pickup truck. He 

also studied the regulation. (Tr. 35, 36). 

In Mr. Belanger's opinion a pickup truck in the half ton 

range is not excluded from the regulation. (Tr. 36). 

After conferring with his District Manager, Vern Gomez, Mr. 

Belanger confirmed that the standard applied to the truck. (Tr. 

151 
36). The national MSHA office has expressed no concern as to 

this enforcement policy. (Tr. 37). 

The standard was changed in 1988 from Section 9 to Section 

14. It was also combined from two separate standards. It now 

consists of a single standard. Mr. Belanger did not consider 

there had been change in enforcement policy. (Tr. 38). 

Two of the three fatalities in MSHA's Western District 

involved small vehicles of this type; another was a small utility 

type vehicle. (Tr. 39). 

Concerning the three fatalities: all the vehicles rolled 

independently of a driver; they were parking on grades and all 

three resulted in a worker being crushed or run over by the 

equipment. 

In connection with this citation Mr. Belanger was in 

agreement with the inspector's characterization of "moderate 

negligence" and reasonably likely "gravity." (Tr. 39, 40). 

Mr. Belanger believed that if an accident occurred it would 

be permanently disabling. (Tr. 41). Accidents involving vehicles of this type usually resulted in a fatality. 

The standard was changed in 1988 as indicated in the Federal 

Register. (Tr. 42, 53, Ex. P-2). 

Other mine operators raised the question whether there had 

been a change in policy. (Tr. 52). 

MSHA has no written policy relating to chocking a vehicle on 

grades. {Tr. 53) . 

CORTEZ'S EVIDENCE 

TIM PRUITT, has been the Cortez safety training coordinator 

for three years. (Tr. 57). 

He is familiar with the requirements of Part 56 and he 

accompanies MSHA inspectors on the job site. (Tr. 58). 

He and mill foreman, Gary McGill, were traveling with 

Inspector Millard. 

The Ford F-150 supervisor's truck was parked on a gravel 

access road. The hill where the truck was located was sloped 

between 4 and 6 percent. The truck was not pointing straight 

down slope but somewhat across the hill. (Tr. 59, 60). It was 

approximately 15 feet from the descaling pond and berm that goes 

around the pond. (Tr. 60-61). 

152 
Photographs were taken of a similiar vehicle. 

through R-9). 

(Exs. R-1 

The foremen use the road at least once a day. There have 

not been any changes in the gravel roadway or the berm around the 

pond. (Tr. 66-68) . 

The F-150 truck is appropriate for highway travel. 

on the day of the inspection the truck was in second gear. 

Either first or second gear would be a standard park position for 

this type of transmission. In addition, the emergency brake was 

set. With a manual type transmission the witnesses' definition 

of a park position would be a gear low enough to prohibit the 

transmission and the engine from turning over. (Tr. 69, 70). 

With the exception of a shovel there was nothing in the back 

of the truck. (Tr. 70). 

In Mr. Pruitt's opinion the park position of the truck would 

hold the truck in place. 

Mr. Pruitt had previously worked on and driven trucks of 

this type. (Tr. 70). 

On this type of truck when the operator depresses the pedal, 

the cable pulls on a lever inside the brake drum. In turn the 

brake pads are pushed against the brake drum. This prevents the 

wheels from turning. (Tr. 71). 

The setting of the park brake is similiar to an automobile 

when the operator depresses the pedal inside the cab. 

On this roadway the maximum grade would be 10 percent. (Tr. 

71). Five hundred pounds would be the maximum load for this type 

of truck. (Tr. 72). 

Manual chocking is when you physically use some mechanical 

device to prevent the wheels from turning. This generally has 

the same effect of setting a park brake. (Tr. 72). The park 

brake is more effective because it locks both rear wheels. On 

the other hand you manually chock one wheel. (Tr. 73). 

Mr. Pruitt was not aware of any history of accidents in a 

mine where a park brake failed. (Tr. 73). 

When Mr. Pruitt released the parking brake the truck in five 

to six seconds at a walking speed of two to three miles per hour 

rolled 15 feet to the berm. (Tr. 74, 78). 

Mr. Pruitt had never previously conducted a similiar test. 

(Tr. 75) . 

153 
Manual chocking had never been previously required and he 

believed this was a change in MSHA policy. {Tr. 75). 

Prior to 1992 it was not common practice in the industry to 

manually chock transportation-type vehicles such as the one in 

question. 

Prior to June 10, 1992, Cortez had not been cited for such a 

violation. (Tr. 76). No MSHA representative said pickup trucks 

were excluded from the regulation. Not since the change of 1988 

had he seen anything written indicating pickup trucks were excluded from the standard. (Tr. 77). 

Mr. Pruitt has seen a parking-brake failure on five-ton 

trucks. He described such failure as the truck being unable to 

hold the load on the grade where it was parked. (Tr. 78). 

As a mechanic he has seen parking-brake failures where 

brakes were worn out and had to be replaced. (Tr. 78). 

Cortez has a preventative maintenance program. Most P.M. is 

at 3,000 miles. This includes a check of the brakes. 

It is a common practice to leave a vehicle of this type 

unattended with the parking-brake set and in a park position. 

(Tr. 80) . 

Performance standards on self-propelled mobile equipment 

require that parking-brakes hold a vehicle from moving on the 

maximum incline or slope where it would be parked and also with a 

typical load. (Tr. 81). In Mr. Pruitt's opinion the parkingbrake would meet the performance standard. Mr. Pruitt was also 

familiar with the standard that requires all brakes to be maintained in an operating condition. 

Mr. Pruitt has seen chock failures occur but not on the type 

of vehicle involved here. (Tr. 81). 

JOHN BUNCH has been the Director of Safety, Security and 

Training at Cortez for over four years. He is familiar with 

Parts 56 and 57 of MSHA's regulations. (Tr. 82-84). 

In addition, he is familiar with MSHA's enforcement policies 

and he has traveled with MSHA inspectors many times. {Tr. 84). 

Mr. Bunch is familiar with 30 C.F.R. § 56.14207. It is his 

understanding that the F-150 Ford pickup was in a park position 

prior to the issuance of the citation. (Tr. 84). In addition, 

the parking-brake was engaged. 

The pickup was parked diagonally on a 4 to 5 percent slope. 

(Tr. 86, Ex. R-1). 

154 
Prior to June 10, 1992, MSHA had never raised an issue as to 

a manual chocking requirement for these types of vehicles. (Tr. 

87). Mr. Bunch believed that applying a manual chocking standard 

to a Ford F-150 would be a change in policy. (Tr. 87-88). 

It is not standard mining practice to manually chock vehicles like this at other mines. Further, MSHA did not apply such 

a requirement at other facilities or at Cortez prior to the time 

the citation was issued. 

Prior to 1992 MSHA inspectors have not carried manual chocks 

nor had Mr. Bunch ever seen a chock on a MSHA vehicle. (Tr. 88-

89) . 

If a parking brake is provided it must be maintained in an 

operating condition. Some self-propelled equipment do not have a 

parking brake. (Tr. 89-90). 

Considering the mechanics of the truck park position and the 

load (none) the park position would be sufficient to hold the 

truck stable. (Tr. 90, 91). 

The truck was a 1988 Ford F-150. Mr. Bunch identified the 

1988 Service Manual for such vehicles. (Tr. 91-92, Ex. R-10). 

When the pedal in the cab is depressed the levers pull forward. 

This activates the brake shoe against the inside of the drum and 

stabilizes both rear wheels. (Tr. 92-93). (Page 5 illustrates 

the brake pedal and the control assembly as shown in View W, Ex. 

R-10). 

The parking brakes on the Ford F-150 truck serve as a 

mechanical inhibitor for the wheels. (Tr. 95). Chocking is 

manually placing a device against a wheel to prevent the wheel 

from turning and the vehicle from moving. The effect of chocking 

is not different than the effect of setting a parking brake 

automatically. 

The park brake was adequate to hold this vehicle. (Tr. 95) . 

Mr. Bunch was not aware of any incidents where parking 

brakes had failed. (Tr. 96). 

In this case the pickups have a regularly scheduled P.M. 

program where fluids are changed and brakes are checked. (Tr. 

96) . 

During the conference it was not implied there was a change 

in the enforcement practice; however, Mr. Bunch understood there 

had been such a change. There had been no written documentation 

announcing this change. 

155 
Finally, Cortez had never been charged with a violation of 

30 C.F.R. § 56.14207 in a situation involving a Ford F-150 truck. 

(Tr. 97) . 

Mr. Bunch agreed that since 1988 MSHA had never told him 

that F-150 trucks were excluded from this regulation. 

Eighty-five percent of the trucks are equipped with power 

steering and weigh about 2,100 pounds. (Tr. 99, 100). 

When Mr. Bunch has seen brakes become inoperable he would 

chock them. (Tr. 100). 

DISCUSSION AND FURTHER FINDINGS 

The evidence is essentially uncontroverted. 

ISSUE 

The issue is whether the wheels of a F-150 Ford pickup truck 

must be chocked or turned into a bank when the vehicle is parked 

on a grade. 

Cortez initially argues the 1988 revisions to Subpart M and 

Subpart H whereby the previously distinctive rules for mobile and 

self-propelled equipment were merged into a single category of 

mobile equipment created vagueness as to the inclusions of 

passenger pickup vehicles under 30 C.F.R. § 56.14207. 

I am not persuaded the revisions created any vagueness. 

Prior to August 25, 1988, the precursor standard of 30 C.F.R. 

§ 56.14207 was codified at 30 C.F.R. § 56.9037. The initial 

standard and the revisions in 1988 were essentially the same. 

Each standard began with the term "mobile equipment." While 

"mobile equipment" was not further defined until 1988 it would 

have a common dictionary meaning of "capable of moving or being 

moved." 2 

In 1988 the revision the new subparts define "mobile 

equipment" as "wheeled, skid-mounted, track-mounted or railmounted equipment capable of moving or being moved." Further, 

"whenever the final rule refers to equipment capable of moving 

itself, it uses the term "self propelled mobile equipment, for 

which a separate definition is not necessary." (Subpart E 

Definitions, Ex. D-2). 

In sum, the F-150 mobile pickup truck was mobile equipment 

under 30 C.F.R. § 56.9037 and under 30 C.F.R. § 56.14207. No 

2 Webster's New Collegiate Dictionary at 732. 

156 
vagueness was created by the Secretary's revisions in August 

1988. 

I agree with Cortez that the evidence establishes that MSHA 

did not enforce this regulation as to F-150 pickup trucks before 

the August 1988 revision. However, it has been established that 

non-enforcement does not bar MSHA from citing violations. 

Conesville Coal Preparation Company, 12 FMSHRC 639, April 1990. 

Cortez further argues that since 30 c.F.R. § 56.14207 fails 

to provide adequate notice it is necessary to apply the reasonably prudent person test in determining the interpretive validity 

of the regulation. 

Many of the Secretary's regulations are designed to deal 

with the myriad of circumstances that can arise in the mining 

industry. For example, see the leading case of Ideal Cement 

Company, 12 FMSHRC 2409, (November 1990) involving 30 C.F.R. 

§ 56.9002 3 (1987). As a result of the design of the regulations 

many of them are subject to the claim that they are overly broad 

or vague. 

This case is no different. Cortez asserts it did not have 

fair notice that its F-150 half-ton pickup truck was subject to 

the contested regulation. 

In such circumstances, the Commission has ruled that the 

appropriate test in interpreting and applying such broadly worded 

standards is not whether the operator had explicit prior notice 

of a specific prohibition or requirement, but whether a reasonably prudent person familiar with the mining industry and the 

protective purposes of the standard would have recognized the 

specific prohibition or requirement of the standard. Ideal, 12 

FMSHRC at 2416; Cyprus Tonopah Mining Corporation, 15 FMSHRC 367, 

375 (March 1993). 

In support of its position that it did not have fair notice 

of the requirement Cortez relies on Lanham Coal Co. Inc., 13 

FMSHRC 1710 (October 1991). 

Lanham was remanded by the Commission to Judge James A. 

Broderick to "determine, through application of the reasonably 

prudent person test, whether Lanham had fair notice that 30 

3 The standard provided that: Equipment defects affecting safety shall 

be corrected before the equipment is used. 

157 
c.F.R. § 77.1710(g) 4 required the use of safety belts or lines 

under the circumstances of this case." 13 FMSHRC 1341. 

In his decision after remand (13 FMSHRC 1710) Judge Broderick vacated the citation on the basis of several findings. Those 

were that (1) prior to the accident, neither the operator nor the 

MSHA inspector who issued the citation considered the cited 

standard applicable to the tarping of trucks, (2) the inspector 

had never previously cited the practice and had never used safety 

belts in such circumstance, (3) MSHA had no standards or guidelines that covered the practice and (4) Lanham had no specific 

notice that the practice violated the standard that dealing with 

safety belts and lines. 

In this case the facts fairly establish (1), (2) and (4). 

However, Cortez knew or should have known of MSHA's requirements 

of parking procedures for unattended equipment because MSHA's 

regulation fairly covered the practice. As a result Lanham is 

not controlling. 

Cortez further contends that even if 30 C.F.R. § 56.14207 

could be read to encompass passenger pickup vehicles, the operator complied with the regulation. 

specifically, it is asserted that the vehicle's engine was 

off, the transmission was in the park position and the manual 

brake was cable activated. 

Cortez's argument does not address the relevant portion of 

the regulation; namely, the last sentence of 30 C.F.R. § 14207 

which provides: 

When parked on a grade, the wheels or 

tracks of mobile equipment shall be either 

chocked 5 or turned into a bank. 

4 The regulation involved 30 C.F.R. S 77.1710 entitled 

Clothing; requirements provides in pertinent part: 

Each employee working in a surf ace coal mine or in the 

surface work areas of an underground coal mine shall be 

required to wear protective clothing and devices as 

indicated below: 

(g) Safety belts and lines where there is danger of 

falling; a second person shall tend the lifeline when 

bins, tanks, or other dangerous areas are entered. 

"Protective 

Webster's New Collegiate Dictionary at 194 defines a chock as "a 

wedge or block for steadying a body (as a cask) and holding it motionless, for 

filling in an unwanted space, or for blocking the movement of a wheel." 

158 
It is clear from the evidence that the pickup was parked on 

a 5 to 6 degree grade. In addition, its wheels were neither 

chocked or turned into a bank. 

Cortez has attached to its post-trial brief as Exhibit A 

MSHA's Program Information Bulletin No. P93-29 dated November 4, 

1993. 

I decline to take official notice of the bulletin. Its 

subject matter does not appear relevant to this case since it 

deals with automatic transmission defects in certain named Ford 

vehicles. 

Cortez finally claims the violation was not Significant and 

Substantial. 

A violation is properly designated S&S "if, based upon the 

particular facts surrounding that violation, there exists a 

reasonable likelihood that the hazard contributed to will result 

in an injury or illness of a reasonably serious nature." Cement 

Division, National Gypsum Co., 3 FMSHRC 822, 825 (April 1981). 

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

Commission explained: 

In order to establish that a violation of a mandatory 

safety standard is significant and substantial under 

National Gypsum, the Secretary of Labor must prove: (1) 

the underlying violation of a mandatory safety 

standard; ... (2) a discrete safety hazard ... that is 

a measure of danger to safety -- contributed to by the 

violation; (3) a reasonable likelihood that the hazard 

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

reasonable likelihood that the injury in question will 

be of a reasonably serious nature. 

See also Austin Power Co. v. Secretary, 861 F.2d 99, 103-04 (5th 

Cir. 1988), aff'g 9 FMSHRC 2015, 2021 (December 1987) (approving 

Mathies criteria). The Commission has held that the third element of the Mathies formula "requires that the Secretary estab1 ish 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) (emphasis in original) . 

In the instant case the Secretary failed to establish the 

third facet of the Mathies formulation. The inspector noted the 

pickup was stationary and he saw no reason to suspect the brake 

was not adequate to hold the weight of the vehicle on the 

existent grade. {Tr. 26). 

Evidence was offered by the Secretary concerning prior 

fatalities involving unattended vehicles running over workers. 

159 
The comparison fails. The credible evidence establishes the 

vehicle was stationary with adequate transmission and brakes. 

{Tr. 25, 54). 

The S&S allegations should be stricken. 

For the foregoing reasons the citation should be affirmed. 

CIVIL PENALTY 

Section llO(i) of the Act mandates consideration of certain 

criteria in assessing appropriate civil penalties. 

The size of Cortez is stipulated to be 1,221,241 production 

tons and the size of the mine itself is 362,640. 

The payment of the proposed penalty will not adversely 

affect Cortez's ability to continue in business. 

There is no evidence of the operator's prior history. 

Cortez was negligent as company vehicles were left 

unattended without taking the necessary precautions as required 

by the regulations. 

The gravity of the violation was low since the parking and 

transmission adequately held the pickup truck on the grade. 

Cortez demonstrated good faith in abating the violative 

condition. 

Considering the statutory criteria I conclude that a civil 

penalty of $75.00 is appropriate. 

Accordingly, I enter the following: 

ORDER 

Citation No. 3928117 is affirmed and a civil penalty of 

$75.00 is assessed. 

Law Judge 

160 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 1 9 1994 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

U. S. STEEL MINING COMPANY, 

INC. I 

Respondent 

Docket No. WEVA 93-11 

A. C. No. 46-05907-03655 

Docket No. WEVA 93-340 

A. C. No. 46-05907-03685 

Docket No. WEVA 93-368 

A. C. No. 46-05907-03688 

Shawnee Mine 

DECISION APPROVING SETTLEMENT 

Appearances: Javier I.Romanach, Esq., Office of the Solicitor, 

U. S. Department of Labor, Arlington, Virginia, 

for the Secretary; 

Billy M. Tennant, Esq., Pittsburgh, Pennsylvania, 

for Respondent. 

Before: Judge Maurer 

These cases are before me upon a petition for assessment of 

civil penalties under section 105(d) of the Federal Mine Safety 

and Health Act of 1977 (the Act). An evidentiary hearing in 

these matters was held on November 18, 1993, in Beckley, 

West Virginia. At the conclusion of that hearing, the parties 

filed a motion to approve a settlement agreement and to dismiss 

these cases. 

The citations, initial assessments, and the proposed 

settlement amounts are as follows: 

CITATION NO. 

WEVA 93-11 

3738158 

161 

PROPOSED 

ASSESSMENT 

$ 136 

PROPOSED 

SETTLEMENT 

$ 136 
WEVA 93-340 

3579354 

WEVA 93-368 

3976690 

3976694 

3578514 

189 

50 

50 

-2Q 

50 1 

50 

Vacated 

Vacated 

TOTAL $ 475 $ 236 

I have _considered the representations and documentation submitted 

in these cases, as well as the testimony contained in the record 

of proceedings, and I conclude that the proffered settlement is 

appropriate under the criteria set forth in section llO(i) of the 

Act. 

WHEREFORE, the motion for approval of settlement is GRANTED, 

and it is ORDERED that respondent pay a penalty of $236 within 

30 days of this order. 

Law Judge 

Distribution: 

Javier I. Romanach, Esq., Office of the Solicitor, 

U. S. Department of Labor, 4015 Wilson Boulevard, Room 516, 

Arlington, VA 22203 (Certified Mail) 

Billy M. Tennant, Esq., 600 Grant Street, Room 1580, Pittsburgh, 

PA 15219-4776 (Certified Mail) 

dcp 

1/ Citation No. 3579354 is modified to delete the 

"significant and substantial" finding. 

162 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 2 4 1994 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

PEABODY COAL COMPANY, 

Respondent 

Docket No. KENT 92-1079 

A.C. No. 15-11012-03520 

Camp 9 Preparation Plant 

DECISION 

Appearances: Brian W. Dougherty, Esq., Office of the Solicitor, 

u. s. Department of Labor, Nashville, Tennessee, 

for Petitioner; 

David R. Joest, Esq., Henderson, Kentucky, for 

Respondent. 

Before: Judge Amchan 

Statement of Facts 

On the morning of July 21, 1992, MSHA Inspector 

Philip Dehart examined a refuse pile at Respondent's Camp 9 

Preparation Plant (Tr. 12). This pile, which consists of debris 

from washed coal, is approximately 100 feet high and bigger than 

100 feet x 100 feet horizontally (Tr. 21). Mr. Dehart found 2 

pools of water on the refuse pile. One was about 40 feet by 20 

feet and an inch deep and the other was about 35 feet by 20 feet 

and also an inch deep (Tr. 13 - 14). 

Mr. Dehart issued Respondent Citation No. 3551344, which 

alleged that the refuse pile was not graded to allow for proper 

drainage and that the inadequate grading violated Peabody's 

approved plan for the refuse area (Exh G-1). Water on the refuse 

pile creates a potential fire hazard due to spontaneous 

combustion (Tr. 10 - 11). However, MSHA apparently did not 

consider the water on Camp 9's refuse pile to present a hazard to 

miners as of July 21, 1992 (Tr. 19 - 20). 

The citation referenced 30 C.F.R. § 77.215 as the regulation 

violated. However, there is no standard requiring a mine 

operator to comply with an approved refuse pile design plan (See 

Tr. 22 - 25). 

163 
At trial, the Secretary argued that the facts in this case 

establish a violation of 30 C.F.R. § 77.215(e). This issue has 

been tried with the consent of Respondent (Tr. 25). 

Section 77.215(e) requires: 

Refuse piles shall not be constructed so as to 

impede drainage or impound water. 

Respondent's position on the merits is that the refuse pile 

was not designed to impound water (Tr. 45). The 2 pools of water 

observed by Inspector Dehart were the result of heavy rains the 

previous evening and differential settling of the refuse in the 

pile (Tr. 40). Peabody contends it complied with the regulation 

by reshaping the refuse pile as soon as it could do so safely 

(Tr. 44) . 

Peabody submits that there is no way to avoid differential 

settling and that to prevent a hazard developing from standing 

water it reshapes the pile with rubber-tired vehicles. 

Respondent argues that, to do this before the pile dries, would 

be hazardous to the operators of its dump trucks, bull dozers and 

scrapers. 

Moreover, Respondent contends that the pile was not 

constructed to impound water. In fact, it is designed so that 

water will drain off the pile and flow away from the pile (Tr. 40 

- 42) . 

Issues 

The issues in this case are whether the fact that there were 

standing pools of water on Respondent's refuse pile establishes 

that water was impounded and, if so, whether the evidence 

establishes that the pile was constructed so as to impede 

drainage or impound water. I conclude that the Secretary has not 

met his burden of proof on either of these issues. 

The testimony of Gordon Ingram, an engineering supervisor 

for Respondent at camp 9, that the accumulation of water on 

July 21 was unavoidable is uncontroverted. This testimony is 

also not inconsistent with Mr. Dehart's testimony that 

dessication cracks indicated that there had been other pools of 

standing water on the pile before July 21. 1 

The word impounded suggests a purposeful rather than an 

1

The citation alleged a violation only with regard to the 2 

pools of water observed on July 21, 1992 (Exh. G-2). Moreover, 

the record does not establish that the dessication cracks could 

only have been present if Respondent failed to take reasonably 

prompt steps to reshape the refuse pile after a rainstorm. 

164 
accidental accumulation of water. In some circumstances, one 

could reasonably conclude that the lack of any corrective action 

to remove water, which had accidently accumulated, might be an 

impoundment. However, Mr. Ingram's uncontroverted testimony 

establishes that the accumulation of water in this case was the 

unavoidable result of differential settling of the refuse. It 

also establishes that Respondent tried to remove the water as 

soon as it was reasonably safe to do so. 

Moreover, even if any accumulation of water is an 

impoundment, there is no evidence in this record to support a 

finding that Respondent's refuse pile was constructed to impede 

drainage or impound water within the meaning of 

section 77.215(e). However, I agree with petitioner that, in 

some circumstances, a failure to take timely corrective action to 

remove water that has collected on a refuse pile may violate 

section 77.215(e). 

A refuse pile is in an ongoing state of construction. 

Therefore, a failure to timely reshape areas in which water has 

collected may 'be "construction" within the meaning of the 

standard. How~ver, the record, in this case, does not establish 

that the water present on the refuse pile on July 21, 1992, was 

present due to any intentional act of Respondent or a failure to 

take reasonably prompt abatement measures. 

In conclusion, it has not been established that the refuse 

pile was constructed so as to impede drainage or impound water. 

I, therefore, vacate Citation No. 3551344. 

ORDER 

Citation No. 3551344 is hereby VACATED and this case is 

dismissed. 

Distribution: 

~r~ Administrative Law Judge 

703-756-6210 

Brian W. Dougherty, Esq., Office of the Solicitor, U. s. 

Department of Labor, 2002 Richard Jones Rd., Suite B-201, 

Nashville, TN 37215-2862 (Certified Mail) 

David R. Joest, Esq., 1951 Barrett Court, P. o. Box 1990, 

Henderson, KY 42420-1990 (Certified Mail) 

/jf 

165 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FAUS CHURCH, VIRGINIA 22041 

JAN 2 5 1994 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ISLAND CREEK COAL COMPANY, 

Respondent 

: Docket No. KENT 92-1034 

A.C. No. 15-02706-03722-R . . 

: Hamilton No. 2 Mine . . 

. . DECISION 

Appearances: Anne T. Knauff, Esquire, Office of the Solicitor, 

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

for the Petitioner; 

Before: 

Marshall s. Peace, Esquire, Lexington, Kentucky, 

for the Respondent 

Judge Melick 

This case is before me upon the petition for assessment 

of civil penalty filed by the Secretary of Labor pursuant to 

Section 105(d) of the Federal Mine Safety and Health Act of 

1977, 30 u.s.c. §801 et seq., the "Act," charging the Island 

Creek Coal Company (Island Creek) with violations of mandatory standards. The general issue before me is whether 

Island Creek violated the cited standards and, if so, what 

is the appropriate civil penalty to be assessed. Additional 

specific issues are also addressed as noted. 

The parties moved to settle Citation/Order Nos. 3418856, 

3420270, 3548984, 3548985, 3549015, 3549019, 3548656 and 3548657, 

proposing a reduction in penalties from $9,979 to $8,326, 

deleting the "significant and substantial" findings from Citation 

Nos. 3548984, 3549015, and 3549019, vacating Order No. 3420253 

and modifying Citation No. 3418856, Order No. 3548657, and Order 

No. 3548985 to citations under Section 104(a) of the Act. I have 

considered the representations and documentation submitted in 

this case and I conclude that the proffered settlement is 

appropriate under the criteria set forth in Section llO(i) of the 

Act. An order directing payment of these penalties will be 

incorporated in the order accompanying this decision. 

The one citation remaining, Citation No. 3549007, alleges a 

"significant and substantial" violation of the mine operator's 

roof control plan under the mandatory standard at 30 C.F.R. 

S 75.220 and charges as follows: 

166 
The addendum to the roof control plan was not 

being followed as required by letter dated 6-18-90 

in the main east Antioch Mains where a section of 

supply entry was driven 26 feet wide for a distance 

of 200 feet. The WF steel beams, 26 feet long 

spaced in between each truss bolt, seven (7) of 

these beams was [sic] not installed as required by 

the approval of the addendum. 

It is not disputed that the "addendum" to the roof control 

plan set forth in the Secretary's letter dated June 18, 1990, 

became an enforceable part of such plan. The addendum reads as 

follows: 

Your request dated June 5, 1990, for permission to 

widen the existing supply road from the approved 

20 feet width, to a maximum of 26 feet wide for a 

distance of 200 feet on the No. 4 unit, in the Antioc~ Mains, for two Parallel sets in the same 

entry i's approved, provided: 

The 200 feet shall be truss bolted on 4 feet [sic] 

centers with 6 inch WF Steel Beams, 26 feet long, 

spaced in between each truss. The steel beams 

shall be supported with steel legs on each end and 

in the middle. Additional support such as steel 

beams and legs and or cribs shall be installed in 

the connecting crosscuts. Steel beams shall be 

secured to the mine roof on each end and the middle. 

The testimony of experienced Inspector Harold Gamblin of 

the Mine Safety and Health Administration (MSHA) is not disputed. 

Gamblin testified that on January 8, 1991, he was performing a 

routine inspection of the subject mine when he observed that 

the referenced addendum to the roof control plan was not being 

followed. Gamblin stated that pursuant to the addendum, the 

mine operator was permitted to utilize a 26 foot-wide supply 

road, six feet wider than ordinarily permitted, only on condition 

that additional roof support was provided. That additional 

support required "I" beams placed every four feet between the 

truss bolts. Gamblin estimated that there should therefore 

have been so beams in place over the 200 foot-long supply road 

and noted that seven beams were missing. According to Gamblin, 

representatives of the mine operator told him that they were 

waiting for "clips" to install the horizontal beams at these 

seven locations. 

Inspector Gamblin opined that the violation was "significant 

and substantial" because the roof in the area was weak and soft 

and was in an area where roof failures had already occurred. It 

was his opinion that it was very likely for there to be roof 

failures under these conditions. Gamblin concluded that if there 

167 
was a roof fall, it would have been reasonably likely to have 

contributed to reasonably serious injuries because of frequent 

travel through the area, i.e., 10 to 12 people at a time passing 

throughout the day. Gamblin also noted that the normal entry 

width is 20 feet and that MSHA allowed the 26-foot-wide entry 

only on condition that the additional support set forth in the 

addendum to the roof control plan was in place. He also observed 

that vibrations caused by diesel equipment used in this mine 

caused serious vibrations that could also contribute to unstable 

roof conditions. 

Island Creek, in its post-hearing brief, now admits that 

the cited conditions were in fact violations of its roof control 

plan and now disputes only the associated "significant and 

substantial" findings. A violation is properly designated as 

"significant and substantial" if, based on the particular facts 

surrounding that violation, there exists a reasonable likelihood 

that the hazard contributed to will result in an injury or illness of a reasonably serious nature. Cement Division. National 

Gypsum Co., 3 FMSHRC 822, 825 (1981). In Mathies Coal Co., 

6 FMSHRC 1, 3-4 (1984), the Commission explained: 

In order to establish that a violation of a 

mandatory standard is significant and substantial 

under National Gypsum the Secretary must prove: 

(1) the underlying violation of a mandatory safety 

standard; (2) a discrete safety hazard -- that is, 

a measure of danger to safety -- contributed to by 

the violation, (3) a reasonable likelihood that the 

injury in question will be of a reasonably serious 

nature. 

See also Austin Power Co. v. Secretary, 861 F.2d 

99, 103-04 (5th Cir. 1988), aff'g. 9 FMSHRC 2015, 2021 

(1987) (approving Mathies criteria). 

The third element of the Mathies formula requires that 

the Secretary establish a reasonable likelihood that the hazard 

contributed to will result in an event in which there is an 

injury. (U.S. Steel Mining co., 6 FMSHRC 1834, 1836 (1984), and 

also that in the likelihood of injury be evaluated in terms of 

continued normal mining operations (U.S. Steel Mining Co .. Inc., 

6 FMSHRC 1573, 1574 (1984); see also, Halfway. Inc., 8 FMSHRC 8, 

12 (1986) and Southern Ohio Coal Co., 13 FMSHRC 912, 916-17 

(1991). 

Within the above framework of law and the undisputed facts 

in this case it is clear that the violation was indeed "significant and substantial" and quite serious. 

Inspector Gamblin further observed that the operator was 

negligent in causing the violation inasmuch as it was obvious 

168 
that the beams were missing. Representatives of the operator 

were clearly also aware that the beams were missing in admitting 

that they were waiting for clips to install the beams. Finally, 

Gamblin observed that the seven beams had been missing for a long 

period of time. He estimated they had been missing for at least 

30 days since mining had progressed inby the cited area about 

2,000 feet. In light of this undisputed evidence it is indeed 

clear that the violation was result of high operator negligence. 

In light of the above evidence, and considering all the 

factors under Section llO(i) of the Act, I find that a civil 

penalty of $300 to be appropriate for the violation charged in 

Citation No. 3549007. 

ORDER 

Island Creek Coal Company is hereby directed to pay a 

civil penalty of $300 for the violation charged in 

Citation No. 3549007 within 30 days of the date of this decision. 

As a result of the settlement agreemen noted herein the Island 

Creek Coal Company is further diiecte o p civil pen lties of 

$8,326 within JO days of the datL of th d 

Distribution: 

Gary Meli 

Administr 

Anne T. Knauff, Esq., Office of the Solicitor, 

U.S. Department of Labor, 2002 Richard Jones Road, 

Suite B-201, Nashville, TN 37215 (Certified Mail) 

Marshall s. Peace, Attorney at Law, 157 W. Short Street, 

P.O.Box 670, Lexington, KY 40568 (Certified Mail) 

lh 

169 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203LEESBURG ~KE 

FALLS CHURCH, VIRGINIA 22041 

JAN 2 5 1994 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MAYO RESOURCES INCORPORATED, 

Respondent 

Docket No. KENT 93-160 

A. C. No. 15-15670-03542 

Mine: #1 

DECISION 

Appearances: Thomas A. Grooms, Esquire, Office of the 

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

Tennessee for Petitioner; 

Mr. Larry Mills, Lovely, Kentucky for Respondent. 

Before: Judge Fauver 

This is an action for civil penalties under § llO(a) of the 

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

et seq. 

Having considered the hearing evidence and the record as a 

whole, I find that a preponderance of the substantial, probative, 

and reliable evidence establishes the following Findings of Fact 

and Further Findings in the Discussion below: 

FINDINGS OF FACT 

1. Respondent operates an underground coal mine known as 

Mine No. 1, which produces coal in or substantially affecting 

interstate commerce. 

2. In 1991 Respondent produced 2,600,713 tons of coal, of 

which 48,713 tons were produced at Mine No. 1. 

3. On July 16, 1992, Federal Mine Inspector Theodore 

Herrera issued two of the three citations at issue. On July 28, 

1992, he issued the third citation. 

4. Citation No. 4029449 alleges a violation of 30 C.F.R. 

§ 75.400. Combustible materials, including float coal dust, in 

accumulations from 6 to 10 inches deep were beneath the No. 1 

belt for a distance of about 100 feet. The float coal dust was 

dry and subject to ignition. 

170 
5. Citation No. 4029500 alleges a violation of 30 C.F.R. 

§ 75.1725{a). The beltline had three stuck conveyor belt 

rollers. They had been stuck for a sufficient time to have flat 

places worn where the belt rubbed against them. 

6. The stuck rollers involved in Citation No. 4029500 were 

covered with float coal dust, which was involved in Citation 

No. 2049499. 

7. At the time, the belt was operating and transporting 

coal. The mine was producing coal on three shifts, 24 hours per 

day. 

8. The size of the accumulations indicated that the float 

coal dust had accumulated for at least three working shifts. The 

wear on the stuck rollers indicated that they had been stuck for 

at least one shift and possibly a week. 

9. The combination of combustible accumulations and stuck 

rollers rubbing against the belt in float coal dust created a 

serious threat of fire or explosion. Smoke caused by fire or 

explosion would probably be carried forward to the working faces 

where miners were working. 

10. The third citation, No. 4030042, alleges a violation of 

30 C.F.R. § 75.517. A permanent splice in the trailing cable to 

a Lee Norse roof-bolting machine was not properly insulated, and 

was not protected, as required by the standard. The inner 

electrical leads were exposed creating an electrocution hazard. 

Inspector Herrera observed this condition while the roof-bolting 

machine was operating. The splice had been torn exposing the 

inner energized electrical leads. The exposed leads had no 

insulation so that they were completely exposed to the touch. 

The cable was subject to frequent handling by miners working in 

the vicinity of the roof-bolting machine, and thus created a 

highly dangerous condition. 

11. Government's Exhibit No. 1, a computer printout of the 

operator's compliance history for 24 months before the citations, 

shows a very poor level of compliance. In the 2-year period, the 

operator received citations or orders with assessments of civil 

penalties for a total of $27,039. Of this amount, the operator 

paid $7,166, contested $2,478 and ignored $17,395 in final civil 

penalty orders {i.e. penalties not litigated). In addition to 

ignoring final penalty orders, the history shows a number of 

previous violations of the standards at issue in this case. 

These include violations of § 75.400 for combustible 

accumulations along the belt lines, violations of S 75.1725 for 

stuck rollers on the No. 1 belt line, and violations of § 75.517 

for cable hazards on a Lee Norse roof-bolting machine. 

171 
DISCUSSION, FURTHER FINDINGS AND CONCLUSIONS 

Citations Nos. 4029499 and 4029500 

The combination of these citations increases the gravity of 

the two violative conditions: accumulations of loose coal, coal 

dust and float coal dust in the presence of stuck belt conveyor 

rollers that created a ready ignition or heat source. 

Accumulations of loose coal, coal dust and float coal dust 

are one of the most serious threats to the safety of miners and 

one which Congress sought to eliminate in passing the Mine Act. 

As the Commission stated in Black Diamond Coal Mining, 7 FMSHRC 

1117, 1120 (1985) 

We have previously noted Congress' 

recognition that ignitions and explosions are 

major causes of death and injury to miners: 

"Congress included in the Act mandatory 

standards aimed at eliminating ignition and 

fuel sources for explosions and fires. 

(Section 75.400) is one of those standards." 

Old Ben Coal Co., 1 FMSHRC 1954, 1957 

(December 1979) . . . • The goal of reducing 

the hazard of fire or explosions in a mine by 

eliminating fuel sources is effected by 

prohibiting the accumulation of materials 

that could be the originating sources of 

explosions or fires and by also prohibiting 

the accumulation of those materials that 

could feed explosions or fires originating 

else where in a mine. 

The violations involved in these citations were obvious and 

highly dangerous. Failure to prevent or correct the hazards 

before the inspector observed them demonstrates aggravated 

conduct beyond ordinary negligence. 

The violations were also reasonably likely to result in 

serious injuries, and were therefore "significant and 

substantial" violations within the meaning of the Act •. Mathies 

Coal Co., 6 FMSHRC 1, 3-4 (1984); Energy West Mining Co., 

15 FMSHRC 1836, 1839 (1993). 

Citation No. 4030042 

The violation proved under this citation was obvious and 

highly dangerous. The damaged cable, which was exposed to the 

touch, presented an immediate threat of death or serious injury 

to the operator of the Lee Norse roof bolter and to the miners 

who had occasion to handle the cable. The violation was 

"significant and substantial" (Mathies, supra). 

172 
Operator's Size and Compliance History 

The operator is a fairly large coal producer (over two 

million tons in 1991). It has a poor compliance history, showing 

a significant number of delinquent civil penalties ($17,395) in 

the 2-year period preceding the violations in this case, and a 

significant number of violations of the same standards involved 

in this case. Indeed, some of the prior violations involve the 

same beltline and equipment. 

Considering all of the criteria in § llO(i) for assessing 

civil penalties, I find that the following penalties are 

appropriate: 

Citation No. 4029499 

Citation No. 4029500 

Citation No. 4030042 

$ 3,500 

3,500 

5,000 

$12,000 

CONCLUSIONS OF LAW 

1. The judge has jurisdiction. 

2. Respondent violated the safety standards as alleged in 

Citation Nos. 4029499, 4029500 and 4030042. 

ORDER 

WHEREFORE IT IS ORDERED that: 

1. The above citations are AFFIRMED. 

2. Within 30 days of the date of this Decision, Respondent 

shall pay civil penalties in the amount of $12,000. 

Distribution: 

v)~~~v~ William Fauver 

Administrative Law Judge 

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

of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 

37215-2862 (Certified Mail) 

Mr. Larry Mills, c/o Mr. James H. Booth, P.O. Box 190, Lovely, KY 

41231 (Certified Mail) 

/efw 

173 
l'BDBRAL IUllB SAl'Bft DD HEALD RBVIBW COIOllSSI:OB 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 2 5 1994 

SECRETARY OF LABOR, . . DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

On Behalf of JAMES JOHNSON, 

Complainant 

and 

UNITED MINE WORKERS OF 

AMERICA (UMWA) , 

Intervenor 

v. 

JIM WALTER RESOURCES, 

INCORPORATED, 

Respondent 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

Docket No. SE 93-127-D 

Mine ID 01-01401 

No. 7 Mine 

DECISION 

Appearances: 

Before: 

William Lawson, Esq., Office of the Solicitor, 

U.S. Department of Labor, Birmingham, Alabama, 

for Complainant; 

David M. Smith, Esq., Mark Strength, Esq., and 

R. Stanley Morrow, Esq., Birmingham, Alabama, 

for the Respondent. 

Judge Fauver 

The Decision on November 18, 1993, held that 

Respondent discriminated against James Johnson in violation 

of Section 105(c) of the Federal Mine Safety and Health Act 

of 1977, 30 u.s.s. § 801 et seg. The discrimination included 

a two-day suspension without pay. Jurisdiction was retained 

pending a final decision on damages. 

I find that James Johnson is entitled to back pay for the 

two-day suspension (March 14 and 15, 1992) in the total amount of 

$564.70 plus interest from March 15, 1992, until the date of 

payment of the back pay. 

ORDER 

1. Within 30 days of the date of this Decision, Respondent 

shall pay James Johnson back pay of $564.70 plus interest accrued 

from March 15, 1992, until the date of payment, interest to be 

computed in accordance with the Commission's decisions 

prescribing the method of computing interest. 

174 
2. This Decision and the Decision of November 18, 1993, 

constitute the judge's final disposition of the issues in this 

proceeding. 

-uJ~ :+-~vtA- William Fauver 

Administrative Law Judge 

Distribution: 

William Lawson, Esq., Office of the Solicitor, U.S. Department 

of Labor, Suite 150, Chambers Building, Highpoint Office Center, 

100 Centerview Drive, Birmingham, AL 35216 (Certified Mail) 

David M. Smith,, Esq., Mark Strength, Esq., Maynard, Cooper & 

Gale, 1901 Sixth Avenue, North, 2400 AmSouth, Harbert Plaza, 

Birmingham, AL 35203-2602 (Certified Mail) 

R. Stanley Morrow, Esq., Jim Walter Resources, P.O. Box 133, 

Brookwood, AL 35444 (Certified Mail) 

Mary Lu Jordan, Esq., United Mine Workers of America, 

900 Fifteenth St., N.W., Washington, D.C. 20005 (Certified 

Mail) 

/ml 

175 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 2 5 1994 

DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

on behalf of PERRY PODDEY, 

complainant, 

Docket No. WEVA 93-339-D 

MORG CD 93-01 

v. 

TANGLEWOOD ENERGY, INC., 

Respondent 

Coal Bank No. 12 

DECISION ON DAMAGES 

On November 29, 1993, the undersigned issued a decision 

finding Respondent in violation of section 105(c) of the Act and 

directing the parties to file a stipulation regarding the amount 

due Mr. Poddey. Pursuant to this stipulation, Respondent is 

hereby ordered to pay Mr. Poddey $9,094.38. This figure 

represents the back wages due Mr. Poddey from January 7, 1993, 

through May 17, 1993 minus $4,000 received in unemployment 

compensation benefits from the state of West Virginia. It also 

includes interest calculated at the short-term federal interest 

rate on all net backpay earnings (gross backpay minus 

unemployment insurance benefits) through the end of calendar year 

1993, payment for Mr. Poddey's travel expenses related to this 

case, and compensation for one day of work missed to attend the 

hearing in this matter. 

ORDER 

Respondent is hereby ordered to pay Perry Poddey $9,094.38 

within 20 days of this decision and order. This constitutes my 

final decision in this matter. 

176 

a 

Arth r J. Amchan 

Administrative Law Judge 

703-756-6210 
Distribution: 

Heather Bupp-HaBuda, Esq., Office of the Solicitor, U. s. 

Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203 

(Certified Mail) 

Paul O. Clay, Jr., Esq., Conrad and Clay, P. o. 

Drawer 958, Fayetteville, WV 25840 (Certified Mail) 

/jf 

177 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 2 6 1994 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA), 

ON BEHALF OF 

JAMES A. WEATHERINGTON, 

Complainant 

v. 

THOMASVILLE STONE & LIME 

COMPANY, 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA) , 

ON BEHALF OF 

DALE H. HOKE, 

Complainant 

v. 

THOMASVILLE STONE & LIME 

COMPANY, 

Respondent 

DISCRIMINATION PROCEEDINGS 

Docket No. PENN 93-433-DM 

NE-MD 93-01 

Docket No. PENN 93-434-DM 

NE-MD 93-02 

Thomasville Mine 

ORDER OF DISMISSAL 

Before: Judge Hodgdon 

These cases are before me on complaints of discrimination 

under Section 105{c) of the Federal Mine Safety and Health Act of 

1977, 30 u.s.c. § 815{c). The complainants, by counsel for the 

Secretary, have filed a motion to withdraw their discrimination 

complaints and to dismiss the cases. 

This motion is being made pursuant to a settlement agreement 

between the parties. In the agreement, the Respondent agreed "to 

remove, upon execution of this Agreement, any and all documents 

from all personnel and other files that it maintains on (the 

178 
complainants] related to the period and events at issue in this 

case" and the Complainants agreed to " withdraw the complaint of 

discrimination which was filed with the Mine Safety and Health 

Administration on October 30, 1992" and to authorize "the 

Secretary of Labor to seek dismissal of the Complaint filed with 

the Federal Mine Safety and Health Review Commission." 

It appears that the parties have carried out their 

commitments under the settlement agreement. Accordingly, the 

motion to withdraw the discrimination complaints and to dismiss 

the cases is GRANTED and the captioned cases are DISMISSED with 

prejudice. 

Distribution: 

J.~~ T. Todd H~~(a~n . 

Administrative Law Judge 

(703) 756-4570 

Susan M. Jordan, Esq., Office of the Solicitor, U.S. Department 

of Labor, 3535 Market street, Room 14480, Gateway Building, 

Philadelphia, Pennsylvania 19104 (Certified Mail) 

Henry Chajet, Esq., Jackson & Kelly, 2401 Pennsylvania 

Avenue, N.W., Suite 400, Washington, DC 20037 (Certified Mail) 

Thomasville Stone & Lime Company, P.O. Box 23, 

Thomasville, Pennsylvania 17364 (Certified Mail) 

Office of Special Investigation, MSHA, Metal/NonMetal, 

U.S. Department of Labor, 4015 Wilson Blvd., Arlington, 

Virginia 22203 (Certified Mail) 

Dale Hoke, R.D. #1, Box 456, Thomasville, Pennsylvania 17364 

(Certified Mail) 

James Wetherington, 418 North Franklin Street, Hanover, 

Pennsylvania 17331 (Certified Mail) 

/lbk 

179 
PBDBRAL Jo:BB SUB'l'Y DD JIBAL'l'B BBVJ:BW COJOllSSJ:Oll 

OFFICE OF ADMINISTRATIVE LA~ Jll>GES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 3 1 1994 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. PENN 93-111 

A. C. No. 36-06967-03775 

v. 

TANOMA MINING COMPANY, aka 

TANOMA MINING COMPANY, INC., 

Respondent 

Docket No. PENN 93-112 

A. C. No. 36-06967-03773 

Tanoma 

Appearances: 

Before: 

DECISION 

Maureen A. Russo, Esquire, Office of the 

Solicitor, U.S. Department of Labor, Philadelphia, 

PA for Petitioner; 

Joseph A. Yuhas, Esquire, Barnesboro, PA for 

Respondent. 

Judge Fauver 

This is an action for civil penalties under § llO(a) of the 

Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et 

seq. 

Having considered the hearing evidence and the record as a 

whole, I find that a preponderance of the substantial, probative, 

and reliable evidence establishes the Findings of Fact and 

Further Findings in the Discussion below: 

FINDINGS OF FACT 

1. Respondent1 operates an underground coal mine known as 

the Tanoma Mine, which produces coal in or substantially 

affecting interstate commerce. 

2. On September 23, 1992, Federal Mine Inspector Gene T. 

Ray issued Order No. 3486015 at the Tanoma Mine, alleging in 

part: 

No guards of any kind were installed on the 

discharge roller and drive rollers of the C-1 No. 2 

1 To conform to the evidence, the caption is hereby AMENDED to 

add the following to the name of Respondent: "aka Tanoma Mining 

Company, Inc." 

180 
No guards of any kind were installed on the 

discharge roller and drive rollers of the C-1 No. 2 

belt drive. This belt drive had been installed on 

September 22, 1992 and coal was loaded with this drive 

on September 23, 1992 on the 12:00 a.m. to 8:00 a.m., 

shift. This condition is easily observed and the area 

had been pre-shifted. This drive is also in a location 

were responsible persons travel on a frequent basis 

during the shift and should have been observed. This 

area was a wet slippery location and persons could fall 

and come in contact with these rollers. 

After an MSHA-operator conference, the order was modified to 

read: 

Due to the results of a Health and Safety 

Conference. This order is hereby modified to show 

Section I No. 8 as deleting the first sentence and 

including the following. 

Adequate guarding was not provided for the 

discharge roller and drive rollers of the C-1 No. 2 

belt drive in that a wooden plank was attached to posts 

on each side of the belt drive that persons could reach 

over, under and around and become caught in the 

inadequately guarded rollers. This order is also 

modified to show Section I No. 9(c) as 75.1722(b) 

instead of 75.1722(a). 

The regulation cited, 30 C.F.R. § 76.1722(b), states: 

75.1722 Mechanical equipment guards. 

(b) Guards at conveyor-drive, 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. 

3. The operator had installed a board on each.side of the 

low belt drive. Each board, nailed to 2 posts, was about 14 feet 

long, 4 to 6 inches wide, and about 1 to 1-1/4 inches thick. 

4. On the "clearance side" of the belt drive, the 

discharge roller extended about 20 inches beyond the edge of the 

belt. The board was about 36 inches from the mine floor, and 

about 4 feet from the pinchpoint of the drive roller. Each end 

of the board extended about 6 inches from the post, leaving an 

exposed area of the belt drive of 2 or 3 feet. The discharge 

roller was not reasonably accessible to accidental contact 

because the discharge roller was above the center of the main 

belt, 56 to 57 inches above the mine floor. The nearest 

181 
pinchpoint on the drive rollers was about 45 or 46 inches from 

the board. A person falling under the board might reach out to 

break the fall and come in contact with a pinchpoint on a belt 

drive roller. Also, a person might fall beyond the end of the 

board and accidentally come in contact with a belt drive roller 

pinchpoint. 

5. On the "tight side" of the belt drive, the nearest 

pinchpoint of the drive rollers was about 2 feet from the board 

and the travelway was about 2 feet wide. The nearest pinchpoint 

of the discharge roller was also close to the board. Persons on 

the tight side might fall and accidentally come in contact with a 

pinchpoint of a drive or discharge roller. 

6. 

slippery. 

7. 

low belt 

the main 

period. 

The mine floor around the belt drive was wet and 

A low belt drive discharges coal onto a main belt. The 

is mobile, and usually moves in a month or two, whereas 

belt is immobile and kept in one place for a long 

a. Low belts are stopped for maintenance work 

(lubrication, adjustments, repairs, etc). Also, cleanup work 

around a low belt is usually done when the belt is stopped. 

However, at times miners may shovel or clean up around a moving 

belt. Miners travel on the clearance side of the belt and on 

less frequent occasions may have duties on the tight side of the 

belt drive. 

9. The operator used the board-and-posts method of 

guarding low belt drives for years, and continued to use this 

method after the citation was terminated. To abate the condition 

cited by Inspector Gay, the operator installed belting material 

to prevent contact with the belt drive and discharge rollers. 

However, when the low belt conveyor was moved after the citation, 

the belting material was not used and the operator resumed the 

same practice of using a board nailed to two posts as the only 

guard of the low belt drive. 

10. Before and after the citation issued by Inspector Gay, 

low belts drives were frequently inspected by MSHA but no other 

MSHA inspector cited a violation for the board-and-posts method 

of guarding a low belt drive. 

Citation No. 3708614 

11. On October 13, 1992, Federal Mine Inspector Joseph E. 

Colton issued Citation No. 3708614, alleging in part: 

Guards were not provided to prevent a person from 

contacting the rotating tail pulley of the Low belt 

182 
located in the 016 active section. This tail pulley 

was approximately 911 in diameter and centered 1011 above 

the mine floor. Both sides of this conveyor system 

tail pulley area contained a 13" x 7 1/2" opening on 

each end of this pulley and bearing block assembly. 

And a 7 1/2" x 22 11 opening directly in front of this 

pulley. The tail piece is located 48" from the coal 

rib and the height of this entry is approximately 52 11 • 

12. on the sides of the tail pulley, there were openings 

about 13 inches by 7-1/2 inches on each end of the tail pulley 

and bearing block assembly. There also was an opening about 

7-1/2 inches by 22 inches directly in front of the pulley. 

13. Guarding for the tail pulley did not extend down the 

sides to prevent contact or to prevent a person from reaching in 

and coming in contact with pinchpoints. 

DISCUSSION, FURTHER FINDINGS AND CONCLUSIONS 

Order No. 3486015 

30 C.F.R. § 75.1722(b) provides: "Guards at conveyor-drive, 

conveyor head, and conveyor tail pulleys shall extend a distance 

sufficient to prevent a person from reaching behind and becoming 

caught between the belt and the pulley." 

The only guarding for the c-1, Number 2 belt drive was a 

four to six inch wide board on each side of the pulley, nailed on 

two posts and positioned about 36 inches from the ground. 

Each board ended about 6 inches beyond the posts, and left 

the discharge rollers exposed on both sides of the belt. The 

boards served more as a warning, rather than a guard, and plainly 

did not "extend a distance sufficient to prevent a person from 

reaching behind and becoming caught between the belt and the 

pulley." Also, as stated in the Findings, above, in places the 

boards would not prevent accidental contact with the pinchpoints. 

I therefore find a violation of§ 75.1722(b). 

The Secretary alleges that the violation was "significant 

and substantial." A "significant and substantial" violation is 

defined in § 104(d) (1) of the 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." The 

Commission has developed the following test (in Mathies Coal 

Co., 6 FMSHRC 1, 3-4 (1984): 

In order to establish that a violation of a 

mandatory safety standard is significant and 

substantial • • • the Secretary of Labor must prove: 

183 
(1) the underlying violation of a mandatory safety 

standard; (2) a discrete safety hazard-- that is, a 

measure of danger to safety --contributed to by the 

violation; (3) a reasonable likelihood that the hazard 

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

reasonable likelihood that the injury in question will 

be of a reasonably serious nature. 

In United States Steel Mining Company, Inc., 7 FMSHRC 1125, 

1129, the Commission stated further: 

We have explained further that the third element 

of the Mathies formula "requires that the Secretary 

establish a reasonable likelihood that the hazard 

contributed to will result in an event in which there 

is an injury." U.S. Steel Mining Co., 6 FMSHRC 1834, 

1836 (August 1984). We have emphasized that, in 

accordance with the language of Section 104(d) (1), it 

is the contribution of a violation to the cause and 

effect of a hazard that must be significant and 

substantial. U.S. Steel Mining Company. Inc., 6 FMSHRC 

1866, 1868 (August 1984); U.S. Steel Mining Company, 

Inc., 6 FMSHRC 1573, 1574-75 (July 1984). 

The question of whether a violation is significant and 

substantial must be based on the particular facts surrounding the 

violation. Texasgulf, Inc., 10 FMSHRC 498 (1988); Youghiogheny & 

Ohio Coal Company, 9 FMSHRC 1007 (1987). 

I find there was a reasonable likelihood that, if the 

condition remained unabated, a miner would come in contact with a 

roller pinchpoint and suffer a serious injury. Contact could 

result from reaching out to break a fall and becoming caught 

between the belt and roller. 

I therefore find that the violation was significant and 

substantial. 

The Secretary also alleges that the violation was 

"unwarrantable" within the meaning of the Act. In Emery Mining 

Corp., 9 FMSHRC 1997, 2004 (1987), the Commission held that 

"unwarrantable" means aggravated conduct constituting more than 

ordinary negligence. Applying this test, I find that the 

Secretary has not proved an "unwarrantable" violation. The 

operator regarded the board-and-posts method as an adequate guard 

and a number of MSHA inspectors apparently had seen this type 

guard and not cited a violation. I find there was ordinary 

negligence. 

Considering all the criteria for a civil penalty in § llO(i) 

of the Act, I find that a civil penalty of $1,800 is appropriate 

for this violation. 

184 
Citation No. 3708614 

On each side of the tail pulley there was an opening of 

about 7-1/2 inches by 13 inches. There also was an opening in 

front of the tail pulley. I find there was a reasonable 

likelihood that, if the condition remained unabated, a miner 

would come in contact with a roller pinchpoint and suffer a 

serious 1n)ury. I therefore find that this was a "significant 

and substantial" violation. 

Considering all the criteria for a civil penalty in S llO(i) 

of the Act, I find that a civil penalty of $288 is appropriate 

for this violation. 

CONCLUSIONS OP LAW 

1. The judge has jurisdiction. 

2. Respondent violated 30 C.F.R. S 75.1722(b) as alleged in 

Order No. 3486015 with the exception of the allegation of an 

"unwarrantable" violation. 

3. Respondent violated 30 C.F.R. S 75.1722(b) as alleged in 

Citation No. 3708614. 

ORDER 

1. Order No. 3486015 is converted to a S 104(a) citation 

without an allegation of an "unwarrantable" violation and as such 

is AFFIRMED. 

2. Citation No. 3708614 is AFFIRMED. 

3. Respondent shall pay civil penalties of $2,088 within 

30 days of the date of this Decision. 

Distribution: 

a/~1 f-/MAVtAWilliam Fauver 

Administrative Law Judge 

Maureen A. Russo, Esq., Office of the Solicitor, U.S. Department 

of Labor, Room 14480 Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

Joseph A. Yuhas, Esq., Tanoma Mining Company, 1809 Chestnut 

Avenue, Ebensburg, PA 15714 (Certified Mail) 

/ew-fb 

185 
ou.S. GOVERNMENT PRINTING OFFICE: 1994-301-878-93382 

186