JUNE 1989 

COMMISSION DECISIONS 

06-15-89 

06-15-89 

06-27-89 

Utah Power & Light Company· 

Sec. Labor for Jerry Aleshire, et al. v. 

Westmoreland Coal Company 

Consolidation Coal Company 

ADMINISTRATIVE LAW JUDGE DECISIONS 

06-02-89 

06-05-89 

06-05-89 

06-06-89 

06-06-89 

06-07-89 

06-09-89 

06-09-89 

06-09-89 

06-09-89 

06-09-89 

06-14-89 

06-13-89 

06-14-'89. 

06-15-89 

06-15-89 

06-15-89 

06-15-89 

06-19-89 

06-19.-89 

06-20-89 

06-20-89 

06-20-89 

06-20-89 

06-20-89 

06-20-89 

06-20-89 

06-20-89 

06-21-89 

06-22-89 

06-23-89 

06-26-89 

06-27-89 

06-29--89 

Sec. Labor for Robert Vaughn v. Sumco, Inc. 

and R.E. Summers 

Green River Coal Company 

Frank Irey, Jr., Inc. 

Cobblestone, Ltd. 

Mid-Continent Resources, Inc. 

Sec. Labor for David Haynes v. Dedondor Coal Co. 

Green River Coal Company 

Edward Kraemer & Sons, Inc. 

Sec. Labor for Thomas Gille v. Yellow River 

Supply Corporation 

Florence Mining Company 

Sec. Labor for John L. Jones v. Virginia Carbon 

Sec. Labor for Hike Ammerman v. Peabody Coal 

Jim Walter Resources 

Lakeview Rock Products, Inc. 

Troy W. Conway, Jr. v. Peabody Coal Company 

Beaver Creek Coal Company 

Beaver Creek Coal Company 

Urralburu Mining Company 

Paula L. Price v. Monterey Coal Company 

Consolidation Coal Company/McElroy Coal Co. 

Consolidation Coal Company 

Consolidation Coal Company 

Dolet Hills Mining Venture 

S H M Coal Company 

Tanner Sand & Gravel 

William Wayt v. Consolidation Coal Company 

Sec. Labor for Charles A. Herren v. Don 

Griffith Construction 

K T K Mining and Construction Co. 

Bandas Industries Incorporated 

A. H. Smith Stone Company 

Beaver Creek Coal Company 

Consol Pennsylvania Coal Co. 

Moltan Company 

James L. Woody v. Clinchfield Coal Co. 

WEST 89-161-R 

WEVA 84-344-D 

VA 87-27 

KENT 89-28-D 

KENT 88-152 

WEVA 89-14 

WEST 88-62-M 

WEST 89-3-R 

WEVA 89-89-D 

KENT 88-174 

LAKE 88-118-M 

LAKE 89-73-DM 

PENN 86-297-R 

WEVA 89-167-D 

KENT 89-25-D 

SE 89-18-R 

WEST 88-235-M 

KENT 88-127-D 

WEST 88-233 

WEST 88-159 

WEST 88-300-M 

LAKE 86-45-D 

WEVA 89-22 

WEVA 88-290-R 

WEVA 89-51 

CENT 88-108 

KENT 88-104 

CENT 89-6-M 

WEVA 89-114-D 

CENT 89-25-D 

KENT 

CENT 

VA 

WEST 

PENN 

SE 

VA 

88-113 

89-30-M 

89-3-M 

88-84-R 

88-200 

89-51-M 

89-14-D 

Pg. 953 

Pg. 960 

Pg. 966 

Pg. 981 

Pg. 988 

Pg. 990 

Pg. 997 

Pg. 1015 

Pg. 1055 

Pg. 1056 

Pg. 1058 

Pg. 10q4 

Pg. 1065 

Pg. 1067 

Pg. 1072 

Pg. 1079 

Pg. 1084 

Pg. 1086 

Pg. 1092 

Pg. 1094 

Pg. 1096 

Pg. 1099 

Pg. 1103 

Pg. 1105 

Pg. 1115 

Pg. 1122 

Pg. 1154 

Pg. 1192 

Pg. 1193 

Pg. 1194 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

1195 

1197 

1203 

1213 

1218 

1222 

1224 

JUNE 1989 

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

Utah Power & Light Company v. Secretary of Labor, MSHA, Docket No. WEST 89-161-R. 

(Judge Morris, April 24, 1989) 

Roger L. Stillion v. Quarto Mining Company, Docket No. LAKE 88-91-D. (Judge 

Fauver, May 9, 1989} 

Ozark-Mahoning Company v. Secretary of Labor, MSHA, Docket No. LAKE 88-128-RM. 

(Judge Koutras, May 9, 1989) 

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

Stenson Begay v. Liggett Industries, Inc., Docket No. CENT 88-126-D. (Judge 

Maurer, May 17, 1989) 

COMMISSION DECISIONS 

FEDER.AL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR. 

WASHINGTON, D.C. 20006 

June 15, 1989 

UTAH POWER AND LIGHT COMPANY, 

MINING DIVISION 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Docket No. WEST 89-161-R 

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

Commissioners 

ORDER 

BY THE COMMISSION: 

In this contest proceeding arising under the Federal Mine Safety 

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

"Act") , .Utah Power and Light Company, Mining Di vis ion ( "UP&L") , pursuant 

to the provisions of section'. 105(b)(2) of the Mine Act and Commission 

Procedural Rules 45 and 46, has filed with the Commission an Application 

for Temporary Relief from an enforcement action taken against it by the 

Secretary of Labor. l/ For the following reasons, we deny UP&L's 

ll Section 105(b)(2) of the Mine Act provides: 

An applicant may file with the Commission a 

written request that the Commission grant temporary 

relief from any modification or termination of any 

order or from any order issued under section [104] 

of this [Act] together with a detailed statement 

giving the reasons for granting such relief. The 

Commission may grant such relief under such 

conditions as it may prescribe, if --

(A) a hearing has been held in which all 

parties were given an opportunity to be heard; 

953 
Application. 

Briefly, the relevant factual and procedural background is as 

follows. On March 16, 1989, an inspector of the Department of Labor's 

Mine Safety and Health Administration ( 11MSHA11 ) issued to UP&L at its 

Cottonwood underground coal mine a citation containing significant and 

substantial and unwarrantable failure findings made pursuant to section 

104(d)(l) of the Mine Act, 30 U.S.C. § 814(d)(l). With this citation as 

. (B) the applicant shows that there is 

substantial likelihood that the findings of the 

Commission will be favorable to the applicant; and 

(C) such relief will not adversely affect 

the health and safety of miners. 

No temporary relief shall be granted in the case of 

·a citation issued under subsection (a) or (f) of 

section [104] of this [Act]. The Commission shall 

provide a procedure for expedited consideration of 

applications for temporary relief under this 

paragraph. 

30 u.s.c. § 815(b)(2). 

Commission Procedural Rules 45 and 46 implement section 105(b)(2) 

of the Act and state: 

45 Procedure. 

(a) When to file. An application for temporary 

relief may be filed at any time before the issuance 

of a final order in the proceeding to which the 

application relates. 

(b) Statements in opposition. The parties opposing 

the application shall file statements in opposition 

within 3 days after rec~ipt of the application. 

(c) Prior hearing required. Temporary relief shall 

not be granted prior to a hearing. 

46 Contents of application. 

(a) An application for temporary relief shall 

contain: (1) A statement of the specific relief 

requested; (2) a showing of substantial likelihood 

that the findings and decision of the Judge or the 

Commission in the matters to which the application 

relates will be favorable to the applicant; and 

(3) a showing that such relief will not adversely 

affect the health and safety of miners in the 

affected mine. 

(b) An application for temporary relief may be 

supported by affidavits or other evidentiary matter. 

29 C.F.R. §§ 2700.45 & .46. 

954 
a predicate, MSHA issued a section 104(d)(l) order of withdrawal at the 

same mine on March 20, ·1989. The order alleges that UP&L violated 30 

C.F.R. § 75.400, a mandatory safety standard dealing with accumulation 

of combustibles, and also charges that the violation was significant and 

substantial and re~ulted from UP&L's unwarrantable failure to comply 

with the standard. The order was terminated within an hour of issuance 

upon UP&L's abatement of the alleged violative conditions. In separate 

proceedings, UP&L challenged both alleged violations. The two 

proceedings were assigned to Commission Administrative Law Judge John J. 

Morris. 

In an expedited decision issued on April 12, 1989, Judge Morris 

vacated the special finding of unwarrantable failure contained in the 

March 16 citation, and modified the citation to one issued pursuant to 

section 104(a) of the Mine Act, 30 U.S.C. § 814(a). Utah Power. and 

Light Co., 11 FMSHRC 586 (April 1989)(ALJ). Neither party sought review 

of that decision. In an expedited decision issued on April 24, 1989, 

Judge Morris upheld the cited violation and the validity of the March 20 

section 104(d)(l) withdrawal order. 11 FMSHRC 710 (April 1989)(ALJ). 

The April 24 decision makes no reference to the judge's modification of 

the March 16 citation in his earlier decision. 

UP&L filed its Application for Temporary Relief with the 

Commission on May 12, 1989. The Secretary filed an Opposition to UP&L's 

Application for Temporary Relief and we permitted UP&L to file a Reply 

to the Secretary's Opposition. UP&L also petitioned the Commission for 

discretionary review of the judge's decision challenging, inter alia, 

the judge's upholding of the special finding of unwarrantable failure. 

On June 2, 1989, we granted UP&L's petition for discretionary review. 

In its Application for Temporary Relief, UP&L specifically seeks 

relief from the finding of unwarrantable failure set forth in the 

March 20 citation. It argues that, because the judge's decision leaves 

intact the finding of unwarrantable failure, the Cottonwood mine is 

exposed to closure under the section 104(d) "chain" in the event that 

unwarrantable failure allegations are made in subsequent anf orcement 

actions taken by the Secretary pending Commission review of the judge's 

April 24 decision. Both UP&L and the Secretary agree that, because of 

the judge's modification of the March 16 predicate citation, the section 

104(d)(l) order in this matter. should be deemed to be modified by 

operation of law to a citation. UP&L App. 4-5; S. Opp. 3-4. See 

Consolidation Coal Co., 4 FMSHRC 1791, 1794-96 (October 1982). The 

Secretary argues in opposition that the express language of section 

105(b)(2) of the Mine Act provides for temporary relief only from orders 

issued pursuant to section 104 and, because the order was modified to a 

citation by operation of law, the Commission lacks jurisdiction to grant 

the temporary relief requested. Further, the Secretary asserts that 

relief under section 105(b)(2) is obtainable only from unabated 

withdrawal orders and the order in this case was abated within an hour 

of its issuance. In reply, UP&L contends that the plain language of 

section 105(b)(2) also provides for relief from modifications of orders 

issued under section 104, which UP&L claims is the case here. UP&L also 

argues that only citations issued under subsections (a) and (f) of 

section 104 are expressly excluded from temporary relief under the 

955 
language of section 105(b)(2). According to UP&L, because the 

enforcement action presently at issue is a "section 104(d)(l) citation," 

resulting from the modification of the original section 104(d)(l) order, 

temporary relief is not precluded by the terms of section 105(b)(2). 

We conclude that the plain language of section 105(b)(2) requires 

denial of UP&L's Application. Section 105(b)(2) sets forth the 

conditions under which temporary relief may be granted under the Act and 

Collllllission Procedural Rules 45 and 46 merely implement this statutory 

prov1s1on. Section 105(b)(2) of the Act provides for temporary relief 

from "any modification or termination of any order or from any order 

issued under section [104]" of the Act, and specifically states that 

"[n]o temporary relief shall be granted in the case of a citation issued 

under subsection (a) .•. of section [104]" of the Act. The legislative 

history of section 105(b)(2) 1 s nearly identical predecessor provision in 

the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801 et 

seq. (1976)(amended 1977) ("1969 Coal Act"), indicates that Congress -

intended, as the language of the Mine Act and the 1969 Coal Act clearly 

reflects, that temporary relief lie only from withdrawal orders, not 

from citations or from the equivalent "notices of violation" under the 

1969 Coal.Act. See Senate Subcommittee on Labor, Committee on Labor and 

Public Welfare, 94th Cong. 1st Sess., 1 Legislative History of the 

Federal Coal Mine Health and Safety Act of 1969, at 1603 (1975) ("1969 

Coal Act Legis. Hist."). We recently made clear in denying a request 

for section 105(b)(2) temporary relief that such relief applies only to 

orders of withdrawal issued under section 104 of the Act. Pennsylvania 

Electric Co., Docket No. PENN 88-227, Order at 1-2 (May 8, 1989). 

Moreover, the enforcement action in question is, contrary to 

UP&L's characterization, a citation issued pursuant to the authority of 

section 104(a) of the Act. As such, it is expressly excluded from the 

reach of temporary relief. As discussed below, the collllllonly used phrase 

"section 104(d)(l) citation" is merely a term of convenience and does 

not indicate a separate basis for issuance of citations.independent from 

section 104(a). 

Section 104(a) is the source of the Secretary's power to issue 

citations for alleged violations of the Act. See, ~' Nacco Mining 

Co., 9 FMSHRC 1541, 1545 & n. 6 (September 1987); Consolidation Coal 

Co., 6 FMSHRC 189, 191-92 (February 1984). Section 104(d)(l) states 

that if an authorized representative of the Secretary finds that there 

has been a violation of any mandatory health or safety standard and "if 

he also finds that, while the conditions created by such violation do 

not cause imminent danger, such violation is of such nature as could 

significantly and substantially contribute to the cause and effect of a 

coal or other mine safety or health hazard, and if he finds such 

violation to be caused by an unwarrantable failure of such operator to 

comply with such mandatory health or safety standards, he shall include 

such finding in any citation given to the operator under the Act." 

(Emphasis added). Thus, the statutory language makes clear that 

"significant and substantial" and "unwarrantable failure" determinations 

by MSHA inspectors constitute special findings that are "includ[ed]" in 

any citation issued under the authority otherwise conferred upon the 

Secretary by the Act. 

956 
This view of the Act is reinforced by the legislative history of 

section. 104(a) 1 s predecessor provisions in the 1969 Coal Act, in which a 

key House Committee report explained that when a "representative [of the 

Secretary] finds a violation of a standard and further finds that the 

violation is caused by an unwarrantable failure on the part of the 

operator in complying with the particular standard, he includes such 

additional finding in the notice [of violation] issued under subsection (b)" [section 104(b) of the 1969 Coal Act essentially now is 

section 104(a) of the Mine Act]. H. Rep. No. 653, 91st Cong. 1st 

Sess. 8 (1969), reprinted in 1969 Coal Act Legis. Hist. 1038. This 

relationship between citations issued pursuant to section 104(a) and the 

special findings provided for in section 104(d) was also discussed in 

Consolidation Coal, supra, 6 FMSHRC at 191-92, in which we approved the 

inclusion of significant and substantial findings in a citation issued 

under section 104(a). Finally, in~' supra, we expressly referred 

to a "citation issued with sectiOn 104(d) findings" and explained that 

the term "section 104(d) citation" was used for convenience to 

distinguish it from a section 104(a) citation not containing such 

findings. 9 FMSHRC at 1545 n.6. 

957 
Accordingly, we hold that the citation from which temporary relief 

is sought by UP&L is a section 104(a) citation with special findings and 

as such is not within the purview of section 105(b)(2) relief. 

Accordingly, UP&L's Application for Temporary Relief is denied. ~/ 

~ 

Richard 

~~L~,,_/~~ V. Backley, Connnissioner 

&~e.ifmni~ 

L. Clair Nelson, Connnissioner 

~/ UP&L also argues that it may seek relief from the modification, by 

operation of law, of the original section 104(d)(l) order to a citation 

containing special findings. We disagree. This modification operated 

to UP&L's benefit, not harm. Therefore, the need to consider temporary 

relief from an order that is no longer extant is not apparent. Further, 

we express no opinion as to the Secretary's alternative assertion that 

temporary relief may be obtained only from unabated orders. Similarly, 

we intimate no view at this time as to whether temporary relief may lie 

from the effect of special findings contained in section 104(d) orders. 

958 
Distribution 

Timothy M. Biddle, Esq. 

Thomas C. Means, Esq. 

Susan E. Chetlin, Esq. 

Crowell & Moring 

1001 Pennsylvania Ave., N.W. 

Washington, D. C. 20.004 

Dennis D. Clark, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Administrative Law Judge John Morris 

Federal Mine Safety & Health Review Commission 

280 Colonnade Center 

1244 Speer Blvd. 

Denver, Colorado 80204 

959 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 15, 1989 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), on behalf 

of JERRY DALE ALESHIRE, et al. 

v. 

WESTMORELAND COAL COMPANY 

Docket No. WEVA 84-344-D 

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

Commissioners. 

DECISION 

BY THE COMMISSION: 

This is a discrimination proceeding brought under section lOS(c) 

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

seq. (1982) (the "Mine Act") by the Secretary of Labor ( 11Secretary11 ) 

on behalf of Jerry Dale Aleshire and six other miners (the 11 complainants 11 ). !/ The issue presented is whether individuals who 

obtain safety training while on layoff, on their own time and at their 

own expense, are entitled to be compensated for their time and 

!/ Section lOS(c) provides in pertinent part: 

(1) No person shall discharge or in any manner 

discriminate against or cause to be discharged or 

cause discrimination against or otherwise interfere 

with the exercise of the statutory rights of any 

miner, representative of miners or applicant for 

employment in any coal or other mine subject to this 

Act because ••• of the exercise by such miner, 

representative of miners or applicant for employment 

on behalf of himself or others of any statutory 

right afforded by this [Act.] 

30 u.s.c. § 815. 

960 
reimbursed for their expenses by the operator after being rehired. 

The Secretary contends that Westmoreland Coal Company 

("Westmoreland") violated section 115 of the Mine Act by refusing to 

compensate complainants for the time spent in obtaining the training and 

by refusing to reimburse them for out-of-pocket costs incurred. ~/ 

Conunission Administrative Law Judge James Broderick concluded that laidoff individuals are not "miners" entitled to the training rights of 

section 115 of the Act, and, therefore, that the complainants are not 

entitled to compensation or reimbursement from Westmoreland for the time 

and expense of such training. 10 FMSHRC 653 (May 1988)(ALJ). For the 

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

The facts are not in dispute. On December 17, 1982, the seven 

complainants were laid off from their surface mining jobs at 

Westmoreland's Ferrell Mine Complex in Boone County, West Virginia. All 

of the complainants had been employed at the mine in surface positions 

for three or more years prior to December 17, 1982. Each had previously 

worked underground prior to working on the surface but, because of the 

length of time they had worked as surface miners, six of the seven 

needed MSHA-approved underground new miner training before they could 

~/ Section 115 of the Mine Act, 30 U.S.C. § 815, requires mine 

operators to establish a health and safety training program for every 

"miner," which term is defined in section 3(g) of the Act, 30 U.S.C. 

§ 802(g), as "any individual working in a coal or other mine." Under 

section 115(a) "new miners ... shall receive no less than 40 hours of 

training if they are to work underground." 30 U.S.C. § 815(a). In 

addition, section 115(b), 30 U.S.C. § 815(b), provides: 

Any health and safety training provided under 

subsection (a) .•• shall be provided during normal 

working hours. Miners shall be paid at their normal 

rate of compensation while they take such training, 

and new miners shall be paid at their starting rate 

when they take the new miner training. If such 

training shall be given at a location other than the 

normal place of work, miners shall also be 

compensated for the additional costs they may incur 

in attending such training sessions. 

The Secretary has promulgated training and retraining regulations 

implementing the requirements of section 115. 30 C.F.R. Part 48. 30 

C.F.R. § 48.2(c) defines a "new miner" as "a person who is not an . 

experienced miner." 30 C.F.R. § 48.2(b) in part defines an "experienced 

miner" as "a person.who is employed as an underground miner on the 

effective date of these rules, or a person who has had at least 12 

months experience working in an underground mine during the preceding 3 

years ••• " The regulations describe the requisite training for each 

type of miner. A new miner working underground may not assume his or 

her duties until receiving 40 hours of training. 30 C.F.R. § 48.5(a). 

The regulations do not refer to laid-off miners or to applicants for 

underground mine employment. 

961 
again work underground. Because the seventh was an experienced 

underground miner on October 13, 1978, when 30 C.F.R. Part 48 became 

effective, he did not need new miner training to work underground again. 

After the complainants were laid off, at least one of them 

attended a union meeting where a representative of Westmoreland stated 

that laid off miners might improve their chances for recall if they were 

to obtain underground new miner training at their own expense while they 

were laid off. In May and June 1983, the complainants obtained the 

training at the Boone County Career and Technical Center. The 

complainants' training was paid for by the Boone County Board of 

Education except for two of the complainants, each of whom claims to 

have paid $20. 

At the time the complainants were trained, Westmoreland and the 

United Mine Workers of America (UMWA) were parties to the National 

Bituminous Coal Wage Agreement of 1981 (the "Agreement"). Under terms 

of the Agreement, miners were to be recalled to work in order of 

seniority -- seniority being defined in the Agreement as "length of 

service and the ability to step into and perform the work of the job at 

the time the job is awarded." Stip. 7. The complainants were recalled 

to work in underground positions on October 21, 1983. They would not 

have been recalled had they not obtained the underground new miner 

training. After they were rehired, they sought reimbursement from 

Westmoreland for the cost of the training and compensation for their 

time. 

When Westmoreland refused to compensate or reimburse them, the 

complainants filed a complaint with the Secretary's Mine Safety and 

Health Administration ("MSHA") alleging that Westmoreland had 

discriminated against them in violation of section 105(c) of the Act by 

not providing the training and not compensating them for the time and 

expense of obtaining it themselves. Subsequently, the Secretary filed a 

complaint of discrimination on the complainants' behalf with the 

Commission, making the same allegations and requesting that Westmoreland 

be ordered to compensate the complainants for the time they had spent in 

obtaining the training and to reimburse those of the complainants who 

had incurred costs. The Secretary also requested that Westmoreland be 

required to pay interest to the complainants and be assessed a civil 

penalty for violating section 105(c). 

Both the Secretary and Westmoreland moved for summary decision. 

Because section 115 requires operators to provide training to "miners" 

and to pay "miners" at their normal rates of compensation while taking 

such training, the judge focused first upon the question of whether or 

not the complainants were "miners" when they ·obtained the training. The 

judge noted that the Commission had concluded in Emery Mining Corp., 

5 FMSHRC 1391, 1396-97 (August 1983), rev'd sub nom. Emery Mining Corp. 

v. Secretary of Labor, 783 F.2d 155 (10th Cir. 1986), that an operator 

may not refuse to compensate new miners for training undertaken on their 

own but relied on by the operator to satisfy MSHA training requirements. 

He further noted, however, that the United States Court of Appeals for 

the Tenth Circuit reversed the Commission, holding that such individuals 

were not "miners" at the time they undertook their prehire training and 

962 
thus were not covere~ by section 115's requirement for operator paid 

training. 

The judge rurther observed that, prior to the Tenth Circuit's 

decision in Emery the Commission in Peabody Coal Company, 7 FMSHRC 1357 

(September 1985) and Jim Walter Resources, 7 FMSHRC 1348 (September 

1985), aff'd sub nom. Brock v. Peabody Coal Co., 822 F.2d 1134 (D.C. 

Cir. 1987), held that: (1) an operator's policy requiring laid-off 

miners to obtain statutorily-mandated new miner training on their own 

prior to rehire does not violate section 115 of the Act because laid-off 

individuals are not "miners" protected under section 115 until they are 

rehired; and (2) an operator who relies on the prehire training of those 

whom it rehires to satisfy its statutory training obligations with 

respect to "new miners" is required by section 115 of the Act to 

reimburse the rehired miners for the expenses of their training. 

10 FMSHRC at 657. The judge noted that the United States Court of 

Appeals for the District of Columbia Circuit upheld the Commission's 

determination in Peabody and Jim Walter that the laid-off individuals 

were not "miners" entitled to training under section 115 of the Act, 

even though they might have been contractually entitled to reemployment 

under a collective bargaining agreement. The judge also noted that the 

compensation aspect of the issue now before us was not before the court 

for resolution. Id. 11 

The judge concluded that nothing required him to go beyond the 

Mine Act and its legislative history to determine whether individuals 

recalled from layoff are entitled to compensation for section 115 

training. He held that individuals on layoff are not "miners" for whom 

an operator is required to provide health and safety training, nor are 

they entitled to compensation for the time and reimbursement for the 

expense of training taken on their own. 10 FMSHRC at 658. 

We granted the Secretary's petition for discretionary review. The 

Secretary asserts that the judge erred in concluding that the 

complainants were not entitled to compensation for the time and 

reimbursement for the expens~s of their training and she argues that the 

Commission's decisions in Peabody and Jim Walter resolve the issue. 

Westmoreland responds that the rationale of the Tenth Circuit's decision 

in Emery applies to miners rehired from layoff as well as to newly hired 

miners. We agree with Westmoreland. 

Section 115 grants training rights to "new miners" and "miners." 

As noted, the Commission has held that because job applicants and 

individuals on layoff who obtain training prior to hire are not 

"miners," as defined by section 3(g) of the Act, they have no statutory 

right to training. Emery, 5 FMSHRC at 1395-96; Peabody, 7 FMSHRC at 

1363; Jim Walter, 7 FMSHRC at 1354. This holding has been upheld by the 

courts. Emery, 783 F.2d at 158-159; Peabody, 822 F.2d at 1148-1149. 

11 In Peabody the operator compensated the rehired miners for the 

training they obtained on their own. In Jim Walter, the operator did 

not appeal the Commission's compensation order. See Brock v. Peabody 

Coal Co., supra, 822 F.2d at 1136 n.3. 

963 
As the judge noted, the Tenth Circuit rejected the Commission's 

conclusion that an operator who relies upon the prehire training of 

newly hired miners to satisfy its statutory training obligations must 

reimburse the miners for their training expenses. In deciding whether 

newly hired miners are entitled to compensation, the Tenth Circuit found 

their status at the time they were trained to be conclusive. If they 

are not "miners" when they take the training they are not entitled to 

compensation from the operator: "[n]othing in the Act or the legislative 

history suggests that a new employee must be paid wages and expenses for 

the time spent in a course he voluntarily took prior to the time he was 

employed." Emery, 783 F.2d at 159. 

The Secretary would have us distinguish the Tenth Circuit's 

decision in Emery on the basis that the complainants in this case, 

unlike the newly hired miners in Emery, have had "an established 

relationship with Westmoreland" through their contractual recall rights 

under the Agreement. Sec. Pet. for Discretionary Review at 6. The 

Commission has previously rejected similar arguments. The Commission 

stated in Peabody and Jim Walter that the Mine Act is a health and 

safety statute, not an employment statute. 7 FMSHRC at 1364; 7 FMSHRC 

at 1354. ·As the D.C. Circuit stated, "[w]e certainly cannot infer from 

the Act that Congress intended privately-bargained contracts to 

determine who is and who is not entitled to receive section 115 

training •••• [I]t would be peculiar in the extreme for us to import a 

contractual criterion to determine who is entitled to training when the 

Congress has explicitly considered the question and decreed a statutory 

criterion." Peabody, 822 F.2d at 1148. The court added that "an 

individual is not a 'miner' who can claim a training right under section 

115(a) unless he or she is employed in a mine." Peabody, 822 F.2d at 

1149 (footnote omitted). We therefore find no persuasive basis upon 

which to distinguish this case from the Tenth Circuit's decision in 

Emery and in the absence of contrary judicial precedent we will follow 

that decision. 

964 
Accordingly, we hold that because the claimants were not "miners" 

under the Act at the time they undertook training, they were not granted 

training rights by section 115 and were not entitled to be compensated 

by Westmoreland for such training. We therefore affirm the decision of 

the judge. 

~~;~4; . -~ ~-t-~ 

Distribution 

F. Thomas Rubenstein, Esq. 

Westmoreland Coal Company 

P.O. Drawer A & B 

Big Stone Gap, Virginia 24219 

Thomas C. Means, Esq. 

Crowell & Moring 

1001 Pennsylvania Ave., N.W. 

Washington, D.C. 20004 

Dennis D. Clark, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Mary Lu Jordan, Esq. 

UMWA 

900 15th St., N.W. 

Washington, D.C. 20005 

Richard V. Backley, Commissioner 

<ls;:1!Toy1(~l!:tt6= 

James A. Lastowka, Commissioner 

@~ '7Uc~'-1v L. Clair Nelson, Commissioner 

Administrative Law Judge James A. Broderick 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

965 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

CONSOLIDATION COAL COMPANY 

June 27, 1989 

Docket No. VA 87-27 

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

Commissioners 

DECISION 

BY: Ford, Chairman; Backley, Doyle and Nelson, Commissioners 

In this civil penalty proceeding arising under the Federal Mine 

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

Act"), the issue before us is whether Consolidation Coal Company 

("Consol") violated 30 C.F.R. § 50.20(a),a standard that requires 

reporting lost work days resulting from occupational injuries. l/ In 

ll 30 C.F.R. § 50.20(a) states in part: 

Each operator shall maintain at the mine off ice a 

supply of MSHA Mine Accident, Injury, and Illness 

Report Form 7000-1 ••.• Each operator shall report 

each accident, occupational injury, or occupational 

illness at the mine. The principal officer in 

charge of health and safety at the mine or the 

supervisor of the mine area in which an accident or 

occupational injury occurs, or an occupational 

illness may have originated, shall complete or 

review the form in accordance with the instructions 

and criteria in§§ 50.20-1 through 50.20-7 •••• The 

operator shall mail completed forms to MSHA within 

10 working days after an accident or occupational 

injury occurs or an occupational illness is 

966 
lieu of a hearing, the parties submitted the case for decision on the 

basis of the written record. Commission Administrative Law Judge James 

A. Broderick granted the Secretary's motion for summary decision, 

holding that Consol violated the standard. The judge assessed a civil 

penalty of $200. 10 FMSHRC 560 (April 1988)(ALJ). We granted Consol's 

petition for discretionary review. Because we hold that substantial 

evidence does not support the judge's finding of a violation, we 

reverse. 

Consol owns and operates the Buchanan No. 1 mine, an underground 

coal mine located on Keen Mountain, Buchanan County, Virginia. Timothy 

Smith, the miner whose injury gave rise to the allegation of violation, 

had been employed at the mine since June 24, 1986, as a general inside 

laborer on the midnight to 8 a.m. shift. Smith's usual duties included 

building cribbing, loading conveyor belts, shoveling belts and loading 

cable. ~/ At about 1:45 a.m., on the morning of August 25, 1986, Smith 

was setting timbers for cribbing in the 2 West left return when his 

right hand was caught between two timbers. Smith's fellow worker 

escorted him to the service shaft where he was met by the shift foreman, 

who took him to the surface. After observing that Smith's hand was 

swollen and the nail on the right thumb was smashed, the foreman ordered 

that Smith be driven to Buchanan General Hospital in Grundy, Virginia, a 

distance of 15 or 20 miles, requiring about 30 minutes' travel time. 

At the hospital, Smith was examined by Dr. Yusuf Chanbhry, whose 

report listed the injury as a "Fracture (R) Hand 5th Finger." JX-4. 

The report also stated that Smith could return to "light work" by 

September 1, 1986, and to "regular work" on September 15, 1986. Id. 

The doctor placed a splint on the finger and referred Smith to an 

orthopedist, Dr. L. Bendigo, in Richlands, Virginia. 

Smith was driven from the hospital back to the mine, arr1v1ng 

there shortly before 5 a.m., and was told by the shift foreman that he 

could go home. Smith, however, had to wait until the end of the shift 

for a ride home. Smith left the mine at about 8:45 a.m., and arrived at 

his home in North Tazwell, Virginia, at about 9:30 a.m. He then 

telephoned Dr. Bendigo's office, obtained a 2:00 p.m. appointment, and 

was told to get an x-ray by 1:00 p.m. 

diagnosed. 

30 C.F.R. § 50.2(e) defines "occupational injury" as: 

[A]ny injury to a miner which occurs at a mine for 

which medical treatment is administered, or which 

results in death or loss of consciousness, inability 

to perform all job duties on any day after an 

injury, temporary assignment to other duties, or 

transfer to another job. 

~/ The facts relevant to Smith's 1nJury and subsequent absence from 

work are based, except as indicated, upon Smith's deposition testimony 

under questioning by counsel for the Secretary. 

967 
Smith slept for "a few hours," got up about noon, and made the 

30 minute drive to Richlands, Virginia, for an x-ray, after which he was 

seen by Dr. Bendigo, at about 3:00 p.m. Dr. Bendigo's report diagnosed 

the injury as a fracture of the right 5th finger and subungual hematoma 

of the right thumb. JX-4. Dr. Bendigo aspirated the thumb, drilling 

two small holes in the nail to relieve the discomfort, and fitted a hard 

cast to the palm of Smith's hand and arm. The cast covered Smith's 

third and fourth fingers, extending from the base of the thumb up the 

right arm to within about three inches of the elbow. Smith was also 

fitted with an arm sling and given a prescription for an analgesic, 

which he had filled that same afternoon. Smith took only two of the 

tablets, and never returned to the doctor, removing the cast himself 

several weeks later. 

Smith arrived home about 5:00 p.m. and ate dinner "around 6:00 or 

7:00 p.m." Dep. 19. He stated that he normally left home for work "a 

little after 10:00 p.m., and would arrive at the mine "around 11:00 or 

about 15 after 11:00." Dep. 20. Smith stated that because he "hadn't 

been in bed very much" he decided, while eating dinner, that he would 

just call in and tell them I wouldn't be in." Dep. 19. 3/ When Smith 

was unable to reach Roy Duty, the shift foreman, at Duty1 s home, to 

advise him that he would not be coming to work, he called utility 

foreman Kenny Maxfield at home, telling him he wouldn't be in to work 

that night. Maxfield replied: "O.K." Dep. 20. Smith testified that 

he gave no explanation to Maxfield as to why he would not work his shift 

telling Maxfield that he "was going to take a Consol day." Smith did 

not offer Maxfield any further explanation because "I didn't think there 

was any need to, because they said we could take two days when we wanted 

them." !!_/ Dep. 23. 

Smith explained why he decided to take a "Consol day" in the 

following exchange with counsel for the Secretary: 

Q. Why did you decide to take a Consol day? 

Why didn't you go to work that night? 

}/ In response to questioning by counsel for the operator, Smith 

stated he normally got about seven hours sleep between shifts, but on 

the evening in question, while eating dinner, he had decided "I was 

comfortable at home, and decided I'd stay there." Dep. 38. 

!!_/ Smith described a "Consol day" as two days per year given to 

employees, in addition to other holiday or vacation days, to be taken by 

an employee as desired, for any personal reason, including illness, 

subject only to the personnel requirements of Consol for the particular 

shift missed. Dep. 21-26, 36-38. Mine Superintendent Joseph Amar, in 

his Affidavit, described "Consol days" as two paid days per calendar· 

year, taken at the discretion and prerogative of the employee that can 

be requested at any time by the employee, subject to the "sufficiency of 

manpower that exists on the shift the employee expects to miss." Amar 

stated that there is no requirement that the request be in writing or 

that it be submitted "within a certain amount of time prior to an 

employee's request." Affidavit 1-2. 

968 
Dep. 22. 

A. Well, I hadn't had much sleep, and I just 

felt like, you know -- I don't like working, without 

having the amount of sleep that I like to have. 

Q. Did you feel that you could safely work? 

A. Yeah. I could have worked. I mean I've 

went in to work with a lot less sleep. 

On his return to work the next day, Smith told Roy Duty that he 

had not had much sleep and since he had two days that he had to use 

sometime, he had decided to take the day off. When asked by Duty if he 

could have come to work, Smith replied, "Yes." Dep. 23, 31. 

On September 2, 1986, Consol's mine safety inspector, Richard 

French, filed with MSHA a Mine Accident, Injury and Illness Report Form 

7000-1, reporting Smith's occupational injury. The form indicated "O" 

as the "Number of Days Away from work" after the injury. 5/ As 

required, a copy of the form was kept at the mine office. See 30 C.F.R. 

§ 50.20-1; JX-2. 

During April 1987, MSHA Inspectors Kenneth Shortridge and Ronald 

Blankenship conducted an audit at the Buchanan No. 1 mine of all the 

Forms 7000-1 filed by Consol in order to review Consol's compliance with 

Part 50. In reviewing the form filed for Smith's accident, Shortridge 

noticed that Smith had not worked the shift following the injury. 

Shortridge stated that when he asked why Smith did not work on the shift 

following the inJury, he was told that Smith "hadn't had his sleep" and 

had asked for and was granted the next day off. Dep. 21. £/ 

21 30 C.F.R. §§ 50.20-1 through 50.20-7 list the instructions and 

criteria for completing MSHA Form 7000-1. With regard to Item 30 on 

Form 7000-1, number of days away from work, section 50.20-7(c) states: 

Item 30. Number of days away from work. Enter 

the number of workdays, consecutive or not, on which 

the miner would have worked but could not because of 

occupational injury or occupational illness. The 

number of days away from work shall not include the 

day of injury or onset of illness or any days on 

which the miner would not have worked even though 

able to work. If an employee loses a day from work 

solely because of the unavailability of professional 

medical personnel for initial observation or 

treatment and not as a direct consequence of the 

injury or illness, the day should not be counted as 

a day away from work. 

£/ Under questioning by counsel for Consol, Shortridge stated that he 

had not interviewed Smith at the time of the audit and had not talked 

with him since that time. Dep. 10. Shortridge also stated he had not 

969 
In December 1986, MSHA had issued instructional guidelines for 

completing_ MSHA Form 7000-1. Zf The 1986 guideliries replaced guidelines 

issued by MSHA in 1980. Shortridge stated that he used the 1986 

guidelines in conducting the Part 50 audit at the mine. Dep. 12. 

Shortridge also stated that, as he interpreted the 1986 guidelines for 

determining the number of days away from work, only if an employee had 

"pre-arranged" a day off prior to the occurrence of an injury could the 

employee's absence not be counted as a lost-time accident. Id. ~/ 

reviewed any of the medical reports on Smith's injury. 

Zf The 1986 instructional guidelines are contained in MSHA Report on 

30 C.F.R. Part 50. The guidelines for determining the number of lost 

workdays to be indicated in Item 30 of form 7000-1 state: 

Item 30: Enter the number of workdays, consecutive 

or not, that the employee would have worked but 

could not because of the occupational injury or 

illness. The number of days away from work should 

not include the day of injury or onset of illness or 

any days that the employee would not have worked 

even though able to work. If an employee loses a 

day from work solely because of the unavailability 

of professional medical personnel for initial 

observation or treatment and not as a direct 

consequence of the injury or illness, the day should 

not be counted as a day away from work. If an 

employee, who is scheduled to work Monday through 

Friday, is injured on Friday and returns to work on 

Monday, the case does not involve any "Days Away 

From Work" even if the employee was unable to work 

on Saturday or Sunday. If this same employee had 

been scheduled to work on Saturday, even if that 

Saturday constituted overtime, the Saturday would be 

counted in the "Days Away From Work", and the case 

would be classified as Lost Workday Case. [An 

injured or ill employee cannot avoid accumulating 

lost workdays by being placed on vacation or 

personal leave. If the employee had been scheduled 

to work, the days the employee lost due to his or 

her injury or illness would be counted as lost 

workdays.] Do not include in the lost workday count 

holidays or any days on which the mine was not 

operating for any reasons. 

(Emphasis in original). JX-7, p.7. The two sentences within the 

brackets were not contained in the 1980 guidelines. The rest of the 

paragraph is essentially the same. 

'E..f The 1986 guidelines also state that "If the employee had been 

scheduled to work, the days the employee lost due to his or her injury 

•.. would be counted as lost workdays." The preceding sentence states 

that an injured employee "cannot avoid accumulating lost work days by 

being placed on vacation or personal leave." This restriction has no 

970 
Based on his conversations with Consol's management and his 

interpretation of the guidelines, Shortridge concluded that Smith's 

accident and consequent loss of sleep "indirectly" caused him to miss a 

d~y' s work. Dep·. 21-22. Therefore, Shortridge issued to Consol a 

citation charging a violation of section 50.20(a), which states: 

An inaccurate mine accident, injury and illness 

report, Form 7000-1 was submitted to MSHA concerning 

an accident on 8/25/86 that injured Timothy W. Smith 

which resulted in one lost workday. The accident 

was reported as no lost workdays. 

This citation was issued as the result of a Part 50 

audit. 

In support of her motion for summary decision, the Secretary 

argued that Smith's absence was caused by his lack of sleep due to the 

time spent seeking medical treatment for his injury and that his absence 

was required to be reported as a lost workday. Br. 9. Consol contended 

that Smith's decision not to work was entirely voluntary. 

The judge upheld the violation, finding that, as a result of a 

significant injury to his hand, Smith had to receive initial and 

specialized medical treatment which resulted in his being awake "during 

nearly all of the period he usually slept." 9 FMSHRC at 563. The judge 

found Smith's opinion that he could have worked, but chose not to do so, 

"of some significance" but "not conclusive." Id. He further found "not 

determinative, or even relevant," the fact thatboth Smith and Consol 

regarded the day off as a "Consol day." Id. The judge concluded that 

"the lost work day resulted from a loss of s1eep, which resulted from 

the necessary medical care which resulted from the injury," and that it 

should have been reported as a day away from work because of the injury. 

Id. 

On review, Consol argues that Smith's decision not to work was 

entirely voluntary and uninfluenced by management, and that his 

testimony demonstrates that he was able to work the next shift had he so 

desired. The Secretary argues that the judge's decision is supported by 

substantial evidence of record and that Consol violated section 50.20 by 

failing to report Smith's absence as a lost workday. 

Section 50.20(a) requires each operator to "report each accident 

[or] occupational injury at the mine ... in accordance with the 

instructions and criteria of§§ 50.20-1 through 50.20-7." Section 

50.20-7(c) requires the operator to "[e]nter the number of workdays 

on which the miner would have worked but could not because of 

bearing on the "direct consequence" relationship that must be 

established between an injury and a lost workday (see p.7 infra)~ but we 

note that it might cloud .the issues in this case if read in isolation. 

In any event, we need not consider in this case the effect of this 

restriction on lost work days reporting since the challenged report by 

Consol was made and submitted several months before the 1986 guidelines 

were issued. 

971 
occupational.injury." Thus, the question before the judge was whether 

Smith's absence from work on the day following the injury constituted a 

day away from work because of the occupational injury. The judge 

concluded that it was. The question before us on review is whether 

substantial evidence supports this conclusion. 

In resolving the question, we first look to the language of the 

Secretary's regulations to determine what constitutes a "lost workday" 

reportable on MSHA Form 7000-1. 30 C.F.R. § 50.1 explains that the 

purpose of requiring operators to maintain and file with MSHA reports of 

occupational injuries is to implement MSHA's authority "to investigate 

and to obtain and utilize information pertaining to accidents, injuries 

and illness occurring or originating in mines." Specifically as to 

"days away from work," section 50.1 states: "MSHA will develop data 

respecting injury severity using days away from work activity .•• as 

criteria." Under section 50.20-7(c), an operator is required to report 

as "days away from work" the number of workdays on which the miner 

"would have worked but could not because of occupational injury." The 

last sentence of section 50.20-7(c) provides that a lost workday should 

not be counted if it is.not "a direct consequence of the injury or 

illness" and specifically excludes days lost solely because of the 

unavailability of medical personnel for initial observation or . 

treatment. This exclusion recognizes that the unavailability of medical 

treatment is not a "direct consequence" of an injury and that it does 

not reflect the severity of the injury involved, MSHA's stated concern 

under this regulation. In other words, MSHA recognizes that other 

factors may result in lost work days, apart from the severity of the 

injury. Similarly, where, as here, the scheduling of medical treatment 

results in loss of sleep, such an event bears no relationship to the 

severity of the injury involved and is tantamount to another form of 

unavailability of medical treatment. 

The Secretary's instructional guidelines also empha.size that there 

must be a direct cause and effect relationship between the "days away 

from work" reported under Item 30, and the inability of the injured 

miner to work as the result of an occupational injury. Under both the 

1980 and 1986 guidelines, the operator is instructed to "Enter the 

number of work days ••. that the employee would have worked but could 

not because of the occupational injury." (Emphasis in original.) Both 

guidelines reiterate that, if the lost workday is not the "direct 

consequence of the injury or illness, the day should not be counted as a 

day away from work." JX 7, p.7. 

We find no basis either in the Secretary's regulations or 

guidelines to support a conclusion that, absent a direct cause and 

effect relationship between an injury and a lost workday, an employee's 

failure to work_following an injury necessarily constitutes a reportable 

day away from work. Thus, to establish a violation, the Secretary must 

prove that such a connection exists, i.e., that the lost workday is the 

direct consequence of the injured miner's inability to work as the 

result of the injury. In the case at hand, this means that in order to 

establish the alleged violation of section 50.20(a), the Secretary must 

establish that Smith "would have worked but could not because· of 

occupational injury." 30 C.F.R. § 50.20-7(c). 

972 
The judge found a violation of section 50.20(a) based on his 

conclusion that the lost workday resulted from the loss of sleep caused 

by the time and travel involved in receiving necessary medical treatment 

for the injury. 9 FMSHRC at 563. We agree with the judge that Smith's 

injury required treatment that, because of the appointment time, 

resulted in a loss of sleep. We find, however, that the record does not 

support a conclusion that because of the loss of sleep, Smith could not 

work the next day. 

Smith's own words weigh heavily against such a finding. When 

asked by counsel for the Secretary why he decided to take a Consol day 

following the accident, Smith replied that, while he "had not had much 

sleep," he "just didn't feel like going to work that day." Dep. 22, 23. 

When asked by counsel the critical question of whether he could have 

worked safely the day following the accident, Smith replied "Yeah. I 

could have worked" and then voluntarily added "I've went into work with 

a lot less sleep." Dep. 22. In addition, Smith stated that when he was 

later asked by Consol's mine safety inspector Richard French whether he 

could have worked the day following the accident, he answered "yes," and 

when asked by counsel for the Secretary whether he had told management 

personnel that the had been "up all day" and was having "some pain and 

•.. had taken medication," Smith stated that he could not recall having 

said that. Dep. 31, 33-34. 

Smith's unrebutted testimony, rather than establishing that 

because of the injury and related loss of sleep he could not have worked 

the next day, establishes that he considered himself capable of working 

safely. The sole evidence with respect to Smith's loss of sleep and its 

effect on his ability to work the next shift was that of Smith himself. 

A fair summary of his testimony is that although he could have worked, 

he decided that, rather than work, he would use one of the two Consol 

days available to him. Dep. 22. 9/ 

The Mine Act imposes on the Secretary, in a civil penalty 

proceeding, the burden of proving the violation alleged by a 

preponderance of the evidence, and imposes a substantial evidence test 

for Commission review. See 30 U.S.C. § 823(d)(2); Secretary of Labor v. 

Kenny Richardson, 3 FMSHRC 8, 12 n.7 (January 1981). Here, the 

Secretary chose to bring her case, and the judge's decision rests, not 

on the severity of Smith's occupational injury, or the difficulty of 

performing his regularly assigned duties because of that injury, but on 

the loss of sleep incurred in receiving medical treatment as a result of 

the injury. To prove her case, the Secretary was required to establish 

that as the result of his loss of sleep, Smith could not have worked the 

21 Smith testified that he was away from home obtaining medical 

treatment for a total of four to five hours during the thirteen-hour 

period between his arrival home from work and his usual time of 

departure back to the mine sometime after 10:00 p.m. Although he was 

obviously inconvenienced as to his normal routine, had he not decided 

early in the evening to stay home, the actual time available to him for 

rest would not have been significantly less than his usual seven-hour 

period. 

973 
next shift. ·As we have noted, the sole witness on this dispositive 

issue was Smith himself who testified that, although he had not gotten 

his usual amount of sleep, he could have safely worked his next shift, 

and who voluntarily reinforced that opinion by stating he had worked 

previously "with a lot less sleep." If Smith did not mean to say what 

he clearly said, the Secretary had full opportunity while deposing Smith 

to correct the record, but did not do so. Nor do we find any record 

inference or evidence to suggest that Smith's decision not to work, or 

his testimony at deposition, was motivated by concern for his job or by 

any other inducement on the part of management. Having produced no 

probative evidence to overcome Smith's assertions that he could have 

worked despite his loss of sleep, we conclude that the Secretary has 

failed to meet the requisite burden of proof necessary to establish the 

alleged violation. 

The substantial evidence standard of review requires a weighing of 

all probative record evidence and an examination of the fact finder's 

rationale in arriving at the decision. See Universal Camera Corp. v. 

NLRB, 30 U.S. 474 (1951);· Arnold v. Secretary of HEW, 567 F.2d 258, 259 

(4th Cir. 1977). Judges must sufficiently summarize, analyze and weigh 

the relevant testimony of record, and explain their reasons for arriving 

at their decision. See Secretary v. Michael Brunson, 10 FMSHRC 594 (May 

1988), Bjes v. Consolidation Coal Co., 6 FMSHRC 1411 (June 1984), 

Robinette v. United Castle Coal Co., 3 FMSHRC 803 (April 1981). Here, 

the judge summarily dismissed without explanation as "not conclusive" 

Smith's testimony that he could have worked and he ignored Smith's 

statements that he could have worked safely, that he had done so in the 

past on less sleep, and that he had told his shift foreman that he could 

have worked. While the judge found that the lost workday resulted from 

loss of sleep, there is no evidence in this record that Smith's loss of 

sleep prevented him from being able to work safely the day after his 

1nJury. Smith stated unequivocally that he could have worked safely and 

his testimony is the entire evidence of record on this issue. While we 

have previously stated that we do not lightly overturn a judge's factual 

findings and credibility resolutions, neither will we affirm such 

findings if there is no evidence or dubious evidence to support them. 

See~· Krispy Kreme Doughnut Corp. v. NLRB, 732 F.2d 1288, 1293 (6th 

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

(7th Cir. 1980). 

974 
Accordingly, and for the foregoing reasons, we find that the 

judge's decision is not supported by the substantial evidence of record 

and we reverse. 

975 
Commissioner Lastowka, dissenting: 

While performing his duties as a general inside laborer at Consolidation 

Coal Company's Buchanan No. 1 Mine, Timothy Smith suffered a fractured finger 

when his right hand was caught between two timbers being set as roof support. 

Because Smith worked on the midnight to 8:00 a.m. shift, the medical treatment 

necessitated by his injury was administered during. the period of his daily 

routine normally devoted to sleep. As a result, Smith, with notice to Consol, 

stayed home rather than reporting to work for his next scheduled shift. 

My colleagues conclude that the administrative law judge erred in upholding 

the Secretary of Labor's assertion that Consol's failure to report Smith's 

absence as a lost workday resulting from his injury violated the Secretary's 

accident and injury reporting regulations. They conclude that the judge's 

finding that Smith's absence occurred because of his injury is not supported by 

substantial evidence. Instead, they conclude that a "direct cause and effect 

relationship between (the] injury and (the] lost workday" was not established 

by the Secretary. Slip op. at 7. 

I must respectfully disagree. In my opinion, the Secretary's interpretation 

of her regulation concerning the reporting of accidents and injuries is 

reasonable and deserving of weight. Secretary on behalf of Bushnell v. Cannelton 

Industries, 867 F. 2d 1432 (D.C. Cir., 1989). Furthermore, the judge's 

application of the law to the facts not only is supported by substantial 

evidence, but also is eminently sensible. Therefore, the judge's opinion should 

be affirmed. 

The dispute in this case is not over whether Smith suffered an occupational 

injury; Consol duly reported Smith's injury to the Secretary. Instead, the issue 

is whether in reporting the injury Consol accurately represented that the injury 

had not resulted in a lost workday. It seems to me that the material facts 

establish, on their face, that Smith's injury resulted in a lost workday, to 

wit: while performing his job Smith's hand was caught between two timbers; upon 

"observing that Smith's hand was swollen and the nail on the right thumb was 

smashed," Smith's foreman sent him to the hospital (slip op. at 2); Smith's 

injury was diagnosed as a ''Fracture (R) Hand 5th Finger" (Exh. JX-4); the 

hospital report recommended a return to light work in one week and a return to 

regular work in three weeks (Id. ) ; later that same day, Smith's hand was x-rayed 

confirming a fracture of his little finger, his thumbnail was aspirated, his arm 

placed in a cast from his hand to within three inches of the elbow, and pain 

medication prescribed { 10 FMSHRC at 561); since Smith worked the midnight to 8: 00 

a.m. shift this medical treatment was administered during the time of day he 

normally slept; therefore, following his injury Smith stayed home from work for 

one scheduled shif't by invoking his right to a day of personal leave. 10 FMSHRC 

at 562. {Consol does not provide sick leave and Smith had not yet earned any 

vacation time. Id.) 

On these facts, I believe that it certainly was reasonable for the Secretary 

to insist, and for the judge to find, that Consol should have reported Smith's 

absence as a lost workday caused by his accident. The majority concludes 

otherwise, however, and their rationale must therefore be examined. As discussed 

below, I find the grounds relied on for reversal unconvincing. 

976 
The violation in this case turns on whether Item 30 on MSHA Form 7000-1 was 

correctly completed. Item 30 provides: "Number of Days Away From Work {if none, 

enter 0)," As previously indicated, Consol represented that Smith was away from 

work "O" days despite his absence on the day following his injury. My 

colleagues base their rejection of the Secretary's and the judge's determinations 

that Smith's one day absence should have been indicated in item 30 on their 

interpretation of 30 C.F.R. § 50.20-7(c), which sets forth "criteria" for 

c~mpleting item 30. This section provides: 

Item 30. Number of days away from work. Enter the number of 

workdays, consecutive or not, on which the miner would have worked 

but could not because of occupational in.iury or occupational 

illness. The number of days away from work shall not include the 

day of injury or onset of illness or any days on which the miner 

would not have worked even though able to work. If an employee 

loses a day from work solely because of the unavailability of 

professional medical personnel for initial observation or treatment 

and not as a direct consequence of the in.iury or illness, the day 

should not be counted as a day away from work. 

(Emphasis added). 

Al though the majority concludes that the emphasized portion of these 

instructions proves fatal to the Secretary's charge of violation, I submit that 

their conclusion stems from a too narrow reading of the Secretary's reporting 

requirements and a shortsighted view of the facts. Reduced to its essence, the 

majority's position is that Smith's absence on the day following his injury was 

not di.!<~ to his injury, but rather to a lack of sleep, and that even given his 

loss of sleep Smith still "could" have worked. In their view, Smith's lack of 

sleep is an intervening event interrupting the "direct cause and effect 

relationship between an injury and a lost workday" that is the intended focus 

of item 30, Slip op. at 7. Thus, in their view, the Secretary did not prove 

"that the lost workday [was] the direct consequence of the injured miner's 

inability to work as the result of the injury." Id. 

On the basis of the record before us, I would find, as did the Secretary 

and the judge, that Smith's absence was a direct consequence of his injury. In 

fact, no reason or motivation for his absence other than his injury is even 

remotely suggested or alluded to in the record. My colleagues downplay and 

diminish the impact of the disruption in Smith's daily routine caused by his 

injury and medical treatment (see, e.g., slip op. at 8 n.9), but this view 

proves too grudging. To make the point, I must ask: if one of my colleagues 

were to suffer a simil~r injury on the job and found it necessary to spend the 

night obtaining necessary medical treatment, would they not be surprised to have 

their absence from work on the followin~ day challenged on the ground that it 

was not caused by their work-related injury? 

Insofar as Smith's statement that he "could have worked" is concerned, I 

believe that the judge's assessment that this remark ''is of some significance, 

but is not conclusive" (10 FMSHRC at 563), is closer to the mark than is the 

majority's view that it proves fatal to the Secretary's case. Smith himself 

977 
explained that he wondered why he was being asked this question. Smith 

deposition at 31; 10 FMSHRC at 562 , Furthermore, in purely literal terms, 

Smith's response is probably true; despite his injury and lack of sleep, it was 

physically possible for him to report to work. I doubt, however, that the "could 

not work" phraseology in the Secretary's instructional criteria was meant to be 

read that an injured miner must be totally incapacitated before any resulting 

"day away from work" must be reported. Such a constrained reading would mean 

that only the most debilitating injuries absolutely precluding a miner's arrival 

at the job site would be reportable under item 30. Nothing in the Secretary's 

regulations, instructions or Form 7000-1 suggests that such a narrow scope was 

intended, and the Secretary disavows this reading of her requirements. Instead, 

a reasonable reading must be given to this safety and heal th regulation and under 

such a reading, and the facts before us, the view that Smith could not work his 

next shift due to his injury certainly is plausible. Secretary v. Cannelton 

Industries, supra, 867 F. 2d at 1435, 1438. 

My colleagues acknowledge that they are bound by the substantial evidence 

standard of review. Slip op. at 9; 30 U.S.C. §823(d)(2)(a)(ii)(I). They 

nevertheless proceed to substitute their finding as to whether Smith "could" 

work for that of the judge by claiming that "there is no evidence" to support 

the judge's finding that Smith's lost workday resulted from the loss of sleep 

caused by his injury. Slip op. at 9 (emphasis in original). Contrary to this 

assessment, however, ample support for the judge's finding is found in the 

extensive record evidence describing Smith's injury, the nature of the medical 

treatment necessitated by the injury and the major disruption in Smith's daily 

routine caused by the injury and its treatment. Smith's statement that he could 

have worked, viewed by the majority as ''the entire evidence of record on this 

issue'' (Slip op. at 9), was correctly viewed by the judge as only part of the 

record evidence bearing on the factual question before him. Because the evidence 

relied on by the judge constitutes "such relevant evidence as a reasonable mind 

might accept as adequate to support [the judge's] conclusion", the substantial 

evidence standard imposed on us by the Mine Act requires aff irmance of the 

judge's finding. Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938); 

Chaney Creek Coal Corp. v. FMSHRC, 866 F. 2d 1424, 1431 (D.C. Cir. 1989). 

In the end, the soundness of the judge's conclusion is perhaps most 

effectively demonstrated by setting forth his own words. As he stated: 

The facts in this case are clear and uncomplicated. A miner 

received a significant injury to his hand at work. He was given 

initial medical treatment and referred for specialist treatment. 

As a result of the referral, he was awake during nearly all of the 

period when he usually slept. In fact, he slept for about one and 

a half hours. Because of his lack of sleep, he decided to take the 

following day off, although he testified that he could have worked. 

The employee's op1n1on that he could have worked is of some 

significance, but is not conclusive. In fact he did not work, and 

his failure to work is related to the injury because it is related 

to the meJical treatment which was necessary because of the injury. 

I concluJe that the employee's absence from work on August 26, 1986, 

resulted from his occupational injury on August 25, 1986. **** 

978 
Consol seems to argue that the day away from work resulted from the 

unavailability of professional medical personnel for initial 

observation and treatment and therefore should not be recorded as 

a day away from work resulting from the occupational injury. I do 

not so interpret the facts. Professional medical personnel were 

available for initial observation and treatment. Whether or not the 

referral to the orthopedist was part of the initial observation and 

treatment, the lost workday did not result from the unavailability 

of the orthopedist. The orthopedist was available. The lost work 

day resulted from the time spent receiving treatment and diagnosis, 

including necessary trave 1, all of which resulted in a loss of 

sleep. Therefore, I conclude that the lost workday resulted from 

the loss of sleep, which resulted from the necessary medical care 

which resulted from the injury. It should have been reported as a 

day away from work because of the inJury. The citation properly 

charged a violation of 30 C.F.R. § 50.20(a). 

10 FMSHRC at 563. 

I believe that this analysis by the judge reflects a reasonable 

interpretation of the reporting requirement and arrives at a conclusion 

supported by substantial evidence of record. Accordingly, I dissent from the 

reve~sal of the administrative law judge. I would affirm Judge Broderick's 

finding of a violation. 

979 

Lastowka 

Commissioner 
Distribution 

Dennis D. Clark, Esq. 

Vicki Sh.teir Dunn, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Michael R. Peelish, Esq. 

Consolidation Coal Company 

1800 Washington Road 

Pittsburgh, PA 15241 

Administrative Law Judge James A. Broderick 

Federal Mine Safety and Health Review Commission 

5203 Leesb.urg Pike, SuitelOOO 

Falls Church; Virginia 22041 

980 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 2 1989 

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. KENT 89-28-D 

ON BEHALF OF ROBERT VAUGHN, 

Complainant 

v. 

SUMCO, INC. AND R.E. SUMMERS, 

Respondents 

DECISION 

Appearances: Mary K. Spencer, Esq., Office of the Solicitor, 

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

on behalf of Complainant; Rodney E. Buttermore, 

Jr., Esq., Forester, Buttermore, Turner & Lawson, 

Harlan, Kentucky, on behalf of Respondents. 

Before: Judge Broderick 

STATEMENT OF THE CASE 

On November 18, 1988, the Secretary of Labor (Secretary) 

filed a complaint on behalf of Robert Vaughn under section 105(c) 

of the Federal Mine Safety and Health Act of 1977 (the Act). The 

complaint alleges that Vaughn was discharged on June 30, 1988, 

for activity protected under the Act. In addition to the 

complaint, the Secretary filed an Application for Temporary 

Reinstatement. On November 28, 1988, I issued an order directing 

Respondent Sumco, Inc. to immediately reinstate Vaughn to the 

position from which he was discharged or to an equivalent 

position. On December 16, 1988, Respondent Sumco filed a answer 

to the complaint and a request for hearing. Pursuant to notice 

the case was called for hearing in Harlan, Kentucky on March 21, 

1989. Robert Vaughn, Richard Davis, Ronnie Brock, George Vaughn, 

and Winston Madden testified on behalf of Complainant. Robert 

Earl Summers and Dianne Swanner testified on behalf of 

Respondents. Both parties have filed post hearing briefs. I 

have considered the entire record and the contentions of the 

parties and make the following decision. 

981 
FINDINGS OF FACT 

Respondent R.E. Summers incorporated Sumco, Inc. some time 

in 1975. The operation involved in this proceeding commenced in 

January 1988. Summers assumed that the corporation was valid and 

continuing. In fact it was not, because it had failed to pay 

certain state fees. Legally, Summers was operating as an 

individual proprietor. The work consisted of reclaiming coal 

from an existing refuse pile, by removing slate and other waste, 

and washing and crushing the coal. The actual coal preparation 

work commenced about February 1, 1988. Approximately 15 miners 

were employed in the operation. 

Complainant Robert Vaughn began working for Sumco on 

February 10, 1988, as a night watchman at the mine site. On or 

about May 9, 1988, he was transferred to a job as slate picker, 

working on the afternoon shift. He was paid $4.00 an hour. His 

duties involved removing slate and rock from the refuse on a 

picking table and throwing it into a hole at the end of the table. 

Robert Vaughn had not received any surface mine safety training 

prior to beginning this job, but in 1984 he had received 

inexperienced new miner training for underground mines. 

Shortly after it began to operate the coal reclamation 

project, Sumco engaged a Mr. Arnold Gilbert who was to perform 

noise and dust monitoring and to set up a training plan for the 

employees. He contacted the Harlan Vocational School to conduct 

safety training classes, but was unable to arrange a program 

until about August 1, 1988. 

On or about June 8, 1988, complainant Vaughn injured his 

thumb in a fall at home. He was treated in a hospital emergency 

room and a splint was placed on his thumb. He was excused from 

work because of the injury. During the time he was off work, he 

was called to jury duty. On June 22, 1988, while still under 

treatment for his thumb, he visited the mine site after returning 

from jury duty. The mine site was near his residence, and he 

rode to the mine with a truck driver. Two federal inspectors 

were at the mine at this time. Summers saw Vaughn and ordered 

him off the mine property. Vaughn testified that he was told to 

leave because the inspectors "were checking mining training 

papers." (Tr. 14) Summers testified that he told him to leave 

because he was in the loading area without a hard hat or hard 

toed shoes. Summers admitted that he "possibly told him they 

[the inspectors] were there checking papers." (Tr. 113). I find 

as a fact that Summers directed Vaughn to leave the mine sit.: 

because he was not properly attired and because the Federal 

inspectors were checking the miners' training papers. On 

June 23, 1988, a citation was issued to Sumco for failure to 

submit a training plan to MSHA. The citation was terminated the 

982 
same date when a plan (prepared by Arnold Gilbert) was submitted. 

The training was to commence in August. Before the training 

began, citations were issued to Sumco, because some of the miners 

did not have up-to-date safety training papers. 

On June 27 or 28, Vaughn took a medical record indicating 

that he could return to work on June 28 to the mine and asked 

Summers if he could resume work. Summers told him he could 

return the following day. Vaughn later realized he had jury duty 

the following day and he called Summers at home. He was directed 

to return on June 30. Vaughn did so, bringing with him another 

doctor's certificate, authorizing his return to work June 28, 

1988. There is a dispute as to whether his thumb was still in a 

splint. I find that it was not. Summers told Vaughn to report 

for work the following Monday. Vaughn asked whether he would 

receive the 70 cent per hour premium that others received on the 

evening shift. Summers rejected the request and there was a 

heated discussion between the two concerning the request and the 

fairness of paying Vaughn less than the other miners. Finally, 

Summers told Vaughn to go on home "since he didn't have any 

training and he still had his thumb in a cast." ( GX5). Vaughn. 

left the off ice and was told to leave his hard hat which he threw 

back in through the door. Summers testified that the reference 

to training in his statement to the MSHA investigator CGXS) meant 

work experience and not safety training. I reject this 

explanation since the same word is used three times in the three 

page statement clearly referring to safety training. I find that 

Summers discharged Vaughn (Vaughn did not quit) for two reasons: 

Cl> he was upset at Vaughn's request for a raise because Summers 

felt he was teaching Vaughn a new job "so he could go on to do 

something with his life" (Tr. 117); (2) Sumco had peen cited for 

not having submitted a training plan and for having employees who 

had not received the proper training, and Summers was concerned 

about receiving another citation. 

The Secretary filed an application for temporary 

reinstatement, and I issued an order on November 28, 1988, to 

Sumco to reinstate Robert Vaughn. He returned to work on 

December 5, 1988. He worked December 5, 6 and 8, shovelling 

around the belt lines on the washer. On December 9, 1988, Vaughn 

and 11 or 12 others were laid off because a defect in Sumco's 

permit from the State Department of National Resources prevented 

it from continuing the job. Some employees were retained on an 

irregular basis to wash screened coal and dismantle the equipment. 

In early January 1989, the entire operation ceased. I find as a 

fact that Respondents did not have work for which complainant 

Vaughn was qualified after December 8, 1988. 

ISSUES 

983 
1. Whether Complainant Vaughn was discharged for activities 

or status protected by the Act? 

2. If so, to what remedies is he entitled? 

CONCLUSIONS OF LAW 

I 

At all times pertinent hereto, Respondents were mine 

operators and Complainant Vaughn was a miner. They were subject 

to and protected by the Mine Act, and specifically section lOSCc} 

of the Act. I have jurisdiction over the parties and subject 

matter of this proceeding. 

II 

Section 115 of the Act requires each mine operator to submit 

a training plan to MSHA for approval. The Act requires that such 

a training plan provide among other things that new miners having 

no surface mining experience shall receive no less than 24 hours 

of training if they are to work on the surf ace. It requires that 

the training be provided during normal working hours and that 

miners be paid at their normal rates while receiving such 

training. 30 C.F.R. § 48.23 requires that in the case of a new 

mine or a reopened or reactivated mine, the operator shall have 

an approved training plan prior to opening, reopening or 

reactivating the mine. Each new miner shall receive no less than 

24 hours of training before being assigned to work duties, unless 

the MSHA District Manager permits a portion of the training to be 

given after assignment to work duties. The required courses are 

set out in§ 48.23Cb). 

III 

Section 104Cg) of the Act provides that if an inspector 

finds a miner who has not received the safety training required 

under Section 115, he shall issue an order requiring that the 

miner be withdrawn and prohibited from reentering the mine until 

he has received such training. A miner who is ordered withdrawn 

shall not be discharged or otherwise discriminated against, nor 

shall he suffer a loss of compensation during the period of 

training. The Commission held in Secretary/Bennett v. Emery 

Mining Corp., 5 FMSHRC 1391, 1395, (1983), rev'd in part sub nom. 

Emery Mining Corp. v. Secretary of Labor, 783 F.2d 155 (10th Cir. 

1986) that Section 105(c) of the Act "prohibits interference with 

rights provided by the Act, including rights provided under 

section 115." Unlike the situation in Rmery, where applicants 

for employment wre involved or in Secretary/Williams v. Peabody 

Coal Co., 822 F.2d 1134 CD.C. Cir. 1987), involving former 

984 
employees who had been laid off, Vaughn was clearly a miner when 

he was discharged, and therefore was protected under section 115. 

IV 

In order to establish a prima facie case of discrimination 

under section 105(c}, a complainant has the burden of 

establishing that his activity or status was protected under the 

Act and that the adverse action complained of was motivated in 

any part by the protected activity or status. See 

Secretary/Fasula v. Consolidation Coal Co., 2 FMSHRC 2786 (1980) 

rev'd on other grounds sub. nom. Consolidation Coal Co. v. 

Secretary, 663 F.2d 1211 C3d Cir. 1981). In the present case, I 

have found as a fact that the discharge of complainant was 

motivated in part because Respondent had failed to provide the 

statutorily mandated training. Therefore, complainant has 

established a prima facie case of discrimination. The operator 

may rebut such a prima facie case if he establishes that he. was 

also motivated by unprotected activity, and that he would have 

taken the adverse action because of the unprotected activity 

alone. Pasula, supra; Secretary/Robinette v. United Catle Coal 

Co., 3 FMSHRC 803 (1981). The evidence in the present case does 

establish that Respondent's discharge of complainant was 

motivated in part by unprotected activity, namely by Summer's 

reaction to complainant's request for a 70 cents an hour raise. 

~espondent Summers has not, however, carried his burden of 

establishing that he would have discharged complainant for this 

reason alone. On the contrary, the evidence is clear that a 

major factor motivating his visiting the adverse action on 

complainant, was the fact the complainant had not received safety 

training and Respondent feared that he would receive another 

citation or closure order because of this. I conclude that 

Complainant was discharged in violation of section 115 and 105(c} 

of the Act. 

v 

Complainant is entitled to back pay with interest from 

June 30, 1988 to December 4, 1988. I conclude that he was laid 

off for economic reasons on December 8, 1988, and is not entitled 

.to back pay thereafter. The evidence in the record is not 

sufficiently clear as to the monetary amount of the back pay to 

which complainant is entitled. The interest on the back pay 

should be determined in accordance with the Commission decision 

in UMWA v. Clinchfield Coal Co., 10 FMSHRC 1493 (1988). 

In determining an appropriate penalty for the violation, I 

am considering the facts that Respondent began operating in 

January 1988 and was not familiar with the MSHA training 

requirements, that the Harlan MSHA office was confused as to the 

985 
training requirements, and that Respondent has ceased operating 

the mine. I cohclude that a penalty of $1~0 is appropriate. 

ORDER 

Based on the above findings of fact and conclusions of law 

IT IS ORDERED: 

1. Respondents shall pay to claimant Vaughn back wages from 

June 30, 1988 to December 4, 1988 inclusive, with interest 

thereon computed in accordance with the Commission decision in 

UMWA v. Clinchfield Coal Co., supra. Counsel shall confer within 

15 days of the date of this decision, in an effort to stipulate 

the amount due complainant under this order. 1/ If they are 

unable to so stipulate, Complainant shall submit within 30 days 

of the date of this decision, its statement of the amount due. 

Respondent may respond within 10 days thereafter. 

2. Respondents shall, within 30 days of the date this 

decision becomes final, pay a civil penalty in the amount of 

$100. 

3. The above decision will not become final until a 

subsequent order is issued awarding back pay and declaring the 

decision to be final. 

{(t~~!--:5 ./h!JvtJ<--k~·~tt.,. James A. Brode~ick 

Administrative Law Judge 

1/ Respondents' stipulation of the amount due hereunder will 

not, of course, limit their right to seek review of this 

decision. 

986 
Distribution: 

Mary K. Spencer, Esq., U.S. Department of Labor, Office of the 

Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified 

Mail) 

Rodney E. Buttermore, Jr., Esq., Forester, Buttermore, Turner & 

Lawson, P.s.c., P.O. Box 935, Harlan, KY 40831 (Certified Mail) 

Mr. Robert Vaughn, P.O. Box 273, Kenvir, KY 40847 (Certified 

Mail) 

slk 

987 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 5 1989 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

AmHNISTRATION (MSHA) , 

Petitioner 

Docket No. KENT 88-152 

A.C. No. 15-13469-03658 

v. 

Green River Coal No. 9 Mine 

GREEN RIVER COAL COMPANY, 

Respondent 

Appearances: 

Before: 

DECISION ON REMAND 

Joseph B. Luckett, Esq., Office of the Solicitor, 

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

for the Petitioner; 

B. R. Paxton, Esq., Paxton & Kusch, Central City, 

Kentucky, for the Respondent. 

Judge Koutras 

Statement of the Case 

On April 24, 1989, I issued a decision in this matter, 

11 FMSHRC 685 (April 1989). However, through an oversight, the 

decision was issued before the receipt of the posthearing briefs 

subsequently filed by the parties. As a result of the premature 

issuance of the decision, MSHA filed a petition for discretionary 

review with the Commission claiming that a prejudicial error was 

committed when the decision was issued prior to the May 3, 1989, 

date set by me for the filing of briefs by the parties. 

On May 10, 1989, the Commission granted MSHA's petition 

for review, vacated my decision, and remanded the case to me 

for further consideration in light of .the posthearing briefs 

filed by the parties. 

Discussion 

MSHA only takes issue with my prior decision concerning a 

section 104 (A) "S&S" Citation No. 3227259, March 21, 1988, which 

cites an alleged violation of the· safeguard provisions of mandatory safety standard 30 C.F.R. § 75.1403(5) (g). The posthearing 

988 
briefs filed by the parties address this citation, and the 

interpretation and application of two prior safeguarding 

decisions in Secretary v. Southern Ohio Coal Company, 7 FMSHRC 

509 (April 1985), and Secretary v. Mid-Continent Resources, 

Inc., 7 FMSHRC 1457 (September 1985). 

I have now reviewed and considered the written posthearing 

briefs filed by the parties. The issue raised in the briefs 

is the same as that raised by the respondent during oral arguments in the course of the hearing, and it is the same issue 

discussed and disposed of in my prior decision at 11 FMSHRC 696 

through 703. Under the circumstances, I find no basis for 

changing my prior dispositive findings and conclusions with 

respect to the citation, and my prior decision in this regard 

is herein incorporated by reference and REAFFIR~ED. 

ORDER 

In view of the foregoing, IT IS ORDERED THAT: 

My prior findings and conclusions with respect 

to the contested citations in this proceeding, 

including the civil penalty assessments for the 

citations which have been affirmed, are incorporated 

by reference, and REAFFIRMED as my dispositive 

decision in this matter. See: 11 FMSHRC 704-705. 

~~g,e-A. ~-1/J/ ~~&~~ Koutras 

Administrative Law Judge 

Distribution: 

Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department 

of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 

37215 (Certified Mail) 

B. R. Paxton, Esq., Paxton & Kusch, 213 E. Broad Street, P.O • 

. Box 655, Central City, KY 42330-0655 (Certified Mail) 

Dennis D. Clarke, Counsel, Appellate Litigation, Office of the 

Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, 

Arlington, VA 22203 (Certified Mail) 

/fb 

989 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 5 1989 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, CMSHA), 

Petitioner 

v. 

FRANK IREY JR., INC., 

Respondent 

. . 

. . 

. . 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 89-14 

A. C. No. 46-01433~03504 C70 

Loveridge Preparation Plant 

DECISION 

Appearances: Charles M. Jackson, Esq., Office of the Solicitor, 

U.S. Department of Labor, Arlingt~n, Virginia 

for Petitioner; 

William H. Howe, Esq., Loomis, OWen, Fellman & 

Howe, Washington, D.C. for Respondent. 

Before: Judge Melick 

This case is before me upon the petition for civil 

penalty filed by the Secretary of Labor pursuant to 

section 105Cd) of the Federal Mine Safety and Health of 1977, 

30 u.s.c. § 801 et seq., the "Act, 11 in which the Secretary 

has charged Frank Irey Jr., Inc., (Irey) with two violations 

of regulatory standards. The parties have submitted a motion 

to approve a settlement agreement with respect to Citation 

No. 3106975 in which the Respondent has agreed to pay the 

proposed penalty of $500 in full. I have considered the 

documentation submitted in support of the motion and find 

that it comports with the requirements set forth under 

section llOCi> of the Act. Accordingly the motion is 

approved. · 

Order No. 3106979 remains at issue. The order, issued 

pursuant to section 104Cd)(l) of the Act~/ charges a 

"significant and substantial" violation of the standard at 

30 C.F.R. § 48.28 and of section 115Ca> of the Act. More 

specifically the order, as amended at hearing, alleges as 

follows: 

!/Section 104(d)(l) of the Act reads 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 

990 
The following personnel were observed performing 

maintenance and repair duties in the preparation 

plant, the tripper beltt and,·con~eyor belt 

underneath the coal storage bins:·. Jack Byron, Joe 

Barskite, Dennis Hanzeley, Paul Lasko, Jim Shaffer, 

Robert Sigwalt, Robert Susick, John Williams, Jr., 

John Burch, Ron Clark, Jim Fine, John Pollack, 

Steve Supko, John woods, Robert Kondratowicz, and 

Lawrence Vizzence and has [sic] not received the 

requisite safety training as stipulated in Section 

115 of the Act. 

The above name employees are experienced and have worked 

with the company more than three years and had received 

little or none of the required 24 hours of training. In 

the absence of such training the employees are declared 

to be a hazard to themselves and others and are to be 

immediately withdrawn from mine property work areas 

until they have received the required training. 

Section 115(a) of the Act provides in relevant part as 

follows: 

Each operator of ··a coal or other mine shall have a 

health and safety training program which shall be 

approved by the Secretary of Labor. The Secretary 

Cont'd fn.l 

violation do not cause imminent danger, such 

violation is of such nature as could significantly 

and substantially contribute to the cause and 

effect of a coal or other mine safety or health 

hazard, and if he finds such violation to be caused 

by an unwarrantable failure of such operator to 

comply with such mandatory health or safety 

standards, he shall include such finding in any 

citation given to the operator under this Act. If 

during the same inspection or any subsequent 

inspection of such mine within 90 days after the 

issuance of such citation, an authorized 

representative of the secretary finds another viol~tion 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 fr~n entering, such area until 

an authorized representative of the Secretary 

determines that such violation has been abated. 

991 
shall promulgate regulations with the respect to 

such health and safety training programs not more 

than 180 days after the effective of the Federal 

Mine Safety and Health Amendment Act of 1977. Each 

training program approved by the Secretary shall 

provide as a minimum that-*** (3) all miners shall 

receive no less than 8 hours of refresher training 

no less frequently than once each twelve months, 

except that.miners already employeed on the 

effective date of the Federal Mine Safety and 

Health Act Amendments of 1977 shall receive this 

the refresher training no more than 90 days after 

the date of approval of the training plan required 

by this section ***· 

30 C.F.R. § 48.28(a) provides that "each miner shall 

receive a minimum of 8 hours of annual refresher training as 

prescribed in this section." Moreover 30 C.F.R. § 48.28Cb) 

sets forth the specific courses of instruction that must be 

included in the annual refresher training program. 

While there is no dispute that the cited Irey employees 

did not have the current training under these regulations 

Irey maintains that all of its employees at the Loveridge 

Mine project here at issue were "construction" workers and 

not "miners" and were therefore excluded from coverage under 

the training regulations at 30 C.F.R. §§ 48.23 through 48.30. 

The definition of "miner" for the purposes of 30 C.F.R. 

Part 48 Subpart B is set forth in 30 C.F.R. § 48.22, which 

provides in pertinent part as follows: 

For the purposes of this subpart B--

Ca>Cl> "Miner" means, for purposes of §§48.23 

through 48.30 of this subpart B, any person working 

in a surf ace mine or surf ace areas of an 

underground mine and who is engaged in the 

extraction and production process, or who is 

regularly exposed to mine hazards, or who is a 

maintenance or service worker employed by the 

operator or a maintenance or service worker 

contracted by the opecator to work at the mine for 

frequent or extended periods. This definition 

shall include the operator if the operator works at 

the mine on a continuing, even if irregular, basis. 

Short-term, specialized contract workers, such as 

drillers and blasters, who are engaged in the 

extraction and pcoduction process and who have 

ceceived training-under §48.26 (Training of newly 

employed experienced miners) of this subpart B, may 

in lieu of subsequent training under that section 

of each new employment, receive training under 

992 
§48.31 (Hazard training) of this subpart B. This 

definition does not include: 

Ci) Construction workers and shaft and 

slope workers under subpart C of this 

part 4 8; • • • • 

The Secretary argues with equal conviction that the Irey 

employees were indeed subject to the noted training 

requirement as "maintenance" workers "contracted by the 

operator to work at the mine for frequent or extended 

periods." Whether these workers are found to be 

"maintenance" workers or "construction" workers is 

significant because the Secretary has yet to develop training 

regulations for the latter. 

The parties agree that the terms "maintenance" worker 

and "construction" worker· are not defined in the regulations. 

The Secretary urges however that the definition in her 

program policy manual be followed. That manual provides the 

following descriptions: 

Construction work includes the building or 

demolition of any facility, the building of a major 

addition to an existing facility, and the 

assembling of a piece of new equipment, such as 

installing a new rotary pump or the assembling of a 

major piece of equipment such as a dragline. 

Maintenance or repair work includes the upkeep or 

alteration of equipment or facilities. Replacement 

of a conveyor belt would be considered maintenance 

or repair. 

MSHA Program Policy Manual, U.S. Department of Labor, 

Vol. III, Page 14 (Release III-1; July 1, 1988). 

Irey, on the other hand suggests that the term 

"maintenance" be de.Eined as work performed to keep a building 

or structure from deteriorating or falling into a state of 

disrepair. Even if the definition advanced by Irey is 

applied to the facts of this case however it is clear that 

the work performed by its employees at the Loveridge 

Preparation Plant was indeed "maintenance". There is no 

dispute that the work performed by Irey involved essentially 

si~ projects performed before, during, and after the two week 

period ending on or about July 8, 1988, when the Loveridge 

No. 1 Mine was shut down for miners'. vacation. The 

replacement of steel beams inside the Preparation ~lant was 

performed before, durin3, and after the vacati6n period and 

involved 6 to 8 Irey employees. The steel beams had become 

rusted and deteriorated to the point that some had holes in 

them. The evidence shows that the basic structural design 

was not changed by Irey and the only changes made were the 

993 
replacement.of the rusted beams and deteriorated structural 

members with new materials. 

During and before the vacation Irey also replaced 

concrete on the second floor of the plant using 4 to 6 

employees. The existing concrete floor was leaking and had 

holes in it exposing the reinforcing wire. Irey removed the 

deteriorated concrete and replaced it with new reinforcing 

steel and concrete. There was some change in design in that 

three wells wer~ built under the belts where the floor had 

·previously been flat. 

Four Irey employees also worked during the vacation 

period straightening the structure on the tripper. The 

structure had become bent with only temporary bracing added. 

Irey employees removed some of the temporary support 

structure and renovated the earlier repairs with heavier 

materials. 

Four of the Irey employees also replaced the tail roller 

on the ~o. 15 belt in the raw coal bin area during the 

vacation period. The tail roller had become badly worn and 

Irey removed the old tail roller {pulley) and replaced it 

with a new tail roller. The new tail rollers were standard 

equipment and of a si~ilar nature to those replaced. 

Approximately 4 to 6 Irey employees also worked during 

the vacation period on the No. 15 belt support structure. 

The structure had become twisted and rusted and had holes in 

it. Some of the legs had also rusted off. The Irey 

employees replaced pieces of the "C channel" and new legs 

were welded under the belt. There is some dispute as to 

whether there was any change in the basic structural design 

of the support structure. 

Finally, the evidence shows that approximately 4 Irey 

employees were involved during the vacation period sandblasting and painting steel beams in the preparation plant 

that had become rusted. 

Within this framework of evidence it is clear that the 

work performed by Irey at the Loveridge Preparation Plant was 

"maintenance" work even within the meaning of Irey's 

proffered definition and that while the Irey employees were 

performing that work they were "maintenance" workers within 

the scope of the MSHA training regulations under 30 C.F.R. §§ 

48.28 through 48.30. Since the work was performed over more 

than a two-week period I also find that the work was 

contracted for an "extended" period of time within the 

meaning of Section 48.22{a){l). The failure of Irey to have 

had the cited employees trained in accordance with the noted 

regulations therefore constituted a violation. 

994 
I note that while some of the work performed by Irey 

might broadly be construed to be "construction" work, e.g. 

the erection of new steel beams to replace deteriorated 

beams, the overall purpose and intent of all of the work was 

for the "maintenance" of the existing preparation plant. 

Thus, in any event, I find that the cited Irey workers were 

indeed "maintenance" workers subject to the existing MSHA 

training regulations. 

t do not·find however on the facts of this case that the 

violation was the result of the "unwarrantable failure" of 

Irey to comply with the law. "Unwarrantable failure" means 

aggravated conduct constituting more than ordinary negligence 

in relation to a violation of the Act. Emery Mining Corp., 

9 FMSHRC 1997 (1987) appeal pending (D.C. Circuit No. 

88-1019). In the Emery case the Commission compared ordinary 

negligence as conduct that is "inadvertent", "thoughtless", 

or "inattentive" with conduct constituting an unwarrantable 

failure, i.e. conduct that is not "justifiable" or 

"excusable". 

In this case the evidence is undisputed that several 

months before the beginning of the Loveridge project Irey 

contacted the MSHA district manager to inquire about the 

necessity for training on the particular project. It is not 

disputed that Irey was informed that training would not· be 

required under the circumstances of the particular project. 

I also observe that Irey's interpretation of the regulations 

was not frivolous and the instant case is apparently one of 

first impression on the precise issue. Under the 

circumstances it cannot be said that Irey was either 

negligent or that the violation was the result of its 

"unwarrantable failure". Order No. 3106979 must accordingly 

be modified to a citation under section 104Ca> of the Act. 

While the Secretary also alleged that the violation was 

"significant and substantial" it has failed to address this 

issue in her brief.· In order to find that a violation is 

"significant and substantial" the Secretary has the burden of 

proving an underlying violation of a mandatory safety 

standard, a discreet safety hazard Ca measure of danger to 

safety) contributed to by the violation, a reasonable 

likelihood that the hazard contributed to will result in an 

injury, and a reasonable likelihood that the injury in 

queation will be of a reasonably serious nature. See Mathies 

Coal Co., 6 FMSHRC 1 (1984). 

In this case the exi3tence of another violation found at 

the same work site where the untrained miners ware working 

clearly illustrates the "significant and substantial" nature 

of the instant violation. The admitted violation under 

Citation No. 3106975 was as follows: Burning and welding 

operations were being done in the tripper belt enclosure in 

995 
the presence of float coal dust ranging from 2 to 4 inches· in 

thickness on the structure within the enclosure. The 

"significant and substantial" nature of this violation was 

likewise not disputed. 

The existence of that violation is illustrative of the 

discreet safety hazard existing from the failure to have the 

Irey employees trained. It may also reasonably be inf erred 

that the hazard contributed to would result in an injury of a 

reasonably serious nature. According to the undisputed 

testimony of MSHA inspector Alex Volek the ignition of the 

existing float coal dust from the welding operations would 

likely result in fatalities. Within this framework of 

evidence I conclude that indeed the violation was 

"significant and substantial" and serious. In assessing a 

civil penalty in this case I have also considered the size of 

the opecator, its history of violations, and its good faith 

abatement of the violation. Unde~ the circumstances I find 

that a civil penalty of $200 is appropriate. 

ORDER 

Order No. 3106979 is modified to a citation under 

section 104Ca) of the Act. Frank Irey, Jr., Inc., is 

directed to pay the following civil penalties within 30 of 

the date of this decision: Citation No. 3106975- 500, 

Citation No. 3106979-$200. 

Distribution: 

/Gar 

~ • Admi 

(703 

ve Law Judge 

61 

Charles M. Jackson, Esq., Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Boulevard, Room 516, 

Arlington, VA 22203 (Certified Mail) 

Wiliam H. Howe, Esq., Loomis, Owen, Fellman & Howe, 2020 K 

Street, N.W., Suite 800, Washington, o.c. 20006 (Certified 

M.ail> 

nt 

996 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280. 1244 SPEER BOULEVARD JUN 6 1989 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

COBBLESTONE, LTD., 

Respondent 

DENVER, CO 80204 

. . 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 88-62-M 

A.C. No. 05-03950-05505 

Docket No. WEST 88-64-M 

A.C. No. 05-03950-05506 

Docket No. WEST 88-120-M 

A.C. No. 05-03950-05507 

Cobblestone Ltd 

DECISION 

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

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

for Petitioner; 

Mr. Leonard Lloyd, Cobblestone LTD., Pagosa 

Springs, Colorado, 

pro se. 

Before: Judge Cetti 

These cases are before me upon the petitions for civil 

penalties filed by the Secretary of Labor, pursuant to Section 

105(b) of the Federal Mine Safety and Health Act of 1977, 30 

U .s.c. § 801 et seq., the "Act", charging the operator 

Cobblestone LTD., with 21 violations of regulatory standards, set 

forth in Part 56, Title 30, Code of Federal Regulations. 

The respondent filed a timely answer contesting the 

citations and the proposed civil penalty assessments. Pursuant 

to notice served on the parties an evidentiary hearing was held 

on the merits. The primary issues are whether the respondent 

violated the cited mandatory safety standards, and if so, the 

appropriate civil penalties to be assessed for the violations 

based on the criteria found in Section llO(i) of the Act. 

MSHA Inspector Ronald John Renowden and Roy Trujillo 

inspected the Cobblestone pit and crusher on August 11th and 

12th, 1987. During the two day inspection MSHA issued 21 

citations alleging violations of mandatory standards found in 

Part 56, Title 30 Code of Federal Regulations. 

The Secretary of Labor on behalf of the Mine Safety and 

Health Administration seeks affirmation of each of the citations 

and proposed civil penalty assessments. 

997 
STIPULATIONS 

After taking the testimony of MSHA Inspector Ronald John 

Renowden as to certain violative conditions he observed during 

MSHA's inspection, the parties stipulated that the facts recorded 

on the face of each citation by the MSHA inspectors "truly and 

accurately represent the conditions as they existed at the time 

of the inspection". Cobblestone while stipulating that the facts 

alleged in the citations are "true and accurate" and in existence 

as recorded in the citations at the time of inspection, denies 

there was any violation on the basis that the crushing equipment 

was never operated in the violative condition observed at the 

time of the inspection. It is undisputed that the crushing 

equipment was not operated at any time during the two days of 

inspection. The parties agree that these stipulations apply to 

each of the citations in docket numbers, WEST 88-62-M, WEST 

88-64-M and WEST 88-120-M. 

The parties also stipulated that the operator's business was 

small. 

DOCKET NO. WEST 88-62-M 

Citation No. 2636670 

Citation No. 2636670 alleges a "serlous and significant" 

violation of 30 C.F.R. § 56.18002. After taking testimony from 

Inspector Trujillo, the Secretary moved to vacate the citation on 

the grounds that it was duplicative in that the citation was 

based solely upon. the observation of specific violative 

conditions for which the operator had already been cited. There 

was no objection to the motion. The motion to vacate the 

citation was granted. 

1

icitation No. 2636670 and its related proposed civil per,ialty 

are each vacated. 

The Electrical Related Citations Nos. 2636579, 2636580, 2636581, 

2636582, 2636583, 2636584, 2636585, 2636586, 2636662, 2636665, 

2636667, 2636668, 2636669, and 2636587. 

The remaining 14 citations of Docket No. 88-62-M are all 

electrical related citations involving the crusher plant and 

equipment. The operator's primary defense for these citations as 

well as all the other citations was that he had just moved the 

crusher from one location at the site to another, and had not 

operated the crusher at the new location. He had been trying but 

said he was unable as of the time of the inspection to get an 

electrician to come to the remote area where the plant was 

located to do the necessary electrical work and testing. The 

operator testified in detail how three weeks before the 

998 
inspection he had moved his crusher from one location to another 

location at the site so that it was closer to the electric shed. 

It was the operator's contention and testimony that he had not 

operated the crushing plant since he moved the crusher and 

therefore the plant was never in operation at a time when the 

violative conditions observed by the inspector were in existence. 

He also contended that the crusher's toggle plate had been 

removed for modification and consequently that the crusher was 

inoperable. 

The MSHA inspectors Renowden and Trujillo testified about 

their long experience in mining and their observations during the 

inspection including the size and location of muck piles. Based 

upon their experience and their observation they testified that 

the crusher had been in operation after it was moved and that it 

was clear to them from their observations that the crushing plant 

had been in operation while the violative condition they observed 

during their inspection were in existence. 

Mr. Lloyd, the operator, contended that there was only one 

pile of material of any substance and that was a pile of material 

he transported to a conveyor and used to adjust or "train" the 

conveyor. 

I credit the testimony of Inspectors Renowden and Trujillo 

and on the basis of their testimony and expertise find that the 

crushing plant was in operation at least for a limited period of 

time, after the crusher had been moved and the violative 

conditions observed by the MSHA inspectors were.present. In 

addition, it is undisputed that the crushing plant was fully 

energized at the time of inspection and that none of the 

equipment was locked out or tagged out. 

Seven of the remaining 14 citations allege a violation of 30 

C.F.R. § 56.12008, which provides as follows: 

Power wires and cables shall be insulated adequately 

where they pass into or out of electrical compartments. 

Cables shall enter metal frames of motors, splice boxes, 

and electrical compartments only through proper fittings. 

When insulated wires, other than cables, pass through 

metal frames, the holes shall be substantially bushed with 

insulated bushings. 

The seven citations which charged a violation of the above 

quoted 30 C.F.R. § 56.12008 are Citation Nos. 2636579, 2636583, 

2636584, 2636585, 2636586, 2636662, and 2636587. 

Citation No. 2636579 charges as follows: 

The 2/4 G-GC, 600-2000V, rubber power cable exiting the 

motor starter enclosure for the jaw crusher, 50 h.p., 

999 
60 amp, 480 VAC motor branch circuit was not properly 

installed in its respective fitting. The loose cable 

fitting has allowed the cable to slide out of the squeeze 

zone and exposed the interval wires to the fitting edge 

and strain relief clamp, not to mention that the cable 

weight was being supported by the power connection in the 

enclosure. No vibration or flexing occurs at this location. 

Should the cable insulation fail and cause an arcing fault 

a person could be exposed to arc flashing. The box had a 

ground circuit via conduit at the panel. 

In view of the stipulation of the parties that the citation 

accurately documents the conditions observed by the inspector and 

my finding that the crusher had been in operation while those 

conditions existed. I find that a violation of 30 C.F.R. 

§ 56.12008 was established. Citation No. 2636S79 is affirmed. 

The appropriate penalty for this violation and each of the 

established violations discussed below will be found and 

discussed in due course under the heading "penalty". 

Citation No. 2636S83 charges as follows: 

The 10/4 type SO rubber power cable exiting the 480 VAC 

3 phase motor starter at the switch house for the "stacker 

feed" conveyor drive motor was observed not being provided 

with a cable entrance fitting. Tape had been gobbed on 

the cable in a effort to support and protect it where it 

entered the sharp metal hole at the bottom of the enclosure. 

I credit the testimony of the MSHA inspectors. I find and 

conclude on the basis of their credible testimony, the 

stipulation that the citation accurately describes the conditions 

existing at the time of the inspection and my finding that the 

crusher plant and equipment had been in operation while those 

conditions existed, that there was a violation of 30 C.F.R. 

§ S6.12008. Citation No. 2636S83 is affirmed. 

Citation No. 2636584 charges as follows: 

The 12/4 and 10/4 type SO rubber power cables entering 

and exiting the 480 VAC, 3 phase motor starter enclosure 

which serviced 480 volts to the "fines stacker" motor 

circuit were observed not being provided with cable entrance 

fittings to protect the cable from sharp metal hole edges, 

and to support the cable to prevent strain on the starter 

480 volt terminate tape had been gobbed in areas around the 

cable to protect the wiring from sharp edge wear. 

In view of the stipulation of the parties that the citation 

accurately documents the conditions observed by the inspector and 

1000 
my finding tha·t the crusher had been in operation while those 

conditions existed. I find that a violation of 30 C.F.R. 

§ 56.12008 was established. Citation No. 2636584 is affirmed. 

Citation No. 2636585 charges as follows: 

The 12/4 type 50 rubber power cables entering and exiting 

the 480 volt, 3 phase motor starter enclosure for the 

stacker motor circuit, were not provided with cable fittings 

to protect the cable wiring and prevent strain at on 480 

volt terminations. Tape had been used to provide some 

protection against damage. 

I credit the testimony of the MSHA inspectors. I find and 

conclude on the basis of their credible testimony, the stipulation that the citation accurately describes the conditions 

existing at the time of the inspection and my finding that the 

crusher plant and equipment had been in. operation while those 

conditions existed, that there was a violation of 30 C.F.R. 

§ 56.12008. Citation No. 2636585 is affirmed. 

Citation No. 2636586 charges as follows: 

A strain relief cable fitting was not provided at the 

2 hp, 480 VAC, 3 phase fines discharge motor junction 

box for the 14/4 type "50" rubber power cable. A rubber 

grommet existed which afforded damage protection. 

In view of the stipulation of the parties that the citation 

accurately documents the conditions observed by the inspector and 

my finding that the crusher had been in operation while those 

conditions existed. I find that a violation of 30 C.F.R. 

§ 56.12008 was established. Citation No. 2636586 is affirmed. 

Citation No. 2636662 charges as follows: 

Ground continuity and resistance of the grounding system 

had not been done at the plant. It was evident that quite 

a bit of crushing had been done. 

I credit the testimony of the MSHA inspectors. I find and 

conclude on the basis of their credible testimony, the stipulation that the citation accurately describes the conditions 

existing at the time of the inspection and my finding that the 

crusher plant and equipment had been in operation while those 

conditions existed, that there was a violation of 30 C.F.R. 

§ 56.12008. Citation No. 2636662 is affirmed. 

Citation No. 2636587 charges as follows: 

The 10/4 50 power cable servicing 480 VAC, three phase 

power to the 5 hp, 480 VAC, fines stacker motor was not 

1001 
provided with. a cable entrance fitting. ·The damage was 

observed and tape had been gobbed around the cable to 

provide damage protection. 

In view of the stipulation of the parties that the citation 

accurately documents the conditions observed by the inspector and 

my finding that the crusher had been in operation while those 

conditions existed. I find that a violation of 30 C.F.R. 

§ 56.12008 was established. Citation No. 2636587 is affirmed. 

The next two citation Nos. 2636580 and 2636581 each allege a 

violation of the safety standard 30 C.F.R. § 56.12030, which 

provides as follows: 

When a potentially dangerous condition is found it shall 

be corrected before equipment or wiring is energized. 

Citation No. 2636580 charges as follows: 

The 5 h.p. 7 amp, 480 VAC, 3 phase motor starter at the 

switch-house for the "feed hopper" motor branch circuit 

was observed having an arcing ground fault condition 

existing in the remote/local control circuit. The white 

480 VAC control phase conductor in a 12/4 cable was observed 

being damaged and exposed the bare conductor. The bare 

damaged area had been laying against the right inside edge 

of the motor starter where it had been arcing to ground, in 

the unreliably grounded wire 480 VAC system. The control 

circuit was tapped to the line side of the starter and the 

circuit was protected by a 20 amp inverse time circuit 

breaker. This condition created a likelihood for a serious 

electrical accident or possible fatality to occur •••• 

In view of my findings that the crushing plant had been in 

operation while the condition described in the citation was in 

existence, it is found that a violation of 30 C.F.R. § 56.12030 

was established. Citation No. 2636580 is affirmed. 

Citation No. 2636581 charges as follows: 

The 12/3 and 12/4 type 50 cables used between the 

circuit breaker panel and the motor starter switchgear 

at the switch-house was observed being cracked and brittle 

which exposed bare 480 volt conductor. In some cases the 

bare wiring was exposed to metal enclosure framework and 

covers, and because the cover panel was off the main 225 

amp 480 volt panel the cracked defective wiring was exposed 

in an accessible manner. Arc flash burns and electric 

1002 
shock could result in the event of unintentional contact 

or a faulted condition. Gravity of this condition was 

increased by the unreliable safety grounding circuits. The 

stacker circuit tested high resistance phase to phase on 

the cable from the breaker to the starter. 

In view of my findings that the crushing plant had been in 

operation while the condition described in the citation was in 

existence, it is found that a violation of 30 C.F.R. § 56.12030 

was established. Citation No. 2636581 is affirmed. 

Citation No. 2636582, issued under section 104(a), alleges a 

violation of 30 C.F.R. § 56.12002. The citation charges as 

follows: 

The General Electric, CR206Bl, NEMA Size "O" motor 

controller rated at maximum use of 5 HP at 480 volts was 

observed being used beyond the design intended by the 

manufacturer, in that, a 3 hp 460 VAC "under jaw" conveyor 

motor, a 2 hp 460 volt "fines" discharge conveyor motor, 

and the jaw shaker screen, 10 or 15 hp Cmanplate missing) 

were all operated simultaneously by the underrated Size "O" 

starter. The total horsepower was calculated to be at 

least 15 hp. 

Additionally, because of this condition the motor running 

overload protection provided at the controller unit (sized 

Cl5.18) was rated at 12.9 amps, trip @ 16.12 amps for the 

10 hp motor. Therefore, the two smaller motors were not 

properly protected against overload. The circuit breaker 

for the branch circuit was 20 amps. 

The cited regulatory standard 30 C.F.R. § 56.12002 provides 

as follows: 

Electric equipment and circuits shall be provided with 

switches or other controls. Such switches or controls 

shall be of approved design and construction and shall be 

properly installed. 

The record, including the stipulations and my findings that 

the crusher plant was operated while in the condition observed by 

the inspector were in existence establishes a violation of 30 

C.F.R. § 56.12002. This citation was issued as S & S violation. 

However, the MSHA inspector on the same day he issued the 

citation modified the citation from an S & S to a non S & S 

violation. As modified to a non S & s violation, Citation No. 

2636582 is affirmed. 

1003 
Citation No. 2636662 charges as follows: 

Ground continuity and resistance of the grounding system 

had not been done at the plant. It was evident that quite 

a bit of crushing had been done. 

The cited mandatory standard 30 C.F.R. § 56.12028 provides 

as follows: 

Continuity and resistance of grounding systems shall be 

tested immediately after installation, repair, and modification; and annually thereafter. A record of the .resistance measured during the most recent tests shall be 

made available on a request by the Secretary or his duly 

authorized representative. 

In view of the parties stipulation and my finding that the 

crushing plant had been in operation while the condition alleged 

in this citation was in existence a violation of 30 C.F.R. 

§ 56.12028 was established. Citation No. 2636662 is affirmed. 

Citation No. 2636665 as amended reads as follows: 

"A bad splice was observed on the 14/ 4 SO cable that was 

spliced to a 12/4 SO cable that was not Cb) insulated to 

a degree at least equal to that of the original and sealed 

to exclude moisture and Cc) provided with damage protection 

as near as possible to that of the original, including good 

bonding to the outer jacket. This splice was approximately 

three feet from front discharge conveyor motor." 

The cited safety standard 30 C.F.R. § 56.12013 provides as 

follows: 

Permanent splices and repairs made in power cables, including the ground conductor where provided, shall be: 

(a) Mechanically strong with electrical conductivity as 

near as possible to that of the original; 

Cb) Insulated to a degree at least equal to that of the 

original, and sealed to exclude moisture; and 

Cc) Provided with damage protection as near as possible 

to that of the original, including good bonding to the 

outer jacket. 

It is clear from the record including the stipulation of the 

parties that the citation accurately describes the condition 

observed by the inspector and my finding that the crusher plant 

had been in operation while those conditions were in existence 

that there was a violation of the provisions of 30 C.F.R. 

§ 56.12013. Citation No. 2636665 is affirmed. 

1004 
Citation 2636667 charges as follows: 

The 20 amp circuit breaker, the principle power switch 

for the stacker motor was not labeled to show what unit it 

controlled. Identification could not be readily made by 

location. 

The cited mandatory standard provides as follows: 

Principle power switches shall be labeled to show which 

units they control, unless identification can be made 

readily by location. 

I credit the testimony of the MSHA inspectors. I find and 

conclude on the basis of their credible testimony, the stipulation that the citation accurately describes the conditions 

existing at the time of the inspection and my finding that the 

crusher plant and equipment had been in operation while those 

conditions existed, that there was a violation of 30 C.F.R. 

§ 56.12018. Citation No. 2636667 is affirmed. 

Citation No. 2636668 alleges a violation of 30 C.F.R. 

§ 56.12008 as follows: 

The 2/4 power cable entering jaw crusher motor terminal 

box was not properly installed in that the restraining 

strap had come loose allowing the weight of the cable to 

put a strain on the 480 V conductor connection inside the 

junction box. There is a lot of vibration in this area 

from the jaw crusher. 

In view of my findings that the crushing plant has been in 

operation while the condition described in the citation was in 

existence, it is found that a violation of 30 C.F.R. § 56.12008 

was established. · Citation No. 2636668 is affirmed. 

Citation No. 2636669 alleges a violation of 30 C.F.R. 

§ 56.12004 as follows: 

The power cable laying alongside feed conveyor and feed 

hopper had been subjected to mechanical damage from rock 

falling from conveyor. Some damage was observed on cables 

where they had been hit by falling rocks. 

The cited mandatory standard 30 C.F.R. § 56.12004 provides 

as follows: 

Electrical conductors shall be of a sufficient size and 

current-carrying capacity to ensure that a rise in temper1005 
ature resulting from normal operations will not damage the 

insulating materials. Electrical conductors exposed to 

mechanical damage shall be protected. 

Inspector Trujillo testified that the electrical conductors 

along side the feed conveyor and feed hopper were exposed to 

mechanical damage and were not protected. Mr. Lloyd testified 

that he put the boulders on the cable to protect the cable and 

that he did not see any damage to the cable. 

The Secretary presented evidence that there were dents in 

the power cable where 20 to 25 pounds boulders had fall-en on the 

cable. The boulders were intermittently on the cable where you 

would normally expect to find boulders falling off the side of an 

incline conveyor. Mr. Trujillo stated that if someone were going 

to try to protect the power cable with boulders they would have 

put them all along the length rather than intermittently and they 

would not have put the boulder right on top of the cable because 

when another rock hits that rock on the cable it would damage the 

cable • 

. I credit the testimony of Inspector Trujillo. The 

electrical conductors in question were unprotected and exposed .. to 

mechanical damage. The violation of 30 C.F.R. § 56.12004 was 

established. Citation No. 2636669 is affirmed. 

DOCKET NO. WEST 88-64-M 

Citation No. 2636577 

Citation No. 2636577, when issued charged the employer with 

a •significant and substantial" violation of safety standard 30 

C.F.R. § 56.12032 for failure to keep the cover panel for a 

circuit breaker distribution panel in place. 

The citation in relevant part reads as follows: 

The enclosure/cover panel for the general electric 480/277 

volt AC, 3 phase, 225 amp, 4 wire, circuit distribution 

panel board, located at the main motor control switch house 

was not in place. This exposed the bare terminal 

(partially) of the 480 VAC load-side terminals, and crackedbrittle "50" cable ·bare wiring at the panel. The panel contained approximately 9 circuit breakers for motor circuits 

and no testing or repairs were being performed in the panel 

at the time of inspection. 

Should an electric fault occur at the panel, with the cover 

off, and a worker was exposed to the event, it is reasonably 

likely he would receive serious electric arc flash burns. 

1006 
The cited standard 30 C.F.R. § 56.12032 provides: 

Inspection and cover plates on electrical equipment and 

junction boxes shall be kept in place at all times except 

during testing or repairs. 

Inspector Renowden testified that the cover panel for the 

general electric 480/277 VAC, 3 phase, 225 ampere, 4 wire, 

circuit breaker panel board was not in place at the time of his 

inspection. No testing or repairs were being done. The bare, 

energized conductors within the panel board were readily 

accessible. 

The citation when issued characterized the violation as 

"significant and substantial". At the hearing after both sides 

presented their evidence on this citation the Secretary's counsel 

conferred off the record with the inspector and then moved to 

amend the citation to reflect a non S & S violation rather than 

an S & S violation. There was no objection to the motion. The 

motion was granted. 

Inspector Renowden's testimony clearly shows that there was 

a violation of 30 C.F.R § 56.12032. Citation No. 2636577 as 

amended by the Secretary to a non S & S violation, is affirmed. 

Citation No. 2636664 

Citation No. 2636664 issued under section 104Ca) of the Act, 

alleges a violation of the mandatory safety standard 30 C.F.R. 

§ 56.14001. The citation reads as follows: 

The V-Belt drive on head pulley on INT Conveyor was not 

provided with a guard. This V-Belt drive could be 

contacted very easily. Some crushing had been done. 

The cited safety standard § 56.14001 mandates that head 

pulleys "which may be contacted by persons and which may cause 

injury to persons", shall be guarded. Inspector Roy Trujillo 

testified that the guard on the intermediate conveyor head pulley 

was not in place at the time of the inspection. The V-Belt in 

question came from an electric motor that was "bigger" than a 3/4 

quarter horsepower motor. The V-Belt drive was used to operate 

an intermediate conveyor that carried rocks over to the stacker 

conveyor. There were many cobblestones in the area ranging from 

4 to 8 inches in diameter and bigger. Consequently, the footing 

in the area was not secure. He observed footprints in the area 

but he could not determine whether anyone was walking through the 

area when the plant was running. Mr. Trujillo testified that if 

someone should stumble while walking by when the belt _was running 

and try and catch himself by putting a hand out where it would be 

1007 
caught by the pinch point, it would probably tear his arm off. 

In his opinion a fall in .the area was reasonably likely. It 

would be a serious injury that would involve hospitalization and 

many lost work days. 

Mr. Trujillo testified that he was sure the plant had been 

crushing a short time before the inspection but could not testify 

that the guard was off at a time when the belt was in operation. 

The operator told the inspector that the guard was not in place 

because it was being repaired. When the inspector return the 

next day to complete the inspection the guard was in place. The 

inspector testified however, that he did not notice anything that 

indicated to him that the guard had been repaired. 

Mr. Lloyd testified the guard was off because it was being 

repaired and the belt in question had not been operating while 

the guard was off. There was no contrary evidence. I find no 

persuasive evidence that the belt and pulley had been operated 

with its guard off. Under the circumstance there is no 

persuasive· evidence of a violation of the cited safety standard 

which expressly requires the pulley be guarded only when the 

moving parts may be contacted by persons and which may cause 

injury to the persons. Since the guard was off while the pull~y 

and belt were not moving there is no violation of the cited 

safety standard. Citation No. 2636664 is vacated. The decision 

on this citation turns not on the issue of credibility but on the 

safety standard's express requirement of exposure and the insufficiency of the evidence to establish exposure. 

DOCKET NO. WEST 88-120-M 

Citation No. 2636578 

Citation No. 2636578 charges the operator of Cobblestone 

with a "significant and substantial" violation of the mandatory 

safety standard 30 C.F.R. § 56.12025. The cited standard 

provides as follows: 

All metal enclosing or encasing electrical circuits shall 

be grounded or provided with equivalent protection. This 

requirement does not apply to battery-operated equipment. 

Citation No. 2636578 charges as follows: 

Inspection of the safety grounding system has revealed that 

improper and unsafe grounding ·existed as described in the 

following discussion. The power to the crushing plant was 

supplied by three pole mounted 50 KVA, high voltage single 

phase transformers connected Y-Y. The secondary was connected in a 480 volt grounded WYE (STAR) service and was 

"earth" grounded at the power pole butt ground. The four 

1008 
service conductors was a Quadraplex aerial drop of approximately 30-35 feet to the main 200 amp service fused disconnect outside on the side of the electrical switch house. 

The fourth wire, or system grounding conductor was fed 

directly through the main 200 amp service switch and was 

terminated to the NEUTRAL terminal bar at the 225 amp, 3 

phase 400 480 VAL distribution panel inside the switch 

house. The NEUTRAL bar was INSULATED from the metal panel 

enclosure and no bonding jumper existed. A bare ground 

wire was terminated to the panel frame and extended to the 

main switch outside, where it was also connected to the 

metal box frame, and it was these connected/terminated to 

an earth driven copper ground rod below the 200 amp switch. 

This wiring method created a high resistance/impedance 

value in the safety ground system between the ground transformer location at the power pole, and the ground rod 

beneath the 200 amp main disconnec.t at the switch house. 

This unsafe practice/condition was detected by visual observation and verified with electrical testing instruments: 

OHMETER @ megohms; "Biddle" insulation tester, on ohms 

scale @ 200 ohms. In the event of a ground fault condition 

it is highly likely that the circuit protective devices will 

not function as needed, and could expose electrocution 

hazards to the workers at the plant •••• (The electrical 

system was tested for a ground fault by this electrical inspector, and none was detected - otherwise a imminent danger 

closure order would have been issued) On 8/12/87 @ 1400 

hrs during an impedance test it was found that the fines 

stacker drive motor was not grounded. 

The record satisfactorily established that there was a 

violation of the mandatory grounding requirements of the safety 

standard 30 C.F.R. § 56.12025. The violation could have 

contributed to a fatal electric shock by allowing the electric 

current to flow through a miner's body rather than through the 

grounding conductor. The violation resulted from the operator's 

negligence. The violation of the provisions of 30 C.F.R. 

§ 56.12025 was established. Citation No. 2636578 is affirmed. 

The appropriate penalty for this violation and each of the 

established violations will be discussed below under the heading 

"penalty". 

Citation No. 2636661 

Citation No. 2636661 (as well as Citation No. 2636663) 

alleges a 104(a) violation of 30 C.F.R. § 56.14001. The citation 

charges: 

The V-Belt drive and pulleys were not provided with guards 

on the fines discharge conveyor. This V-Belt was approximately 3 to 4 feet from the ground level and the pinch 

points could be contacted easily. 

1009 
The cited regulation, 30 C.F.R. § 56.14001 provides as 

follows: 

Gears1 sprockets1 chains1 drive, head, tail, and takeup 

pulleys1 flywheels1 couplings1 shafts1 sawblades1 fan 

inlets1 and similar exposed moving machine parts which 

may be contacted by persons, and which may cause injury 

to persons, shall be guarded. 

Inspector Trujillo testified that the V-Belts were 3 to 4 

feet above ground and the pinch points could be easily contacted 

by a person and could easily cause injury. The viola ti.on of 30 

C.F.R. § 56.14001 was established. Citation No. 2636661 is 

affirmed. 

Citation No. 2636663 

Citation No. 2636663, issued under section 104Ca) of the 

Act, charges the operator with a violation of 30 C.F.R. 

§ 56.14001 which is quoted above under the heading "Citation No. 

2636661". Citation No. 2636663 alleges that the V-Belt drive 

and pulleys on the jaw crusher were not provided with guards. 

The evidence presented by petitioner established that there was 

an unguarded pinch point was about 5 1/2 feet above the ground·· 

that was readily accessible. The operator testified that the 

bull wheel of the crusher traveled in the opposite direction from 

the direction claimed by the inspector and thus that the pinch 

point was 3 feet higher than the height a~serted by the inspector. 

Respondent claimed therefor that the pinch point was protected by 

location. Petitioner contends that there was no protection by 

location even if the the pinch point was 8 1/2 feet high rather 

than 5 1/2 feet high. Petitioner also presented evidence that in 

addition to the pinch point hazard there was the hazard from the 

unguarded revolving spokes of the bull wheel. 

I credit the testimony of the mine inspector and find there 

was a violation of 30 C.F.R. § 56.14001. Citation No. 2636663 is 

affirmed. 

Citation No. 2636666 

Citation No. 2636666 issued under section 104(a) of the Act, 

alleges a violation of mandatory standard 30 C.F.R. § 56.12018. 

The citation reads as follows: 

The 20 amp 3 pole circuit breaker, the principal power 

switch for the fines stacker was not labeled to show what 

unit it controlled. Identification could not be readily 

made by location. 

1010 
The cited standard 30 C.F.R. § 5~.12018 provides: 

Principal power switches shall be labeled to show which 

unit they control, unless identification can be made readily 

by location. 

It clearly appears from the record that the principal power 

switch for the fines stacker was not labeled as required by the 

cited mandatory safety standard. The violation of 30 C.F.R. 

§ 56.12018 was established. Citation No. 2636666 is affirmed. 

PENALTY 

Section llO(i) of the Act mandates consideration of six 

criteria in assessing appropriate civil penalties: 

(1) The size of the business and the appropriateness of the 

penalty to the size; 

( 2) The effect on the operator's ability to continue in 

business; 

(3) The operator's history of previous violation; 

(4) Whether the operator was negligent; 

(5) The gravity of the violations; 

(6) Whether the good faith was demonstrated in attempting 

to achieve prompt abatement of the violation. 

With respect to size, Cobblestone is owned and operated by 

Leonard Lloyd. It is almost a one-man operation. Mr. Lloyd does 

practically all of the mining and milling work with a little help 

from his son and one other part-time person. Mr. Lloyd testified 

that he has no employees. 

The gravel pit and crushing equipment is located on ten 

acres of Mr. Lloyd's 120 acre homesite. Evidence was presented 

that Cobblestone grossed $45,000 from January 1, 1988 to October 

5, 1988. It has three or four thousand dollars outstanding 

accounts receivable. Mr. Lloyd has additional income of $2,000 

to $3,000 from his jewelry business which he works at during the 

winter months. 

Mr. Lloyd testified that he was four months delinquent in 

his payments on a $366,000.00 note that is secured by his 

acreage, his residence, and business of Cobblestone including all 

equipment. Mr. Lloyd stated that Cobblestone has not been able 

to gross the amount needed to cover the notes. In view of his 

delinquency of four mortgage payments the mortgagor has asserted 

1011 
its right of acceleration on the note and turned it over to its 

attorney's for collection. The amount due is $366,000.00 plus 

interest at 11.25 percent per annum. Cobblestone has a second 

mortgage in the sum of $50,000.00. The annual amount due on 

these two notes is approximately $50,000.00 a year. 

The operator's history of previous violations is set forth 

in Exhibit P-1 which is the printout of the assessed violations 

in the history report. The printout shows that the operator has 

at least a moderate history of previous violations. 

With respect to the gravity of the violations Inspector 

Renowden testified that in the electrical related citations which 

he characterized as significant and substantial the gravity is 

high. The hazards that resulted from these violations are 

primarily potential electric shock and electrocution and thermal 

arc flash burns. He believed there was a substantial possibility 

that the injuries would either be an electrocution, electrical 

shock or flash burns. There was a likelihood of loss work days 

or restricted duty from such an injury. 

With respect to each citation that he marked S & S it was 

his opinion based on his occupational background and expertise 

that injuries would be reasonably likely to occur and there was· a 

reasonable likelihood of a serious injury. 

Each of the citations on its face indicate that the number 

that could be exposed to the potential hazard was one. The 

person most likely to be exposed to the hazard is the operator 

himself since he is the one who does practically all the work. 

Irrespective of the number of persons exposed to the hazards the 

gravity of the violation is high in view of the seriousness of 

the potential injury. 

Mr. Lloyd, the operator moved the crusher from one location 

to another approximately three weeks prior to the inspection. He 

testified that he had been attempting to get an electrician to 

check over and correct the electrical work he performed in moving 

the crusher to its new location. He contends that any equipment 

he operated was in the nature of alignment and adjustment so the 

plant would be able to go into production. He states that at the 

time of the inspection he was still preparing the equipment for 

commercial production. I have found however, on the basis of the 

testimony the MSHA inspectors that while he may still have been 

in the process of making some adj~stments and corrections, that 

he was operating his crushing equipment. I find that the 

violations cited were the result of the operator's negligence. I 

characterized negligence as ordinary negligence which is also 

known as moderate negligence. 

1012 
The operator presented evidence of his difficulty in meeting 

the payment due on the notes secured by his heavily mortgaged 

property and equipment and his inability to pay the proposed 

penalties. The operator has financial difficulties. However, I 

do not believe the appropriate penalties assessed in this case 

will constitute the difference between the operator continuing or 

not continuing in business. 

Mr. Lloyd's good faith was demonstrated by his abatement of 

each of the cited violations within the extended time MSHA 

allowed him for abatement of the violations. 

Based on the statutory criteria set forth in section llO(i) 

of the Act and also taking into consideration that the operator 

was essentially engaged in. a one-man operation, had recently 

moved the crusher from one location to another and was trying to 

obtain the services of an electrician to check the work and 

correct any hazards and the business's serious financial 

difficulty I find that the appropriate civil penalty for each of 

the violations as follows: 

Citation No. 

2636578 

2636661 

2636663 

2636666 

2636577 

2636579 

2636580 

2636581 

2636582 

2636583 

2636584 

2636585 

2636586 

2636662 

2636665 

2636667 

2636668 

2636669 

2636587 

30 C.F.R. 

Violated 

56.12025 

56.14001 

56.14001 

56.12018 

56.12032 

56.12008 

56.12030 

56.12030 

56.12002 

56.12008 

56.12008 

56.12008 

56.12008 

56.12028 

56.12013 

56.12018 

56.12008 

56.12004 

56.12008 

ORDER 

Assessed Penalty 

$ 250.00 

100.00 

50.00 

20.00 

50.00 

20.00 

40.00 

30.00 

20.00 

20.00 

20.00 

20.00 

20.00 

20.00 

30.00 

20.00 

30.00 

20.00 

20.00 

$800.00 

1. Citation No. 2636577 is modified to delete the 

characterization "significant and substantial" and as so modified 

affirmed. 

1013 
2. Citation Nos. 2636664 and 2636670 and their related 

proposed penalties are each vacated. 

The respondent Cobblestone Ltd is directed to pay the civil 

penalties assessed in these proceedings within forty (40) days of 

the date of these decisions. Upon receipt of payment, these 

proceedings are dismissed. 

Distribution: 

t F. Cetti 

nistrative Law Judge 

James H. Barkley, Esq., Office of the Solicitor, U.S. Department 

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

80294 (Certified Mail) 

Mr. Leonard Lloyd, Cobblestone Ltd., P.O. Box 173, Pagosa 

Springs, CO 81147 (Certified Mail) 

/bls 

1014 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280. 1244 SPEER BOULEVARQ 

DENVER, CO 80204 

JUN 6 1989 

MID-CONTINENT RESOURCES, INC., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

. . 

. . 

DECISION 

CONTEST PROCEEDING 

Docket No. WEST 89-3-R 

Order No. 3077666; 9/23/88 

Dutch Creek No. 1 Mine 

Mine ID No. 05-00301 

Appearances: Edward Mulhall, Jr., Esq., Delaney & Balcomb, P.C., 

Glenwood Springs, Colorado, 

for Contestant; 

James H. Barkley, Esq., Margaret A. Miller, Esq. 

Office of the Solicitor, U.S. Department of Labor., 

Denver, Colorado, 

for Respondent. 

Before: Judge Morris 

This contest proceeding is before me under Section 105(d) of 

the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 

et seg., (the "Act"). Contestant, Mid-Continent Resources, Inc., 

(Mid-Continent) has challenged an order issued under Section 

104(d) of the Act. 

Issues 

The broad issues presented here involve allegations of 

"MSHA enforcement abuse". Specifically, the issue is whether 

the Commission has jurisdiction to consider such allegations. 

Further, did Mid-Continent violate the escapeway regulation, 

30 C.F.R. § 75.1704, and was the 104(d)(2) order appropriate 

under the circumstances here. 

Procedural History 

1. Mid-Continent contested Order No. 3077666 which alleges 

a violation of 30 C.F.R. § 75.1704. 

2. In addition to its contest Mid-Continent further ~lleged 

that the order is part of a persuasive ongoing policy of abuse 

against Mid-Continent by the Secretary through MSHA's District 

Manager. Said alleged abuse, implemented by MSHA's supervisors 

and inspectors, seeks to subject Mid-Continent to shutdowns of 

its major mining units whenever possible, and whether properly or 

improperly. Mid-Continent further asserts that the order issued 

herein by MSHA was arbitrary. 

1015 
3. When Mid-Continent filed its notice of contest it 

further requested an expedited hearing. 

4. The motion for an expedited hearing was granted and 

a two-day hearing, commencing October 12, 1988, was held in 

Glenwood Springs, Colorado. 

5. At the hearing both parties presented evidence concerning the contested order. The evidentiary record was closed 

on that phase of the case (Tr. 442-443). At the hearing MidContinent, over the Secretary's objection, also presented 

evidence in support of its view that the Secretary abused her 

statutory discretion in enforcing the Act at Mid-Continent's 

mine. 

6. At the close of Mid-Continent's evidence the Secretary 

orally moved the judge to dismiss all issues involving MSHA 

enforcement abuse. 

The issues involving abuse were initially raised in the 

expedited hearing. Accordingly, after the entry of an order on 

the issue of jurisdiction, the judge indicated he would grant the 

Secretary time to consider whether she would stand on her motion 

to dismiss or seek an evidentiary hearing to present her evidence 

on that issue (Tr. 444). 

7. On October 17, 1988, the judge~ sponte directed the 

parties to file briefs addressing the issue of whether the 

Commission has jurisdiction to consider the allegations of MSHA 

enforcement abuse. Such briefs were filed. 

8. On December 22, 1988, the judge issued an order dismissing Mid-Continent's broad allegation of "MSHA enforcement 

abuse," 10 FMSHRC 1798. The parties were further directed to 

file their briefs as to the merits of the contested order. 

9. On January 17, 1989, during the course of other hearings 

involving the same parties and counsel, Mid-Continent orally 

moved and was granted permission to file a motion to reconsider 

dismissal of the "MSHA enforcement abuse" issues. (Request made 

in Docket Nos. WEST 88-230 and 88-231). 

10. On January 25, 1989, Mid-Continent filed its post-trial 

brief addressing the merits of Order No. 3077666. The Secretary 

did not file any post-trial briefs add~essing the merits of the 

order. 

1016 
11. On February 15, 1989, the judge extended MidContinent' s time to file its motion to reconsider to February 17, 

1989, not including mailing time. 

12. On February 21, 1989, Mid-Continent filed its motion 

to reconsider the order of dismissal previously entered on 

December 22, 1988. 

The Secretary did not file in opposition to MidContinent' s motion to reconsider but relied on the judge's 

order of December 22, 1988. (Letter, December 27, 1989}. 

Mid-Continent's position 

Mid-Continent's position, as stated in its motion to reconsider, is that MSHA's policy directed at Mid-Continent results 

in 104(d}(2} closure orders for conditions which by Commission 

precedent justify no more than 104Ca} citations. These closure 

orders are coupled with an enforcement intensity which is per ~ 

pervasive. It is claimed that MSHA's actions adversely affect 

the ability of Mid-Continent to produce coal and to continue in 

business. The excessive use of orders and abuse of enforcement authority constitutes harassment. The closure orders and 

harassment have in turn cost Mid-Continent millions of dollars in 

lost production which may be the death knell of the company. 1/ 

The company seeks to show that it is within the Commission's 

power to hear and consider evidence that MSHA is harassing it 

with its excessive enforcement activities. That MSHA is, in 

effect, upgrading all citations all for the improper purpose of 

attempting to substantially hinder the production of coal, keep 

the mine closed and/or drive Mid-Continent out of business. 

Mid-Continent argues the judge is empowered to consider such 

evidence in proving the invalidity of the order herein which 

the operator has timely contested. 

It is argued that at least some of the citations and orders 

MSHA issued are the fruit of improper enforcement, therefore 

Mid-Continent should be entitled to an order declaring such 

actions unlawful and enjoining MSHA from doing it further in 

the future. Or, stated another way, the judge is not being 

asked to enjoin MSHA from inspecting or citing violations as 

its statutory duty. Rather, the judge is being asked to issue 

a declaratory judgment that the contested order in this docket 

is invalid because it was not issued because of a violation of 

l/ Mid-Continent's motion to reconsider at 2. 

1017 
the regulations but because of a 

Mid-Continent that is unlawful. 

judge to order MSHA to cease and 

citations and orders and abusing 

the 1977 Mine Act. 

pervasive intent to punish/close 

Mid-Continent further asks the 

desist from issuing improper 

its statutory authority under 

Mid-Continent further submits the evidence of abuse will 

establish that the contested order would not have been issued but 

for this abusive enforcement policy. 

The operator also contends that MSHA's improper enforcement 

policy stands in direct contradiction to the Congressionally established policy enunciated in sections 2 and llOCi) of the 1977 

Mine Act, 30 u.s.c. §§ 801 and 820Ci). Therefore, Mid-Continent 

submits that its evidence of abuse is reviewable under section 

113Cd)(2)(A)(ii) of the 1977 Mine Act, 30 u.s.c. § 823(d)(2)(A) 

Cii), as a matter concerning "[a] substantial question of law, 

policy and discretion ••• "and it is relevant in order to fully 

determine the validity of the contested order pursuant to section 

105Cd), 30 U.S.C. § 815(d). If the enforcement is abusive and 

improper, then this poisoning taints its corollary inspection 

activities. 

Mid-Continent argues that consideration by the Commission 

of the issue of abuse is consistent and mandated under the 

purposes charged by Congress in creating.the Commission. The 

company further submits that should such abuse be established, 

then the Commission has the power and corollary duty to declare 

such abuse unlawful under the 1977 Mine Act and issue declaratory 

and remedial orders under its authority to grant "other appropriate relief." 

In support of its views Mid-Continent cites various portions 

of the Mine Act. These parts will be considered infra in the 

same sequence as presented in Mid-Continent's motion to reconsider. · 

Evidence Concerning MSHA Enforcement Abuse 

For the reasons hereafter stated the presiding judge has 

concluded that the Commission lacks jurisdiction to consider 

Mid-Continent's allegations of MSHA enforcement abuse. However, 

the judge considers it appropriate to set forth the relevant 

evidence for any reviewing authority. 

1018 
John A. Reeves, Diane Delaney, Mark E. Skiles, Jimmie E. 

Kiser and David A. Powell testified for Mid-Continent. 

JOHN A. REEVES, a mining engineer and a person experienced 

in mining, has served as President of Mid-Continent for the last 

28 years. He was originally hired as a manager in 1957 (Tr. 129-

132). . 

Mid-Continent's Dutch Creek Mines were developed from the 

outcrop of the coal seams with portals at an elevation of 

10,000 feet. The mines contain the only medium volatile coking 

seam in the western United States. The seams themselves are 

pitched at approximately 13 degrees and they are interlaced with 

volcanic intrusions and geographic faults. The overburden ranges 

between 2500 and 3000 feet. Because of the depth of the mines 

they are extremely gassy. These conditions present a very 

difficult mining environment and probably one of the most difficult in the United States. On numerous occasions the witnes~ has 

visited mines in other countries. For example, he has visited 

Poland, England, Germany, Belgium, France, Hungary, Mexico and 

Japan, to study peat mining technology and techniques in order 

to develop suitable techniques and technologies (Tr. 132-135). 

As President of Mid-Continent and throughout his mining 

career the witness has maintained a close relationship with MSHA, 

MESA and the Bureau of Mines. 

However, after the Wilberg Mine fire disast~r 2/ the MSHA 

District was severely and unfairly criticized at the Senate 

oversight hearings. The Senate Investigating Committee blamed 

MSHA's District 9 for the fire (Tr. 147). After the hearings a 

marked change occurred in MSHA's attitude (Tr. 145-158). This 

change was exemplified in an overly stringent enforcement policy 

which was biased and in many situations unprofessional (Tr. 148). 

This change in attitude and policy was felt at Mid-Continent in 

the form of saturation inspections with as many as 17 inspectors 

per day specifically directed to issue citations and orders 

(Tr. 148). MSHA's stringent enforcement policy has had a drastic 

effect upon the operations at Mid-Continent. The saturation 

inspections basically took over management of Mid-Continent's 

mines. 

~/ This coal mine disaster occurred on December 19_, 1984. 

1019 
Instead of being able to run the coal mining operations 

in an organized manner and according to planned policies, supervisory personnel at Mid-Continent are, as a result of inspections 

relegated to the role of "re-active management" (Tr. 149-150). 

In this situation the foremen are frustrated and due to threats 

of criminal liability they are hesitant in the performance of 

their duties (Tr. 150). As might be expected, morale has reached 

an all-time low with many good qualified miners becoming exasperated and quitting (Tr. 149-150). 

During this saturation enforcement, entire mining units were 

unnecessarily shut down over minor infractions and incorrect 

interpretations of the law. These, in turn, cost Mid-Continent 

thousands of tons of production and made the drafting of accurate 

business plans impossible. Finally, this stringent enforcement 

policy exercised by MSHA in the Dutch Creek Mine has not resulted 

in any increased safety in the workplace. 

With its management reacting to MSHA's demands, the company 

has neither the re~ources nor the time to continue its excellent 

prevention program. Despite the inspection saturation, the accident rate in the Dutch Creek Mines in this time period increased 

(Tr. 149-170). MSHA's new increased enforcement or as described 

by the witness, "abusive enforcement policy" has been conducted 

at a time when dramatic safety improvements have been achieved. 

During the last 12 months Mid-Continent made a quantum leap 

towards a safer operation (Tr. 151). 

Mid-Continent has just completed a $40,000,000 modernization of mining operations in the coal basin. This modernization 

involves two 15,000 foot rock tunnels (called the Rock Tunnel 

Project) which intersect the coal seams. These tunnels greatly 

improv~ mine ventilation, water drainage and operations. They 

give the workers a level fireproof corridor for escape in the 

event of a mine emergency. Previously, the only escape had been 

up 7,000 feet of the 13 degree steep slope entries of the coal 

seam (Tr. 151). In addition to these improvements, Mid-Continent 

also implemented major organizational change designed toward improved safety. After recommendations by Herchel Potter, formerly 

MSHA's Chief of Safety, the company hired Jimmie Kiser to direct 

and implement an expanded and high-profile safety department 

(Tr. 152-153). 

The new safety department was emphasized by the establishment of a mine rescue team of competitive quality and use, 

consisting of professional mine instructors from Colorado 

Mountain College to insure more comprehensive training of 

Mid-Continent's work force. Finally, the operational manager 

10_20 
was replaced. Mark E. Skiles was hired as the mine manager 

with the commitment that Mid-Continent should be totally committed to safety (Tr. 155). 

Despite these measures MSHA has refused to "turn down the 

heat" or curb its abusive enforcement policy. Despite meetings 

with MSHA at the District and Arlington levels, MSHA has refused 

to delineate a course of action which the company must follow 

to alleviate or address what MSHA considers to be a problem 

(Tr. 155). 

Reeves considers the current situation to be ironic. Coal 

operators are told they must invest in capital expenditures in 

order to meet foreign competition. Mid-Continent has invested 

over $40,000,000 in modernizing the mine to become competitive 

and it has obtained contracts with the Republic of Korea and with 

U.S. Steel. However, because of the overreaching enforcement by 

MSHA, Mid-Continent was required to invoke the force majure with 

the Korea/Pohang Iron and Steel Company "POSCO" (Tr. 157). It 

appears that Mid-Continent may have to walk away from its Korean 

contract (Tr. 156-157). If MSHA's overreaching enforcement 

continues, MSHA will have achieved an end result of putting a 

legitimate coal operator out of business (Tr. 156-158). 

DIANE DELANEY is the Manager of Government Affairs at 

Mid-Continent. Her duties include lobbying at the Colorado 

legislature and communicating with government entities. She 

has been so employed for the last 10 years (Tr. 291-292). 

The witness was present at a meeting in Arlington, Virginia 

on July 22, 1987, between MSHA Administrator Jerry L. Spicer 

and representatives of Mid-Continent. During the discussions 

Mr. Spicer stated that the increased enforcement level taking 

place at the Dutch Creek Mine was MSHA's response to rumors that 

Mid-Continent was mining in methane gas (Tr. 298-299). 

Discussions disclosed that these rumors were in reality 

deductions derived from inspector reports the day the inspectors 

had difficulty attempting to observe Mid-Continent mine coal. 

Specifically, the company had shut down producing sections while 

inspectors were in the mine (Tr. 299). 

The witness was present at the meeting with MSHA officials 

in Denver, Colorado attended by Mr. Spicer and the current MSHA 

District Manager for MSHA District 9, John M. DeMichiei. This 

meeting concerned the fact that Mr. Spicer had d·etermined to put 

to rest the issue of whether or not Mid-Continent was mining in 

methane. In order to accomplish this objective Mr. Spicer stated 

1021 
he would direct a task force of unbiased MSHA inspectors 

accustomed to gas and gassy mining conditions in an intensive 

inspection/enforcement effort at Mid-Continent's Dutch Creek 

Mines (Tr. 299-300). 

During this meeting Ms. Delaney communicated to Mr. Spicer 

and Mr. DeMichiei that MSHA had lost sight of its primary 

objective. Much of what was occurring in the Dutch Creek Mines 

through the inspections seemed to be lacking in common sense and 

was counter-productive. Mr. Spicer and Mr. DeMichiei stated 

that MSHA would be willing to look into the specific in.stances 

of situations where the company felt the inspectors were not 

using good judgment. In fact, a meeting to explore these issues 

took place in Glenwood Springs, Colorado, on August 19, 1988 

(Tr. 300, 301). During the meeting Ms. Delaney presented 

Mr. DeMichiei with a list of examples questioning inspector 

conduct (Tr. 301-302, Ex. C-11). While this list was far from 

all-inclusive it included some of the concerns Mid-Continent 

previously communicated to MSHA (Tr. 301-303). Although Mr. 

DeMichiei reviewed the list and listened to comments, he did not, 

as of the date of the hearing on October 12, 1988, respond to 

them (Tr. 305). 

MARK E. SKILES is the General Manager of the Dutch Creek 

Mine. He has been in the coal mining industry since 1970 and he 

has a degree in mining engineering from Penn State. He served 

for two years as a MESA inspector (Tr. 311-319). 

When serving as an inspector he went to work for U.S. Steel 

as a section foreman and was eventually promoted, in varying 

stages, to the position of general mine foreman in charge of the 

entire mine (Tr. 312). He has also served as special troubleshooter for U.S. Steel inspecting all of their coal mines for 

production and safety matters. He has served as superintendent 

of the entire Cumberland District (Tr. 312, 314). 

When he served as a MESA inspector, Skiles worked out of a 

MESA District 3 field office in Morgantown, West Virginia; he 

had frequent interaction with MSHA District 2 field office in 

Williamsburg, Pennsylvania and with the MSHA District office 

in Pittsburgh, Pennsylvania (Tr. 314, 315). Skiles is also well 

acquainted with most of the MSHA District 2 employees, particularly while serving as mine rescue trainer and team captain 

(Tr. 314, 315). 

1022 
Before joining Mid-Continent, Skiles mined with gassy coal 

seams. While he was an inspector he frequently inspected mines 

in northern West Virginia, particularly the Pittsburgh-seam which 

liberates approximately 5 to 11 million cubic -feet of methane per 

day CTr. 313, 314>. 

Despite his familiarity with conditions similar to the Dutch 

Creek Mines, Mr. Skiles has difficulty making sense out of the 

situation at Mid-Continent. When he began with the company, it 

appeared to him no one was actually running the mining operation. 

Management was preoccupied with reacting to MSHA inspectors 

who were regularly shutting down the mining operations for what 

he considered to be doubtful or minor infractions of the law 

(Tr. 316, 317). In order to alleviate the problems, Skiles 

instituted both operational and organizational changes. He 

caused extensive work to be done on the ventilation system. 

This resulted in approximately doubling the quantity of air being 

brought to the working faces. Nine sub-level managers were 

brought into the organization and strategically located to effectively address the operator's management problem (Tr. 317, 318). 

In addition to the organizational changes, Skiles took steps 

to open up and improve communication between MSHA and MidContinent. Skiles and other Mid-Continent representatives have 

met with MSHA officials a number of times at the field office· as 

well as the District office and on the Washington, D.C. level 

(Tr. 318, 319). 

In attempts to understand the situation and the evident 

conflict, the witness has met on numerous occasions with MSHA 

District 9 Manager John DeMichiei. Finally adopting the practice 

he used successfully at U.S. Steel, the witness instituted an 

open disclosure policy. In this policy management, after 

identifying operational problems, would disclose those problems 

to MSHA and further disclose what action management felt should 

be taken to address them CTr. 318-319). Despite these measures 

MSHA has continued to saturate the Dutch Creek Mine with inspectors. In September and October 1988 there have been approximately 12 to 15 inspectors on the property daily. These 

inspections disrupt operations and place management in a reactive 

posture where a large percentage of the company's work force and 

resources are directed towards orders and citations and away from 

normal operations (Tr. 323-324). · 

1023 
In his communications with Mr. Skiles, MSHA District 9 

Manager John DeMichiei justified his saturation inspections on 

his perception that they are necessary in order to keep the 

company from mining in methane gas. It was Mr. DeMichiei's 

expressed opinion that normal inspection schedules are not 

adequate because the company was shutting down actual mining 

operations during these infrequent inspections (Tr. 323). 

Through his experience with the MSHA District 9 hierarchies, 

Mr. Skiles has concluded that Mr. DeMichiei does not possess a 

good understanding of mining operations (Tr. 323). Furthermore, 

it is Mr. Skiles' view that Mr. DeMichiei places entirely too 

much relevance on speculation and innuendo rather than on actual 

facts. Addressing the accusation that Mid-Continent mines had 

methane gas, Mr. Skiles has found this perception on the part of 

Mr. DeMichiei to be both insulting and unreasonable. There is 

nothing in Mr. Skiles' background to suggest that he has allowed 

such practices in the past or that he would allow such practices 

now. Skiles has always maintained a policy that would result in 

the immediate discharge of any section or mine foreman that would 

permit mining operations in methane gas. In the months of April 

and May, 1988, during the saturation inspections, Mid-Continent 

produced 100,000 and 123,000 tons of coal respectively for each 

month (Tr. 329-330, 336). · 

Under his current program MSHA has reacted in a hostile and 

uncooperative manner toward all management attempts to correct 

problems at the Dutch Creek Mine. Mr. Skiles finds the current 

attitude and policy evidenced in MSHA District 9 to be in sharp 

contrast with his previous experience. In his previous work 

experience MSHA had been willing to work with management to 

solve problems, as well as to aid and assist management in the 

practical operation of the mine (Tr. 321-322). 

Mr. Skiles feels the gains his management team has made at 

Mid-Continent have been made in spite of MSHA (Tr. 322). It is 

the witness' opinion that the MSHA current enforcement program 

has nothing to do with the establishment of a safe work 

environment in the mines. It is making a "mockery" of safety 

(Tr. 324). In Mr. Skiles' opinion MSHA activities at the mine 

have very little to do with mine safety and health. He does not 

know the reason but what is going on at the mine is making a 

mockery out of safety and that makes him "sick" (Tr. 324). 

JIMMY E. KISER has been the Safety Director at Mid-Continent 

since January 15, 1988. He is experienced in underground coal 

mining and for the last 15 years has been exclusively involved 

in safety matters (Tr. ~5-37). The witness has held safety 

1024 
positions with Island Creek Coal Company (Virginia Pocahontas 

Division), Jewell Smokeless Coal Corporation, Leckie Smokeless 

Coal Corporation, Westmoreland Coal Company, Kaiser Coal Company. 

His field of expertise has been dealing in safety problems and 

he has a degree in mining engineering (Tr. 35-37). 

During his career the witness has become well versed in 

establishing comprehensive safety programs in underground coal 

mines. He was hired by three companies expressly to establish 

safety programs. Mid-Continent hired him for that purpose. 

In each of the companies where Kiser was hired he was dealing 

with, prior to his arrivai, above average injury rates and above 

average MSHA violation rates (Tr. 339). 

In Kiser's view, in order to implement a comprehensive 

safety program, one must deal with human nature. A program 

to be successful must on a workforce wide basis and change communicative techniques, habits, attitudes and beliefs (Tr. 343). 

Accordingly, the process of establishing good work habits and 

a safe environment is a long one. At Westmoreland Coal Company 

it took approximately six to seven years to put together the 

programs that resulted in an improved safety performance 

(Tr. 342). 

Kiser was recruited by Mr. Reeves in order to establish 

a new comprehensive and higher profile safety program at MidContinent (Tr. 153). When he began at Mid-Continent, Kiser 

immediately expanded both the manpower and resources allocated 

to the safety department. Safety inspectors were trained to 

provide in-house safety inspections. Further, they were to 

serve as liaison to facilitate an understanding of communication 

between Mid-Continent and MSHA by traveling with MSHA personnel 

on inspections. In this expansion, resources were put in place 

to attempt a more thorough and comprehensive training for 

Mid-Continent workers, supervisors, and mine rescue personnel 

(Tr. 344). Unfortunately, the inspection saturation was an 

interference which precluded Kiser and members of the safety 

department from implementing the new safety program. Current 

MSHA policy appears to Kiser to be a decision by MSHA to handle 

Mid-Continent safety concerns without allowing cooperation or 

feedback from the company. Mid-Continent's new safety program 

has not been effective because of MSHA (Tr. 345). 

1025 
Kiser has found MSHA's adversarial stance to be "totally 

different" from his previous experiences in other areas. Kiser 

believes Mr. DeMichiei and his inspectors do not understand 

Mid-Continent's safety concerns (Tr. 346, 347). 

DAVID A. POWELL has been continually employed by MidContinent since May of 1983. He has held the position of 

assistant superintendent at Dutch Creek Mine No. 1 and he is 

currently the Manager of Budget and Planning (Tr. 164-165). 

He is a graduate from the Colorado School of Mines in mining 

engineering and has successfully completed the professional 

engineering examination. Also he is a registered professional 

engineer in the State of Colorado (Tr. 164-168). 

During Mr. Powell's tenure as Safety Director and continuing 

into his present duties he has, with counsel's help, kept records 

of the ongoing computerized data files concerning mine act violati_ons issued at Dutch Creek mines and its supporting facilities 

(Tr. 169). 

These records were kept in order to insure timely abatements 

and as a method of evaluating Mid-Continent's compliance with the 

law (Tr. 169). 

Beginning in September 1987, Mid-Continent experienced 

a significant increase in the number of citations and orders 

issued by MSHA. Tabular summaries of MSHA citations and orders 

by month, by quarter and all units of Mid-Continent for the years 

1983, 1984, 1985, 1986, 1987 and 1988 were received in evidence 

(Contestant's Exh. C-6 consisting of 6 pages; Tr. 171-175). 

The inspection increase is readily illustrated by comparison of the graphic depictions of MSHA citations and orqers, 

the vertical bar charts for the years 1983-1988. (Tr. 173-175, 

(Contestant's Exhibit C-7A, C-7B, C-7C). 

The exhibits establish a measured increase in inspection 

activity clearly from September 1987 onward, a consequence of 

which can only be the result of a major change of enforcement 

policy by MSHA in the c·oal basin. The enforcement activities are 

disproportionate to the levels of production at Mid-Continent as 

the graphs for production indicate (Tr. 176-177). 

1026 
MSHA's enforcement policy change was verbally confirmed to 

the witness on two separate occasions by MSHA officials (Tr. 171). 

The first occasion was during a November 1987 meeting at MidContinent' s office in Carbondale, Colorado between company 

officials and the then interim MSHA District Manager Ron Shell. 

During the meeting Shell stated that the Inspector General had 

decided that Mid-Continent should be "singled out and cleaned 

up" (Tr. 224). 

Further, in February 1988 in the MSHA office in Arlington, 

Virginia, company officials met with MSHA Administrator Jerry L. 

Spicer to discuss proposed ventilation regulations and increased 

enforcement at Mid-Continent. Spicer confirmed that he had 

"turned the heat on" in September 1987 when Ron Shell became 

interim District Manager for District 9 and that he, Spicer, 

could "turn the heat off" (Tr. 180). 

During the numerous inspections that were the result of 

MSHA's change of policy, an MSHA inspector told Powell that they 

had been instructed to write Section 104(d)(2) orders; further, 

an S&S citation classification would be the least serious violation written (Tr. 228). 

As a part of this increased enforcement policy, MSHA 

changed operational policies as well. Rather than implementing 

the changes in a normal businesslike manner, MSHA announced and 

implemented such changes in an ~ post facto fas~ion by issuing 

orders and citations. Some of these policies affected longstanding practices such as the outby inspections of permanent 

seals which had been an accepted policy in Dutch Creek mines 

for decades (Tr. 228-231). 

Since 1985 Mr. Powell, in his capacity as Safety Director 

and as Manager of Budget and Planning, formulated and submitted 

to MSHA any required plans. In order to perform this function 

Powell is required to deal personally with the MSHA District 9 

Manager, now John DiMichiei (Tr. 276). Through these dealings 

and through other information Powell has come to the conclusion 

that Mr. DiMichiei possesses neither the practical experience nor 

the engineering expertise needed to adequately analyze the mining 

conditions in the coal basin with which Mid-Continent must deal. 

As a result the witness is unable to formulate a reasonable and 

correct enforcement program for the Dutch Creek mines (Tr. 276). 

1027 
Because of DiMichiei's inexperience and the lack of engineering expertise, it is Powell's belief that many aspects 

of MSHA's current enforcement policies are unreasonable when 

applied to the unique mining conditions in the Dutch Creek mines. 

For example, the witness believes Mr. DiMichiei's actions in the 

area of rib control in the Dutch Creek Mine provides a good, 

although not exclusive, example (Tr. 276). 

To illustrate: because of different coal characteristics, 

the process of supporting coal ribs along mine entries, a common 

practice in Eastern mines, is not commonly used in mines in the 

western United States. Despite the different geologic areas and 

conditions involved, Mr. DiMichiei has repeatedly told Powell 

that Dutch Creek mines need rib control. To satisfy DiMichiei's 

demands, Mid-Continent would have to institute a program in 

which the coal ribs would be bolted. This practice, if performed in mines with overburden characteristics as contained in 

the Dutch Creek mines, would create dangerous bursting conditions 

(Tr. 278). 

Due to the magnitude of overburden resting on the coal seam, 

entries in the Dutch Creek Mines should be developed through the 

creation of "yielding-pillars". By this mining technique pillars 

are developed in a configuration to prevent the dangerous 

accumulations of pressure. When this pressure is released 

geologic events commonly described in the industry as "bounces" 

or "bursts" occur. 

To avoid dangerous accumulations of pressure and the danger 

of bursts, a yielding pillar gives under the pressure of the 

overburden and crushes out slowly over a period of time. This 

yielding.is evidenced by rib sloughage. But should a yielding 

pillar be bolted it would prevent or reduce rib sloughage. As 

a result the pillar would accumulate huge pressures and present 

the possibility of a violent burst (Tr. 276-279). 

Mr. Powell has on numerous occasions explained the need 

to utilize yielding pillars in the Dutch Creek mines to Mr. 

DiMichiei. Despite this, Mr. DiMichiei continues to insist 

that Mid-Continent management somehow contain its pillars to 

prevent sloughing. In this context it appears to Powell that 

Mr. DiMichiei has insisted that Mid-Continent create a hazardous 

situation in place of a practice the operator has demonstrated 

to be effective in eliminating pillar outbursts (Tr. 279-280). 

1028 
Since he assumed the duties as MSHA's District Manager, 

Mr. DiMichiei has demonstrated great concern about the rumors 

that Mid-Continent does not follow its approved ventilation plan 

and mined in gas (Tr. 299-327). During a meeting on July 11,, 

1988, at the Denver MSHA office Mr. DiMichiei outlined his 

program of saturation inspections to determine Mid-Continent's 

compliance with its ventilation plan and the ventilation 

regulations (Tr. 203-204). At the meeting DiMichiei threatened 

to revoke Mid-Continent's violation plan should Mid-Continent 

refuse to agree to the saturation inspections (Tr. 287). 

The MSHA District 9 saturation inspections began September 22, 1988. During this saturation inspection program an 

inspector was stationed each day in each producing section on 

every shift. The inspection lasted through October 1988 and 

did not conclude until the end of the calendar year. The BAB 

saturation inspection followed on the heels of the Spicersaturation inspection; namely, the BAA inspection. 

The inspectors conducting the BAA saturation inspections 

were not employed in MSHA District 9 and came fro~ outside the 

District. All the inspectors had experience in gassy mines. 

The BAA inspectors had just completed an inspection at Jim 

Walters' Alabama mines which, together with Mid-Continent's, 

are considered to be some of the gassiest mines in the nation 

(Tr. 204-211). During the BAB inspection a District 9 inspector 

was assigned to every producing section on every shift throughout the balance of the month of September 1988 (Tr. 204-211) 

Powell's records showed that during the 22 days of the 

BAA ventilation saturation inspection, a total of 66 citations, 

orders and safeguards were issued (See Exh. C-lOA, Appendix D). 

However, only 39 of these citations, orders and safeguards related to the ventilation saturation inspection itself (Contestant 

Exh. C-lOD, Appendix D). However, no citation, order or safeguard was issued relating to mining in explosive methane 

mixtures. 

The witness believes the inspectors are under pressure to 

write orders. They often say they have no choice. However, the 

inspectors rely on their own judgment (Tr. 235-237). 

1029 
Mid-Continent has received the following citations and 

orders for the months indicated: 

Citations Orders 

September 1987 

October 1987 

November 1987 

December 1987 

January 1988 

February 1988 

March 1988 

April 1988 

May 1988 

June 1988 

July 1988 

August 1988 

September 1988 

111 

158 

134 

87 

135 

114 

88 

70 

50 

77 

123 

99 

135 

37 

31 

15 

23 

19 

18 

41 

40 

6 

12 

100 

150 

34 

(Tr. 236-2381 Ex C-6) 

Mid-Continent also presented extensive exhibits. The 

exhibits relevant to allegations of MSHA enforcement abuse are 

as follows: 

c 6: 

C 7(a): 

c 7(b): 

C 7(c): 

c 8: 

c 9: 

Monthly MSHA citation and orders 

1983 through 1988. 

Graph, citations and orders 

1983 and 1984. 

Graph, citations and orders 

1985· and 1986. 

Graph, citations and orders 

1987 and 1988. 

1988 MSHA inspections. 

Citations, Orders and Safeguards 

issued in September 1988 (6 pages). 

1030 
c 10: 

C lO(b): 

C lOCc): 

C lO(d): 

C ll(a): 

c 11 (b): 

C ll(c): 

c ll(d): 

c 12: 

c 13: 

c 14: 

Citations, Orders and Safeguards 

issued September 1, 1988 through 

September 21, 1988. 

Ventilation Violations 

September 1, 1988 through 

September 18, 1988. 

Orders re Special Ventilation 

Inspections 

September 1, 1988 through 

September 19, 1988. 

Special Ventilation Inspection. 

BAA Orders/ Citations in 

September 1988. 

All Citations and Orders (Noise/dust) 

issued September 22, 1988 through 

September 30, 1988 (4 pages). 

Citations and Orders 

September 22, 1988 through 

September 30, 1989 (Noise/dust). 

Citations and Orders 

September 22, 1988 through 

September 30, 1988 <Noise/dust>. 

Citations and Orders 

issued September 22, 1988 

through September 1988 (Noise/dust). 

Memo prepared by Diane Delaney re 

Mining Association Meeting on 

June 28, 1988 (5 pages). 

5 page exhibit entitled 

"MSHA Orders." 

Coding for various MSHA mandatory 

inspections and investigations. 

1031 
Discussion and Conclusions 

The initial issue presented here is whether the Commission 

has jurisdiction to consider Mid-Continent's allegations that 

MSHA abused its statutory authority in enforcing the Mine Act. 

In Kaiser Coal Corporation, 10 FMSHRC 1165 (1988) the 

C~mmission clearly articulated its jurisdictional authority. 

At 1169 the Commission stated as follows: 

We begin with the fundamental principle 

that, as an administrative agency created by 

statute, we cannot exceed the jurisdictional 

authority granted to us by Congress. See,~., 

Civil Aeronautics Board v. Delta Airlines, 

367 U.S. 316, 322 (1961); Lehigh & New England 

R.R. v. ICC, 540 F.2d 71, 78 (3rd Cir. 1976); 

National-petroleum Refiners Assoc. v. FTC, 

482 F.2d 672, 674 CD.C. Cir. 1973). The 

Commission is an independent adjudicative 

agency created by section 113 of the Mine Act, 

30 U.S.C. § 823, to provide trial-type proceedings and administrative appellate review 

in cases arising under the Act. Several provisions of the Mine Act grant subject matter 

jurisdiction to the Commission by establishing 

specific enforcement and contest proceedings 

and other forms of action over which the 

Commission judicially presides: ~., section 

105(d), 30 u.s.c. § 815(d), provides for the 

contest of citations or orders, or the contest 

_of civil penalties proposed for such violations; 

section 105Cb>C2), 30 u.s.c. § 815Cb)(2), provides for applications for temporary relief 

from orders issued pursuant to section 104; 

section 107(e), 30 u.s.c. § 817Ce>, provides 

for contests of imminent danger order of 

withdrawal; section 105(c), 30 U.S.C. § 815Cc), 

provides for complaints of discrimination; and 

section 111, 30 u.s.c. § 821, provides for 

complaints for compensation. Specific provisions, such as these, delineate the scope 

of the Commission's jurisdiction. 

1032 
The Commission's statement of the law would appear to 

conclude the matter; however, it is nevertheless appropriate 

to consider Mid-Continent's arguments in greater detail. 

Mid-Continent states that section 113, 30 U.S.C. § 823 

(d)(l), ~/supports its position. 

The section, as indicated, addresses the province of 

Commission's administrative law judges. The precise issue 

urged here was ruled contrary to Mid-Continent's position in 

Kaiser Coal Corporation, supra. Specifically, the Commission 

ruled that section 113Cd)(l) is procedural in nature. Further, 

the language in the Act '.'describes the scope of the judge's 

authority to hear and decide matters in those proceedings 

otherwise properly filed pursuant to the Act. In short, section 

ll3(d)(l) does not constitute an independent grant of subject 

~atter jurisdiction", 10 FMSHRC at 1169, 1170. 

The Commission's pronouncement is clear and articulate. 

As a judge of the Commission I am bound to follow established 

precedent. 

11 The cited portion reads as follows: 

(d)(l) An administrative law judge appointed by the 

Commission to hear matters under this Act shall hear, 

and make a determination upon, any proceeding instituted 

before the Commission and any motion in connection therewith, assigned to such administrative law judge by the 

chief administrative law judge of the Commission or by 

the Commission, and shall make a decision which constitutes 

his final disposition of the proceedings. The decision 

of the administrative law judge of the Commission shall 

become the final decision of the Commission 40 days after 

its issuance unless within such period the Commission has 

directed that such decision shall be reviewed by the 

Commission in accordance with paragraph (2). An administrative law judge shall not be assigned to prepare a 

recommended decision under this Act. 

1033 
With an emphasis stressing and relying on section 105(d), 

30 U.S.C. § 815{d), 4/ Mid-Continent contends its view of subject 

matter jurisdiction Is correct. 

In particular, the operator relies on the statutory 

statements that "the Commission shall afford an opportunity 

for a hearing" and "thereafter shall issue an order, based on 

findings of fact, affirming, modifying, or vacating the 

Secretary's citation, order, or proposed penalty, or directing 

other appropriate relief." 

!/ The cited portion of the Act provides as follows: 

Cd> If, within 30 days of receipt thereof, an operator 

of a coal or other mine notifies the Secretary that he 

intends to contest the issuance or modification of an 

order issued under section 104, or citation or a notification of proposed assessment of a penalty issued under 

subsection {a) or {b) of this section, or the reasonableness of the length of abatement time fixed in a citation 

or modification thereof issued under section 104, or any 

miner or representative of miners notifies the Secretary 

of an intention to contest the issuance, modification, 

or termination of any order issued under section 104, or 

the reasonableness of the length of time set for abatement 

by a citation or modification thereof issued under section 

104, the Secretary shall immediately advise the Commission 

of such notification, and the Commission shall afford an 

opportunity for a hearing {in accordance with section 554 

of Title 5, United States Code, but without regard to 

subsection {a){3) of such section), and thereafter shall 

issue an order, based on findings of fact, affirming, 

modifying, or vacating ~he Secretary's citation, order or 

proposed penalty, or directing other appropriate relief. 

Such order shall become final 30 days after its issuance. 

The rules of procedures prescribed by the Commission shall 

provide affected miners or representatives of affected 

miners an opportunity to participate as parties to hearings 

under this section. The Commission shall take whatever 

action is necessary to expedite proceedings for hearing 

appeals of orders issued under section 104. [Emphasis 

added by Mid-Continent.] 

1034 
The portions of the Act relied on by Mid-Continent fall 

within the rationale as stated in Kaiser Coal Corporation, supra. 

In addition, the legislative history indicates that the Congress 

viewed this section as procedural rather than one conferring 

subject matter jurisdiction. See S.Rep. No. 181, 95th Cong., 

1st Sess. 14 (1977), reprinted in Senate Subcommittee on Labor, 

Committee on Human Resources, 95th Cong., 2nd Sess., Legislative 

History of the Federal Mine Safety and Health Act of 1977 at 636. 

( " Leg is • Hi st • " ) 

The reliance by Mid-Continent on section 113(d)(2)(A)(ii), 

30 u.s.c. 823(d)(2)CA>Cii) 5/ is also misplaced. If followed to 

its logical conclusion this-section would confer virtually unlimited jurisdiction on the Commission. In short, the Commission 

would no longer be limited to the jurisdictional authority 

granted it by Congress.· 

Section 113(d)(2)(A)Cii) merely delineates appellate pro-. 

cedure if the proceedings are otherwise properly filed pursuant 

to the Act. On this point see Legis. Hist. at 636 and 1338 

(1978); See also footnote 5 in Kaiser Coal Corporation, 10 FMSHRC 

at 1170. 

11 The cited portion reads as follows: 

(ii) Petitions for discretionary review shall. be filed 

only upon one or more of the following grounds: 

(I) 

(I I) 

(III) 

(IV) 

(V) 

A finding or conclusion of material fact is not 

supported by substantial evidence. 

A necessary legal conclusion is erroneous. 

The decision is contrary to law or to the duly 

promulgated rules or decisions of the Commission. 

A substantial question of law, policy or 

discretion is involved. 

A prejudicial error of procedure was committed. 

[Emphasis added by Mid-Continent). 

1035 
Further Arguments by Mid-Continent 

Mid-Continent also states that under the statutory scheme 

evidence of claimed abuse falls within the jurisdiction of the 

Commission in two additional different respects. 6/ 

First, it is urged that evidence of abuse is relevant under 

section 105Cd) to the extent that it affects the validity of the 

contested order. In this docket, Mid-Continent argues the 

evidence of abuse is relevant to rebut MSHA's claim that the 

contested escapeway order was properly issued. 

Evidence of abuse, according to Mid-Continent, sets the 

inspection and the entire inspection activity in its true context. 

The evidence presented would allow the Commission to make an 

accurate and informed decision whether the conditions cited by 

MSHA in this docket in fact constitute a violation of any 

regulation, or whether alleged circumstances are nothing more 

than a pretext, improperly used, in an attempt to justify the 

interruption of coal production. · 

Second, in determining the validity of a contested order 

.under section 105(d) the Commission is authorized under section 

113Cd)(2)(A)(ii) to review matters involving "[a] substantial 

question of law, policy and discretion •••• " 

Under the facts presented in this docket, Mid-Continent 

asserts it has alleged the invalidity of Order No. 3077666. It 

has brought this contest on the basis that it was the tainted 

product of. a policy designed to improperly issue closure orders 

and curtail production. The extent to which this policy contributed to the invalidity of the subject order is clearly within 

the jurisdictional purview of section 113Cd)(2)(A)(ii). 

~/ Mid-Continent motion to consider at 5. 

1036 
It is argued that consideration of Mid-Continent's abuse 

claim is entirely consistent with the purpose for which the 

Commission was established. In reporting the conference changes 

of the 1977 Mine Act, the House, mindful of the alleged shortcomings of Interior's Board of Mine Operations Appeals, 

characterized the functions of the new Commission as follows: 

The conference substitute provides for 

an independent Federal Mine Safety and Health 

Review Commission. This Commission is assigned 

all administrative review responsibilities and 

is also authorized to assess civil penalties. 

The objective ·in establishing this Commission 

is to separate the administrative review functions 

from the enforcement functions, which are retained 

as functions of the Secretary. This separation is 

important in providing administrative adjudication 

which preserves due process and installs conf idence in the program. This separation is also 

important because it obviates the need for de novo 

review of matters in the courts, which has bee~ 

source of great delay. [Emphasis supplied by 

Mid-Continent]. 

123 Cong. Rec. H 11644 {daily ed. October 27, 1977) {Remarks of 

Rep. Gaydos). See also, s. Rep. No. 95-181, Committee on Human 

Resources on s.~7, Federal Mine Safety and Health Act of 1977, 

as amended, at 8-9, 47, 95th Cong., 1st Sess. {1977). 

According to Mid-Continent the legislative history of the 

1977 Mine Act shows also that it was a consistent intention of 

the Congress that this new, independent Commission be created as 

a check on possible abuse in the enforcement of the Act by the 

Secretary. As the Senate Committee explained its plan a full 

year before the Act was enacted: 

The bill provides to an operator the right 

to contest any citation, order or penalty before 

the Commission, which is established under section 

1037 
114 [sic] of the Act. The Committee believes that 

an independent Commission is essential to provide 

impartial adjudication of these matters and protect 

the constitutional rights of operators. Although 

the Commission is patterned after the Occupational 

Safety and Health Review Commission, the C.ommittee 

believes that the heavy caseload of that commission 

and the peculiar technical matters involved with 

mine health and safety problems warrant the. establishment of an independent Commission. [Emphasis 

supplied.] 

s. Rep. 94-1198, Committee on Labor and Public Welfare, Federal 

Mine Safety and Health Amendments Act of 1976, at 40, 94th Cong., 

2nd Sess. (1976). 

Further Discussion 

Contestant's arguments concerning "MSHA enforcement abuse" 

are not persuasive. 

Mid-Continent has failed to distinguish between "MSHA 

enforcement abuse" and inspector abuse in connection with a 

given order or citation. 

Certainly an MSHA inspector may abuse his individual 

discretion in issuing a given order or citation. Abuse of 

discretion can exist in many areas. 7/ 

7/ For example, under Commission Rule 51, 29 C.F.R. § 2700.51, a 

Commission judge may select a hearing site. In Lincoln Sand and 

Gravel Company it was held the judge did not abuse his discretion 

in setting a hearing at a location 150 miles from the mine. On 

the other hand, in Cut Slate, 1 FMSHRC 796 (1979), a judge abused 

his discretion by requiring a small quarry operator to attend a 

prehearing conference about 450 miles from the operator's mine. 

1038 
The operator states that the violative conditions involving the escapeway cited by Inspector McDonald constituted 

a pretext to justify the interruption of coal production. In 

support of its view Mid-Continent states that "(i)n this regard, 

it should be recalled from the evidence that the inspector and 

his supervisor set out to examine an ostensible roof support 

problem in the 103 longwall section (Kiser, Tr. 40, 44). When 

no roof problem was found (Kiser, Tr. 48, 50) the MSHA supervisor 

became belligerent and issued a verbal closure order 'because the 

escapeway was blocked' (Kiser, Tr. 51). The escapeway was not 

blocked, and it was passable as the evidence shows (Kiser, 

Tr. 62-63), but the MSHA supervisor refused to permit MidContinent's Safety Director to demonstrate that an injured 

person could be littered out of the section (Kiser, Tr. 52) ~" 8/ 

I am not persuaded by this argument. As a threshold matter, 

it is not reasonable to conclude that the evidence relied on 

establishes that Inspector McDonald intended to interrupt coal 

production. In addition, as will be noted infra, the order 

mentions "heavy roof problems" but the Secretary's evidence 

(which was not objected to) basically only addresses the condition of the escapeway. 

Mid-Continent, citing Helen Mining Co., 1 FMSHRC 219 <1979), 

also asserts the Commission is the final interpreter of policy 

under the Act. 

Contrary to the operator's view, in a recent decision, 

the Court of Appeals for the District of Columbia ~/ ruled that 

when the Secretary of Labor and the Commission disagree over the 

interpretation of a regulation and both views are plausible "the 

Secretary rather than the Commission is entitled to the deference 

described in Chevron U.S.A. Inc. v. Natural Resources Defense 

Council, Inc., 467 U.S. 837 (1984)." 

!/ Footnote 2, page 6, Mid-Continent motion to reconsider. 

!/ Secretary of Labor, et al, on behalf of John W. Bushnell v. 

Cannelton Industries, Inc., 867 F.2d 1432 (1989). 

1039 
In support of its position Mid-Continent also relies on the 

penalty criteria provisions as contained in section llOCi), 

30 u.s.c. § 820(i) 10/. 

I completely agree the Commission is bound to consider the 

effect of a penalty on the operator's ability to continue in 

business. However, we are dealing here with subject matter 

jurisdiction. In addition, I fully concur with Mid-Continent's 

statement that "section llO(i) cannot be viewed as an independent basis upon which to justify Commission review of Agency 

action." 11/ Accordingly, it is not necessary to further explore 

Section llOCi>. 

In support of its position Contestant also relies on 

section 105(d)(2) of the Act, 12/ the legislative history, and 

Commission's broad scope of itS-authority under this section as 

expressed in Northern Coal Co., 4 FMSHRC 126, 142 (1982). 

10/ The cited portion reads as follows: 

Ci> The Commission shall have authority to assess 

all civil penalties provided in this Act. In assessing 

civil monetary penalties, the Commission shall consider 

the operator's history of previous violations, the 

appropriateness of such penalty to the size of the 

business of the operator charged, whether the operator 

was negligent, the effect on the operator's ability to 

continue in business, the gravity of the violation, and 

the demonstrated good faith of the person charged in 

attempting to achieve rapid compliance after notif ication of a violation. (Emphasis added by Mid-Continent) 

11/ Motion at 8. 

12/ (2) Any miner .•• who believes that he has been ••• 

discriminated against by any person in violation of this 

subsection may, within 60 days after such violation occurs, 

file a complaint with the Secretary •••. If upon such 

investigation, the Secretary determines that the provisions 

of this subsection have been violated, he shall immediately 

file a complaint with the Commission • • • • The Commission 

shall afford an opportunity for hearing ••• and thereafter shall issue an order, ba~ed upon findings of facts, 

affirming, modifying, or vacating the Secretary's proposed 

order, or directing other appropriate relief •••• 

(Emphasis added by Mid-Continent). 

1040 
Mid-Continent's argument is misplaced. The statute, 

the legislative history and the cited case law all relate to 

discrimination cases which are otherwise properly before the 

Commission within its grant of authority. In short, and to 

answer the operator's position: 13/ a cease-and-desist order may 

be appropriate in a discriminatio'flcase but a discrimination 

claim does not bear a remote relationship to MSHA's enforcement 

abuse as alleged here. 

Finally, the operator states the reasoning in the judge's 

prior order is too narrow. 14/ In particular, the order is wrong 

for three reasons. First, any injury to Mid-Continent from an 

improperly issued order is not cured by invalidating the order 

in a contest proceeding. For example, the cost of the legal 

proceedings and lost coal production can never be recovered. 

Second, the wrong inflicted by MSHA's misconduct is not 

remedied by empowering the injured party repeatedly to take the 

wrongdoer to court. It is argued that equitable injunctive 

remedies such as cease-and-desist orders were developed to 

address this very inequity. 

Third, there is simply no way an operator can match 

the resources of the United States. Simply put, it is not 

possible for a small operator like Mid-Continent to litigate 

the 1,244 citations and 235 orders issued to it by MSHA during 

the calendar year 1988. 15/ The shear enormity of the numbers 

make individual contests-an impossibility and a remedy which is 

no remedy at all. 

I am aware of Mid-Continent's eloquent arguments. But 

for the reasons previously stated I do not find the requisite 

authority to issue a cease-and-desist order against the Secretary 

in her enforcement of the Act. 

The fundamental cornerstone of Mid-Continent's position 

is that the Commission has jurisdiction to issue injunctive 

rel.ief against the Secretary. The foregoing portion of this 

decision addresses all the issues raised by Mid-Continent. 

But a persuasive argument against Mid-Continent is contained in 

13/ Motion at 11. 

14/ Motion at 10-12. 

15/ Mid-Continent motion at 12 asserts total numbers are 

not available for October, November and December, 1988, at the 

evidentiary hearing held October 12 and 13, 1988. 

1041 
Section 108(a), 30 U.S.C. § 818, where Congress clearly indicated 

it means how to provide injunctive relief. But in this section 

such relief is only in favor of the Secretary against an operator. The section reads as follows: 

Injunctions 

Sec. 108(a) 

(1) The Secretary may institute a civil action 

for relief, including a permanent or temporary 

injunction, restraining order, or any other 

appropriate order in the district court of the 

United States for the district in which a coal 

or other mine is located or in which the operator 

of such mine has his principal off ice, whenever 

such operator or his agent -

(A) violates or fails or refuses to comply 

with any order or decision issued under this 

Act. 

CB) interferes with, hinders, or delays the 

Secretary or his authorized representative, or 

the Secretary of Health, Education and Welfare 

or his authorized representative, in carrying 

out the provisions of this Act. 

(C) refuses to admit such representatives 

to the coal or other mine. 

CD) refuses to permit the inspection of the 

coal or other mine, or the investigation of an 

accident or occupational disease occurring in, 

or connected with, such mine. 

CE) refuses to furnish any information 

or report requested by the Secretary or the 

Secretary of Health, Education, and Welfare 

in furtherance of the provisions of this Act, 

or 

1042 
CF) refuses to permit access to, and 

copying of, such records as the Secretary or 

the Secretary of Health, Education and Welfare 

determines necessary in carrying out the provisions of this Act. 

(2) The Secretary may institute a civil action 

for relief, including permanent or temporary 

injunction, restraining order, or any other 

appropriate order in the district court of the 

United States for the district in which the coal 

or other mine is located or in which the operator 

of such mine has his principal off ice whenever 

the Secretary believes that the operator of a 

coal or other mine is engaged in a pattern of 

violation of the mandatory health or safety 

standards of this Act, which in the judgment of 

the Secretary constitutes a continuing hazard 

to the health or safety of miners. 

(b) In any action brought under subsection (a), the court 

shall have jurisdiction to provide such relief as 

may be appropriate. In the case of an action under 

subsection (a)(2), the court shall in its order 

require such assurance or affirmative steps as it 

deems necessary to assure itself that the protection 

afforded to miners under this Act shall be provided 

by the operator. Temporary restraining orders shall 

be issued in accordance with rule 65 of the Federal 

Rules of Civil Procedure, as amended, except that 

the time limit in such orders, when issued without 

notice, shall be seven days from the date of entry. 

Except as otherwise provided herein, any relief 

granted by the court to enforce any order under paragraph (1) of subsection (a) shall continue in effect 

until the completion or final termination of all 

proceedings for review of such order under this 

title, unless prior thereto, the district court 

granting such relief sets it aside or modifies it. 

In any action instituted under this section to enforce an order or decision issued by the Commission 

or the Secretary after a public hearing in accordance 

with section 554 of title 5 of the United States 

Code, the findings of the Commission or the Secretary, 

as the case may be, if supported by substantial · 

evidence on the record considered as a whole, shall 

be conclusive. 

1043 
The legislative history concerning this section does not 

assist Mid-Continent's position. Legis. Hist. at 602. 

In sum, Congress knows how to provide for injunctive relief. 

It did so in connection with the Mine Act. However, Congress did 

not vest subject matter jurisdiction with the Commission to address 

the issue of MSHA enforcement abuse. 

For the foregoing reasons Mid-Continent's allegation of MSHA 

enforcement abuse should be dismissed. 

Attorney's fees and lost coal production 

At the hearing contestant sought to offer evidence of its 

costs incurred in attorney's fees and lost coal production 

(Tr. 6-14). 

The judge refused to hear such evidence and required contestant to submit an offer of proof as to these matters. 

The judge's order entered at the hearing is affirmed in this 

decision. Attorney fees and lost coal production are not recoverable in this forum. Rushton Mining Company, PENN 85-253-R (May 10, 

1989) (Commission}; Beaver Creek Coal Co., 10 FMSHRC 758 (1988). 

Merits of Order No. 3077666 

The order contested here alleges Mid-Continent violated 

30 C.F.R. § 75.1704. 16/ The alleged violative condition was 

16/ The cited regulation provides as follows: 

§ 75.1704 Escapeways - [Statutory Provisions] 

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

separate and distinct travelable passageways which are maintained to insure passage at all times of any person, including disabled persons, and which are to be designated as 

escapeways, at least one of which is ventilated with intake 

air, shall be provided from each working section continuous 

to the surface escape drift opening, or continuous to the 

escape opening, .or continuous to the escape shaft or slope 

facilities to the surface, as appropriate, and shall be 

maintained in safe condition and properly marked. Mine 

openings shall be adequately protected to prevent the entrance into the underground area of the mine of surface 

fires, fumes, smoke and floodwater. Escape facilities 

approved by the Secretary or his authorized representative, 

properly maintained and frequently tested, shall be present 

at or in each escape shaft or slope to allow all persons, 

including disabled persons, to escape quickly to the surface 

in the event of an emergency. 

1044 
described in the order as follows: 

The intake air escapeway was not maintained 

in a safe travelable condition. Part of the 

escapeway has heavy roof problems, however, 

it is supported by truss bolts, resin bolts, 

some 6 11 x 6 11 timber and 3 cribs. The bottom 

has heaved for approximately 800 feet causing 

problems in traveling or moving disabled 

persons quickly to the surf ace in the event 

of an emergency. The travelway needs to be 

cleaned with equipment to make it safe. 

Secretary's Evidence Concernin~ Order No. 3077666 

GRANT McDONALD, an MSHA inspector, is a person experienced 

in mining. 

On September 23, 1988, he was directed to do some health 

surveys at Mid-Continent. During the inspection he traveled the 

length of the 103 longwall. The longwall has an intake escapeway 

which is also a travelway CTr. 389-393). 

Inspector McDonald's primary purpose was to check on a 

supposedly bad roof. As he went into the area he observed the 

bottom was heaved and there were some water holes containing 

floating material consisting of blocks and wooden wedges 

CTr. 394). Along the ribs there were a lot of tin cans, boards, 

steel rods and different things strewn about. The witness also 

noted it was difficult to walk in the area because it was heaved. 

Heaving, he explained, was where the pressure pushed down and as 

a result the floor was pushed up. There was heaved bottom for 

approximately 800 to 900 feet. The heaved conditions made 

traveling difficult. The steeper slope hampers your traveling 

ability (Tr. 394-395). 

This escapeway is pitched at an angle and you can step on 

particles and trip or slide. If the area is well rock-dusted you 

can also slide in the rock dust. In the witness' opinion a 

hazard existed since you couldn't exit quickly from the area 

(Tr. 395). 

The heaving in the area makes it slicker and harder to stand. 

Slippery conditions make it more difficult to quickly leave the 

area ( Tr • 3 9 6 ) • 

Except for the two water holes there was rock dust throughout the 800 foot length of the escapeway. 

1045 
The water hole in the escapeway was approximately 8 inches 

deep where the inspector measured it (Tr. 396). There was a 

board floating in the water; also the board had some nails 

protruding from it. The water wasn't over the inspector's boots. 

But the objects floating on the water created a tripping hazard. 

Also there were lumps of coal in the water that a person could 

stumble on (Tr. 397). 

The pieces floating on the water were 8 to 15 inch-es long 

(Tr. 398). 

Towards the longwall face there were timbers, steel rods 

used for bolting and 5-gallon containers, as well as some rock 

dust paper sacks. Most of the debris was on the lower side of 

the ribs. 

The inspector issued the order because of the accumulations 

of the material and the heaving. He felt it was unsafe to make a 

quick exit from the area in case of an emergency (Tr. 399). 

The fact that the distance between the heaved floor and roof 

was less than five feet did not affect the inspector's decision 

to issue the order (Tr. 399, 400). 

The entry itself was probably 16 to 18 feet wide. He 

issued the order because of the travel conditions and the 

material floating on the water, not because of the height or 

width of the escapeway (Tr. 400, 401). 

In the inspector's opinion the supposedly bad roof in the 

area was adequately supported (Tr. 400, 401). The roof itself 

was sufficiently high to provide an escapeway. 

The purpose of an escapeway is to provide a quick exit . 

from the area or quickly remove someone that is injured.. It also 

introduces fresh air into the mine (Tr. 401). 

On two occasions Inspector McDonald had carried an injured 

person on a stretcher out of a mine. The footing in this 

instance was slippery because of coal and rock dust (Tr. 403). 

The escapeway was not impassable. The angle of the floor 

prevented quick passage. 

1046 
The inspector was not told to issue this order as an S&S 

violation. He determined the violation should be S&S because it 

was known, or should have been known, to the operator (Tr. 403, 

404, 408). From the hazard he observed, the inspector concluded 

a miner traveling the entry could trip, fall, slip or get a 

puncture [wound] (Tr. 404). He considered these possibilities to 

be reasonably likely to occur (Tr. 404). Also a man carrying a 

stretcher could slip and drop it (Tr. 405). Dropping someone can 

aggravate a prior injury to the person being carried (Tr. 407). 

On the day of the inspection Mid-Continent's safety director 

slipped and fell in the entry. But he was not injured (Tr. 409). 

On his own judgment Inspector McDonald issued his order 

under 104(d)(2) as an unwarrantable failure (Tr. 409). The 

inspector initially noted the operator's negligence as moderate. 

Inspector Steve Miller later marked the negligence as high. 

Inspector McDonald felt the material in the escapeway had been 

allowed to accumulate for some time (Tr. 410-411). The numerou·s 

buckets and steel rods could not accumulate in one or two days, 

but it would take several days CTr. 411). 

The area was subject to a preshift examination (Tr. 412). 

Inspector McDonald in his sole decision terminated the 

order the following day. In terminating the order he required 

the operator to gather up the materials and stack them; to remove 

the blocks and stumbling hazards. Where the floor was severely 

heaved he required the operator to lower it and level the walkways as nearly as possible (Tr. 413, 414). 

The company leveled the floor heaves by using pick and 

shovels. They also hand carried the debris out of the area, 

removed the floating material and pumped down the water holes 

(Tr. 413). All of the abatement work was done for the entire 

distance of 800 to 900 feet (Tr. 413). 

The inspector did not take any measurements of the escapeway 

after the order was terminated. 

1n11..., 
Mid-Continent's Evidence on the Merits 

JIM KISER, Mid-Continent's safety director, accompanied the 

inspectors in the 103 headgate. Inspector Miller said there was 

a major roof control problem in the area. After looking at the 

roof area the group went to the tailgate. Mr. Miller became 

belligerent and ordered Kiser to remove everyone from the face 

(Tr. 39-51). 

He then issued a 104Cd>C2) order because the escapeway was 

blocked. The witness replied it was not blocked (Tr. 51). 

At the face miners were drilling to prevent outbursts 

(Tr. 55). 

Kiser took a four-foot lathe stick and traveled the area. 

There was no debris in the area except for about 150 feet. 

The witnes~ believed the escapeway was passable beginning at the 

103 longwall intake escapeway to the 103 longwall at the face. 

(Tr. 62). 

The order did not ref er to any stumbling hazards. Except 

for about a distance of 200 feet the height of the escapeway was 

seven feet (Tr. 63). · 

The heaving of the floor caused a domed effect. The crown 

was about a foot wide; at the crown it measured 4! feet to the 

roof (Tr. 65). The most restricted area of the escapeway was 

4! feet high by 8 feet wide (Tr. 93). 

Kiser offered to demonstrate to Inspector McDonald that the 

area could be traveled and was passable by an injured person on a 

stretcher. The inspector replied that the only thing to be done 

was to clean up the passageway (Tr. 52). 

In addition, Mid-Continent's evidence established that 

an injured miner was successfully evacuated via the escapeway 

from the 103 longwall headgate on June 8, 1988. At the time 

walking through the area was a "chore." On the other hand, 

the conditions were one hundred percent better on the day the 

instant order was issued (Tr. 67-70). 

1048 
MICHAEL w. HORST, a Mid-Continent safety inspector, 

travels with federal inspectors ninety percent of the time. 

On the date of this inspection he accompanied Inspector McDonald 

and Inspector John s. Miller. 

Mr. Miller pointed out to the witness that the escapeway 

was neither six feet wide nor five feet high (Tr. 95-100). 

Miller, who took measurements, said the escapeway didn't meet 

the criteria (Tr. 101-102, 115-116). 

As a result of the order the company had to expand the 

escapeway in a half dozen places (Tr. 116). 

Bill Porter, a mine foreman, was ·in charge of doing the work 

necessary to terminate the order. Water holes were pumped and 

garbage was moved from the low rib to the high rib (Tr. 117-119). 

It took about 22 hours to abate the order (Tr. 122). The heaving 

in the floor was abated by the use of pick and shovel. The 

company was not permitted to use machines. The witness did not 

know who prohibited the use of machines (Tr. 127-128). 

Discussion 

The evidence on the merits of the order is essentially 

uncontroverted. 

Specifically, on an uneven domed mine floor we find tin 

cans, boards, steel rods, 5-gallon containers, rock dust paper 

sacks, nails protruding from boards and wooden blocks floating 

in an 8-inch deep water hole. These conditions, essentially 

uncontroverted, constitute stumbling hazards that failed to 

"insure passage of miners at all times" within the mandate of 

§ 75.1704. 

Mid-Continent's position focuses on the views that no violation of § 75.1704 occurred; further, the escapeway was passable 

as described in Utah Power and Light Company, 10 FMSHRC 71 (1988). 

In addition, the contested order would not have been issued if 

the inspector had not erroneously interrupted the regulation to 

require "quick" passage to the surface. Finally, the circumstances here are inappropriate to support a section 104(d)(2) 

order. 

1049 
As a threshold matter Utah Power and Light Company, supra, 

supports the Secretary and not Mid-Continent. The UP&L case 

involves three cases and separate factual scenarios. These 

should be reviewed: In WEST 87-210-R tripping and stumbling 

hazards existed. The hazards were lumps of coal together with 

an 8 to 10 inch offset in the escapeway bottom. In WEST 87-211-R . tripping hazards consisted of loose coal and sloughage, the toe 

of a rib extending into the escapeway and a 6-inch .waterline 

obstructing the escapeway. 

In the above two cases the undersigned judge held that the 

foregoing conditions failed "to insure passage at all times of 

any person, including disabled persons," 10 FMSHRC at 84. 

On the other hand, in WEST 87-224-R there was no evidence 

of any stumbling hazards. In addition, the Secretary agreed the 

escapeway was fully adequate. But the citation was written 

solely because the escapeway did not meet the 5 foot by 6 foot 

criteria contained in § 75.1704-1. 

Based on the record in WEST 87-224-R the undersigned held 

that MSHA could not, at least without the benefit of rule-making, 

substitute its own design; that is, specific linear foot requirements for the height and width of escapeways, 10 FMSHRC at 74. 

Accordingly, the contest in WEST 87-224-R was sustained. 

To further consider Mid-Continent's argument in the instant case1 it is necessary to divide the separate parts of 

§ 75.1704 _21. 

17/ Mid-Continent divides the regulation into three sentence; 

As divided it reads: 

[l] Except as provided in §§ 75.1705 and 75.1706, at least 

two separate and distinct travelable passageways which are maintained to insure passage at all times of any person, including 

disabled persons, and which are to be designated as escapeways, 

at least one of which is ventilated with intake air, shall provide from each working section continuous to the surf ace escape 

drift opening, or continuous to the escape shaft or slope 

facilities to the surface, as appropriate, and shall be maintained in safe condition and properly marked. [2] Mine openings 

shall be adequately protected to prevent the entrance into the 

underground area of the mine of surface fires, fumes, smoke, and 

floodwater. [3] Escape facilities approved by the Secretary or 

his authorized representative, properly maintained and frequently 

tested, shall be present at or in each escape shaft or slope to 

allow all persons, including disabled persons, to escape quickly 

to the surface in the event of an emergency. [Bracketed sentence 

numbers supplied.] 

1050 
Mid-Continent further contends the structure of 30 C.F.R. 

§ 75.1704 establishes the following: 

1. The first sentence addresses what travelable 

passageways can be designated as escapeways, 

and how these escapeways are to be maintained. 

2. The second sentence addresses how mine openings 

are to be maintained. 

3. The third sentence addresses itself to slope 

and shaft escape facilities, their location, 

maintenance and testing. 

Mid-Continent ar~ues the "quick" passage is not a description or requirement contained in the pedestrian escapeway portion 

of the regulation. In short, to accomplish the result reached 

by Inspector McDonald one must construe the term "travelable 

passageway" as being synonymous with the third sentence term 

of "escape facility." It is urged that such a term is clearly 

inconsistent with both the common terminology used in the coal 

mining industry and the plain reading of the regulation. 

It is further stated that in industry parlance, slopes and 

shafts are commonly associated with steeply pitched or vertical 

entries extending to the surface. And because of their grade or 

pitch, they are difficult if not impossible to travel by foot. 

In such entries, mechanical equipment such as a hoist or an 

elevator Can "escape facility") must be in place to facilitate a 

"quick" escape from the mine. See, 30 C.F.R. § 75.1704-lCb). 

In addition, the language of section 75.1704 recognizes 

the above distinction. It does not treat the terms "escape 

faciliity" and "travelable passageway" as being synonymous. 

It is argued that if there was not meant to be a real distinction there is no reason to use distinctive terms in the 

first-sentence vis-a-vis the third-sentence. Mid-Continent 

argues there is no other logical reason for the distinctive 

terminology. Compare, 30 C.F.R. § 75.1704-l(a) and -l(b). 

I concur with Mid-Continent that a fair reading on the 

inspector's testimony indicates he believes "quick passage" 

is required by the regulation. However, his views are not 

1051 
binding on the Commission. Basically, the plain words of 

§ 75.1704 require that travelways be maintained to "insure" 

passage. "Insure," according to Webster, 18/ means "to make 

certain esp. by taking necessary measures and precautions." 

To like effect see Utah Power and Light Company, supra. 

For these reasons Mid-Continent's "quick" escape arguments 

are rejected. 

Mid-Continent also states that if the debris from expended 

mining materials constitutes a genuine issue then the operator 

should have been cited under 30 C.F.R. § 75.400-2. 19/ 

This argument is rejected. It is well established that an 

operator cannot shield itself from liability for the violation of 

a mandatory standard simply because the operator violated a 

different but related standard, El Paso Rock Quarries, Inc., 

3 FMSHRC 35, 40 (1981). 

The Secretary alleges the violation herein was "significant 

and substantial." Such a violation is described in section 104 

Cd)(l) of the Mine Act as a violation "of such nature as could 

significantly and substantially contribute to the cause and 

effect of a coal or other mine safety or health hazard." 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). 

18/ Webster's New Collegiate Dictionary, at 595. 

19/ The regulation relied on reads as follows: 

§ 75.400-2 Cleanup program 

A program for regular cleanup and 

removal of accumulations of coal and 

float coal dusts, loose coal, and other 

combusti.bles shall be established and 

maintained. Such program shall be 

available to the Secretary or authorized 

representative. 

1052 
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the 

Commission further explained its interpretation of the term 

"significant and substantial" as follows: 

In order to establish that a violation of 

a mandatory safety standard is significant and 

substantial under National Gypsum the Secretary 

of Labor must prove: Cl) the underlying violation of a mandatory safety standard; (2) a 

discrete safety hazard--that is, a measure of 

danger to 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 the case at bar the Secretary has failed to establish 

evidence to support a finding required in the third and fourth 

paragraphs as contained in Mathies Coal. 

For the foregoing reasons the designation of S&S should 

be stricken. 

F'inally, Mid-Continent states that the order was improvidently designated as an "unwarrantable failure" under Section 

104(d). 

I agree. The Commission has defined unwarrantable failure 

as "aggravated conduct, constituting more than ordinary 

negligence, by a mine operator in relation to a violation of 

the Act. Emery Mining Corporation, 9 FMSHRC 1997, 2004 (1987), 

The Helen Mining Company, 10 FMSHRC 1672 (1988). In the case 

at bar I find no aggravated conduct by the operator and the 

unwarrantable failure designation for Order No. 3077666 should 

·be stricken. 

For the following reasons I enter the following: 

1053 
.-r ORDER 

1. Contestant's motion to reconsider the judge's ruling of 

December 22, 1988, is denied and Contestant's allegations of 

"MSHA enforcement abuse" are dismissed for lack of subject matter 

jurisdiction. 

2. Order number 3077666 is affirmed as a violation under 

Section 104(a) of the Act. 

3. The allegations that the violation was significant and 

substantial are stricken. 

4. The allegations that the contestant unwarrantably failed 

to comply with the regulation are stricken. 

Law Judge 

Distribution: 

Edward Mulhall, Jr., Esq., Delaney & Balcomb, P.O. Drawer 790, 

818 Colorado Avenue, Glenwood Springs, CO 81602 (Certified Mail) 

Margaret A. Miller, Esq., Office of the Solicitor, U.S. ·Department of Labor, 1585 Federal Building, 1961 Stout Street, Denver, 

CO 80294 (Certified Mail) 

/ot 

1054 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 7 1989 

~- . ·\ 

,_ ~. 

SECRETARY OF LABOR ' ... . }t-~ 

DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

ON BEHALF OF 

DAVID S. HAYNES 

Respondent 

v. 

DECONDOR COAL COMPANY, 

. . 

. . 

. . 

. . 

Docket No. WEVA 89-89-D 

MORG CD 88-18 

Mine No. 6 

DECISION APPROVING SETTLEMENT 

On May 30, 1989, the Secretary filed a Motion to Withdraw 

Complaint of Discrimination. This Motion indicates that the 

above matter has been settled by the Parties. I have read the 

Settlement Agreement attached to the Motion, and find it fairly 

disposes of the issues herein. Accordingly, the Secretary's 

Motion is GRANTED. 

It is ORDERED that the Parties shall abide by all the terms of 

the Settlement Agreement dated May 12, 1989, and attached to the 

Secretary's Motion To Withdraw Complaint of Discrimination. It is 

further ORDERED that the above case be DISMISSED with prejudice. 

A~sb~ Administrative Law Judge 

Distribution: 

Covette Rooney, Esq., Office of the Solicitor, u. s. Department of 

Labor, Room 14480-Gateway Building, 3535 Market Street, Philadelphia, 

PA 19104 (Certified Mail) 

c. David Morrison, Esq., Harry P. Waddell, Esq., Steptoe & Johnson, 

P. o. Box 2190, Clarksburg, WV 26302-2190 (Certified Mail) 

dcp 

1055 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKY,LINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

GREEN RIVER COAL COMPANY, 

Respondent 

JUN 9 1989 

DECISION 

CIVIL PENALTY PROCEEDINGS 

Docket No. KENT 88-174 

A. C. No. 15-13469-03670 

Docket No. KENT 88-183 

A. C. No. 15-13469-03671 

Docket No. KENT 89-3 

A. C. No. 15~13469-03683 

Docket No. KENT 89-11 

A. C. No. 15-13469-03684 

Mine No. 9 

Appearances: Joseph B. Luckett, Esq., Office of the Solicitor, 

Department of Labor, for the Secretary of Labor~ 

B. R. Paxton, Esq., Paxton and Kosch, P.S.C. 

for Green River Coal Company. 

Before: Judge Fauver 

These consolidated proceedings were brought by the Secretary 

of Labor for civil penalties under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et seq. 

At the beginning of the hearing the parties moved for 

approval of a settlement that would have included reduction of 

the proposed penalties from $7,100 to $5,400 and changing two 

§ 104(d){l) orders to§ 104Ca) citations. 

The settlement was approved in part and denied in part. 

Testimony of the federal mine inspector and documentary evidence 

from the government were then received concerning the two 

§104{d)(l) orders •. Further discussions on and off the record led 

to an amendment to the settlement motion to propose settlement at 

the original assessments for the two§ 104(d)(l) orders without 

changing the orders and total payment of $6,800. The amended 

motion was approved in a bench decision. This Decision confirms 

the bench decision. 

1056 
ORDER 

WHEREFORE IT IS ORDERED that: 

1. The citations and orders involved in these proceedings 

are AFFIRMED. 

2. Respondent shall pay the approved civil penalties of 

$6,800 within 30 days of this Decision. 

Oistribution: 

William Fauver 

Administrative Law Judge 

Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department 

of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 

37215 (Certified Mail) 

B. R. Paxton, Esq, Paxton and Kosch, P.S.C., 213 East Broad 

Street, P.O. Box 655, Central City, KY 42330-0655 (Certified 

Mail) 

iz 

1057 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 9 1989·' 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

EDWARD KRAEMER & SONS, INC., 

Respondent 

. . 

. . 

. . 

. . 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 88-118-M 

A. C. No. 33-00091-05503 

White Rock Quarry Mine 

Appearances: Kenneth Walton, Esq., Office of the Solicitor, 

u. s. Department of Labor, Cleveland, Ohio, 

for the Secretary; 

Willis P. Jones, Jr., Esq., Jones & Bahret, Toledo, 

Ohio, for Respondent. 

Before: Judge Weisberger 

Statement of the Case 

In this case the Secretary (Petitioner) seeks civil penalties 

for alleged violations by the Operator (Respondent) of 30 C.F.R. 

§ 56.20011, and § 103(a) of the Federal Mine and Health Act of 1977 

(the Act). Pursuant to notice, the case was heard in Detroit, 

Michigan, on February 1, 1989. Robert G. Casey and David Allen 

Bright testified for Petitioner, and Edward Steven Kraemer testified for Respondent. 

On May 15, 1989, Petitioner filed Proposed Findings of Fact 

and a Post-Trial Brief. On May 19, 1989, Respondent filed a 

Proposed Findings of Fact and Conclusions of Law and Post-Trial 

Brief. 

Stipulations 

1. The White Rock Quarry is owned and operated by the 

Respondent, Edward Kraemer & Sons, Inc. 

2. The White Rock Quarry is subject to the jurisdiction of 

the Federal Mine Safety and Health Act of 1977, and the applicable 

regulations promulgated thereunder. 

1058 
3. The presiding Administrative Law Judge has jurisdiction 

over these proceedings pursuant to section 105 of the Act. 

4. Any citations, orders~ modifications, and terminations, 

if any, were properly served by ~he Petitioner through its duly 

appointed representative upon an agent of the Respondent. 

Citation No. 3060362 

Robert G. Casey testified that he is presently a specialist 

in special investigations employed by the Mine Safety and Health 

Administration, and that in March 1988, he was a mine inspector 

for MSHA. Casey testified that, on March 29, 1988, he performed 

an inspection of Respondent White Rock Quarry. He said that 

approximately 200 to 300 feet from the East Highwall, which was 

approximately 100 feet high, and was not being actively worked, 

he observed various equipment and also observed access to the 

highwall. He testified that he observed loose unconsolidated 

material on the highwall and that it was unattended. He indicated, in essence, that the n1oose" material he observed was 

immediately obvious. He further indicated that there were no 

barricades or warnings. Casey issued a citation which, as 

pertinent, alleges that the highwall " ••• has ground conditions 

that will warrant correction prior to exposing persons below it." 

The Citation further alleges that there were no warning signs or 

~azards " ••• to display the nature of the aforesaid hazard." 

At the conclusion of the Petitioner's case Respondent made a 

Motion for a Directed Verdict. For the reasons that follow, the 

Motion was granted. 

The above citation alleged a violation of 30 C.F.R. § 56.20011 

which provides, as pertinent, as follows: "Areas where health or 

safety hazards exist that are not immediately obvious to employees 

shall be barricaded, or warning signs shall be posted· at all 

approaches • • • " The only evidence oi record with regard to 

the existence of any health or safety hazard consists of Casey's 

testimony that he observed "loose unconsolidated material" on the 

highwall. The evidence does not describe in any detail the nature 

of the material, its location, or its relative size. As such, the 

evidence is woefully inadequate to establish Petitioner's burden of 

proving the existence of any health or safety hazard. Furthermore, 

section 56.20011, supra, provides for posting of warning signs or 

barricading of areas where health or safety hazard exists "that are 

not immediately obvious to employees." The only evidence on this 

point consists of Casey's statement that the loose material was 

immediately obvious. Thus, Petitioner has not established that 

there was any health or safety hazard in existence that was not 

immediately obvious to employees. Accordingly, Petitioner has 

failed to establish that Respondent violated section 56.20011. 

1059 
Citation No. 3059354 and Order No. 3059355 

Findings of Fact and Discussion 

I. 

David Allen Bright, an MSHA Inspector, indicated that, in 

general, surface mines are subject to two inspections each fiscal 

year. He said that with regard to Respondent's White Rock Quarry, 

in the fiscal year 88, until February 1988, it had not undergone 

any inspections. He indicated that on February 23, 1988, he went 

to inspect the White Rock Quarry, as it was located within the area 

of his responsibility, and his supervisor told him to do a regular 

inspection there. He also indicated that there was an outstanding 

citation on the West Highwall of the quarry, and a computer printout indicated to him that this citation had not been corrected 

within 90 days of its issuance. According to Bright, he thus went 

to the quarry on February 23, for the purpose of making a regular 

inspection "that would encompass looking into the abatement of the 

outstanding citation" (Tr. 108). (i.e. the conditions on the West 

Highwall.) 

According to Bright, on February 23, 1988, when he arrived 

at Respondent's quarry, at approximately 9:30 in the morning, he 

spoke to its foreman and advised him that he was there for a 

regular inspection. Bright indicated that the foreman told him 

that the only activity at the quarry consisted of some repair~ 

work in the mill and the loading of the materials in some piles. 

Bright then went to see Respondent's vice president and general 

manager of the quarry, Edward Steven Kraemer, and requested entry 

to inspect the mine. In response, according to Bright, Kraemer 

informed him that he had to talk with his attorney, and upon 

speaking to his attorney, Kraemer asked Bright if the inspection 

included the West Highwall. When Bright indicated the inspection 

would include the West Highwall, Kraemer stated that, based upon 

his attorney's advice, this would not be allowed. Bright then, 

in essence, cited the Act, and Kraemer still refused to allow him 

to enter the premises. Bright left and returned between 10 and 

11 a.m., and presented Kraemer with a citation alleging a violation of section 103(a) of the Act. Kraemer returned the citation 

and indicated that Respondent's attorney advised him not to accept 

it. Subsequently, Bright returned after 2:00 p.m., on February 23, 

and again asked Kraemer if he was denying entry. When Kraemer 

indicated in the affirmative and that he would not accept the 

Citation, Bright issued a section 104 Order and sent it to him via 

registered mail. 

1060 
On cross-examination, it was elicited from Bright that.on 

August 18, i987, he had issued Respondent a citation requiring a 

1500 foot section of the West Highwall to be barricaded pending 

the scaling of the wall, as it allegedly contained loose areas of 

ground. By terms of the citation it was to be abated August 18, 

1987, but the deadline was exterfded to November 4, 1987. Bright 

indicated that "possibly in October" (Tr. 142) it came to his 

attention that Respondent was contesting this citation. On 

October 6, 1987, Bright went to Respondent's quarry along with a 

technical support group, consisting of Don Kirkwood and Calvin K. 

Wu, in order to get a second opinion with regard to complying 

with the above citation as to the West Highwall. Kraemer informed 

Bright that he (Bright) would be allowed to maKe an inspection, but 

Kirkwood and Wu were not allowed to go on the premises upon advice 

from Respondent's attorney~ (Bright did not perform any inspection 

at that time.). 

Kraemer explained that Respondent's attorney advised him not 

to allow Kirkwood and Wu on the premises on October 6, 1987, in 

order to limit the entry of Petitioner's experts for purposes of 

preparing for trial. Essentially, according to Kraemer, in the 

last week of January 1988, an agreement had been reached between 

Respondent's attorney and Mureen M. Cafferkey, a Trial Attorney 

with the Office of the Solicitor, wherein a meeting was set for 

March 24, 1988, with Counsel for Respondent, Trial Attorney for 

the Solicitor, along with Bright, Kirkwood, Wu, Trig Coombs, Al 

Hooper, and Kraemer to try and resolve the outstanding citation. 

Kraemer indicated that there was no agreement for Bright to 

return to look at the West Highwall. 

According to Kraemer, on February 23, 1988, Bright had indicated to him that he was at the quarry for an annual inspection, 

but since the quarry was not running he wanted to do a compliance 

inspection. Kraemer indicated that he did not tell Bright that 

he (Bright) could not do a semiannual inspection, but indicated 

that he would have to confer with his attorney, who advised him 

not to permit Bright to inspect for "that purpose," (Tr. 215) as 

there was an agreement for a future inspection of the West Highwall. Kraemer indicated that aubsequent to Respondent's attorney 

talking with the Office of the Solicitor, Bright was allowed on 

the quarry for a semiannual inspection. 

Section 103(a) of the Act, unequivocally provides for the 

inspection of mines for the purposes of ••• "determining whether 

there is compliance with the mandatory health or safety standards 

or with any citation • • • issued undar this title or other 

requirement of this Act." The above section further provides 

that in carrying out this requirement, the Secretary shall inspect 

a surface mine in its entirety at least two times a year. 

1061 
According to the uncontradicted testimony of Bright, as of 

February 1988, the subject quarry had not yet been inspected for 

the fiscal year 1988. I find credible Bright's testimony that 

his purpose in visiting the mine on February 23, 1988, was to 

conduct a semiannual inspection~which encompassed, in essence, 

checking the status of the West Highwall, as the time for compliance with a prior citation had already expired. Although the 

quarry operation was not in production·at the ti1ne of Bright's 

visit, and Bright could not perform a health or dust inspection, 

his testimony stands uncontradicted that a health inspection is 

not performed at every inspection, and he still could do a full 

inspection. In this connection, Bright was informed by 

Respondent's foreman essentially that workers were present 

repairing and loading. 

It appears to be Reapondent's argument, that Bright told 

Kraemer that inasmuch as the quarry was not in production, he 

then would do a compliance inspection. Respondent appears to 

maintain that such an inspection should not be permitted, as it's 

purpose was to check on a violation being contested by Re3pondent, 

and subject to negotiations with the Solicitor, and consequently is 

beyond the purvie~ of a semiannual inspection. Whether Bright's 

stated purpose to Kraemer was to conduct a semiannual inspection 

encompassing the West Highwall, or whether it was, as testified to 

by Bright, to perfo~m a "compliance" inspection, I find that either 

type of inspection is ~learly within the purview of section 103(a) 

which, in essenc~, gives the representative of the Secretary the 

right to perform an inspection to determine whether there is compliance with a mandatory safety hazard or with any citation. In this 

connection, I note that there is no documentary evidence setting 

forth the terms of such an agreement. Further, Kraemer, who was 

Respondent's only witness, did not have personal knowledge of the 

terms of such an agreement, nor were its terms established through 

Petitioner's witnesses. I thus find that it has not been established that there was any specific agreement between the Petitioner 

and Respondent's Counsel to the effect that Bright would not be 

allowed to inspect the West Highwall ~ither as part of a semiannual 

inspection, or to see whether Respondent was in compliance with the 

prior citation 0£ August 1987, concerning the West Highwall. 

Based upon all of the above, I conclude that the Respondent 

violated section 103(a) of the Act, when it denied Bright permission to enter the quarry on February 23, 1988. 

II. 

As a consequence of not being permitted to inspect the quarry 

on February 23, 1988, Bright was unable to determine if there were 

any safety hazards in existence at that time. However, at the ti~e 

of Bright's original requests to enter the premises, the quarry was 

not in active production. I thus find the gravity of the violation 

herein to be only moderate. Although Kraemer should have permitted 

1062 
Bright to enter on February 23, I find that there is no evidence 

that he acted in other than good faith in relying upon the advice 

of Counsel in not permitting Bright entry. Accordingly, I find 

that Respondent herein acted with only a low degree of negligence. 

I considered this a most signif ipant factor in assessing a penalty 

for the violation herein. I have considered the remaining factors 

set forth in section llOCi) of the Act, and accordingly find that 

Respondent shall pay a civil penalty of $50 for the violation 

found herein. 

ORDER 

It is ORDERED that Citation 3060362 be DISMISSED. It is 

further ORDERED that Respondent shall, within 30 days of the 

Decision, pay $50 as civil penalty for the violation found herein. 

Distribution: 

Avram 

Administrative 

{}:-.__ 

Weisberger 

~ 

Law Judge 

Kenneth Walton, Esq., Office of the Solicitor, U. S. Department 

of Labor, 881 Federal Office Building, 1240 East Ninth Street, 

Cleveland, OH 44199 (Certified Mail) 

Willis P. Jones, Jr., Esq., Edward Kraemer & Sons, Inc., Jones & 

Bahret, Suite 321 L.O.F. Building, 811 Madison Avenue, Toledo, OH 

43624 (Certified Mail) 

dcp 

1063 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 9 1989 

SECRE'rARY OF LABOR, DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINIS'fRA'rION ( MSHA), Docket No. LAKE 89-73-DM 

ON BEHALF OF 

THOMAS H. GILLE, MD 89-28 

Complainant 

v. 

YELLOW RIVER SUPPLY 

CORPORATION, 

Respondent 

ORDER OF DISMISSAL 

Before: Judge Weisberger 

On June 5, 1989, the Secretary filed a Motion to Withdraw 

Application for Temporary Reinstatement. The Motion indicated 

that the Complainant has secured other employment and "is no 

longer interested in being temporarily reinstated with Respondent 

(Yellow River Supply Corporation) until such time as a decision 

on the merits is issued." Accordingly, the Motion is GRANTED. 

It is ORDERED that the above case be DISMISSED. 

Distribution: 

~Weisberger ~.~ 

Administrative Law Judge 

Tina Gorman, Esq., Office of the Solicitor, u. s. Department of 

Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified 

Mail) 

Mr. Dennis Nordstrand, President, Yellow River Supply 

Corporation, 210 Sommers Landing Road, Hudson, WI 54016 

(Certified Mail) 

dcp 

1064 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FLORENCE MINING COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, 

Petitioner 

v. 

FLORENCE MINING COMPANY, 

Respondent 

JUN 9 1989 

CONTEST PROCEEDING 

Docket No. PENN 86-297-R 

Order No. 2697882: 8/14/86 

Florence No. 2 Mine 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 87-16 

A.C. No. 36-02448-03575 

Florence No. 2 Mine 

DECISION ON REMAND 

On May 9, 1989, the Commission affirmed my decision finding 

a violation of 30 C.F.R. § 75.1704 and reversed the 

"unwarrantable failure" and "significant and substantial" 

findings in the decision, remanding the cases for reconsideration 

of the civil penalty of $400. · 

Having considered all of the criteria for a civil penalty in 

§ llO(i) of the Act, I find that a penalty of $100 is appropriate 

for the violation. 

ORDER 

WHEREFORE IT IS ORDERED that Florence Mining Company shall 

pay the above civil penalty of $100 within 30 days fo this 

Decision •. 

~ :r-~vV\..-- William Fauver 

Administrative Law Judge 

1065 
Distribution: 

Covette Rooney, Esq., Office of the Solicitor, U.S. Department of 

Labor, 3535 Market Street, Room 14480, Gateway Building, 

Philadelphia, PA 19104 (Certified Mail) 

R. Henry Moore, Esq., Buchanan Ingersoll, 58th Floor, 600 Grant 

Street, Pittsburgh, PA 15219 (Certified Mail) 

iz 

1066 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 9 1989 

SECRETARY OF LABOR, 

MINE SAE'ETY AND HEAL'rH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

JOHN L. JONES, JR., 

Complainant 

v. 

VIRGNIA CARBON, INC., 

Respondent 

. . 

DECISION 

DISCRIMINATION PROCEEDING 

Docket No. WEVA 89-167-D 

HOPE CO 89-07 

Mine No. 4 

Appearances: Mary K. Spencer, Esq., Office of the Solicitor, 

U.S. Department of Labor, for the Secretary; 

Lawrence E. Morhous, Esq., Bluefield, WV, for 

Respondent. 

Before: Judge Fauver 

The Secretary of Labor filed an application for temporary 

reinstate1nent of John L. Jones, Jr., as a scoop operator at 

~espondent's Mine No. 4 in McDowell County, West Virginia. The 

application, brought under§ 105(c) of the Federal Mine Safety 

and Health Act of 1977, 30 u.s.c. § 801, is supported by an 

affidavit of Dennis M. Ryan of the Mine Safety and Health 

Administration and a copy of the complaint. 

Respondent opposed the application and requested a hearing, 

which was held on May 15, 1989, at Big Stone Gap, Virginia. The 

date was selected for the convenience of the parties, and it was 

agreed that if an order of temporary reinstatement is granted, it 

will be retroactive to May 1, 1989. 

Due to a :nix-up in communication, the reporter did not 

appear at the hearing. The parties 8tipulated that they would 

waive a transcribed hearing with the understanding that the judge 

would summarize the evidence relied upon for his decision. The 

hearing included the testimony of the Complainant and documentary 

evidence. 

1067 
At the close of the evidence, oral arguments were heard and 

a decision was entered from the bench. This Decision confirms 

the bench decision. 

Complainant's testimony, in relevant part, may be summarized 

as follows: 

1. Complainant, John L. Jones, Jr., was first employed by 

Respondent as a scoop operator in February 1988, on the evening 

shift, at $90 a shift plus time and a half his hourly rate for 

over eight hours a day. After five days, he was included in a 

layoff which lasted about three weeks. He was reemployed on the 

day shift, to perform several functions: to conduct preshift and 

onshif t examinations and sign the examination book, to operate a 

scoop, and to perform any other duties assigned to him. Because 

of the additional responsibility of conducting preshift and 

onshift examinations and signing the examination book, he was 

paid $110 a shift (plus overtime for hours over eight a day) 

instead of $90 a shift. 

2. In October, 1988, Complainant was transfered to the 

evening shift. He was relieved of the responsibility of preshift 

examinations, but continued making onshift examinations, signing 

the examination book, operating a scoop, and performing other 

assigned duties. 

3. In Novanber, 1988, Complainant had a dispute with his 

section foreman, Marshall Keen, who accused him of claiming 

one-half hour more than he actually worked on a certain day. 

Complainant insisted that he worked 9 1/2 hours as reported, 

instead of nine hours as contended by Mr. Keen. The foreman was 

very angry and verbally abusive of Complainant, to the point that 

Complainant quit on the spot. 

4. About three weeks later, after making a number of calls 

seeking reemployment, Complainant was reemployed on the evening 

shift, with the same responsibilities and pay he had before he 

quit. He was so employed until he was discharged on February 17, 

1989. 

5. It was a common or frequent practice for the section 

foreman, Marshall Keen, to order men (sometimes including 

Complainant) to clean coal beyond supported roof. The roof was 

dangerous, soft and dribbly. 

6. Complainant's strong safety concern about this practice 

reached a peak on February 16, 1989, when the section foreman, 

Marshall Keen, ordered Complainant to bring a scoop up to the 

working section and clean coal "up to the face," meaning that he 

should scoop coal beyond the last row of roof supports. 

Complainant told the foreman that he was too busy with another 

job and the foreman then ordered two other employees (Jerry Stump 

1068 
and Gary Cook) to do the clean up work beyond supported roof. 

When Complainant discovered that Stump and Cook had cleaned coal 

beyond supported roof, he tried to reprimand them for this unsafe 

practice, but they "made a joke about' it," telling Complainant 

they took orders from Marshall Keen and not from Complainant. 

Complainant then decided that he~could not continue to sign the 

onshift examination book because of this unsafe practice and his 

belief (from past experience with mine -management) that 

Respondent would fire him if he made truthful reports of safety 

hazards or violations in the examination book. He therefore 

wrote a note to the mine superintendent, Carlos Keen, and stuck 

it between pages in the examination book where he expected Carlos 

Keen to find it. 

7. complainant does not have a copy of the note. His best 

recoilection of its contents is as follows (written by 

Complainant at the hearing at the judge's request and marked as 

Judge's Exhibit No. 1): 

Carlos: 

I cannot sign the onshif t Report any more 

because Marshall is ordering men to go out 

from [sic] under unsupported roof to clean 

places up. I am afraid someone is going to 

be killed or hurt, and that my papers will 

be taken away from me. I will continue my 

job as a scoop operator. 

8. Carlos Keen read the note. On February 17, 1989, he 

£ired Complainant because he had refused to sign the examination 

book and because he had left a note which a government mine 

inspector might have found and could use "to bankrupt" 

Respondent. 

After Complainant testified, the Secretary rested. 

Respondent introduced no evidence. 

Section 105(c)(2) of the Act provides that if a miner 

believes he has been discharged or otherwise discriminated 

against, he may file a complaint with the Secretary of Labor. 

The Secretary may apply for temporary reinstatement. If it is 

found, after an opportunity for a hearing before the Commission, 

that "the complaint was not frivolously brought the Commission 

shall order the immediate reinstatement of the miner pending 

final order on the complaint." 

The scope of a temporary reinstatement hearing is narrow, 

being limited to a determination as to whether a miner's 

discrimination complaint was frivolously brought. 30 U.S.C. 

§ 815(c)(2); 29 C.F.R. § 2700.44(c). 

1069 
The hearing evidence indicates that Complainant was 

discharged because he complained to his mine superintendent of a 

hazardous and violative practice of having miners work under 

unsupported roof. If unanswered, this evidence would support a 

finding of a discriminatory discharge in violation of § 105(c) of ~ the Act. · 

I hold that the testimony of the Complainant, the 

documentary evidence, pleadings, and the record as a whole 

establish that the complaint was not frivolously brought. 

Complainant is therefore entitled to temporary 

reinstatement. 

I make no determination at this point as to the ultimate 

merits of the complaint. 

Other matters were raised in Complainant's testimony that 

may be explored in the full evidentiary hearing on the merits of 

the case, but are not necessary to consider here. These include 

the accuracy of Complainant's entries in the examination book, a 

question whether various tests for ventilation and methane 

were actually made, the extent of management's participation in 

any inaccuracies or failures to take tests, and the practice of 

other examiners concerning similar tests and the accuracy of 

their book entries. These matters do not affect my conclusion 

that the evidence and record as a whole show a substantial, 

nonfrivolous basis for the complaint. 

ORDER 

WHEREFORE IT IS ORDERED that, pending a final order on the 

complaint, Respondent shall immediately reinstate John L. Jones, 

Jr., to the position of scoop operator at its Mine No. 4 at the 

same rate of pay and shift assignment that he would now have as 

scoop operator if he had not been discharged on February 17, 

1989. Inasmuch as Complainant does not seek reinstatement as a 

shift examiner, and Respondent has assigned another employee to 

make and record shift examinations, Respondent may reinstate 

Complainant at the pay rate of a scoop operator. Respondent is 

FURTHER ORDERED to pay back ~ages of $1,184.16 to John L. Jones, 

Jr., covering the period from May 1-15, 1989. 

~~v~ William Fauver 

Administrative Law Judge 

1070 
Distibution: 

Mary K. Spencer, Esq., Office of the Solicitor, u. s. Department 

of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified 

Mail) 

Mr. John L. Jones, Jr., HCR 60, Box 357, Iaeger, WV 24844 

(Certified Mail) 

Lawrence E. Morhous, Esq., Hudgins, Coulling, Brewster, Morhous 

and Cameron, 418 Bland Street, P.O. Box 529, Bluefield, WV 

24701-0529 (Certified Mail) 

iz 

1071 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINIS'rRATION ( MSHA) , 

ON BEHALF OF 

MIKE E. AMMERMAN, 

JUN t 41989 

. . 

Complainant 

v. 

PEABODY COAL COMPANY, 

Respondent 

Before: Judge Weisberger 

Statement of the case 

. . 

DECISION 

DISCRIMINATION PROCEEDING 

Docket No. KENT 89-25-D 

MADI CD 88-19 

Camp No. 2 Mine 

This case is before me based upon a Complaint filed by the 

Secretary on November 14, 1988, alleging that the Operator, 

Peabody Coal Company, discriminated against Mike E. Ammerman in 

violation of section 105(c) of the Federal Mine Safety and Health 

Act of 1977, (the Act), in that the Operator (Respondent) violated 

section 103(£) of the Act. An Amended Complaint wad filed on 

December 15, 1988, seeking a Civil Penalty of $600. An Answer was 

filed January 18, 1989. 

The Parties engaged in prehearing discovery, and pursuant to 

notice, a hearing in. this matter was scheduled for April 11, 

1989, in Nashville, Tennessee. On March 30, 1989, the Secretary 

filed a Motion for Summary Judgment, and' in a telephone conference 

call on April 11, 1989, between the undersigned and the attorneys 

for both Parties, the Parties agreed to waive oral argument, and to 

present this matter for disposition based on Motions for Summary 

Decision. The hearing set for April 11, 1989, was canceled, and 

Respondent filed its Motion for Summary Decision on April 10, 1989. 

The Secretary filed a Response to Respondent's Motion on May 17, 

19 89. 

Findings of Fact 

Peabody Coal Company's Camp No. 2 Mine is an underground 

facility located in Henderson, Union County, Kentucky. Camp No. 2 

is a single mine with two entrances or portals designated as the 

East and West Portals. 

1072 
The United Mine Workers of America CUMWA) has represented the 

miners of Camp No. 2 since the mine opened in 1971. The members of 

the UMWA Safety Committee, el~~ted by the local's rank and file 

members, are the miners' designated representatives for walk-around 

federal inspections at camp No. 2. That is, by electing individual 

miners to the four-person Safety Committee, the miners at Camp 

No. 2 Mine designate such persons as their representatives to 

accompany Federal Inspectors on their inspections. In the latter 

part of March 1988, Respondent's management was advised by UMWA 

that only members of UMWA's Safety Committee would be allowed to 

accompany ~SHA Inspectors. 

If none of the four Safety Committeemen are present at the mine 

at the same shift as the inspection, or if there is more than one 

inspe,ctor, thus requiring more than one representative, each Safety 

Committeeman is empowered to designate another miner as a miners' 

representative. In such instances, the Safety Committeemen act on 

behalf of the miners in naming an alternative (or additional) 

representative. Designees, however, are never named just because a 

Safety Committeeman does not want to go on an inspection, or to 

avoid a situation where a Safety Committeeman would have to travel 

from one portal of the mine to the other. 

At all relevant times, Douglas Rowans was the superintendent 

of the Camp No. 2 Mine, Matt Haaga was the assistant superintendent, and John Jost was the mine foreman on the West Portal. 

In the Spring of 1988, the Safety Committee at Camp No. 2 

Mine consisted of Terry Miller, Norman Pleasant, Mike E. A1lli~erman, 

and Roger Ennis. Miller, Pleasant, and Ammerman all work at the 

West Portal of the mine. Roger Ennis is an East Portal worker. 

On April 7, 1988, Ammerman reported at his check-in point at 

the West Portal shortly before 8:00 a.m., and was told, via mine 

telephone, by East Portal worker Ricky Newcom, that the MSHA 

inspectors were at the East Portal. Ammerman was the only one of 

the four Safety Committeemen at the mine, at either poctal, on 

that day. Ammecman designated Newcom as the other minecs' representative to accompany MSHA Inspector Ronald Oglesby, and said he 

would come over to the East Portal to accompany MSHA Inspector 

Walter Leppenen. The MSHA inspectors rode into the mine with the 

crew at the beginning of the shift at 8:00 a.m. 

Ammerman t.old West Portal Mine Foreman John Jost that he was 

going to the East Portal, in his capacity as miners' representative in order to accompany an MSHA in.spect.or. .Jost told Ammerman 

that he would not be paid for his time spent traveling from the 

West Portal to the East Portal, and that he could not furni8h 

1073 
Ammerman with transportation. Ammerman then went above ground 

and traveled to the East Portal elevator by car. This is approximately a 10-15 minute drive. Ammerman took a man trip from the 

East elevator to Unit 2, where the MSHA inspectors had already 

arrived. It was approximately 9:00 a.m. when Ammerman met up 

with them. 

On April 8, Ammerman again came in early and reported to his 

check-in point at the West Portal. This tim~ at approximately 

7:30 a.m. He went underground and called over to the East Portal. 

An East Portal miner told Ammerman that Oglesby was there to 

continue the inspection, and that he was the only inspector that 

day. Ammerman said he would be there as soon as he could. 

~mme:rman again told Jost he was going to the East Portal. Jost 

again said he would not be paid for travel time, but did allow 

him the use of a man trip for transportation. 

Ammerman took the man trip along the belt line, and met Matt 

Haaga somewhere along the way to the West Portal. Haaga told him 

that he would not be paid for travel time, and that in the future 

he would not be provided transportation. Ammerman arrived at the 

East Portal at approximately 8:45 a.m., and accompanied Oglesby. 

He returned to the West Portal at 4:45 p.m. 

When Ammerman received his paycheck for the week of 

April 4 - 8, 1988, he had been docked 1 hour for April 7 (7 hours. 

listed) and 15 minutes on April 8 (7.75 hours listed}. 

Issues 

The general issue in this case is whether Peabody Coal 

Company discriminated against Mike E. Ammerman in violation of 

section 105Cc) of the Act, and if so, what is the appropriate 

relief t.o be awarded Ammerman, and what are the appropriate civil 

penalties to be assessed against Respondent for such discrimination. 

The specific issue is whether Respondent violated section 

103Cf} of the Act in denying Ammerman pay for the time to travel. 

from his work site at the West Portal to the East Portal, where 

he ~as to serve as a miners' representative in accompanying an 

MSHA in,:;pector. 

Discussion 

The aff idavit3 accompanying the Motions for Summary Decision 

establish that on April 7 - 8, 1988, Mike E. Ammerman, a designated walk-around representative, was denied by Respondent, travel 

1074 
pay from his work site at the West Portal to the East Portal where 

he was to accompany an MSHA inspector on an inspection. In 

essence, it is the Secretary's position that Respondent has 

violated section 103(f), which, as pertinent, provides that the 

walk-around, Ammerman, " ••. shall suffec no loss of pay during 

the period of his participation in the inspection made under this 

subsection." In essence, it is Respondent's position that 

section 103(£), supra, does not require it to pay AtTu~erman for the 

time spent traveling from portal to portal, as the travel time, 

preceded, and is not included in " ••• the period of his participation in the inspection . • • " Respondent further argues that it 

is entitled to" .•• use East Portal workers as representatives," 

in reliance on previous history in which miners not on the Safety 

Committee accompanied MSHA inspectors. (Respondent's Memorandum 

P. 12.) For the reasons that follow, I do not find much merit in 

Respondent's arguments, and I accept the position of the Secretary. 

In essence, according to the affidavits of Ammerman, Ricky 

Newcom, Terry Glenn Miller, and Norman Lee Pleasant, Sr., members 

of the UMWA Safety Committee are elected by the miners, and ace 

the miners' designated representatives for mine inspections. 

According to the affidavits 0£ Haaga and Douglas Rowans, management was informed by the Union on March 30, 1988, that only 

Safety Committee members would be allowed to accompany inspectors 

on their inspections. As such, it is clear that on April 7 - 8, 

1988, Ammerman, as a member of the UMWA Safety Committee, was, 

within the purview of section 105, supra, the representative 

authorized by the miners to accompany the MSHA inspector on an 

inspection. Further, according to the affidavit of Ammerman, he 

was the only Safety Committeeman present at the mine at either 

portal on April 7, 1988. Therefore, he was the sole representative of the miners, and as such had to be accorded all the rights 

set forth in section 103(f} of the Act. Thus, in order for the 

miners to have their authorized representative (Arrunerman} 

accompany the inspector, it was necessary for Ammerman to travel 

from his work site at the West Portal to the East Portal, the 

site of the inspection. Management clearly did not have option, 

as essentially argued by Respondent in its Brief, of utilizing 

miners already located at the East Portal, as Ammerman, being the 

sole member oE the Safety Committee present, was the authorized 

representative. In this connection, it ia noted that the miners, 

acting through their Union, and not the Operator, have the 

authority to designate a representative for the purpose of 

accompanying an inspector. (See, Truex v. Consolidation Coal 

Company, 8 FMSHRC 1293, 1298 (1986); See also, Consolidation Coal 

Co., 6 FMSHRC 458). 

1075 
It now must be decided whether Respondent, by virtue of 

section 103{f), supra, had the obligation to pay Ammerman for the 

travel time from the West Portal to the East Portal. In this 

connection, section 103{f) provides that the miners' representative accompanying the inspector " ••• shall suffer no loss of 

pay during the period of his participation in the inspection • • • 

" It appears that, in general, Congress intended a broad 

construction to be placed on this phrase. In this connection, it 

is noted that the Senate Report accompanying S. 717, CS. Rept 

No. 181, supra, at 28-29, 95th Cong. 1st Sess. 28-29 (1977), as 

reprinted in Legislative History of the Federal Mine Safety and 

Health Act {Leg. Hist.) at 616-617), provides with regard to the 

intent behind Section 103, supra, that "To encourage such miner 

participation it is the Committee's intention that the miner who 

participates in such inspection and conferences be fully compensated by the operator for the time thus spent. To provide for 

other than full compensation would be inconsistent with purpose 

of the Act and would unfairly penalize the miner for assisting 

the in:3pectoc in performing his duties." (Emphasis added). 

Thus, inasmuch as Ammerman's travel from the West to the 

East Portal was for the sole purpose of accompanying an MSHA 

inspector on an inspection, and inasmuch as the exercise of this 

right could not have been performed without traveling from his 

work site to the inspection site, it is clear that to deny him 

pay for the travel time would deprive him of the full compensation conteinplated by section 103 { f), supra. I find it unduly 

restrictive, to hold, as argued by Respondent, that. Ammerman be 

denied pay Ear travel as it occurred prior to his "participation" 

in the inspection. To disallow pay Ear the travel time from 

portal to portal might have the effect of discouraging miners' 

participation in inspections, and as such would thwart the 

Congressional intent behind section 103(£) of the Act, of encouraging miner's participation in inspections. 

Therefore, I conclude that Respondent, in not paying .Ammerman 

for the travel on April 7 - 8, from his work site to the inspection 

site, caused him to suffar a loss of pay in violation of section 103(£), supra, and thereby discriminated against him in 

violation of section 105(c)(l) of the Act. 

In assessing a penaltt to be imposed against Respondent, I 

have considered the fact that although the refusal by Respondent 

ta pay for Atnme:cman's portal to portal travel to accompany an 

inspector on April 7- 8, might tend to discourage miners' 

participation in inspections. However, there is no evidence 

be Eore rne that such actually OCCiHTed. Ammerman, in his 

affidavit, indicated that Mine Foreman John Jose (Jost) and 

Assistant Superintendent Matt Haaga, both informed him that he 

1076 
would not be paid for portal to portal travel to accompany the 

inspector. However, A~nerman in his affidavit did not indicate 

that either Jost or Haaga informed him of the reason for this 

decision. John Jost, Respondent's mine manager of the West 

Portal, indicated in his affidavit that he advised Ammerman that 

he would not be paid for the travel as a result of a directive 

received from management that such time was not compensable. 

Douglas Rowans, the superintendent of Respondent's Camp No. 2, 

indicated in his affidavit that he advised Safety Corrunittee 

members on March 30, 1988, that they would not be paid for travel 

from portal to portal based on his opinion that the Act did not 

require payment as "a miner is not traveling with an inspector 

when he is traveling to meet an inspector." Further, paragraphs 

7, 8, 9, and 10 of his affidavit set forth various business 

pro·blems affecting Respondent's operation as a consequence of 

UMWA's policy of requiring the representative of the miners 

accompanying an inspector to be exclusively the Safety 

Corrunitteeman. 

Thus, I conclude that the act of discrimination against 

Ammerman, by denying him full pay for travel in violation of 

section 103Cf), supra, was motivated solely by business reasons. 

Also, there is no evidence before me to conclude that there was 

any bad faith on Respondent's part in interpreting section 103(f) 

as not requiring pay for portal to portal travel. Taking these 

factors into account, I conclude that a penalty herein of $100 is 

appropriate. 

ORDER 

It is hereby ORDERED that: 

1. Respondent shall pay a penalty of $100 within 

30 days of this Decision. 

2. Respondent shall, within 15 days of the date of 

this Decision, pay Mike E. Airunerman for the 1 hour he had been 

docked on April 7, 1988, and for the 15 minutes he had been 

docked on April 8, 1988, with interest at a rate to be calculated 

in accord with LOC. U. 2274, UMWA v. Clinchfeild Coal Co., 

10 FMSHRC 1443 (November 1988~et. for review filed, No. 88-1873 

CDC Cir. December 16, 1988), and based on the formula set forth in 

Secretary on behalf of Bailey v. Arkansas - Carbona Co., 5 FMSHRC 

2042, 2051-53 (December 1983). 

3. The Respondent shall immediately cease and desist 

from further refusing to pat representatives of miners for travel 

time from their work site portal to the portal site of an MSHA 

in3pection. 

1077 
4. The employment record of Mike E. Ammerman shall, 

immediately, be expunged of all references to the circumstances 

involved in this matter. 

Distribution: 

Avram Weisberger 

Administrative Law Judge 

Michael L. Roden, Esq., Office of the Solicitor, U. S. Department 

of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 

37215 (Certified Mail) 

Eugene P. Schmittgens, Jr., Esq., Peabody Holding Company, Inc., 

P. O. Box 373, St. Louis, MO 63166 (Certified Mail) 

dcp 

1078 
FEDERAL MINE.SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 131989-

JIM WALTER RESOURCES, INC • . Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINIS;rRATION ( MSHA) , 

Respondent 

AND 

UNITED MINE WORKERS OF 

AMERICA, CUMWA), 

Intervenor 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA) 

Petitioner 

AND 

UNITED MINE WORKERS OF 

AMERICA ( UMWA), 

Intervenor 

v. 

JIM WALTER RESOURCES, INC., 

Respondent 

. . 

CONTEST PROCEEDINGS 

Docket No. SE 89-18-R 

Citation No. 3188009; 10/26/88 

Mine No. 7 

CIVIL PENALTY PROCEEDING 

Docket No. SE 89-39 

A.C. No. 01-01401-03734 

Mine No. 7 

DECISION AND 

ORDER DISMISSING PROCEEDINGS 

On May 26, 1989, an Order to Show Cause was issued in 

these proceedings stating as follows: 

At issue in the captioned cases is a citation 

alleging as follows: 

A citation is hereby issued in that the 

mine operator is intending to adopt 

System, Methane and Dust Control Plan 

dated 8/15/88 which has not been approved 

by the MSHA District Manager. (Refer to 

cover letter 9-lV-52 dated September 29, 

107g 
1988 and response cover letter 9-lV-52 

delivered to the mine operator 10-25-88. 

The violation charged. is thus one of 

"intending" to violate the cited regulation. 

Accordingly the Secretary is directed to establish 

on or before June 8, 1989, what legal authority she 

relies upon to provide the basis·for a violation of 

"intending" to violate a regulatory standard and 

why the citation should not be vacated and this 

case be dismissed. 

On June 6, 1989, the Secretary responded to the show 

cause order stating as follows: 

The subject citation was issued in accordance 

with MSHA's policy regarding Mine Plan Approval 

Procedures which was sent to all coal mine 

operators •••• In general, this policy sets forth 

basic principles that are to be applied in the 

administration of each District's mine plan and 

program approval responsibilities. 

The policy also describes several scenarios 

wherein disputed plan provisions can be challenged 

by operators with the resulting violation being 

"technical" in nature. Such a policy provides a 

vehicle for operators to contest disputed plan 

provisions while maintaining the stability of 

continued, safe mining operations under an approved 

and familiar plan. 

With respect to a contest of mine plan 

approval actions, such as occurred in this case, 

the policy states as follows: 

In the case of an operator-proposed 

change to an existing approved mine plan, 

if approval of the change is denied, the 

operator could notify the District th~ 

as of a certain date, the mine's existing 

approved plan is no longer adopted by the 

operator, and that the operator intends 

to adopt the proposed change which is not 

approved. On that date, a 104(a) 

citation would be issued for the 

operator'd failure to have and adopt an 

approved plan. Abatement would be 

achieved by the operator promptly 

adopting the provisions of the most 

1080 
recently approved plan for the mine. 

Again, thare need not be any changes made 

in the actual mining procedures, and the 

violation would be "technical" in nature. 

(emphasis added) 

Here, the operator, on September 29, 1988, 

submitted a supplement to its ventilation system, 

methane and dust control plan for approval by MSHA. The 

supplement was reviewed by MSHA but was not approved for 

incorporation into the operator's existing ventilation 

plan. As set forth on the face of the subject citation, 

MSHA's determination with respect to the supplement was 

communicated to the operator on October 25, 1988 by 

letter identified as 9-1V-S2. 

On October 26, 1988, JWR informed MSHA that it 

no longer adopted its existing approved plan for 

the No. 7 mine. Since the operator's explicit 

statement constituted a violation of 30 CFR 75.316, 

the subject citation was immediately issued. The 

operator promptly abated the violative condition by 

readopting its ventilation plan that had become 

effective in August, 1988. 

Although the wording of the subject citation 

is not a model of clarity , the foregoing sequence 

of events makes clear that the subject citation was 

issued because the operator unequivocally stated 

that, as of October 26, 1988, it no longer adopted 

its existing ventilation plan which had previously 

been approved by. MSHA •••• Irrespective of the 

operator's "intentions" to adopt the unapproved 

supplement, JWR's action in not adopting an 

approved plan constituted violation a of 30 CFR 

75.316 since the regulation requires an operator to 

do so. 

Thus, the use of the words "intending to 

adopt" on the face of the citation should not be 

construed as an allegation that MSHA is charging 

the operator with a speculative violation which 

hinges on .TwR's future actions. Rather, the 

citation, when viewed in the context of MSHA policy 

and the documents attached hereto, prop~rly charges 

JWR with not adopting an approved ventilation plan 

pursuant to 30 CFR 75.316. The violation is 

ad~ittedly technical in nature and permitted the 

operator to safely continue its mining operations 

uninterrupted under a familiar, approved plan while 

1081 

'
enabling the specific supplement to be addressed in 

another forum. 

The Secretary's response to the show cause order is, in 

essence, that she did not mean what she said when charging 

the operator with "intending" to violate the cited regulatory 

standard. She does not however seek to amend the citation so 

that it reflects the apparent intended meaning. Since the 

cited regulatory standard does not create a violation of 

"intending" to violate it there can be no violation as 

charged. The citation is accordingly vacated. 

I further note that the proceedings described in the 

Secretary's response to the Order to Show Cause are a clear 

attempt to accomplish indirectly what the Commission has 

forbidden directly i.e. obtain a declaratory judgment. In 

Kaiser Coal Corporation, 10 FMSHRC 1165 (1987), the 

Commission held that it does not have jurisdiction to 

entertain an application for declaratory relief independent 

of any of the enforcement or contest proceedings or other 

forms of action authorized under the Federal Mine Safety and 

Health Act of 1977. In this case the citation was 

simultaneously "issued" and "abated" and according to the 

Secretary, the mine operator continued its mining operations 

uninterrupted under its approved plan--thereby contradicting 

any claims of a violation. Thus in effect the parties in 

this case are seeking a declaratory judgment that cannot be 

obtained under existing law. For this additional reason then 

these cases must be dismissed. 

ORDER 

Contest Proceeding Docket No. SE 89-18-R and Civil 

Penalty Proceeding Docket No. SE 89-39 are dismidsed. The 

hearings previously scheduled in these ca·es ara accordingly 

cancelled. 

1082 
Distribution: 

H. Thomas Wells, Jr., Esq., Maynard, Cooper, Frierson & Gale, 

P.C., 12th Floor, Watts Building, Birmingham, AL 35203 

(Certified Mail) 

William Lawson, Esq., Office of the Solicitor, U.S. 

Department of Labor, Suite 201, 2015 2nd Avenue, N., 

Birmingham, AL 35203 (Certified Mail) 

Mary Lu Jordan, Esq., United Mine Workers of America, 900 

15th Street, NW, Washington, DC 20005 (Certified Mail) 

nt 

1083 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

JUN 14 1989 . . CIVIL PENALTY PROCEEDING 

Docket No. WEST 88-235-M 

A.C. No. 42-01975-05502 

Lakeview Rock Products Pit 

LAKEVIEW ROCK PRODUCTS, INC., 

Respondent 

DECISION 

Appearances: Margaret A. Miller, Esq., Office of the Solicitor, 

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

for Petitioner; 

Mr. Glenn E. Hughes, President, Lakeview Rock 

Products, Inc., North Salt Lake City, Utah, 

for Respondent. 

Before: Judge Lasher 

This matter came on for hearing in Salt Lake City, Utah, on 

May 11, 1989. At the commencement of hearing, the parties met 

and discussed the amicable resolution of this matter. A 

settlement of the four violations involved was ultimately reached 

in which Respondent agreed to pay in full 3 of the 4 initial 

penalty assessments ($20 each for Citations numbered 2650178, 

2650179, and 2650217) and to pay a penalty of $50 in lieu of the 

originally assessed $68.00 penalty for Citation No. 2650216. 

Respondent established to Petitioner's satisfaction the presence 

of economic difficulties and the parties agreed that this small 

mine operator with a relatively modest history of prior violations (See Court Exhibit 1) should be allowed a 90-day period 

within which to pay the penalties agreed on and here assessed. 

The settlement appears appropriate and its approval at the 

hearing is here affirmed. 

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

pay to the Secretary of Labor within 90 days from the date of 

receipt hereof the total sum of $110.00 as and for the civil 

penalties above assessed. 

~~~·/'4: ~~ ;i7" Michael A. Lasher, Jr. 

Administrative Law Judge 

1084 
Distribution: 

Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1585 Federal Building, 1961 Stout Street, Denver, 

CO 80294 (Certified Mail) 

Mr. Glenn E. Hughes, President, Lakeview Rock Products, Inc., 

P.O. Box 258, 900 N. Redwood Road, North Salt Lake City, UT 

84054 (Certified Mail) 

/bls . 

1085 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 15 1989 

TROY W. CONWAY, JR., 

Complainant . . DISCRIMINATION PROCEEDING 

v. 

PEABODY COAL COMPANY, 

Respondent 

DECISION 

Docket No. KENT 88-127-D 

MADI CD 88-02 

Camp 9 Preparation.Plant 

Appearances: C. Terry Earle, Esq., Earle & Baird, Greenville, 

Kentucky, for Complainant; 

Eugene P. Schmittgens, Jr., Esq., Peabody 

Holding Company, St. Louis, Missouri, for 

Respondent. 

Before: Judge Melick 

This case is before me upon the Complaint by 

Troy W. Conway, Jr., under section 105(c)(3) of the Federal 

Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et seq., 

the "Act, 11 alleging discrimination by the Peabody Coal 

Company (Peabody) in violation of section 105(c)(l) of the 

Act.l/ Mr. Conway alleges that he was laid-off on 

October 30, 1987, in unlawful retaliation for his reporting 

of safety and health related complaints to Peabody. 

~/Section 105(c)(l} of the Act provides as follows: 

No person shall discharge or in any manner 

discriminate against or cause to be discharged or 

cause discrimination against or otherwise interfere 

with the exercise of the statutory rights of any 

miner, representative of miners or applicant for 

employment in any coal or other mine subject to 

this Act because such miner, representative of 

miners or applicant for employment, has filed or 

made a complaint under or related to this Act, 

including a complaint notifying the operator or the 

operator's agent, or the representative of the 

miners at the coal or other mine of an alleged 

danger or safety or health violation in a coal or 

other mine or because such miner, representative of 

miners or applicant for employment is the subject 

1086 
In order to establish a prima facie case of 

discrimination under section 105Cc) of the Act, a complaining 

miner bea~s the burden of production and proof in 

establishing that Cl) he engaged in protected activity and 

(2) the adverse action complained of was motivated in any 

part by that activity. Secretary on behalf of Pasula v. 

Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 (1980), 

rev'd on other grounds, sub nom. Consolidation Coal Co. v. 

Marshall, 663 F.2d 1211 C3d Cir. 1981); Secretary on behalf 

of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 

(1981). The operator may rebut the prima facie case by 

showing either that no protected activity occurred or that it 

was not motivated in any part by protected activity. If the 

operator cannot rebut the prima facie case in this manner, it 

nevertheless may defend affirmatively by proving that it also 

was motivated by the miner's unprotected activity and would 

have taken the adverse action in any event for the 

unprotected activity alone • Pasula, supra; Robinette supra; 

see also Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 

642 (4th Cir. 1987); Donovan v. Stafford Construction Co., 

732 F.2d 954, 958-59 (D.C. Cir. 1984); Boich v. FMSHRC, 719 

F.2d 194, 195-6 (6th Cir. 1983) specifically approving the 

Cammi s s ion' s ·Pas ula-Robi net te test) • Cf • NLRB v. 

Transportation Management Corp., 462 U.S. 393, 397-413 (1983) 

approving a nearly identical test under the National Labor 

Relations Act. 

The evidence shows that Troy Conway, Jr., a 30 year old 

miner, was employed by Peabody during relevant times as a nonunion lab technician at the Camp No. 9 Preparation Plant. It 

is undisputed that in the course of his work in testing coal 

samples and specifically in performing float/sink analyses, 

the chemical perchlorethylene was used. Further it is 

undisputed that pecchlorethylene can be hazardous and that 

protective clothing should be worn when performing such 

analyses (See Exhibit R-1). 

cont'd fn.l 

of medical evaluations and potential transfer under 

a standard published pursuant to section 101 or 

because such miner, representative of miners or 

applicant for employment has instituted or caused 

to be instituted any proceeding under or related to 

this Act or has testified or is about to testify in 

any such proceeding, or because of the exercise by 

such miner, representative of miners or applicant 

for employment on behalf of himself or others of 

any statutory right afforded by this Act. 

1087 
According to Conway, he learned on October 8, 1986, from 

Warehouse Clerk Markham that Markham had received a 

"breakdown sheet," apparently the manufacturer's document 

explaining the hazards related to perchlorethylene, but 

Conway was unable to obtain the sheet from Markham. 

Conway claims that he then went to company Safety 

Director Larry Cleveland and Acting Superintendent Kenny 

Luckhurst on October 9 or 10, to obtain the information but 

that Cleveland told him "he didn't get anything new that day". 

Conway testified that he then went to see his father, 

Troy P. Conway, Sr., who was Chairman of the Union Safety 

Committee, to help obtain the "breakdown" or "MSDS Sheet" on 

the subject chemical. Conway acknowledges that three days 

later he received a copy of the requested "MSDS Sheets" from 

his foreman Keith McNew. 

According to Conway, lab conditions also changed that same 

day when McNew posted warning signs throughout the preparation 

plant noting as follows: "Do not enter without respirator, or 

protective clothing". Conway also testified that 2 or 3 days 

after he received the "MSDS" sheet the lab workers also 

received additional respirators, protective gloves, splash 

goggles and full-length protective aprons. Conway believed 

that he was responsible for these changes as a result of his 

request for the "MSDS" sheet. 

Conway maintains that thereafter Mine Superintendent Wes 

Shirkey harrassed him, verbally abused him and accused him of 

failing to perform his work. Shirkey purportedly also told 

Conway that he had an "attitude problem", hung around the union 

people too much, and stirred up too much trouble.~/ 

~/ Conway also testified that h~ complained to Shirkey in 

1985 after he became sick from fumes in the preparation plant 

and on another ocassion asked Shirkey for a fan to suck the 

coal dust out of the raw coal room of the preparation 

plant where they worked. While Conway at first alleged that 

because of these complaints Shirkey retaliated by complaining 

that he was "stirring up the lab people" Conway concedes that 

Shirkey later told his father that he made a mistake and was no 

longer accusing him (Conway) of stirring up the lab people as a 

result of these complaints. Conway accordingly appears to 

acknowledge that these accusations and activities no longer 

have a bearing on the instant case. 

1088 
Troy P. Conway, Sr., was, during relevant times, chairman 

of the mine committee and member of the safety committee of the 

local union, and preparation plant mechanic. The senior Conway 

testified that on October 10 his son reported that he had been 

refused a copy of the health sheet breakdown (presumably for 

perchlorethylene). Conway senior testified that the next day 

he went to see Cleveland and Luckhurit. Luckhurst purportedly 

told Conway that "you and little Troy is [sic] going to have to 

quit stirring up the union and the company people over this 

perc". Shirkey later told him that he knew of Troy, Jr.'s 

complaint about the breakdown sheets. 

The senior Conway also testified about a later incident, 

on March 24, 1989, following a complaint about alleged 

violations in failing to provide rubber mats to protect welders 

from electrocution. It is not disputed that Shirkey said in 

regard to the complaint that it was "bull shit" and that he 

would have to fire someone on the safety committee over this. 

It is also not disputed that Shirkey on another occasion 

referred to a miner who filed a "103(g)" safety complaint as a 

"dirty mother fucker". 

Within this framework of evidence it is clear that the 

Complainant made protected safety and health complaints to a 

representative of miners, Troy Conway, Sr., concerning the 

failure of Peabody to provide "breakdown" or "MSDS" sheets 

describing the hazardous nature of the chemical 

perchlorethylene being used by the Complainant at that time. 

Furthermore the testimony of Troy Conway, Sr., is undisputed 

that Shirkey acknowledged to him that he knew of Troy, Jr.'s 

complaint to the Union Safety Committee. Moreover the senior 

Conway's testimony that Assistant Mine Superintendent Kenny 

Luckhurst told him that "you and little Troy are going to have 

to stop stirring up the union and the Company people over this 

perc" is not disputed. When this evidence is considered in 

conjunction with the undisputed testimony of the senior Conway 

that Shirkey cursed and threatened other employees for 

reporting safety violations, it may reasonably be inferred that 

Peabody management would have been motivated to retaliate 

against the junior Conway for his protected activities. 

The credible evidence also shows that in 1986, mine 

management was reluctant to reveal to its lab personnel the 

hazardous nature of the chemical perchlorethylene. Whether or 

not the posting of warning signs and the issuance of a 

memorandum preceded the Complainant's request of the specific 

"MSDS" warning data issued by the chemical manufacturer it is 

clear that this request triggered a retaliatory threat 

communicated to the senior Conway by Assistant Mine 

Supecintendent Luckhurst. It is also clear that following 

these protected activities by the Conways, additional 

protective gear was provided to lab pers~nnel. Under the 

1089 
circumstances Conway has established a prima facie case of 

unlawful discrimination. Pasula, supra. 

On the facts of this case however I find that the operator 

has proven by its affirmative defense that it would have taken 

the adverse action of laying-off the Complainant in any event 

for the stated economic reasons and not based upon any 

protected activity. Pasula,· supra. The evidence in this 

regard is as follows. Wesley Shirkey testified that he was 

sent in July 1984, to supervise the Camp No. 9 Preparation 

Plant because the plant had not been up-to-par. He explained 

that before the lay-offs in October 1987, they had been 

receiving coal to be processed at the No. 9 Preparation Plant 

from the Camp No. 1, No. 2, and No. 11 Mines. In October 1987, 

the Camp No. 11 Preparation Plant closed down and the entire 

sampling process changed because the analytical value of the 

coal changed. Accordingly testing was no longer needed every 

30 minutes and one senior lab technician job on each shift was 

no longer needed. The lay-off of Conway and another senior lab 

technician therefore followed. 

In determining which personnel would be laid off Shirkey 

testified that he considered company-wide seniority and job 

evaluations. According to the undisputed testimony of Shirkey, 

Conway, Jr. was the second least senior lab technician 

company-wide. As a result Conway and Paul Brown, the least 

senior company-wide lab technician, were laid off. In addition 

to the Complainant's lack of seniority, Shirkey noted that 

Conway had been reprimanded for failing to perform significant 

job duties in early 1987. Conway had reportedly falsified coal 

samples and failed to have taken samples. 

Peabody Foreman William McNew testified that he was not 

involved in the decision to lay-off employees in October 1987. 

McNew testified that he caught Conway in September 1986, and 

again in February 1987, failing to collect his required coal 

samples. In February 1987 he verified Conway's neglect of duty 

by marking the level and the weights of the samples in Conway's 

sampling buckets. There was no change in the level of the 

material in Conway's sampling buckets after several days and 

some of the weights of the samples actually decreased. If 

proper sampling was being performed the weights of the samples 

and the quantity of samples in the buckets should have been 

increasing. Conway was issued a letter of reprimand for this 

neglect in his work and the related false entries he made in 

his logs. 

The operator's evidence in support of its lay off decision 

is credible and has not been rebutted by Conway. Under the 

1090 
circumstances the operator has successfully defended itself by 

affirmatively proving that it would have taken the adverse 

action of laying off Mr. Conway in any event for unprotected 

reasons alone. Pasula, supra., Robinette, supra. 

ORDER 

Discrimination Proceeding Docket No. KENT 88- 27-D is 

hereby dismissed. 

Distribution: 

Gary Mel 

Administ 

(703) 75 

ck I 

~ 

ative 

6261 

c. Terry Earle, Esq., Earle & Baird, PO. Box 141,Greenville, 

KY 42345 (Certified Mail) 

Eugene P. Schrnittgens, Jr., Esq., Peabody Holding Company, 

Inc., 301 North Memorial Drive, P.O. Box 373, St. Louis, MO 

63166 (Certified Mail) 

nt 

1091 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

jUN 15 1989 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BEAVER CREEK COAL COMPANY, 

Respondent 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 88-233 

A.C. No. 42-01211-03544 

Trail Mountain #9 Mine 

DECISION 

Appearances: Robert J. Murphy, Esq., John J. Matthew, Esq., 

Office of the Solicitor, U.S. Department of Labor, 

Denver, Colorado, 

for Petitioner; 

Charles W. Newcom, Esq., Sherman & Howard, Denver, 

Colorado, 

for Respondent; 

David M. Arnolds, Esq., Atlantic Richfield Company, 

Denver, Colorado, 

for Respondent. 

Before: Judge Cetti 

This case is before me upon a petition for assessment of 

civil penalty under Section 105(d) of the Federal Mine Safety and 

Health Act of 1977, 30 u.s.c. § 801 et seg., the "Act". The 

Secretary of Labor, on behalf of the Mine Safety and Health 

Administration, (MSHA), charged the operator of the Beaver Creek 

Coal Company, Trail Mountain Mine #9 (Beaver Creek) with 

violating three safety regulations of ~itle 30 Code of Federal 

Regulations. 

The operator filed a timely appeal contesting the existence 

of the alleged violations and the appropriateness of the proposed 

penalties. 

The case was set for hearing on the merits at the same place 

and time as other cases involving the same parties were heard on 

the merits. At the hearing counsel for the Secretary on the 

record stated the parties had reached an agreement and the 

parties jointly moved for approval of the proposed settlement 

disposition which provides as follows: 

Citation No. 3224935 

This citation alleges a violation of 30 C.F.R. § 75.316. 

Beaver Creek moved to be permitted to withdraw its· contest and 

pay in full the Secretary's proposed penalty of $20.00. 

1092 
Order No. 3224936 

The Order alleges a violation of 30 C.F.R. § 75.316. The 

Secretary moved to redesignate this 104(b) Order to a Section 

104Ca) - S & S Citation. Beaver Creek Coal Company agreed to 

withdraw its contest to the newly designated Section 104Ca) S&SCitation and pay the new proposed penalty of $100.00. 

Citation No. 3227100 

The citation alleges a violation of 30 C.F.R. § 75.902. The 

Secretary moves to vacate this citation and its related proposed 

pena~ty due tti an insufficiency of evidence. 

Discussion 

There was no objection to the motions of the parties. The 

motions are granted. In support of this proposed disposition of 

the case the parties submitted information pertaining to the six 

statutory civil penalty criteria found in section llOCi) of the 

Act. After careful review and consideration of the pleadings, 

arguments, and submissions I find that the proposed disposition 

is reasonable, appropriate, and in the public interest. 

ORDER 

The joint motion for approval of the agreed settlement 

disposition is granted. The respondent is directed to pay a 

civil penalty in the sum of $120.00 within 30 days of the date of 

this decision. 

Judge 

Distribution: 

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

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

80294 (Certified Mail) 

Susan K. Grebeldinger, Esq., Sherman & Howard, 3000 First 

Interstate Tower North, 633 Seventeenth street, Denver, CO 80202 

(Certified Mail) 

David M. Arnolds, Esq., Thomas F. Linn, Esq., 555 Seventeenth 

Street, Denver, C0.80202 (Certified Mail) 

/bls 

1093 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

JUN 151989 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BEAVER CREEK COAL COMPANY, 

Respondent 

: 

Docket No. WEST 88-159 

A.C. No. 42-01211-03540 

Trail Mountain #9 Mine 

DECISION 

Appearances: Robert J. Murphy, Esq., John J. Matthew, Esq., 

Office of the Solicitor, U.S. Department of Labor, 

Denver, Colorado, 

for Petitioner; 

Charles W. Newcom, Esq., Sherman & Howard, Denver, 

Colorado, 

for Respondent; 

David M. Arnolds, Esq., Atlantic Richfield Company, 

Denver, Colorado, 

for Respondent. 

Before: Judge Cetti 

This case is before me upon a petition for assessment of 

civil penalty under Section 105(d) of the Federal Mine Safety and 

Health Act of 1977, 30 u.s.c. § 801 et seq., the "Act". The 

Secretary of Labor, on behalf of the Mine Safety and Health 

Administration, CMSHA), charged the operator of the Beaver Creek 

Coal Company, Trail Mountain Mine #9 (Beaver Creek) with 

violating nine safety regulations of Title 30 Code of Federal 

Regulations. 

The operator filed a timely appeal contesting the existence 

of the alleged violations and the appropriateness of the proposed 

penalties. 

The case was set for hearing on the merits at the same place 

and time as other cases involving the same parties were heard on 

the merits. At the hearing counsel for the Secretary on the 

record stated the parties had reached an agreement and the 

parties jointly moved for approval of the proposed settlement 

disposition which provides as follows: 

Citation No. 3227086 

This citation alleges a violation of 30 C.F.R. S 75.400. 

The Secretary moved to vacate this citation and its related 

proposed $98.00 penalty due to an insufficiency of evidence. 

1094 
Citation No. 3227087 

This citation alleges an accumulation of combustible 

materials in violation of 30 C.F.R. § 75.400. Beaver Creek Coal 

Company moved to withdraw its contest of the existence of the 

violation and penalty and pay in full without change the 

Secretary's $147.00 proposed penalty. 

Citation Nos. 3227090, 3227092, 3227093, 3227094, 3227095, 

3227096, and 3227098 

The Secretary advises that these recordkeeping citations 

were issued to Beaver Creek coal Company in error. The Secretary 

moved to vacate the citations with respect to Beaver Creek. The 

citations have been modified and reissued to Beaver Creek's 

predecessor operator of Trial Mountain #9 Mine, Arch Minerals. 

Discussion 

There was no objection to the motions of the parties. The 

motions are granted. In support of this proposed disposition of 

the case the parties submitted information pertaining to the six 

statutory civil penalty criteria found in section llOCi) of the 

Act. After careful review and consideration of the pleadings, 

arguments, and submissions I find that the proposed disposition 

is reasonable, appropriate, and in the public interest. 

ORDER 

The joint motion for approval of the agreed settlement 

disposition is granted. The respondent is directed to pay a 

civil penalty in the sum of $147.00 within 30 days of the date of 

this decision. 

nistrative Law Judge 

Distribution: 

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

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

80294 (Certified Mail) 

Charles W. Newcom, Esq., Sherman & Howard, 3000 First Interstate 

Tower North, 633 Seventeenth Street, Denver, CO 80202 (Certified 

Mail) 

David M. Arnolds, Esq., Thomas F. Linn, Esq., 555 Seventeenth 

Street, Denver, CO 80202 (Certified Mail) 

/bls 

1095 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

JUN 15 1989 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

URRALBURU MINING COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 88-300-M 

A.C. No. 05-03211-05502 

Breezy Mine 

DECISION 

Appearances: Jim D. Rogers, Esq., Robert J. Murphy, Esq., Office 

of the Solicitor, U.S. Department of Labor, Denver, 

Colorado, 

for Petitioner. 

Before: Judge Lasher 

This matter arises upon the filing of a proposal for penalty 

by the Secretary of Labor on September 26, 1988, seeking 

assessment of a civil penalty against Respondent for a violation 

of 30 C.F.R. 57.5039 contained in Citation No. 2640417, dated May 

4, 1988. The subject citation was issued by Inspector Dennis J. 

Tobin pursuant to the provisions of Section 104(a) of the Federal 

Mine Safety and Health Act of 1977, 30 U.S.C. § 815Cd) (1977), 

and charged the Respondent with the following violative condition 

or practice: 

"The two miners working in the hea!ling were exposed to 5.78 

W.L. radon in the 3004 haulage and 1.38 W.L. radon in the incline. 

The maximum allowable exposure is 1.0 W.L. radon. A re-sample 

indicated 2.72 W.L. at the bottom of the incline and 1.13 W.L. 

in the 3003 haulage. Levels in the incline were measured at nil. 

A close examination of the ventilation indicated recirculation of 

the mine air at the fan." 

At the hearing in this matter in Denver, Colorado on April 

26, 1989, Petitioner, as above indicated, was represented by 

legal counsel. Respondent, which the record shows received 

actual notice of the hearing (a Postal Service green card 

attached to the notice of hearing in the Commission's official 

case file reflects receipt of the notice of hearing by certified 

mail on March 27, 1989), neither appeared nor advised the 

Presiding Judge or counsel for Petitioner of its intent not to 

1096 
appear. In such circumstances, the testimony of the issuing 

inspector, Dennis J. Tobin, was submitted on the record under 

oath in support of the Petitioner's position together with 

certain documentary evidence. Based thereon, at the close of 

hearing, this bench decision was issued •. 

Turning specifically to Citation No. 2640417, the record 

indicates that the citation in question was issued by Inspector 

Tobin on May 4, 1988, during an inspection of Respondent's Breezy 

Mine. At this time, Inspector Tobin went underground at 

Respondent's uranium mine and observed two miners picking up 

broken ore. Inspector Tobin took three radon samples on three 

calibrated devices for measuring such, all in accordance with his 

prior training related to the detection of airborne contaminants 

and matters involving toxicology. Inspector Tobin, whose 

experience in mining generally and in the field involved here 

specifically is impressive, testified that upon returning to the 

surface he encountered Mr. Urralburu, the operator of the mine, 

and that Mr. Urralburu was alarmed at his readings which 

indicated high radiation. The inspector returned underground 

with Mr. Urralburu and "resampled" in his presence the readings, 

all of which are reflected in the citation. 

The regulation charged by MSHA to have been infracted in 

this instance, 30 C.F.R. § 57.5039, entitled Maximum Permissible 

Concentration, provides: "Except as provided by standard Section 

57.5005, persons shall not be exposed to air containing 

concentrations of radon daughters exceeding 1.0 W.L. in active 

workings." 

In his only communication in this matter, a letter dated 

October 21, 1988, Mr. Urralburu indicated that he felt a penalty 

was not called for since there had been a cave-in the night prior 

to the inspection and that because of the cave-in the exhaust fan 

in the mine had been restricted to a half flow "in the borehole." 

Mr. Urralburu went on to point out that the cave-in was repaired 

and ventilation was properly restored. Inspector Tobin, who 

testified under oath, indicated that the explanation for the 

violation, if such it be, contained in Mr. Urralburu's letter was 

not meritorious because the violation would have continued if the 

excessive radon levels had not been detected during his 

inspection and Inspector Tobin was of the opinion that it was as 

a result of his radon sampling that Respondent became aware of 

the excessive radon levels cited. It does appear, and Petitioner 

concedes, as Mr. Urralburu indicates in his letter that abatement 

of the violative condition was achieved and that Respondent 

proceeded in good faith to achieve rapid compliance with the 

violated standard after notification of the vio~ation. 

Accordingly, it is found that the violation cited in 

Citation No. 2640417 occurred as charged and that an appropriate 

1097 
penalty must be assessed. Based on information in this record, 

it is concluded that this mine operator was found to be a small 

mine operator who had operated the subject Breezy Mine for a 

period of at least 15 years. Looking at the Respondent as a 

specific individual, that is, Mr. Ben urralburu, it is found 

based on the inspector's testimony that he has a limited 

education and that this was the first time he had been cited for 

this specific type of violation. These factors entered the 

inspector's judgment in attributing a "moderate" degree of 

negligence to the violation, and I agree. This violation is 

found to be serious in deference to the inspector's opinion as to 

the propriety of this characterization and also his evidence 

indicating that inhalation of radioactive radon gases at the 

levels detected and documented by him exposed the two miners who 

were present on May 4, 1988, to the hazard of lung cancer. 

The record does not reflect, and Respondent has not 

established, of course, at the hearing, or in pre-trial 

submissions prior to the hearing, that assessment of penalties at 

the level sought by Petitioner would jeopardize its ability to 

continue in business. The Respondent mine operator has a history 

of two previous violations (Exhibit P-1). 

In the premises, Petitioner's initial assessment of $20. O.O 

for this violation is found appropriate and is here assessed. 

ORDER 

Citation No. 2640417 is affirmed. 

Respondent is ordered to pay to the Secretary of Labor 

within 30 days the sum of $20.00. 

Distribution: 

t7)11:c~~.e_d'- . ~~~--- n - Michael A. Lasher, Jr. 

Administrative Law Judge 

Robert J. Murphy, Esq., Jim D. Rogers, Esq., Office of the 

Solicitor, U.S. Department of Labor, 1585 Federal Building, 1961 

Stout Street, Denver, CO 80294 (Certified Mail) 

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

81424 (Certified Mail) 

/bls 

1098 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 191989 

PAULA L. PRICE, 

Complainant 

DISCRIMINATION PROCEEDING 

v. : 

Docket No. LAKE 86-45-D 

VINC CD 85-18 

MONTEREY COAL COMPANY, 

Respondent 

Monterey No. 2 Mine 

Appearances: 

. DECISION 

Linda Krueger MacLachlan, Esq., and 

Michael J. Hoare, Esq., 314 N. Broadway, 

St. Louis, Missouri £or the Complainant 

Thomas C. Means, Esq., Crowell & Moring, 

Washington, D.C. for the Respondent. 

Before: Judge Melick 

This proceeding is before me to determine the amount of 

attorney's fees and costs to be allowed based upon the 

April 12, 1989, decision finding that Monterey Coal Company 

discriminated against the Complainant in violation of Section 

105(c)(l) of the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 801 et seq., the "Act". 

The Complainant first cites expenses of $187.36 incurred 

in connection with the prosecution of her grievance 

proceeding below in which she obtained lost pay resulting 

from the acts of Monterey Coal Company also held to have been 

discriminatory in this case. She also seeks reimbursement 

for her costs in prosecuting the instant case of $28,758.77 

including attorney's fees and expenses of $24,107.79. 

Monterey opposes the award of fees and expenses 

maintaining that Cl) an award of fees and expenses is 

unauthorized under the circumstances of the case and (2) the 

requested fees and expenses radically exceed any conceivable 

fee and expense entitlement. 

Section 105(c)(3) of the Act provides in part as folows: 

Whenever an order is issued sustaining the 

complainant's charges under this subsection, a sum 

1099 
equal to the aggregate amount of all costs and 

expenses (including attorney's fees) as determined 

by the Commission to have been reasonably incurred 

by the miner, applicant for employment or 

representative of miners for, or .in connection 

with, the institution and prosecution of such 

proceedings shall be assessed against the prson 

committing such violation. 

The evidence shows- that the Complainant first raised the 

issue 0£ her lost pay in a grievance proceeding under the 

corresponding collective barganing agreement for essentially 

the same reasons and based on the same grounds as her 

successful complaint herein. As the record indicates she 

prevailed in those proceedings to the extent that she 

obtained four days back pay--but she was denied her related 

expenses in prosecuting that case. It may reasonably be 

inferred however because of the close similarity of issues 

that those expenses were also directly related to the 

development of evidence necessary for the instant case. 

I therefore find that those expenses were sufficiently "in 

connection with the institution and prosecution" of the 

instant proceedings to warrant assessment of such expenses 

against Monterey. 

Monterey also maintains that the Complainant's grievance 

was settled by the union without agreement to compensate her 

for the cost of the proceedings and that therefore she may be 

deemed to have waived any right to reimbursement for those 

expenses. The evidence in the case shows however that Ms. 

Price did not consent to the settlement of her grievance by 

the union and had no choice in the matter -- the decision to 

settle was made by the union. 

Next, Monterey challenges the amount of grievance 

proceeding expenses cited by the Complainant on the 

grounds that she had previously estimated those expenses to 

be only $25. The Complainant cannot fairly be bound however 

by a rough estimate of expenses made from the witness stand 

without her documentation. In the absence of any other 

challenge to the amount of the expenses claimed, the 

Complainant is awarded her full claim of $187.36. 

I find however that reduction of the claimed attorney's 

fees and trial expenses is clearly warranted in this case. 

The Complainant is entitled to only those costs and expenses 

"reasonably incurred". Section 105(c)(3) supra. 

1100 
In determining a reasonable attorney fee the most useful 

starting point is the number of hours reasonably expended on 

the litigation multiplied by a reasonable hourly rate. 

Hensley v. Eckerhart, 461 U.S. 424 (1~83). Copeland v. 

Marshall 641 F.2d 880 CD.C. Cir. 1980). Where the prevailing 

party has achieved only partial or limited success however 

the product of hours reasonably expended in litigation as a 

whole times a reasonable hourly rate may be an excessive 

amount. Hensley, supra. There is no precise rule or formula 

far making a determination for reduction of an award to 

account for a limited success and the court necessarily has 

discretion in making this equitable judgment. Hensley, supra. 

In this regard it is noted that while the Complainant herein 

alleged 31 protected activities and 14 acts of discrimination 

she prevailed on only one allegation of discrimination. Many 

of the unsuccessful claims were indeed facially frivolous. 

Another factor that may be considered in determining an 

appropriate fee is the quality of representation. See 

Copeland, supra. at 906 - 908. I find in this case that the 

inordinate length of trial i.e. 12 days, in a case that 

should have been tried in no more than two days, is 

chargeable to Complainant's trial counsel. Her lack of 

preparation, lack of focus, lack of understanding of the law, 

frequent and extraordinary delays between questions and her 

repeated failure to promptly appear and be ready for trial 

sessions in this case clearly justifies a ,significant 

reduction in the hours reasonably spent both for attorney's 

fees and the Complainant's own expenses. 

Considering the above factors I find that attorney's 

fees and expenses in the amount of $4,000 and Complainant's 

other expenses in the amount $800 are appropriate. 

1101 
ORDER 

Monterey Coal Company is directed to pay to the 

Complainant within 30 days o~ the date of this decisio 

attorney's fees and other expenses of $4,9 7.36. 

Distribution: 

Michael J. Hoare, Esq., 314 North Bro dway, St. Louis, MO 

63120 (Certified Mail) 

Thomas C. Means, Esq., Crowell & Moring, 1001 Pennsylvania 

Avenueo, NW, Washington, DC 20004-2505 (Certified Mail) 

nt 

1102 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFiCE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY.AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY 

Respondent 

and 

SECRE:'rARY OF T .. ABOR, 

MINE SA~ETY AND HEALTH 

ADMINIS'rRATION (MSHA), 

Petitioner 

v. 

McELROY COAL COMPANY, 

Respondent 

JUN 191989 

. . 

DECISION 

CIVIL PENAL'rY PROCEEDINGS 

Docket ~o. W8VA 89-22 

A.C. No. 46-01453-03831 

Humphrey No. 7 Mine 

Docket No. WEVA 89-24 

A.C. No. 46-01968-03782 

Blacksville No. 2 Mine 

CIVIL PENALTY PROCEEDING 

Docket ~o. WEVA 89-39 

~.c. No. 46-01437-03643 

McElroy Mine 

Appearances: Page H. Jackson, Bsq., ~obert s. Wilson, Esq., 

Office of the Solicitor, U.S. Department of Labor, 

Arlington, Virginia, for the Petitioner; 

Michael R. Peelish, Esq., Consolidation Coal Co., 

Pittsburgh, Pennsylvania, for the Respondents. 

Before: Judge Maurer 

These cases are before me upon petitions for assessment of 

civil penalty under Section 105(d) of the Federal Mine Safety and 

Health Act of 1977, 30 u.s.c. § 801, et~., (the Act). 

Pursuant to notice, a hearing ~as commenced in Morgantown, 

West Virginia on ~pril 18, 1989. At that hearing, prior to the 

taking of any testimony, the parties proposed a settlement 

agreement. The petitioner pt:'oposed reducing the specially 

assessed penalty for Order No. 3113502 fran $1000 to $800 based 

on a reduced likelihood oE occurrence upon re-examination of the 

factual circumstances surrounding the violation. 1 approved that 

motion at the hearing and that disposed of Docket ~o. WEVA 89-22. 

In Docket ~o. WEVA 89-24, I approved a reduction in the aggregate 

1103 
civil penalty from $412 to $256 for two§ 104(a) citations, one 

of which was changed from significant and substantial (S&S) to 

non-S&S. In Docket No. WEVA 89-39, Order No. 2943749 was 

modified to a citation issued pursuant to§ 104(a) of the Act and 

the civil penalty proposal reduced from $900 to $300. Petitioner 

also proposed reducing the specially assessed penalty for 

§ 104Cd)(2) Order No. 3106822 from $1000 to $800 based on a 

reduction in the number of persons affected by the violation. 

The respondent has agreed to pay these amounts in full settlement 

of the cases. I have considered these matters in that light and 

under the criteria for civil penalties contained in§ llOCi) of 

the Act and I conclude that the proffered settlements are 

appropriate. 

Pursuant to the Rules of Practice before this Commission, 

this written decision confirms the bench decision I rendered at 

the hearing, approving the settlements. 

WHEREFORE IT IS ORDERED that respondent shall pay the 

approved civil penalty of $2156 within 30 days of this decision 

and upon such payment, these proceedings ARE DISMISSED. 

Distribution: 

Roy J.: Maurer 

Adminifstiative Law Judge 

Page H. Jackson, Esq., Robert S. Wilson, Esq., U.S. Department of 

Labor, Office of the Solicitor, 4015 Wilson Boulevard, Room 516, 

Arlington, VA 22203 (Certified Mail) 

Michael R. Peelish, Esq., 1800 Washington Road, Pittsburgh, 

PA 15241 (Certified Mail) 

/ml 

1104 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 20, 1989 

CONSOLIDATION COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINB SAFETY AND.HEALTH 

AbMINISTRATION, (MSHA) 

Respondent 

SF.CR~TARY OF LABOR, 

MINE SAFETY AND HBALTH 

ADMI~ISTRATION, (MSHA) 

Petitioner 

v. 

CONSOLIDATION COAL COMP&~Y, 

Respondent 

DECISION 

CONTFST PROCBEDING 

Docket No. WEVA 88-290-R 

Order No. 3106688; 6/6/88 

Blackville ~o. 1 Mine 

~ine ID 46-01867 

CIVIL PF.NALTY PROCEEDING 

Docket No. WEVA 89-4 

A. C. No. 46-01867-03772 

Blacksville No. 1 Mine 

Appearances: Michael R. Peelish, Esq., Pittsburgh, 

Pennsylvania, for Consolidation Coal 

Company; 

Jack F. Strausman, Esq., Office of the 

Solicitor, .Z\rlington, Virginia, for 

the Secretary of Labor. 

Before: Judge Merlin 

These cases are a petition for the assessment of a civil 

penalty filed by the Secretary of Labor against Consolidation 

Coal Company and the related notice of contest filed by Consolidation against the Secretary pursuant to section 110 of 

the Federal Mine Safety and Health Act of 1977 and sections 

2700.20 et seq., and 2700.25 et seq., of Commission regulations; 30 u.s.c. § 820; 29 C.F.R. § 2700.20 et~· and 

29 C.F.~. § 2700.25 et seq. At issue is an alleged violation 

of section 75.322 of the Secretary's regulations which is a 

restatement of section 303(u) of the Act. 30 C.F.R. §75.322; 

30 u.s.c. § 863(u). Also in question is whether the alleged 

violation which was cited in a withdrawal order issued under 

section 104(d)(2) of.the Act, 30 u.s.c. § 814(d")(2), resulted 

from unwarrantable failure. ~dditional issues are whether 

the asserted violation was significant and substantial and 

the appropriate amount of civil penalty, if any, co be 

1105 
assessed. A hearing was held on May 9, 1989, and posthearing briefs have now been filed. 

In accordance with the stipulations agreed to by the parties 

and in light of other information submitted by them at the hearing 

I find (1) I have jurisdiction in this matter; (2) the operator's 

size is large; (3) the operator's history is as submitted by the 

Solicitor; (4) imposition o.f a penalty will not affect the 

operator's ability to continue in business; and (5) the alleged 

violation was abated in good faith. 

~he subject section 104(d)(2) withdrawal order, 

No. 3106688, dated June 6, 1988, sets forth the allegedly 

violative condition as follows: 

Work was started on changing the ventilation of 

the main air currents of the P-6 and P-5 areas while 

power was on the affected areas and with 14 persons 

working on setting up the new longwall equipment in 

the affected area. Pete Turner foreman was instructed by the mine foreman Jack Lowe to erect a 

permanent stopping across the P-5 supply track 

haulage to the longwall set-up. ~~ the same time 

the mine foreman was having check curtains installed 

on the P-6 area and was taken [sic] air reading of 

the air currents. 

30 C.F.R. § 75.322 and 30 U.S.C. § 863(u) provide: 

Changes in ventilation which materially affect 

the main air current or any split thereof and which 

may affect the safety of persons in the coal mine 

shall be made only when the mine is idle. Only 

those persons engaged in making such changes shall 

be permitted in the mine during the change. Power 

shall be removed from the areas affected by the 

change before work starts to make the change and 

shall not be restored until the effect of the change 

has been ascertained and the affected areas 

determined to be safe by a certified person. 

~he MSHA Inspector's Manual (March 1978) states the 

policy applicable to section 75.322 in this manner: 

Changes in mine ventilation which affect any 

split or main air current, including any change 

which increases or decreases the volume of air 

flowing to any split or main air current, shall be 

thoroughly checked to insure that no split has been 

affected in such a way as to cause a hazard to the 

miners. 

/ 

1106 
Any ventilation change in which any split of 

air is to be increases [sic] or decreased by an 

amount equal to or in excess of 9,000 c.f .m. shall 

be made only when the mine is idle. Before mine 

power can be restored in all areas affected by such 

ventila~ion changes, an examination is required as 

in Section 75.303. 

MSHA Inspector, George Phillips, arrived on the P-6 

section of the operator's Blacksville No. 1 Mine at about 

8:15 a.m., June 6, 1988 (Tr. 16). At that time the operator 

intended to begin mining the new P-6 longwall face (Tr. 16, 

325). The mine is on a section 103(i), 30 U.S.C. § 813(i), 

inspection cycle since it liberates the amount of methane 

specified in the Act (Tr. 13, 38). Mr. Phillips proceeded up 

entry 3, the track, of the P-6 section (Tr. 17).1/ After he 

passed the last open crosscut on his left, he noticed that air 

was flowing in an outby direction and hitting him in the face 

(~r. 17). It is agreed that this outby air flow was wrong and 

that it should have been going inby on the P-6 entries and 

thereafter along the longwall face from the headgate to the 

tailgate (Tr. 18-19, 282). The inspector testified that the 

airflow was reversed on both sides of the block of coal (~) 

which was immediately outby the headgate and between entries 3 

and 4 (Tr. 28-29). He walked around that block of coal and 

found a check curtain (E) missing on the left side (Tr. 22). 

The inspector took air readings at two locations (A and B) on 

the P-6 section and was satisfied with the air movement he 

found (Tr. 29-30). From these readings he calculated the 

reverse airflow as 7,560 c.f.m. (Tr. 30, 32, 33). 

The operator's mine foreman, Jack Lowe, arrived on the 

section at roughly 8:30 a.m. and therefore was on the P-6 section at the same time as the inspector (Tr. 264). He took 

several air and methane readings all of which, like the inspector's readings, were satisfactory (Tr. 265-270). The foreman 

then walked inby on entry 1 of the P-6 section until he 

reached the door (W) and went through that door which he said 

was cracked open 6 to 8 inches, into bleeder entry 3 (Tr. 269, 

270). He proceeded all the way down bleeder entry 3 out into 

1/ All references are to the mine map admitted as Joint ~xhibit ~o. 1 and to the markings made thereon by the 

witnesses. MSHA witnesses used letters and operator witnesses 

used numbers to mark locations. A facsimile of this map is 

attached to this decision as an Appendix. For added convenience, the bleeder entries have been numbered in accordance 

with the testimony (Tr. 235). 

1107 
a crosscut in the P-5 section (Tr. 271). This crosscut was 

between P-5 entries 3 and 4~/ and just inby the tailgate area 

of the new longwall face (Tr. 271). Tn other words, the foreman went from P-6 to P-5 by crossing through the bleeders. He 

had previously given orders that a stopping (J) be built at 

this crosscut, but at this time actual building had not yet 

begun (Tr. 271). At about 9:30 a.m. he took an air and 

methane reading (5) near where the stopping was going to be 

erected, and another reading (6) near the regulator CR) 

(Tr. 271, 275)3/. Be took additional readings further inby 

P-5 ('T'r. 27 6) 4 I. 'I'he foreman then returned to the bleeders 

where in the crosscuts at the longwall face he found a loose 

check curtain (~),a down curtain (L) which he put back, and a 

very loose curtain (M) (~r. 277). He took readings at the 

longwall and found that the air direction was from the 

headgate to the tailgate which was the way it was supposed to 

be (Tr. 278). He then backtracked the way he had originally 

come down bleeder entry 3 and through the door (W), once again 

into P-6 entry 1 (Tr. 279). 

It was at this point that the inspector and the foreman 

met (~r. 28, 278-279). The inspector told the foreman about 

the reverse airflow (Tr. 28). The foreman said he would try 

to correct the situation by moving some check curtains 

(Tr. 29, 280). The for6nan made some curtain adjustments, but 

they did not affect the reverse airflow (Tr. 282-283). 

~he inspector then travelled across bleeder entry 4 to 

the P-5 section where he took an air and methane reading (C) 

inby the tailgate area in entry 4 of P-5 (Tr. 39, 46-47). He 

then walked through a mandoor (H) back into the bleeders 

(Tr. 45, 47). Proceeding a short distance down the nearest 

bleeder crosscut, he found three men puilding a permanent 

stopping (J) in the crosscut between entries 3 and 4 in the 

bleeder tailgate area (Tr. 49). As already noted, this is the 

stopping the mine foreman testified he had ordered built. At 

the time the inspector arrived, only the two top tiers of the 

~/ Fntries in the P-5 section are marked in reverse order 

on the map. Since the error was not discovered until late in 

the hearing, T ruled that for purposes of this case we would 

keep the map marked the way it was ('T'r. 273). 

~/ ~he letter R was used on the map to designate the 

regulator in P-5 as well as an outby roof fall in P-6, noted 

infra. 

~/ Because the location of these readings are far inby on 

P-5, they do not appear on the facsimile map attached as an 

appendix to this decision, but they do appear on 

Joint Exhibit 1. 

1108 
stopping (about 16 inches) had not been installed (Tr. 55). 

~he inspector observed that the door in the stopping was open 

(Tr. 109-110). ~he inspector then went into bleeder entry 3 

where he took an air reading (D) (Tr. 54). The air velocity 

was 23,220 c.f .m. • The inspector did not remember whether he 

issued the subject withdrawal order before or after he took 

this reading (Tr. 109). The order bears a time of 11:20 a.m. 

( Govt • Fxh • 4 ) • 

There is no dispute that the operator's ventilation plan 

required that the stopping (J) be built before mining on the 

new longwall face started (Tr. 215-216). The purpose of the 

stopping was to reduce the air flowing into the bleeders 

directly from the P-5 section and instead force the air outby 

P-5 and then up the P-6 intake entries so it would flow across 

the longwall face with sufficient velocity for mining to begin 

(Tr. 165-166, 287, 293). It was also thought that erection of 

the stopping would correct the reverse airflow which the 

inspector found (Tr. 64, 287). 

The operator admits that power was on and that there were 

14 people in the area ·cTr. 74). The inspector believed that 

the change in air direction and/or the increase in air velocity caused by erection of the stopping could possibly push 

methane out of two roof fall cavities CR and 8) outby in P-6 

and out of one fall cavity (T) in the bleeders, thereby 

causing an ignition (Tr. 76-79). Also, because the inspector 

thought the stopping would cut off the airflow from P-5 into 

the bleeders, he believed it questionable whether enough of 

the air flowing inby on the P-6 section would get back into 

the bleeder entries to prevent an accumulation of methane 

there {Tr. 91-93, 94-95). Accordingly, he testified dead air 

in the bleeders was a possible danger {Tr. 92). In the inspector's opinion, the resulting changes in air direction which 

would have resulted from the erection of the stopping fell 

within the purview of 30 C.F.R. § 75.322 as an air change that 

was material and affected safety {Tr. 75, 76). 

The inspector's conclusions about the possible adverse 

consequences from building the stopping without shutting off 

the power were based upon his belief that once the stopping 

was completed, the door in the stopping would be closed and as 

a result there would be a complete cut off of air from P-5 

into the bleeders. (Tr. 95, 108, 111, 117). As already 

noted, the inspector had obtained an air velocity reading of 

23,220 c.f.m. in this area (D) (Tr. 54). Similarly, the mine 

foreman obtained an air velocity reading of 22,160 c.£.m. at 

that location (5) -('l'r. 271). i:t was this air -the inspector 

1109 
feared would be lost to the bleeders all at once. The inspector observed that the door in the stopping that was open, but 

he did not ask whether the operator would leave the door open 

when construction was finished (Tr. 111). 

~he inspector's crucial assumption that the door in the 

stopping would be closed, was wrong. ~he mine foreman testified that when the stopping was completed, the door would be 

left open all the way (Tr. 280, 284, 310). Once the stopping 

was built, it was the foreman's intent to adjust the air flow 

by gradually closing the door in conjunction wich opening the 

regulator CR) which controlled the air coming across the 

longwall face CTr. 262). The foreman testified that he would 

continuously take air readings until he was satisfied with the 

velocity (Tr. 291-293). By proceeding in this manner sufficient air would keep coming directly into the bleeders from 

P-5 through the door in the stopping to ventilate them until 

enough air was driven down P-5 and up the P-6 intake entries 

to ventilate the longwall face and bleeders from that 

direction CTr. 293-295). 

I find the foreman's testimony convincing and I accept it. 

~he inspector's position cannot be justified on the ground 

that no one told him the door would be open (Tr. 111). He 

should have asked, particularly since he saw that the door was 

open while the stopping was being built (Tr. 109). Before an 

inspector issues a citation for an alleged violation, he 

should take steps to apprise himself of the relevant facts. 

~his is especially true where the situation is a serious one 

and the inspector undertakes to close the operator down with 

an unwarrantable order. The inspector's assertion that doors 

in stoppings are very seldom left open and that they make poor 

regulators is without merit. On these matters the inspector 

was contradicted by MSHA's ventilation supervisor, who stated 

that the use of doors in stoppings as regulators is not 

unusual (Tr. 230). The ventilation supervisor described how 

doors are used as regulators in accordance with the ventilation plan (Tr. 230-231). His testimony is therefore, 

consistent with the mine foreman's statement that the door in 

the subject stopping would have been used as a regulator, 

controlling the amount of air going directly into the bleeders 

from P-5 (Tr. 305). 

In addition, the foreman pointed out that the door CW) at 

the P-6 end of bleeder entry 3 was open and that the door in 

P-6 entry 1 near the headgate (marked "door off" on the map) 

was intentionally left off (Tr. 266-267, 286-287). It nowhere 

appears that the inspector was cognizant of these circumstances. With these doors, open and off respectively, and 

with the door in the subject stopping open and only closed 

gradually as air was constantly monitored, the foreman explained how at all times there would be an airflow throughout 

1110 
the bleeders with no dead airspace (Tr. 286-288, 293-296, 301). 

~he foreman showed that as increased air came up the P-6 

entries it would ultimately cross che longwall face and then 

ventilate bleeders with certain stoppings (X and 14) removed 

and another one installed to seal off the gob CTr. 295-300). 

I am convinced by the foreman's description of how ventilation would have been maintained in the bleeders and by his 

testimony that under the circumstances presented here there 

would be no dead airspace in the bleeders. ~he inspector's 

conclusions must be rejected because they were based upon 

erroneous assumptions and inadequate knowledge of the facts. 

Since the inspector erred in believing that erection of 

the subject stopping would create a sudden and complete 

cut-off of air from P-5 to the bleeders, his fear of a 

corresponding initial onrush of air up the P-6 intake entries, 

was unfounded. ~herefore, his resulting concern that methane 

from the roof fall cavities CR, S, ~) could be pushed out by 

such an onrush was misplaced and is rejected. In this 

connection, it must also be noted that the roof falls outby in 

P-6 (R and S) were on intake air and had never shown methane, 

despite being checked at least once or twice each week by the 

foreman (Tr. 269). 

In light of the foregoing, I conclude that on the facts 

presented in this case, the gradual air changes which were to 

have been made would not have been material and would not have 

affected the safety of the miners and that therefore, the 

inspector's finding of a violation cannot stand and his 

withdrawal order must be vacated. 

The foregoing is dispositive. However, it should also be 

noted that the inspector displayed great uncertainty over what 

the mandatory standard means. As quoted above, 30 C.F.R. 

§ 75.322 directs that the mine be idle when there are ventilation changes which "materially" affect the main cuirent or a 

split thereof and which "may affect the safety of persons in 

the mine." In attempting to justify his finding of "material" 

in this case the inspector relied upon the fact that the operator's activities were planned (Tr. 121, 122, 162-163) and 

asserted that if the operator had just come upon an unplanned 

air change, it would not have been material (Tr. 116, 124). 

He also stated that if the operator could fix something 

quickly it would not be a material change (Tr. 162). I do not 

find these considerations persuasive. "Material" means "being 

of real importance or great consequence." Webster's Third 

International Dictionary (1988). The issue of whether a 

1 1 1 1 
change came about intentionally or whether it could be 

rectified quicKly, does not affect the actual characteristics 

of the change itself. 

Nor does the Inspector's Manual help. Ic is well established that the manual is not binding upon the Commission. 

Alabama By-Products, 4 FMSHRC 2128 (Dec. 1982); U. s. Steel, 

5 FMSHRC 3 (Jan. 1983); U. S. Steel, 10 FMSBRC 1138 (Sept. 

1988). If MSHA wishes the manual to be accorded weight, a 

showing must be made that it is consistent with and furthers 

the purposes of the mandatory standard. ~he portion of the 

manual involved in this case does not define "material" or 

explain what "affecting safety" means. It merely directs that 

air changes of more than 9,000 c.f .m. in a split of air can 

only be made when the mine is idle. 

Because I have found that the operator could have 

controlled the air change gradually, T conclude that any 

change would not have exceeded 9,000 c.f .m. • Nevertheless, 

mention should be made of the confusion shown by MSHA 

witnesses over how the manual should be interpreted. ~he MSHA 

ventilation expert testified that all inspectors were told to 

follow the 9,000 c.f.m. rule, but he did not know where the 

rule came from and said only that he had been told it was 

related to the requirement of air velocity in the last open 

crosscut (Tr. 198-199). No analysis was offered with respect 

to this alleged relationship. Moreover, there was no understanding of when the 9,000 c.f .m. policy would be followed. 

For example, the inspector and the ventilation expert indicated that air changes of more than 9,000 c.f .m. could be made 

at the bottom of the main shaft and at exhaust fans without 

shutting off power, but that power would have to be shut off 

even where less than 9,000 c.£.m. was involved if the total 

percentage of air being changed was great (~r. 172-173, 

199-201, 204). Operator's counsel suggested at the hearing 

that the differences in following the 9,000 c.f .m. rule could 

be due to the fact that some of examples considered may not 

have involved a split of air (Tr. 203). However, MSHA 

witnesses themselves did not rely upon any such distinction. 

Rather the thrust of their testimony was that 9,000 c.f .m. is 

a relative term and only a guide that is not all inclusive 

(Tr. 170, 199). Such an open-ended approach is really no 

guide at all. 

It the policy statement is to be meaningful, it must give 

some advice that will enable inspectors to know when the 9,000 

c.£.m. is to be followed and when it is not. Insofar as the 

record in this case is concerned, there is no such guidance. 

Indeed, the ventilation expert agreed that the policy statement was confusing (Tr. 202). Ii 30 C.F.R. § 75.322 is to 

play its proper role in enforcement of the Act, it must be 

1112 
interpreted and implemented by informed inspectors in an 

uniform and intelligible manner. 

Although I have found that there was no violation, 

mention must be made of the issuance of an unwarrantable withdrawal order. The Commission now has defined unwarrantable as 

"aggravated conduct constituting more than ordinary negligence." Emery Mining Corporation, 9 FMSHRC 1997, 2001 

(December 1987), Youghiogheny and Ohio Coal Company, 9 FMSHRC 

2007, 2010 (December 1987). With the confusion and lack of 

clear guidelines detailed herein, and in light of the operator's gradual approach toward the air change, issuance of the 

subject order with its attendant harsh sanctions was 

particularly inappropriate. 

The posthearing briefs filed by the parties have been 

reviewed. To the extent that the briefs are inconsistent with 

this decision, they are rejected. 

ORDER 

In light of the foregoing, it is hereby ORDERFD that 

Order No. 3106688 be ·vACATRD. 

It is further ORD~RF.D that the operator's notice of 

contest be GRANTED. 

It is further ORDBRFD that the Solicitor's petition for 

assessment of civil penalty be DISMISSED. 

-

\ 

\ 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Michael R. Peelish, Bsq., Consolidation Coal Company, 1800 

Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

Jack F. Strausman, Esq., Office of the Solicitor, u. s. Department of Labor, Room 516, 4015 Wilson Boulevard, Arlington, VA 

22203 (Certified Mail) 

Lawrence Beeman, Director, Office of Assessments, U. s. Department of Labor, 4015 Wilson Boulevard, Arlington, VA. 22203 

CHandcarried) 

/gl 

1113 
3 

; 

0 

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9 

APPENDIX 

WEVA 88-290-R 

WEVA 84-4 

f/.•JI 

0+00 

1114 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 20, 1989 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY A~D HEALTH 

ADMINISTRATION CMSHA), 

·Petitioner 

Docket No. WBVA 89-51 

A. C. No. 46-01318-03849 

v. Robinson Run No. 95 Mine 

CONSOLIDATION COAL COMPANY, 

Respondent 

. . 

DECISION 

Appearances: ~onald Gurka, Fsq., Office of the Solicitor, 

u. s. Department of Labor, Arlington, Virginia 

for Petitioner; 

Before: 

Michael R. Peelish, Esq., Consolidation Coal 

Company, Pittsburgh, Pennsylvania, for 

Respondent. 

Judge Merlin 

~his case is a petition for the assessment of civil 

penalties filed by the Secretary of Labor against Consolidation 

Coal Company under section 105Cd) of the Federal Mine Safety and 

Health .~ct of 1977, 30 U.8.C. § 815Cd), for two alleged 

violations of the Act. 

A hearing was held on May 10, 1989, and the parties have 

filed post hearing briefs. · 

Order No. 3117607 

Order No. 3117607 dated August 16, 1988, charges a violation 

of 30 C.F.R. § 75.202Ca), for the following condition or 

practice: 

Condition: There was loose, hanging, 

unsupported pieces of mine roof between the 

wire screen and the rib along the bolted rib 

lines in the 3 West section belt conveyor 

entry. 

30 C.F.~. §75.202Ca), 53 P.R. 2354, 2355, 2375 (January 27, 

1988), provides as follows: 

1115 
(a) The roof, face and ribs of areas 

where persons work or travel shall be supported or otherwise controlled to protect 

persons from hazards related to falls of the 

roof, face or ribs and coal or rock bursts. 

Also in question is whether the alleged violation which was 

cited in a withdrawal order issued under section 104(d)(2) of the 

Act, 30 U.S.C. § 814(d)(2), resulted from unwarrantable failure. 

Additional issues are whether the asserted violation was . 

significant and substantial and the appropriate amount of civil 

penalty, if any, to be assessed. 

In accordance with the stipulations agreed to by the parties 

and in light of other in£ormation submitted by them at the hearing I find Cl) I have jurisdiction in this matter; (2) the operator's size is large; (3) the operator's history is as set forth 

by the Solicitor; (4) imposition of a penalty will not affect the 

operator's ability to continue in business; and (5) the alleged 

violation was abated in good faith. 

The cited belt conveyor entry was in an area that was being 

rehabilitated (Tr. 17, 94, 100-101). It had originally been 

mined several years previously (~r. 17, 99). The top had deteriorated and fallen (Tr. 17, 77, 79, 99). The opera~or had mined 

over the old roof falls, cleared them up with a continuous mining 

machine and was in the process of installing a new roof support 

system (Tr. 17, 98-99, 145). The intent was to rehabilitate the 

area for the life of the mine, opening up the cited entry for 

travel and installation of a belt so as to reach coal in another 

area (Tr. 17, 99-100). 

There is a dispute between MSHA's witnesses and the operator's witnesses over the portion of the belt conveyor entry 

involved, the condition of the roof, and the effect of posted 

danger signs. The issuing inspector testified that from the 

No. 18 block extending inby for 200 feet, including the No. 19 

block, there was a roof cavity from 7 to 12 feet high (Tr. 15, 

16; "C" to "D" on Jt. Fxhs. 1, and 2). At this location wire 

screening had been installed pursuant to the roof control plan 

along the center of the entry in the roof cavity to catch loose 

or broken materials that might fall (Tr. 18). However, according 

to the inspector the screening did not extend to the rib lines 

CTr. 15, 19). Rather there was a 20" gap on each side where 

there was no support for the roof c~r. 15, 19, 20). Irregularly 

shaped pieces of broken rock were caught in crevices, in the 

ribs, and at the edge of the wire on both sides of the entry (Tr. 

21, 22). 

The issuing inspector's description of the condition was 

corroborated by an MSHA supervisory inspector who accompanied him 

on the inspection (Tr. 76, 87). The supervisor walked on the 

opposite side of the belt entry while the inspector walked on the 

1116 
side toward the adjacent track entry. According to the supervisor, loose rock was present on both sides of the entry and that 

the track side was worse (Tr. 79, 80). He further said that not 

only were 20" not screened but there was an additional 20" on the 

sides which extended past the last roof support (Tr. 84). 

The issuing inspector testified that two danger signs were 

hung at each end of the ~o. 18 block C~r. 24). The roof condition he cited extended further inby than the danger signs 

(~r. 26; Jt. Fxhs. 1 and 2). According to the inspector, the 

signs which were 6" x 12" x 12" were installed about 5' from the 

ground on the track side of the entry (Tr. 26, 30). Bach sign 

was. attached to a cable or wire which draped across the entry 

until it was lying down on the floor on the opposite side of ~he 

entry (Tr. 27-30). In the inspector's opinion the signs were 

meant to danger off the entire entry (Tr. 30). The MSHA supervisor stated that the cable from the danger sign did not extend 

to the opposite side and would not impede anyone's travel on that 

side of the belt (Tr. 80). 

Contrary to MSHA's witnesses, the operator's safety escort 

testified that the only affected area was 119 feec from the end 

of the No. 16 block to.the middle of the No. 18 block where there 

was a roof cavity (Tr. 102). He maintained that in this area 

screening was installed tight against roof held with bolts and 

planks (Tr. 96-98). He said that the distance from the screen to 

the rib was only 6" to 12" (Tr. 105-106). In his opinion, 

nothing remained to be done in the screened area which was safe 

(Tr. 116>. According to the escort, from the middle of the 

No. 18 block and through the No. 19 block there was no roof 

cavity and the top was in good condition (Tr. 97-98). ~he escort 

testified that there were two danger signs anchored to the rib on 

the track side of the entry by a wire which went across to the 

belt structure (Tr. 107-108). 

After listening to the witnesses and reviewing the transcript, I accept the extent of the area involved and the description of the condition given by MSHA witnesses. The escort's 

contention that the screened area was safe cannot be reconciled 

with the many pre-shift examiner's reports, beginning August 12,· 

all of which reported bad top (Resp. Bxh. 2). So too, the 

escort's delineation of the affected area is at odds with the 

pre-shift examiner's reports which give the affected area as the 

Nos. 18 and 19 blocks. On cross-examination the escort stated he 

disagreed with his own pre-shift examiners who reported bad top 

and said he would have removed this condition from the fire boss 

~ook and reported only an obstructed roadway (Tr. 119). Finally, 

if the area were safe, as the escort asserted, there would have 

been no need for any .danger signs. 

1117 
It is clear that the pre-shift examiners were correct. The 

escort offered no support for his opinion that everything that 

could fall, had fallen (Tr. 117}. If the area was completely 

safe, as the escort said, it would not have taken iive shifts to 

install the planks necessary to abate CTr. 120}. ~he mine foreman testified that the planks used to abate were to prevent 

falling materials from coming down into the entry (Tr. 153}. 

In addition, I find that references to the walkway in the 

pre-shift examiner's reports encompass both sides of the entry 

and that, as the MSHA supervisor stated, the track side was worse 

CTr. 80}. I also accept MSHA's evidence that rocks do not always 

£all straight down and that a rock falling from the roof on the 

track side of the entry could injure someone walking on the 

opposite side (Tr. 33, 83, 84}. As set forth above, loose rock 

was present on both sides of the entry indicating the existence 

of danger throughout the entry. Since a hazard existed on both 

sides of the entry, the entire entry should have been dangered 

off. By all accounts the signs were only present on the track 

side ('T'r. 26, 30, 80, 107, 108, 150-152}. The wire holding the 

signs just draped across the entry ranging from 5 feet off the 

floor on the track side down toward the opposite side where it 

was no impediment to travel. I accept the inspector's statement 

that the wire did not extend across the whole width of the entry 

(Tr. 28}. Accordingly, I find the signs did not danger off both 

sides of the entry. 

I also accept the inspector's testimony regarding location 

of the oigns at each end of the No. 18 block (Tr. 23, 25}. 'T'herefore, the signs did not cover the ~o. 19 block where the 

screening also was inadequate_and rocks had fallen. r -

Based upon the foregoing, I conclude that a violation of 

30 C.F.R. § 75.202Ca} existed because the roof and ribs of the 

cited area where the pre-shift examiner and belt cleaner worked 

and travelled, were not supported or controlled to protect 

persons against roof falls. 

~he next issue is whether the violation was significant and 

substantial. 'T'he Commission has held that a violation is 

properly designated significant and substantial if, based on the 

particular facts surrounding that violation, there exists a reasonable likelihood that the hazard contributed to will result in 

an injury or illness of a reasonably serious nature. Cement 

Division, National Gypsum Co., 3 FMSHRC 822, 825 (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: Cl) the underlying violation of a mandatory safety 

1118 
standard; (2) a discrete safety hazard--that 

is, a measure of danger ~o safety-~contributed to by the violation; (3) a reasonable 

likelihood that the hazard contributed to 

·will result in an injury; and (4) a reasonable likelihood that the injury in question 

will be of a reasonably serious nature. 

The Commission subsequently explained that the third element 

of the Mathies formula "requires that the Secretary establish a 

reasonable likelihood that the hazard contributed to will result 

in an event in which there is an injury" U. s. Steel Mining Co., 

6 ~MSHRC 1834, 1836 (August 1984). 

The danger of falling rock from the roof through the gaps in 

the mesh screening presented a discrete safety hazard. The roof 

had deteriorated. There were stress cracks on both sides of the 

entry which increased the potential of a roof fall c~r. 82-83). 

Jagged pieces of rock already were caught in ribs and crevices at 

the edge of the screening c~r. 20-21). Based upon this evidence, 

I find there was a reasonable likelihood that the feared hazard 

of falling rock, would occur. There was also a reasonable likelihood the hazard of falling rock would result in a reasonably 

serious or fatal injury. The hanging rocks weighed 30-35 pounds, 

with some heavier and some lighter CTr. 21). Although men were 

not working in the area at the time, I accept the inspector's 

testimony that the machinery was energized and that the operator 

intended to use the belt (Tr. 34, 35-36). The operator's escort 

-admitted the belt was used periodically (Tr. 130-131). Moreover, 

pre-shift examiners and belt cleaners travelled the area (Tr. 

36). 

The foregoing evidence also demonstrates tnat the violation 

was serious. Roof falls have long been recognized as a major 

cause of serious injury and fatality in the ~ines, Consolidation 

Coal Company~ 6 FMSHRC 34 (January 1984). 

The violation was not the result of unwarrantable failure on 

the part of the operator. Unwarrantable failure has been interpreted by the Commission as "aggravated conduct constituting more 

than ordinary negligence." Fmery Mining Corporation, 9 FMSHRC 

1997, 2004 (December 1987); Youghiogheny and Ohio Coal Company, 

9 FMSHRC 2007, 2010 (December 1987). ~he supplies necessary to 

correct the cited condition would have had to be brought in 

through the track entry (Tr. 153). However, the track entry was 

closed down from August 9 until 9 a.m. August 15 due to a section 

104(d)(2) order relating to shelter holes (Tr. 114, 120-121). 

The order in this case was issued 25 hours later on August 16. 

The operator's escort did not notify the mine foreman until 

3 p.m. that the track order had been lifted (Tr. 125). After the 

order on ~he track was terminated, flat cars which were needed to 

transport the supplies, were used to transmit supplies to abate a 

third order previously issued on ~ugust 3 which involved venti1119 
lation (Tr. 121-122, 128). It appears that despite the effort 

involved in abating the ventilation order, other flat cars were 

still available to correct the cited roof condition. Cars were 

being used at that time to deliver rock dust and other supplies 

so that mining could continue (Tr. 130, 156-157). ~evertheless, 

the 25-hour interval was not sufficiently attenuated to justify a 

finding of unwarrantable failure, especially since the operator 

was engaged in abating the ventilation order. Also, nothing in 

the record suggests that the failure to extend the danger signs 

to control the entire entry was due to aggravated conduct of 

the sort required by Commission precedent. The finding of 

unwarrantable failure must be vacated. 

~he operator was guilty of ordinary negligence. The 

operator's escort should have notified the mine foreman as soon 

as the track entry became available to transport supplies instead 

of waiting several hours. Also flat cars should have been used 

to transport materials to correct the roof, instead of carrying 

rock dust and other supplies. The operator also was negligent in 

not insuring that the danger signs controlled both sides of the 

entry. 

The post-hearing briefs filed by the parties have been 

reviewed. To the extent that the briefs are inconsistent with 

this decision, they are rejected. 

In light of the foregoing and in accordance with the six 

statutory criteria set forth in section llOCi) of the Act. I 

conclude that a penalty of $900 is appropriate. 

Order No. 3117438 

This 104Cd)(2) order dated August .9, 1988, was issued for a 

violation of 30 C.F.R. § 75.1403(g). The order recites that 

under the applicable safeguard, shelter holes were not provided 

at the required 105 foot intervals. This is the order which shut 

down the track entry, as described above. 

The original assessment was $1,200 and at the hearing the 

parties proposed a settlement of $950 (Tr. 164-165). The Solicitor explained that the violation was not as serious as originally 

thought, because most miners in the area would be in cars and not 

walking. Also, miners would have adequate warning a car was 

coming because the entry was long and straight (Tr. 166). 

I accept the Solicitor's representations and approve the 

recommended settlement, which remains a substantial amount, as 

consistent with the criteria set forth in section llO(i) of the ~ct, 30 u. s. c. § 820(i). 

1120 
ORDFRS 

No. 3117607 

It is ORDERFD that the finding of a violation be AFFIRMED. 

It is further ORDF.RED that the finding of significant and 

substantial be AFFIRMED. 

It is further ORDERED that the finding of unwarrantable 

failure be VACATED. 

It is further ORDBRF.D that the subject 104(d)(2) order be 

MODIFTFD to a 104(a) citation. 

Tt is further ORDFRED that a penalty of $900 be ASSESS~D. 

No. 3117438 

It is ORDERED that the proposed settlement of $950 be 

APPROVED. 

ORDER TO PAY 

i:t is further OROFRFD that the operator PAY $1,850 with.in 30 

days from the date of this decision. 

,. __ .--l\~~~~ 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Ronald Gurka, Bsq., Office of the Solicitor, U. s. Department of 

Labor, Room 516, 4015 Wilson Boulevard, Arlington, VA 22203 

(Certified Mail) 

Michael R. Peelish, Fsq., Consolidation Coal Company, 1800 

Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

/gl 

1121 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 2 0 \989 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

. . Docket No. CENT 88-108 

A.C. No. 16-01031-03507 

v. 

Dolet Hills Lignite Mine 

DOLET HILLS MINING VENTURE, 

Respondent 

Appearances: 

Before: 

DECISION 

Anthony G. Parham, Esq., Office of the 

Solicitor, U.S. Department of Labor, Dallas, 

Texas, for the Petitioner; 

Bruce P. Hill, Esq., Sturgis, Kentucky, for the 

Respondent. 

Judge Koutras 

Statement of the Case 

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), seeking civil penalty assessments in the amount of $1,000, for two alleged violations of 

mandatory training standard 30 C.F.R. § 48.28(a). A hearing 

was held in Shreveport, Louisiana, and the respondent filed a 

posthearing brief. Although the petitioner did not file a 

brief, I have considered its oral arguments made on the record 

during the course of the hearing in my adjudication of this 

matter. 

Issues 

The issues presented in this case include the following: 

Cl) whether the respondent violated the cited mandatory training standard; (2) whether the violations resulted from an 

unwarrantable failure by the respondent to comply with the 

reqnirements of the cited standard; and (3) whether or not the 

1122 
violations were significant and substantial. Assuming the violations are affirmed, the question next presented is the appropriate civil penalties to be assessed pursuant to the penalty 

criteria found in section llOCi> of the.Act. Additional issues 

raised by' the parties are identified and disposed of in the 

course of this decision. 

Applicable Statutory and Regulatory Provisions 

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

30 u.s.c. § 301, et seq. 

2. Sections llO(a), llO(i), 104(d), and 105(d), of the 

Act. 

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

Stipulations 

The parties stipulated to the following (Tr. 11-13): 

1. The respondent operates a surface coal 

lignite mine, with 83 employees. 

2. ·The respondent's mine produces 2.5 to 

2.75 million tons of coal annually, and it is a 

small-to-medium sized mining operation. 

3. Payment of the proposed civil penalty 

assessments for the violations in question will 

not adversely affect the respondent's ability to 

continue in business. 

4. The respondent's history of prior violations for the 24-month period prior to the 

issuance of the violations in this case consists 

of seven (7) violations, none of which are for · violations of the training requirements found in 

Part 48, Title 30, Code of Federal Regulations. 

Discussion 

The contested section 104(d)(l) citation and section 

104Cd)(2) order were issued by MSHA Inspector Donald R. Swnmers 

in the course of an inspection which he conducted at the mine 

on January 19, 1988. In addition to the citation and order, 

the inspector issued two section 104(g)(l) orders withdrawing 

the two miners in question from the mine until they received 

1123 
the required training. These orders were not contested and the 

petitioner does not seek civil penalty assessments for them. 

The citation and order in issue are .as follows: 

Section 104(d)(l) "S&S" Citation No. 2929494, January 19, 

1988, cites a violation of mandatory training section 30 C.F.R. 

§ 48.28(a), and the cited condition or practice states as 

follows: 

Harold Mellott, Maintenance Supervisor, was 

working on the mine, performing supervisor duty 

at the mine off ice. Training records show 

Mr. Mellott received no training since 8-30-85. 

Discussions with Judy Tate, MSHA training spec. 

and Dennis Haeuber, Safety & Training instructor 

(Dolet Hills) had received no annual refresher 

training or first aid, as outline in the company 

training plan for supervisors and 77.1706(b). 

Dennis Haeuber, Company Training Instructor. 

A 104(g)(l) order (2929493) has been issued 

in conjunction with this citation. 

Section 104 ( d) ( 2) "S&S" Order No. 2929496, January 19, 

1988, cites a violation of mandatory training standard 

30 C.F.R. § 48.28(a), and the cited condition or practice 

states as follows: 

Randy Rhodes, operation foreman, was 

working on the mine performing foreman duty. 

Records show Mr. Rhodes has received no annual 

refresher training or first-aid since 8-23-85, 

hire date 7-8-85, first aid training as outline 

in 30 C.F.R. § 77.1706(b). Mr. Dennis Haeuber, 

Company Training Instructor. 

A 104(g)(l) Order (2929495) has been issued 

in conjunction with this order. 

Petitioner's Testimony and Evidence 

Dennis A. Haeuber, respondent's safety training coordinator, testified that he is responsible for the planning and 

development of the respondent's training program, training 

compliance, and the conduct of all training. 

Mr. Haeuber confirmed that he was present when Inspector 

Donald Summers conducted an inspection on January 19, 1988, and 

issued two citations for the failure to provide training for 

1124 
Mr. Harold Mellott and Mr. Randy Rhodes. Mr. Haeuber confirmed 

that he advised Mr. Summers that he had not trained these 

individuals, and he explained that he could provide no training 

records to indicate that they received 8 hours of formal classroom training for the year 1987. However, Mr. Haeuber believed 

that these individuals were trained on an informal basis, but 

received no formal refresher course training for 1986 and 1987 

(Tr. 15-19). 

Mr. Haeuber stated that his "informal" training of 

Mr. Mellott and Mr. Rhodes consisted of "frequent conversations 

de.aling with the entire safety and health area of 83 miners." 

Mr. Haeuber explained that the "informal" training is 

non-documented and he could produce no notes supporting these 

conversations (Tr. 19). 

Mr. Haeuber stated that subsequent to the issuance of the 

citations, he has developed a computerized system for recording 

the training and retraining of all miner's (Tr. 21, exhibit 

R-8). 

Mr. Haeuber stated that during his informal discussions 

with Mr. Mellott and Mr. Rhodes in 1986 and 1987, they discussed transportation controls and communications systems, 

escape and emergency evacuation plans, and fire fighting 

procedures. However, he could recall no dates when these 

conversations took place, and he confirmed that the conversations lasted from 10 to 15 minutes, to an hour (Tr. 26-31). 

Mr. Haeuber confirmed that he could produce no training 

records to show that Mr. Mellott and Mr. Rhodes received any 

refresher course training for the years 1986 and 1987, and he 

confirmed that he advised Mr. Summers that these individuals 

had not received their annual refresher training (Tr. 32). He 

also confirmed that MSHA education and training specialist Judy 

Tate visited the mine on January 15, 1988, and informed him 

that these individuals had not received their annual refresher 

training for 1987 (Tr. 33). 

Mr. Haeuber stated that he trained other employees with a 

formal refresher class, and that Mr. Mellott and Mr. Rhodes 

were scheduled for training on December 21, 1987, but he could 

not train them because he was sick (Tr. 34). Mr. Haeuber 

acknowledged that he was aware of the fact that the training 

was required, but could not explain why the training was not 

given during the period after he was informed by Ms. Tate that 

it was required, and prior to the issuance of the violations 

(Tr. 36). 

1125 
On cross-examination, Mr. Haeuber confirmed that he was 

previously employed by MSHA from 1978 through May 1982 as a 

mine inspector and special investigator, and that he previously 

served as a safety director for another mining operation prior 

to his present job with the respondent (Tr. 37). 

Mr. Haeuber confirmed that the mine operated 6 days a week 

in 1987, except for shut dow~ periods in August and December, 

and that it operated in excess of 250 days that year. He also 

confirmed that Mr. Mellott and Mr. Rhodes were involved in no 

accidents or injuries in 1986 or 1987 (Tr. 40). 

Mr. Haeuber reviewed a portion of the respondent's training plan which he submitted to MSHA in 1985, and he confirmed 

that he would speak with maintenance manager Mellott approximately an hour each day, and that 50 percent of the conversation dealt with safety. He also confirmed that Mr. Mellott 

spent 95 percent of his time in his off ice and that he spoke 

with him for more than an hour on the subject of mandatory 

health and safety standards in each of the years 1986 and 1987, 

and also spoke with him about transportation controls and 

communication during those same years (Tr. 43). He further 

confirmed that he covered each of the subjects shown in the 

training plan during his conversations with Mr. Mellott (Tr. 

51-53). 

Mr. Haeuber identified exhibit R-1 as an MSHA training 

guideline explaining the annual refresher training for certain 

categories of miners, and he believed that Mr. Mellott occupied 

an "administrative position" and that he received more than 

hazard training for the years 1986 and 1987, but had no record 

of this informal training (Tr. 59-60). 

Mr. Haeuber identified exhibit R-8 as an example of his 

computerized training record keeping which was developed as a 

result of his "administrative oversight" of 1987 with respect 

to documenting training records (Tr. 62-64). He confirmed that 

MSHA's training specialist Judy Tate spent 3 days at the mine 

in January reviewing training records, and that when she left 

she told him that "you need to get these people trained" (Tr. 

67). Mr. Haeuber further explained his position as follows at 

(Tr. 68-69): 

JUDGE KOUTRAS: So you say when you talked to 

Ms. Tate you took the position that yes, these 

people were trained. Did she ask you about 

Mellott and Rhodes specifically, do you 

remember? 

1126 
THE WITNESS: She did not ask about Mellott and 

Rhodes specifically but as she would go through 

my training records, they were available to her. 

I had to show her everything that was in my 

file, then the point did come out, yes. But 

there was no paperwork to show training for '87. 

JUDGE KOUTRAS: No paperwork to show training 

for '87 for who? 

THE WITNESS: For Mr. Mellott and Mr. Rhodes. 

JUDGE KOUTRAS: Mr. Rhodes. 

THE WITNESS: And just before she left on 

Thursday, she indicated that I needed to get 

those people training, and that was --

JUDGE KOUTRAS: Needed to get them trained, that 

implies that they weren't trained. 

THE WITNESS: Well, I guess that's probably 

true, Your Honor. 

JUDGE KOUTRAS: Did you tell her that they were 

not trained? Or did she just come to the 

conclusion that she couldn't find records that 

they weren't trained. 

THE WITNESS: I feel that's -- that's basically 

what she did, check my records. It shows up 

that there's no record for '87, and I'm the 

person --

JUDGE KOUTRAS: She's going to come to the 

conclusion that they weren't trained. 

THE WITNESS: That's right. 

JUDGE KOUTRAS: Did you explain to her that 

these people were trained? 

THE WITNESS: No, I did not. 

In response to further questions, Mr. Haeuber confirmed 

that the section 104(g)(l) orders issued by Inspector Summers 

on January 19, 1988, withdrawing Mr. Mellott and Mr. Rhodes 

from the mine were not contested by the respondent (Tr. 74). 

He also confirmed that exhibit R-2 is an MSHA approved training 

1127 
plan which has been in effect from 1985 to the present (Tr. 

75-76). 

Mr. Haeuber stated that he had no notes concerning 

the precise number of hours or occasions that he spent with 

Mr. Mellott and Mr. Rhodes discussing the safety topics shown 

on the training plan, and he confirmed that during these 

discussions he did not inform them that they were part of any 

refresher training classes, and spent in excess of 3 O minutes. 

on each of the safety topics (Tr. 79). 

Mr. Haeuber explained Mr. Mellott's duties, and confirmed 

that he has three maintenance supervisors working directly for 

him, and that these supervisors are in direct contact with the 

hourly miners. He also confirmed that Mr. Mellott spends less 

than an hour a week out of his off ice and in the mine, and 

relies on his supervisors (Tr. 82). He confirmed that 

Mr. Mellott has been a coal miner for over 24 years, and that 

Mr. Rhodes has been a miner for 4 years and previously served 

as a construction superintendent and has in excess of 8 years 

of experience (Tr. 86). 

Mr. Haeuber confirmed that both Mr. Mellott and Mr. Rhodes 

received formal training in 1985 and 1988, but that in 1986 and 

1987, he relied on his informal sessions with them in lieu of 

the 8-hour classroom sessions (Tr. 88). He believed that his 

informal safety discussions with Mr. Mellott and Mr. Rhodes 

were as good as the formal classroom training sessions utilizing a "canned training program" (Tr. 89). He confirmed that 

during an MSHA conference with Inspector Summers' supervisor 

with respect to the citations, the supervisor took the position 

that since he could not document the training in question, the 

citations would stand as written. Mr. Haeuber also confirmed 

that at the time the citations were issued he said nothing to 

Mr. Summers about his informal safety discussions with 

Mr. Mellott and Mr. Rhodes (Tr. 91). 

Harold Mellott, respondent's maintenance manager, confirmed that he has been so employed since 1984, and he 

explained his duties. He also confirmed that he has 25 years 

of coal mining experience, and has worked in maintenance since 

1970. He stated that he established the preventive maintenance 

program for the mine, and has three maintenance foremen who 

report to him. In addition to his maintenance duties, he is 

also responsible for parts purchases, and in 1986 and 1987, he 

worked 48 to 60 hours a week implementing the preventive 

maintenance program. Except for spending 2 hours a day in the 

shop during two 5-day shut down periods for each of these 

years, he estimated that he devoted 1 hour a day in the actual 

1128 
work areas where maintenance was being performed. He confirmed 

that during these years his off ice was located in the main shop 

area {Tr. 93-107). 

Mr. Mellott testified that he received formal refresher 

training in 1984 and 1985, and that it lasted 8 hours, or one 

full day. With regard to any training received in 1986 and 

1987, Mr. Mellott stated as follows {Tr. 108-109): 

Q. And, during '86 and '87, you didn't receive 

any formal refresher training, did you? 

A. -- wasn't directing any work for us, but I 

did not, no. 

Q. You didn't 

A. Other than Dennis and I have conversations 

of probably 30 minutes to an hour every day 

about different things at the mines. And we go 

on tours at the mines and he'll find something 

that needs to be done at the mine and he'll come 

in and discuss it. Maybe go on a trip and look 

at it. 

Q. I'm talking about formal safety refresher 

class like you had in '85, you didn't have that 

for '86 and '87, did you? 

A. No. 

Mr. Mellott agreed that refresher training decreases the 

likelihood of employee injuries, and while he did not directly 

supervise the work of his maintenance crews, he does supervise 

his foremen and is involved in setting up and taking down the 

drag line. He confirmed that he has built 15 to 16 drag lines 

in the past, and has had direct supervision over 350 employees 

and 40 foremen during his years of experience in the mining 

business {Tr. 114-117). 

On cross-examination, Mr. Mellott confirmed that during 

his past work in dismantling and erecting drag lines, he has 

never experienced any serious injuries. He also confirmed that 

he spends 95 percent of his time at his desk in his off ice, and 

that his foremen do all of the maintenance follow-up work {Tr. 

119). He stated that he speaks with safety director Baeuber 

daily, and explained further as follows (Tr. 120-121): 

1129 
Q. When you have your discussions with Dennis, 

what do you talk about? 

A. He may see if fire extinguishers been 

knocked, see if glass broke out or something 

that somebody else hasn't seen and he comes to 

discuss it and we'll get in line to get fixed. 

Q. What percent of your time do you spend 

talking to Dennis during that hour a day that 

you say you talk with him, what percent of time 

do you talk to him about safety? 

A. Well, sometimes we measure a quick run 

around of the mine and he may see something down 

in the pit, down the mine that he wants to go 

look at so to pinpoint it, that'll be hard to do. 

But today it may be 30 minutes, tomorrow maybe 

45, the next day maybe ten minutes. 

Q. would you say ten percent, 50 percent, 

100 percent? What would you say percent of? 

A. At least 50 percent of the time is safety 

when he's with me. 

Mr. Mellott referred to the safety topics listed in the 

training plan (exhibit R-2), and explained how these topics are 

covered during his discussions with Mr. Haeuber. He confirmed 

that these discussions take place while they are walking around 

the mine site looking at various problems, or in their respective offices, and that they are not conducted in a structured 

classroom environment (Tr. 121-129}. He believed that his 

daily contacts and discussions with Mr. Haeuber "is the best 

teacher there is," and that he received more out of these 

discussions than any formalized structured classroom training 

sessions (Tr. 130). Mr. Mellott confirmed that during his 

informal discussions with Mr. Haeuber, no reference was ever 

made to any of the "lesson outlines" referred to in the training plan (Tr. 132). With regard to the subject of first aid, 

Mr. Mellott confirmed that he received no "practical demonstrations" concerning CPa, and that he is not certified in CPR or 

first aid (Tr. 139). He also confirmed that during his 1986 

and 1987 discussions with Mr. Haeuber, he received no course 

materials or other documents concerning any of the courses 

shown in the training plan, and that at no time did Mr. Haeuber 

inform him that thei~ discussions were a part of any refresher 

training course (Tr. 141-142). 

1130 
Randall L. Rhodes, testified that he has been employed by 

the respondent as a f lrst line operations supervisor for 

5 years, and that he supervises 15 to 20 people on alternating 

day and night shifts. Most of these individuals operate equipment such .as coal haulers and bulldozers, and he conducts 

safety meetings with these individuals on a daily and weekly 

basis, and he explained his daily work routine. He confirmed 

that he spends most of his work time driving around the mine 

site in his pick-up communicating with his employees in various 

work areas of the mine, and that he spends approximately an 

hour each day out of his truck walking around on the ground 

(Tr. 144-149). 

Mr. Rhodes confirmed that he received a formal refresher 

training course in 1985 and 1988, but did not receive any such 

formal refresher course in the years 1986 or 1987 (Tr. 149-150). 

He further confirmed that his 1985 and 1988 formal course training included all of the topics shown on the training plan 

(exhibit R-2). He believed that he received a CPR course in 

1986, which included training with a CPR "dummy," but he 

received no course materials other than MSHA "Fatalgrams" (Tr. 

151-156). 

On cross-examination, Mr. Rhodes stated that neither he or 

any of his pe~sonnel were involved in any accidents during 1986 

and 1987, and he believed that thee is nothing to indicate that 

formal training, as opposed to informal training, made him a 

more safe or unsafe miner (Tr. 157). He confirmed that he 

.spoke with Mr. Haeuber on a daily basis for 45 minutes to an 

hour, and that 15 minutes of the conversation was related to 

safety (Tr. 158). He also confirmed that the conversations 

covered the topics listed on the training plan (Tr. 159-163). 

Mr. Rhodes confirmed that he kept no records of the actual time 

spent discussing safety topics with Mr. Haeuber, but that it 

was an "every day thing" (Tr. 164-166). 

MSHA Inspector Donald R. Summers, testified as to his 

training and experience, and he confirmed that he visited the 

mine after his supervisor informed him that MSHA education and 

training specialist Judy Tate had visited the mine during the 

week ot January 11, 1988, and found that Mr. Mellott and 

Mr. Rhodes had not received their annual refresher training 

(Tr. 180). Mr. Summers stated that he spoke to Mr. Haeuber and 

asked to see the MSHA Training Form 5023 for Mr. Mellott and 

Mr. Rhodes. Mr. Summers reviewed the forms and found that 

Mr. Mellott and Mr. Rhodes had not been trained, and he stated 

that Mr. Haeuber informed him that he had them scheduled for 

training but was sick and had not retrained them (Tr. 183). 

Mr. Summers stated further that Mr. Haeuber confirmed to him 

1131 
that Mrs. Tate had found that Mr. Mell6tt and Mr. Rhodes had 

not received the annual refresher training, and that 

Mr. Haeuber said nothing to him about any informal training for 

these two individuals (Tr. 184). 

Mr. Summers confirmed that after Mr. Haeuber informed him 

that Mr. Mellott and Mr. Rhodes had not received any annual 

refresher training and indicated that there were no records of 

any such training, he informed Mr. Haeuber that he was going.to 

issue a section 104(g)(l) order for the two individuals and a 

section 104(d)(l) citation (Tr. 184). Mr. Summers explained 

his reasons for issuing the unwarrantable failure citation, 

with special "significant and substantial" findings (Tr. 

185-187). 

Mr. Summers confirmed that after issuing the section 

104(d)(l) citation for the violation concerning Mr. Mellott, he 

issued a section 104(d)(2) order for the violation concerning 

Mr. Rhodes, and that he did so because it "fell into the 

criteria" and "the operator knew the condition and didn't 

correct it" (Tr. 196). Mr. Summers stated that he based his 

unwarrantable failure order on the fact that Mr. Rhodes had not 

been trained or retrained since 1985, and that he was scheduled 

for training on December 21, but that Mr. Haeuber was sick and 

was unable to give the training (Tr. 197). He explained his 

"significant and substantial" finding with respect to 

Mr. Rhodes (Tr. 197-199). 

Mr. Summers believed that the respondent's failure to 

train Mr. Mellott and Mr. Rhodes constituted more than simple 

negligence for the following reason (Tr. 200): 

A. Those two individuals for tl1e past two (sic) 

had received no formal training. Dennis was 

aware of this situation, and like I say, made a 

statement that he had them scheduled but that he 

was sick. Then Ms. Tate came and checked the 

records and Dennis told her that he hadn't gave 

any annual refresher training. On the day that 

I showed up there was still no record to 

indicate this. And when I asked Dennis he said, 

no, I haven't given them the annual refresher 

training for the reasons I just stated. 

Mr. Summers confirmed that his review of the respondent's 

training records reflected that all other employees classified 

as miners had received their training except for Mr. Mellott 

and Mr. Rhodes (Tr. 200-201). He did not believe that the 

informal discussions between Mr. Haeuber and Mr. Mellott and 

1132 
Mr. Rhodes during the years 1986 and 1987 constituted a formal 

training program because it did not comply with the MSHA 

approved training plan because "they've got to be in 30 minute 

segments and the individual that this training is given to has 

to be told that this is a part of your annual refresher training" (Tr. 201). Mr. Summers also believed that the informal 

discussions did not comply with the cited training standard, 

and that "if it was some type of formal instruction on a 

one-on-one basis, I don't see why it wouldn't work just as 

good" (Tr. 202). 

On cross-examination, Mr. Summers conf ir~ed that he had 

previously inspected the mine 10 to 12 times since it opened in 

1984, and he considered the mine conditions to be "average." 

The number of citations that he has issued during his inspection are "below average," and compared to other mines of comparable size, the mine is "a well run mine" (Tr. 204). He also 

confirmed the mine has experienced no serious accidents or 

injuries since his last inspection, and while it has an 

"average" accident record, it has had some reportable accidents 

in 1985 and 1986, but he could not state how many (Tr. 

204-206). 

Mr. Summers stated that he issued a section 104(d)(l) citation on June 13, 1988, for the lack of guardrails on a working 

platform, and that Mr. Mellott admitted to the violation (Tr. 

209). However, he never personally observed Mr. Mellott or 

Mr. Rhodes working in any unsafe manner, and to his knowledge 

they have never been injured on the job (Tr. 210). Mr. Summers 

believed that the lack of training could result in Mr. Mellott 

or Mr. Rhodes possibly getting themselves in a situation where 

they would not recognize a hazard CTr. 212). 

Mr. Summers stated that he was instructed by his supervisor to go to the mine and issue the section 104(d) and 104(g) 

citations and orders 11 if it met the criteria." He confirmed 

that the instructions were given before he went to the mine, 

but that he agreed with the citations and orders. He also confirmed that his supervisor was aware of the fact that Mrs. Tate 

had been to the mine previously and found that the two individuals had not been trained, and that this was the basis for his 

supervisor's instructions to go to the mine and issue the citations and orders (Tr. 212-214). 

Mr. Summers confirmed that he wrote up the citations and 

orders at the mine after he had spoken with Mr. Haeuber who 

confirmed that Mr. Mellott and Mr. Rhodes had received no training and that there were no records of this training (Tr. 215, 

217). Mr. Summers· reiterated that Mr. Haeuber admitted that he 

1133 
had not given the two individuals their annual refresher training, and said nothing about any informal training discussions 

(Tr. 224). Mr. Summers confirmed that he did not review the 

training plan with Mr. Haeuber (Tr. 225). 

Mr. Summers stated that the training plan does not contain 

any prohibitions concerning the number of people to be trained, 

but does require that such training be given at the mine office 

(Tr. 227). He confirmed that the effect of the "G" orders was 

to require the immediate removal of the cited individuals from 

the mine until they have received the training prescribed by 

section 115 of the Act (Tr. 231). 

Mr. Summers conceded that he could have issued section 

104(a) citations rather than unwarrantable failure violations, 

but that he did not do so because he knew that Mrs. Tate had 

been at the mine the week before and he expected Mr. Haeuber to 

insure that the two individuals were trained (Tr. 247-249). He 

further explained as follows CTr. 251): 

Q. So, what constitutes this significant and 

substantial and the aggravated conduct on the 

operator from the one week that Ms. Tate was 

there to the following week to when you issued 

these G's and the D's. 

A. The operator had full knowledge of what was 

going on at the particular time, and didn't take 

any corrective action to abate or correct this 

situation. He knew the training of those two 

individuals had not been -- had not received 

their annual refresher training, and he did not 

make any effort to train those individuals up to 

the first --

Mr. Summers confirmed that Mrs. Tate did not issue any 

citations because she is not an inspector CTr. 257). He also 

reconfirmed his view that the failure by Mr. Mellott and 

Mr. Rhodes to receive training for 2 years constitutes signif icant and substantial violations, and the fact that they have 

had no accidents during this time period makes no difference 

since the failure to receive the training constitutes a hazard 

for those individuals CTr. 259). 

Mr. Summers confirmed that the trainin.g standards contain 

exceptions for mine supervisors who are State certified in 

those states approved by MSHA, but that this exception does not 

apply to Louisiana because it has no such certification authority (Tr. 266). He also confirmed that Mr. Haeuber conducted 

1134 
the requisite training to abate the violations and filled out 

the required forms (Tr. 267). 

Mr. Summers confirmed that Mr. Haeuber produced an MSHA 

training Form 5023 for Mr. Mellott and Mr. Rhodes at the time 

he inspected the records, but that the last entry only 

reflected training up to 1985. The forms for all other 

employees were.current and reflected current training. When 

asked why the forms for Mr. Mellott and Mr. Rhodes were not up 

to date, Mr. Summers responded as follows (Tr. 269): 

THE WITNESS: I think it was an oversight up 

until the end of the year was rolling around and 

time caught them. They were going to get it 

like Dennis had testified in December the 21st, 

Dennis was sick. This is the problem of waiting 

until the last minute to get the job done. 

Findings and Conclusions 

Fact of Violation 

The respondent is charged with two alleged violations of 

mandatory training standard 30 C.F.R. § 48.28(a), which states 

that "Each miner shall receive a minimum of 8 hours of annual 

refresher training as prescribed in this section." 

Subsection (b) provides that the annual refresher training 

shall include the following ten subjects: 

1. Mandatory health and safety standards. 

2. Transportation controls and communication 

systems. 

3. Escape and emergency evacuation plans; 

f irewarning and firefighting. 

4. Ground control; working in areas of 

highwalls, water hazards, pits, and spoil 

banks; illumination and night work. 

5. First aid. 

6. Electrical hazards. 

7. Prevention of accidents. 

8. Health. 

1135 
9. Explosives. 

10. Self-rescue and respiratory devices. 

11. Such other courses as may be required by 

the District Manager based on circwnstances 

and conditions at the mine. 

Subsection (d) states that "Where annual refresher training is conducted periodically, such sessions shall not be less 

than 30 minutes of actual instruction time and the miners shall 

be notified that the session is part of annual refresher 

training." 

Section 48.23 requires that each mine operator have an 

MSHA approved training plan containing programs for annual 

refresher training, and the detailed requirements for such 

plans are found in this regulation. In the instant case, the 

respondent's approved training plan for annual refresher training is exhibit R-2, submitted by Mr. Haeuber in his capacity as 

the mine safety and training coordinator to Mrs. Tate by cover 

letter dated February 20, 1985. Except for the subject of 

"explosives," the plan provides for subject matter training for 

each of the remaining nine subjects listed in section 

48.28(b)(l) through (10). Pursuant to the approved plan, 

Mr. Haeuber is listed as the approved training instructor, 

training is to be given in February in the mine off ice, and the 

duration of each training session is shown as "no longer than 

8 hrs. 15 min." The course materials to be used for training 

are set forth in the plan, and the teaching methods are shown 

as "lecture and discussion." The subj2cts of first aid, electrical hazards, and self-rescue and respiratory devices include 

a "demonstration" requirements, in addition to lectures and 

discussions. Under the plan, maximum number of trainees at any 

training session is 20, and a "question and answer" evaluation 

is shown for each of the subjects covered during the training 

sessions. 

I take note of the fact that in the answers filed by the 

respondent in this case by Mr. Haeuber and Mr. Richard F. 

Grady, Jr., respondent's general manager, they stated that 

"Management of the Dolet Hills Mining Venture does not deny 

that two training violations did exist at the time of the 

January 19, 1988, inspection." However, ehey took the position 

that the violations were "administrative in nature" and contended that each of the cited individuals had received the 

required training, but that the training had not been documented. They further stated that although the respondent 

1136 
admits that violations occurred, they occurred only from "an 

administrative, bookkeeping perspective," and the thrust of 

their defense is the contention that the violations were not 

unwarrantable failure or significant and substantial 

violations. 

During the course of the hearing, petitioner's counsel 

took the position that the respondent is bound by its pleadings 

and the admission in its answer that the violations occurred as 

charged. After careful review and consideration of the answer, 

while it is true that the respondent did not deny the violations, it seems clear to me that the respondent's admissions 

are qualified and less than unequivocal. The respondent contended that the two cited miners did in fact receive the 

requisite training, but that it failed to document the training 

through an "administrative or bookkeeping" oversight. In any 

event, my findings and conclusions with respect to the merits 

of the alleged violations are based on the credible and probative evidence presented at the hearing, rather than the respondent's answers (Tr. 49-51). 

The respondent's ·assertion that the two cited individuals 

received the required training is based on the argument that 

MSHA's training regulations, and the approved training plan for 

the mine, do not require that the training be administered in a 

formal classroom setting or in accordance with any formalized 

or structured course curriculum (Tr. 44-49). The respondent 

maintains that under its plan, Mr. Haeuber, as the approved 

training instructor, has total flexibility as to the manner in 

which formal or informal training is conducted as long as no 

more than the maximum number of employees are in attendance, 

the class is held in the specified location and is taught by a 

certified instructor, and the training plan is followed. In 

support of its position, the respondent contends that the discussions which took place between Mr. Haeuber and Mr. Mellott 

and Mr. Rhodes during their daily contacts at the mine throughout 1986 and 1987, included discussions of each of the safety 

and health subjects listed in the mine training plan, and in 

fact constituted the annual refresher training required by section 48.28(a) and the approved training plan (Tr. 54). The 

respondent further relies on the belief by Mr. Mellott and 

Mr. Rhodes that these "on the job" discussions proved to be 

more effective than any formalized classroom instruction, and 

that the respondent's accident and injury record attests to 

this fact. 

The petitioner takes the position that the respondent is 

required to adhere.to the requirements of its approved training 

plan for annual refresher training and must insure that each 

1137 
miner receives the formalized classroom instruction for all 

topics listed in the plan. Although the petitioner's counsel 

agreed that MSHA's training regulations do not specifically 

provide for "formal" or "informal" training instruction, he 

stated that the intent of the annual refresher training requirement is that the respondent follow its approved plan. Inspector Summers' view is that the respondent must follow its 

approved training plan, and he characterized the plan as a 

"formal" training plan that required structured course training 

in a class room environment, including the demonstrations, 

course materials, and "question and answer" sessions detailed 

in the plan. He did not believe that the informal discussions 

in question met the requirements of the plan or MSHA's 

regulations (Tr. 218-223). 

Mr. Haeuber conceded that Mr. Mellott and Mr. Rhodes 

received no formal annual refresher training for the years 1986 

and 1987 through the formal administration of any of the safety 

courses shown on the respondent's approved training plan, and 

he confirmed that he advised Inspector Summers that these 

individuals had not received any annual refresher training at 

the time of his inspection. Mr. Haeuber further confirmed that 

all other employees received formal annual refresher training 

classes, but that he could not train Mr. Mellott and Mr. Rhodes 

as scheduled because he was ill. Mr. Haeuber took the position 

that both Mr. Mellott and Mr. Rhodes were trained informally by 

means of daily discussions in which each of the safety topics 

listed in the mine training plan were discussed, and that this 

informal training was in lieu of formal classroom instruction 

and met the requirements of MSHA's regulations and the plan. 

Although Mr. Haeuber testified as to the time spent on each of 

the subjects discussed, he could not document the precise time, 

and he kept no records. Further, he conceded that during his 

discussions with Mr. Mellott or Mr. Rhodes, he never informed 

them that these discussions were a part of any annual refresher 

training courses, and he admitted that at the time the citations were issued, he did not inform Inspector Summers about 

his informal safety discussions. 

Mr. Mellott confirmed that he received his annual formal 

refresher training for the years 1984 and 1985, and that this 

training consisted of 8 hours, or one full day of training, in 

each of the 2 years. He further confirmed that for the years 

1986 and 1987, he received no formal refresher classroom training similar to that he received in the prior 2 years, and that 

he and Mr. Haeuber had daily discussions for approximately 

30 minutes to an hour each day either in their off ices or while 

walking around the mine site looking into various "problems." 

1138 
In explaining his discussions with Mr. Haeuber, 

Mr. Mellott alluded to the fact that they discussed equipment 

which was causing problems, such as dust and dirt in welders, 

shop ventilation, brake problems with haulage equipment, 

radios, fire extinguishers in need of repair, trash clean-up, 

emergency exit signs over doors, occasional employee injuries, 

extension cords in need of repair, electrical problems, and 

accident prevention (Tr. 121-129). However, Mr. Mellott conceded that he never receiv~d any practical demonstrations concerning first aid, or any course materials or other docwnents 

concerning any of the subjects listed in the training plan, and 

that Mr. Haeuber never informed him that any of their discussions were a part of any annual refresher training. 

Mr. Rhodes also confirmed that he received formal annual 

refresher training in 1985 and 1988, but not in 1986 or 1987. 

Although he believed he received a CPR course in 1986, including training with a CPR "dummy," he received no classroom training materials, and in 1987 received no first aid classroom 

demonstrations, but did receive information on first aid during 

his weekly safety meetings. He also confirmed that during the 

years 1986 and 1987 he received no course materials for any of 

the safety topics listed on the training plan other than MSHA 

fatal-grams. 

Mr. Rhodes confirmed that he spoke with Mr. Haeuber on a 

daily basis for an hour or 45 minutes, and that 15 minutes of 

the conversation was related to safety. He kept no records of 

·these conversations, or the actual time spent in discussing 

safety, and confirmed that at no time during these conversations during the years 1986 or 1987, did Mr. Haeuber ever indicate to him that their discussions fulfilled the requirements 

of the annual refresher training courses. 

Mr. Rhodes confirmed that he and Mr. Haeuber covered all 

of the topics listed on the training plan during their safety 

discussions, and as examples he cited the fact that transportation controls and communications systems were "brought up every 

day," that employees were continually reminded about escapeways, emergency evacuations, fire warnings and fire fighting, 

and that ground control, working near high walls, and water 

hazards was discussed on a daily basis. He also alluded to the 

fact that when electrical problems occur, "you go over safety 

precautions," and that accident prevention is discussed daily 

through a safety awareness program, and signs and slogans are 

posted to remind employees about accident prevention (Tr. 

159-161). Mr. Rhodes also confirmed that he regularly consulted with Mr. Haeuber on all of these matters, including 

1139 
preparation for weekly safety meetings covering the topics 

listed on the training plan (Tr. 162). 

After careful consideration of the respondent's arguments, 

they are rejected. I conclude and find that the respondent is 

bound by its. own MSHA approved training plan, and must follow 

it to the letter. I find nothing in the plan that allows the 

respondent to use daily informal conversations between an 

approved training instructor and miners required to receive 

annual refresher training in lieu of the formalized and structured training program found in the plan. Although I do not 

dispute the fact that Mr. Haeuber, Mr. Mellott, and Mr. Rhodes 

may have discussed various and sundry "safety matters" during 

the course of their daily routines, such conversations 

obviously taken place every day in a mine and I reject any 

notion that they may be used in lieu of the approved plan. 

The record here reflects that Mr. Mellott and Mr. Rhodes 

received annual refresher training in 1984 and 1985, and that 

this training was administered in a class room environment 

which was completed in the course of 8 hour days. Exhibit R-8, 

a computerized print-out reflecting training administered to 

other miners at the mine during intermittent periods from 1985 

to 1988, reflects training received by miners in concentrated 

hourly sessions held on the specific dates shown on the 

training records. Further, the record also establishes that 

except for Mr. Mellott and Mr. Rhodes, the respondent had 

trained all other miners in accordance with MSHA's requirements 

and had records which it produced for MSHA's scrutiny. Thus, 

it would appear to me that with the exception of Mr. Mellott 

and Mr. Rhodes, the respondent's normal training procedures and 

practices included formalized and structured training sessions 

administered on specific days set aside for these purposes. I 

find nothing in the record to even suggest that the respondent 

has ever advanced any argument that daily conversations among 

miners and a training instructor or safety director were deemed 

by the respondent to be adequate to satisfy MSHA's training 

requirements. 

Mr. Haeuber conceded that he did not administer any formalized or structured training to Mr. Mellott or Mr. Rhodes during 

1986 and 1987, and they candidly a&nitted that they received no 

such formalized training. The evidence clearly establishes 

that the purported training received by these individuals did 

not include the use of any of the course materials detailed in 

the plan, did not include any evaluation sessions or practical 

demonstrations, and I find nothing to suggest that Mr. Haeuber 

utilized the lecture training method required by the plan in 

the course of his discussions with Mr. Mellott and Mr. Rhodes. 

1140 
The evidence also establishes that Mr. Haeuber never informed 

Mr. Rhodes and Mr. Mellott that their conversations were part 

of any refresher training sessions, and both of these individuals confirmed that they were never informed that they were 

receiving their annual refresher training during any of these 

conversations. Subsection Cd) of section 48.28 requires that 

miners receiving training during any periodic sessions be 

notified that such sessions are part of their annual refresher 

training. Section 48.29 requires that all training be recorded 

and documented on MSHA form 500-23, and that the miner be given 

a copy of a training certificate. None of this was done in 

this case. 

During the course of the hearing, respondent's counsel 

suggested that Mr. Mellott, in his capacity as the respondent's 

maintenance manager, was an "administrative type" who spent 

95 percent of his time in his off ice, and was therefore not 

regularly exposed to mine hazards. Under these circumstances, 

counsel argued that Mr. Mellott is excluded from the requirements for annual refresher training (Tr. 55-59). Counsel also 

argued that even assuming that Mr. Mellott were required to 

receive training, he· would only be required to have hazard 

recognition training (Tr. 60-61). In support of his argrnnents, 

counsel produced a copy of a portion of an undated MSHA 

Training Guideline, containing the following "Question and 

Answer" (exhibit R-1): 

Question 

For training purposes, are mine superintendents 

(not certified by the state), president, general 

manager, etc., considered miners? 

Answer 

Anyone working on mine property is considered a 

miner for training purposes. The amount of t~aining a miner receives depends on his 

exposure to the mining hazards. If the 

President of the company came only to the 

off ice, there is probably no exposure, and he 

would not be required to take any training. If 

he goes into a mine occasionally he is probably 

exposed to the mining hazard in a limited way 

and is required to receive hazard training. If 

he works along side with other miners, he is 

subject to full training. 

1141 
The definition of a "miner" required to receive annual 

refresher training is stated in relevant part as follows in 

section 48.22: 

[A]ny person working in a surface mine or 

surf ace areas of an underground mine and who is 

engaged in the extraction and production 

process, or who is regularly exposed to mine 

hazards • • 

Supervisory personnel subject to MSHA approved state certification requirements are excluded from the definition of a 

miner required to receive annual refresher training 

C48.22(a)(l)Cii)). Subsection 48.22(a)(2), also excludes such 

supervisory personnel from the hazard training requirements of 

section 48.31, as well as miners covered under section 

48.22(a)(l). 

The record establishes that Mr. Mellott is responsible for 

the maintenance activities at the mine. Although his testimony 

reflects that he spends most of his time in the off ice, he 

confirmed that he regularly and routinely spends at least an 

hour each day in the actual work areas where maintenance is 

being performed. He also confirmed that he tours the mine when 

problems arise, is responsible for the direct supervision of at 

least three maintenance foremen, including involvement with the 

erection and dismantling of the drag line. Under these circumstances, I conclude and find that Mr. Mellott's duties are 

directly connected with the mine extraction and production 

process, and that his daily visits to the mine maintenance work 

areas constitutes a regular exposure to mine hazards. Further, 

the fact that he received annual refresher training in years 

prior to the time the violations here were issued while serving 

in his capacity as the maintenance manager raises a strong 

inference that the respondent has never taken the position that 

he was excluded from the annual refresher training requirements. 

Under all of these circumstances, I conclude and find that 

Mr. Mellott is not excluded from these requirements, and the 

respondent's argument to the contrary is rejected. 

Insofar as Mr. Rhodes is concerned, the evidence reflects 

that as a first line operations supervisor he is directly 

involved in the supervision of the work of 15 to 20 miners 

engaged in the operation of coal haulers and bulldozers, and is 

in daily contact with these miners and thei.r work while driving 

around the mine in his pick-up truck. The fact that he may 

spend only 1 hour a day out of his truck walking around on the 

ground is irrelevant. He is directly engaged in the mine 

extraction and production process, and he is regularly exposed 

1142 
to mine hazards. Accordingly, I conclude and find that he is 

not excluded from the annual refresher training requir~~ents. 

With respect to the training exclusion for supervisory 

personnel subject to MSHA State certification requirements, 

Mr. Mellott and Mr. Rhodes do not qualify for this exception 

because the State of Louisiana where they are employed does not 

have MSHA approval for any such state certifications. 

In view of the foregoing findings and conclusions, I conclude and find that the preponderance of the evidence adduced 

in this case establishes that Mr. Mellott and Mr. Rhodes were 

subject to the annual refresher training requirements of the 

cited section 48.28(a), and that they failed to receive such 

training for the years 1986 and 1987. Accordingly, the violations issued by Inspector Summers ARE AFFIRMED. 

The Section 104Cg)(l) Order Issue 

The record in this case reflects that after determining 

that Mr. Mellott and Mr. Rhodes had not received the requisite 

annual refresher training, Inspector Summers issued two section 

104Cg)(l) orders requiring their withdrawal from the mine until 

they were trained. These orders were not contested by the 

respondent, and they are not the subject of the instant civil 

penalty proceeding. 

The respondent argues that since Mr. Mellott and 

Mr. Rhodes were withdrawn from the mine pursuant to section 

104Cg)(l), and since the withdrawal sanction provided for by 

this section specifically addresses a training violation, any 

sanctions imposed by MSHA for this violation is limited to the 

issuance of the order. Respondent suggests that once the withdrawal orders were issued, compliance was achieved by the withdrawal of Mr. Mellott and Mr. Rhodes until they were trained, 

and that the concurrent issuance of the section 104(d)(l) citation and order charging it with the violations of the identical 

training standard which formed the basis for the section 

104(g)(l) withdrawal orders was unauthorized and illegal. 

Respondent argues that section 104Cg)(l) does not authorize the issuance of any additional citations or orders for 

training violations, and that by issuing the section 104(d)(l) 

citation and order, it has been "double barrelled" and 

subjected to "double jeopardy." The respondent points out that 

with the exception of an imminent danger order issued pursuant 

to section 107Ca) of the Act, MSHA does not "piggyback" citations or orders, and that in this case, the section 104(d)(l) 

citation and order were not issued in conjunction with the 

1143 
section 104(g)(l) order, but were issued for the identical 

condition. 

During the course of the hearing, respondent's counsel 

asserted that since a miner who is withdrawn for lack of training is deemed to be an immediate hazard to himself and to his 

fellow miners, this is somewhat akin to an imminent danger situation, and there is a suggestion that since untrained miners 

pose an imminent danger, a section 104(d)(l) citation or order 

cannot be issued because the finding of no imminent danger is a 

prerequisite to the issuance of such citations and orders (Tr. 

231-235). I find no merit to this argument, and it is rejected. 

Respondent's counsel also alluded to the fact that MSHA's 

policy of issuing citations and orders in conjunction with 

section 104(g)Cl) orders "has been done away with" and that its 

"new policy" does not address this issue (Tr. 235). However, 

counsel has presented no further arguments or evidence with 

respect to this asserted policy, and none has been forthcoming 

in his posthearing brief. 

The respondent's arguments are rejected. I find nothing 

illegal or procedurally defective in the action taken by the 

inspector in this case. The record reflects that the issuance 

of the section 104(d)(l) citation and order complied with the 

procedural requirements of the Act with respect to the issuance 

of such citations and orders. MSHA's training standards are 

duly promulgated mandatory standards under the Act, and violations of these standards are subject to the citation sanctions 

provided for in sections 104(a) and (d)(l) and {d)(2) of the 

Act, as well as the civil penalty assessment sanctions provided 

for in section llO(a). As noted above, the petitioner is 

seeking civil penalty assessments for the violations noted in 

the section 104(d)(l) order and citation, and not the section 

104(g)(l) order. 

The Unwarrantable Failure Issue 

The governing detinition 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 tind 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 

1144 
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." Emery Mining Corporation, 9 FMSHRC 1997 

(December 1987>1 Youghiogheny & Ohio Coal Company, 9 FMSHRC 

2007 (December 1987)1 Secretary of Labor v. Rushton Mining 

Company, 10 FMSHRC 249 (March 1988). Referring to it_s 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 faflure 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. * * * 

1145 
Respondent's argwnent that its negligence is found in the 

lack of adequate record keeping, which it claims was inadvertent, is not well taken. The respondent is not charged with a 

violation of the record keeping requirements of MSHA's training 

regulations. It is charged with the failure to give refresher 

training to two individuals for two successive years, and I 

have rejected its assertion that the "discussion and conversation" training satisfied the requirements of the cited training 

standard. Therefore, the issue presented is whether or not the 

respondent's failure to train Mr. Mellott and Mr. Rhodes constituted aggravated conduct exceeding ordinary negligence. 

Inspector Summers testi.f ied that he based his unwarrantable failure findings on the fact that Mr. Mellott and 

Mr. Rhodes had received no annual refresher training for a 

period of 2 years and 5 months. Mr. Summers considered 

Mr. Haeuber's admissions that he knew that these two individuals had not received any formal training during this time 

period, and the fact that after Mrs. Tate visited the mine and 

informed Mr. Haeuber that these individuals had not been 

trained, Mr. Haeuber took no immediate action to insure that 

they received the training (Tr. 194-197). Mr. Summers also 

considered the fact that other employees, including Mr. Mellott 

and Mr. Rhodes, had previously received fonnal training, and 

this obviously led him to further conclude that Mr. Haeuber was 

well aware of the requirements for such formal training. 

Mr. Haeuber confirmed that Mrs. Tate had visited the mine 

on January 15, 1988, and informed him that Mr. Mellott and 

Mr. Rhodes had not received their annual refresher training. 

The only explanation he could offer for not training them previous to this time was his assertion that they were scheduled for 

such training on December 21, 1987, but that he could not train 

them because he was ill. Mr. Haeuber acknowledged that he had 

trained other employees through refresher training classes, and 

that he was aware of the fact that such training was required. 

When asked why he had not trained Mr. Mellott and Mr. Rhodes 

after he was advised by Mrs. Tate that they had not received 

such training, Mr. Haeuber responded "I can't answer that. I 

don't know" (Tr. 36). He also acknowledged that he said 

nothing to Mrs. Tate about taking care of the training for 

Mr. Mellott and Mr. Rhodes (Tr. 37). 

The record reflects that Mr. Haeuber was formerly employed 

by MSHA as a mine inspector and special investigator from 1978 

to 1982, and that he was previously employed as a safety 

director for another mining company prior to his employment 

with the respondent. His current duties include the planning 

and development of all training at the mine, including the 

1146 
conduct of such training, and the responsibility of insuring 

compliance with MSHA's training requirements. In view of 

Mr. Haeuber•s background, I doubt that he really believed that 

his informal discussions and conversations with Mr. Mellott and 

Mr. Rhodes satisfied MSHA's training requirements. If this 

were truly the case, anyone in his position would have offered 

some explanation to Mrs. Tate and to the inspector. 

I conclude and find that Mr. Haeuber was well aware of the 

requirements for formalized training of all employees, and that 

he was aware of the fact that Mr. Mellott and Mr. Rhodes had 

not received such training for over 2 years. Although one may 

excuse and mitigate Mr. Haeuber's failure to train Mr. Mellott 

and Mr. Rhodes when he was ill, I find nothing to mitigate or 

excuse his failure to take immediate measures to properly train 

them after he was notified by Mrs. Tate that such training was 

lacking. Under the circumstances, I conclude and find that his 

failure to do so constitutes aggravated conduct supporting the 

unwarrantable failure findings made by the inspector. Accordingly, those findings ARE AFFIRMED. 

Significant and Substantial Violations 

A "significant and substantial" violation is described in 

section 104(d)(l) of the Mine Act as a violation "of such 

nature as could significantly and substantially contribute to 

the cause and effect of a coal or other mine safety or health 

hazard." 30 C.F.R. § 814(d)(l). A violation is properly designated significant and substantial "if, based upon the particular facts surrounding the violation there exists a reasonable 

likelihood that the hazard contributed to will 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 "signif icant 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: (l) the underlying violation of a mandatory safety standard; (2) a discrete safety hazard--that is, a measure of 

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

hazard contributed to will result in an injury; 

and (4) a reasonable likelihood that the injury 

1147 
in question will be of a reasonably serious 

nature. 

In United States Steel Mining Company, Inc., 7 FMSHRC 1125, 

1129, the Commission stated further as follows: 

We have explained further that the third 

element of the Mathies formula "requires that 

the Secretary establish a reasonable likelihood 

that the hazard contributed to will result in an 

event in which there is an injury." U.S. Steel 

Mining Co., 6 FMSHRC 1834, 1836 (August 1984). 

we have emphasized that, in accordance with the 

language of section 104(d)(l), it is the contribution of a violation to the cause and effect of 

a hazard that must be significant and substantial. U.S. Steel Mining Company, Inc., 6 FMSHRC 

1866, 1868 (August 1984); U.S. Steel Mining 

Company, Inc., 6 FMSHRC 1573, 1574-75 (July 

1984). 

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). 

During the course of the hearing, respondent's counsel 

took the position that a significant and substantial violation 

finding is a prerequisite to the issuance of a section 

104Cd)(l) citation and order CTr. 253). In Youghiogheny & Ohio 

Coal Company, 10 FMSHRC 603 (May 1988), the Commission, citing 

UMWA v. Kleppe, 532 F.2d 1403 co.c. Cir. 1976), cert denied sub 

nom. Bituminous Coal Operator's Assn.·, Inc. v. Kleppe, 429 U.S. 

1405, held that while a significant and substantial finding is 

a prerequisite for the issuance of a section 104Cd)(l) citati0n, there is no such requir~nent for the issuance of a-5e'ction 104Cd)(l) order. 

The respondent takes the position that the violations were 

not significant and substantial because the informal training 

received by Mr. Mellott and Mr. Rhodes was better and more 

effective than that found in the formal training plan, that the 

individuals in question had never suffered any injuries, and 

that the mine accident record attests to the effectiveness of 

the informal training received by them. The respondent further 

argues that Mrs. Tate obviously did not believe that it was 

reasonably likely that an accident would occur since she failed 

1148 
to contact her supervisor who would have issued a verbal order 

over the telephone, and MSHA let a week go by before dispatching Inspector Summers to the mine. The respondent also points 

to the admission by Mr. Swruners that the "possibility" of 

serious injuries flowing from a lack of training does not 

equate to "reasonably likely" (Tr. 211-212). 

With regard to Mrs. Tate, the fact that she took no 

enforcement action is irrelevant. Mrs. Tate was not authorized 

to take any direct enforcement action through the issuance of 

violations, and she obviously reported the lack of training to 

MSHA's district office. Inspector Summers confirmed that this 

was the case (Tr. 214). He also confirmed that the fact that 

Mr. Mellott and Mr. Rhodes have never personally been involved 

in any accidents would make no difference as to whether or not 

the violations were significant and substantial (Tr. 259). 

Inspector Summer's confi.rmed that the mine has had MSHA 

reportable accidents in 1985 and 1986 (Tr. 206). He believed 

that the failure to train Mr. Mellott and Mr. Rhodes presented 

the possibility that they would overlook or not recognize 

hazardous situations (Tr. 211-212). Mr. Summers confirmed that 

during his prior mine inspections, he seldom observed 

Mr. Mellott in his office, and he usually observed him in the 

maintenance shop area (Tr. 207). He also testified that he has 

observed Mr. Mellott in situations where individuals around him 

were working in an unsafe manner, and that he discussed this 

with Mr. Mellott and has issued citations and orders in these 

instances (Tr. 207). Mr. Summers confirmed that he issued a 

section 104Cd)(l) citation involving the maintenance of a piece 

of equipment that Mr. Mellott was responsible for, and that 

this occurred on June 13, 1988, when he cited a violation for a 

work platform which did not have handrails. Mr. Smnmers 

further confirmed that after discussing this with Mr. Mellott, 

he admitted that miners were working on the platform without 

hand rails (Tr. 208-209). 

Inspector Summers also testified with respect to an accident which occurred at the mine when a miner lost part of his 

finger while using a paint gun sometime in 1986. Mr. Summers 

explained that the miner sustained nerve damage to his finger 

by the paint which was injected into his finger, and he 

believed that annual refresher training would have presented an 

opportunity to discuss this incident and to alert miners about 

the hazards of using such equipment (Tr. 259-262). 

Inspector Summers believed that Mr. Mellott would be 

exposed to various hazards in the pit, and along the drag line 

and belt line. He conEirmed that during prior inspections, he 

1149 
has observed Mr. Mellott near the equipment and work areas, and 

he believed that he would be exposed to the same hazards as 

other miners in those mining areas. - Mr. Summers emphasized the 

fact that the failure by Mr. Mellott to receive refresher training since 1985 constituted a hazard to himself, and that his 

failure to receive such training would result in the likelihood 

that he would overlook or not be aware of hazardous conditions 

or situations _without taking corrective action (Tr. 186-187). 

With regard to Mr. Rhodes, Inspector Summers believed that 

his lack of training since 1985 was in itself a hazard, and 

that training was essential to "refresh his memory on the 

hazards that he's possibly overlooking out in the mine itself" 

(Tr. 197). Mr. Summers also alluded to the fact that in his 

experience as a mine inspector, case histories have established 

that annual refresher training, or the lack thereof, is 

directly related to the cause and prevention of accidents (Tr. 

198-199). Mr. Summers pointed out that Mr. Rhodes works in the 

pits and highwall areas around heavy equipment, and is in 

contact with coal haulers and other heavy equipment during his 

work throughout the mine. Should an accident occur, Mr. Rhodes 

would be exposed to an injury which "could very well be fatal" 

(Tr. 199). 

Unlike other mandatory safety and health standards covering specific mine conditions and potential hazards which are 

for the most part readily recognizable, and which are intended 

to promote mine safety by requiring compliance with a specific 

standard, MSHA's overall training requirements are intended to 

promote safety by providing a means for training miners through 

training classes covering many safety and health subjects. The 

requirements for training new miners are intended to train 

miners who have no prior mining experience. l\lewly arnployed 

experienced miners are trained so that they may be familiar 

with a new work environment which may be different from their 

last place of employment. Task training is provided to train 

miners who are required to operate equipment or perform job 

tasks for which they have had no prior experience. Annual 

refresher training is intended to provide a means for experienced miners to keep i-nformed and to be always aware of the 

work hazards incident to their work. 

I take note of the fact that in enacting the section 

104Cg)Cl} withdrawal provision for miners who have not received 

the requisite training, Congress declared that such miners are 

hazards to themselves as well as others. In this case, the 

inspector's credible testimony establishes that Mr. Mellott and 

Mr. Rhodes are exposed to potential mine hazards on a daily 

basis, and I conclude and find that their failure to receive 

1150 
the requisite annual refresher training is in itself a hazard. 

As the overall manager for mine maintenance, and aside ·from his 

own safety, Mr. Mellott is under a duty and obligation to be 

alert for mine hazards affecting those who work in his department. Likewise, Mr. Rhodes, as a first line operations supervisor, has a duty and obligation for the safety of his work 

crews. Their failure to receive the requisite training is a 

poor example .for the rank and file miners, and does little to 

promote mine safety. Given the fact that mine conditions 

change from day to day, I find merit in the inspector's belief 

that the lack of such training may lead to complancency, or the 

overlooking of otherwise routine situations that may be potentially hazardous, not only to the two individuals in question, 

but to others. On the facts of this case, the hazard is 

exacerbated by the fact that Mr. Mellott and Mr. Rhodes failed 

to receive the requisite refresher training for a period in 

excess of 2 years. Under all of these circumstances, I agree 

with the inspector's findings that the failure by Mr. Mellott 

and Mr. Rhodes to receive their annual refresher training over 

an extended period of time presented a reasonable and potential 

likelihood of an accident or injury of a reasonable serious 

nature. Accordingly, the inspector's signiticant and substantial findings. ARE AFFIRJ."1ED. 

On the basis of the foregoing findings and conclusions, 

section 104(d)(l) Citation ~o. 2929494, and section 104(d)(l) 

Order No. 2929496, both issued on January 19, 1988, for violations of the annual refresher training requirements of 

30 C.F.R. § 48.28(a), ARE AFFIRMED. 

Size of Business and Effect ot Civil Penalty Assessment on the 

Respondent's Ability to Continue in Business 

The parties have stipulated that the respondent is a 

small-to-medium size surface mine operator, and that the civil 

penalty assessments for the violations in question will not 

adversely affect the respondent's ability to continue in 

business. I adopt these stipulations as my findings and 

conclusions on these issues. 

History of Prior Violations 

The parties have stipulated that the respondent's history 

of prior violations for the 24-month period prior to the 

issuance of the contested violations in this case consists of 

seven citations, none of which are for violations ot the 

training requirements found in Part 48, Title 30, Code of 

Federal Regulations. Under the circumstances, I conclude and 

find that the respondent has an otherwise good compliance 

1151 
record and that additional increases in the proposed civil 

penalty assessments are not warranted. 

Good Faith Compliance 

The record supports a finding and conclusion that 

Mr. Mellott and Mr. Rhodes were immediately trained after they 

were withdrawn from the mine, and that the violations were 

timely abated by the respondent in good faith. 

Gravity 

In light of my significant and substantial findings, I 

conclude and find that the failure by Mr. Mellott and 

Mr. Rhodes to receive their annual refresher training 

constitutes serious violations of the cited training standard. 

Negligence 

The inspector concluded that the violations resulted from 

a high degree of negligence on the part of the respondent and 

were the result of an unwarrantable failure by the respondent 

to comply with the training requirements of the cited standard. 

I agree with these findings and they are affirmed. 

Civil Penalty Assessments 

On the basis of the foregoing findings and conclusions, 

and taking into account the requirements of section llO(i) of 

the Act, I conclude and find that the following proposed civil 

penalty assessments filed by the petitioner for the violations 

in question are reasonable and appropriate: 

Citation/Order No. 

2929494 

2929496 

Date 

01/19/88 

01/19/88 

30 C.F.R. Section 

1152 

48.28(a) 

48.28(a) 

Assessment 

$ 500 

$ 500 
ORDER 

The respondent IS ORDERED to pay civil penalty assessments 

in the amounts shown above within thirty (30) days of the date 

of ,this decision. Upon receipt of payment by the petitioner, 

this matter is dismissed. 

Dis·tribution: 

/~Koutras tJ! · .. /,~ 

Administrative Law Judge 

Anthony G. Parham, Esq., Office of the Solicitor, U.S. 

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

75202 (Certified Mail) 

Bruce Hill, Esq., c/o Pyro Mining Company, P.O. Box 267, 

Sturgis, KY 42459 (Certified Mail). 

/f b 

1153 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 201989 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

Docket No. KENT 88-104 

A.C. No. 15-16245-03501 

v. 

S HM COAL COMPANY, 

Respondent 

: Docket No. KENT 88-159 

A.C. No. 15-16245-03502 

Appearances: 

Bet ore: 

No. l Surface Mine 

DECISIONS 

Mary Sue Ray, Esq., Oftice ot the Solicitor, 

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

tor the Petitioner; 

John T. Aubrey, Esq., Aubrey and Bowling, 

Manchester, Kentucky, for the Respondent. 

Judge Koutras 

Statement of the P~oeeedings // 

These proceedings concern proposals for assessment of 

civil penalties tiled by the/petitioner against the respondent 

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

Health Act of 1977, 30 u.s.c._§ 820(a). In Docket No. 

KENT 88-159, the petitioner seeks a civil penalty assessment in 

the amount of $400, tor an alleged violation of mandatory new 

miner training standard 30 C.F.R. § 48.25(a). In Docket No. 

KENT 88-104, the petitioner seeks a civil penalty assessment of 

$20, for an alleged violation of mandatory ~otification of 

Legal Identity standard 30 C.F.R. § 41.10, and a civil penalty 

assessment of $195 for an alleged violation of mandatory 

training standard 30 C.F.R. § 48.23(a)(3), tor tailing to tile 

a mine training plan. 

The respondent filed timely answers denying and contesting 

the alleged violations, and it denied that it was operating a 

coal mine subject to the jurisdiction of the Act at the time 

the citations were issued. A hearing was held in London, 

Kentucky, and the parties were afforded an opportunity to file 

1154 
posthearing briefs. The petitioner filed a brief, but the 

respondent did not. In addition to the briefs, I have considered all of the oral argument made by the parties during the 

hearing in my adJudication of these matters. 

Issues 

The principal issues presented in these proceedings is 

whether the respondent's alleged coal mining operation constitutes mining as defined by the Act, whether the alleged mining 

activity involved interstate commerce, and whether the respondents, as independent contractors, are accountable for the 

alleged mining activity conducted on the land owned by someone 

else, and whether they are chargeable for the owner's intent to 

extract such coal. 

Asswning it is found that the respondent was engaged in 

coal mining as detined by the Act, the next issue presented is 

(l) whether the respondent· has violated the provisions of the 

Act and implementing regulations as alleged in the proposals 

tor assessment of civil penalties, and, it so, (2) the appropriate civil penalties that should be assessed against the 

respondent for the alleged violations based upon the criteria 

set forth in section llO(i) of the ~ct. Additional issues 

raised by the parties are identified and disposed of in the 

course of these decisions. 

Applicable Statutory and Regulatory Provisions 

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

Pub. L. 95-lb4, 30 u.s.c. § 801 et seq. 

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

3. Commission Rules, 20 C.F.R. § 2700.l et seg .• 

Stipulations 

The parties stipulated that on October 27, 1987, 

Mr. Eugene Mills purchased a case ot dynamite tram Laurel 

Explosives, Inc., and that on November 11, 1987, Mr. Curtis 

Smith purchased a case of dynamite from this same company CTr. 

6-7). 

Discussion 

In Docket No. KENT 88-159, MSHA Inspector Alex R. Sorke, 

Jr., issued section 104(g)Cl) "S&S" Order No. 3004622, dated 

November 16, 1987, pursuant to section 115Ca)(2) ot the Act, 

and it states as tallows: 

1155 
Eugene Mills, James Harris and Curtis 

Smith, laborers at the No. l Surface Mine, have 

not received the requisite satety training as 

stipulated in section 115 ot the Act. All of 

these men have been determined to be new miners 

which have received none of the required 

24 hours of new miner training. In the absence 

of such training each man is declared to be a 

hazard to himself and others and is to be 

withdrawn trom the mine until he has received 

the required training. A citation (No. 3004623) 

tor a violation of 30 C.F.R. § 48.25(a) has been 

issued in conjunction with this order. This is 

an illegal mining operation. 

Inspector Sorke also issued section l04(d)(l) "S&S" 

Citation No. 3004623, on November 16, 1987, and he cited a 

violation ot 30 C.F.R. § 48.25(a). The cited condition or 

practice is as follows: 

Eugene Mills, James Harris and Curtis Smith 

determined to be new miners working in the 001 

pit have not received any ot the required 

24 hours of new miners training. All ot these 

men stated it had been 6 years or longer since 

they had any training. This is an illegal 

mining operation and has no training plan. 

A 104(g)(l) Ordec (No. 3004622) has been 

issued in conjunction with this citation. 

Docket No. KENT 88-104, concerns a section 104(a) citation 

and a section 104(d)(l) order issued by the Inspector to the 

respondent. The citation and order is dated November 16, 1987, 

and they are as follows: 

Section 104(a) Non-"S&S" Citation No. 3004621, cites a 

violation of 30 C.F.R. § 41.10, and the condition or practice 

states as follows: 

Mining operations have commenced at the 

mine and the operator has not submitted a legal 

identity report to the MSHA District Manager. 

This is an illegal mining operation. 

Section 104(d)(l) "S&S" Order No. 3004624, cites a violation ot 30 C.F.R. § 48.23(a)(3), and the condition or practice 

states as follows: 

1156 
Mining Activities have commenced at the 

mine and the operator has not submitted a training plan for approval by the MSHA District 

Manager. This is an illegal mining operation. 

Petitioner's Testimony and Evidence 

Pansy Hamin, General Manager, Laurel Explosives, Inc., East 

Bernstadt, Kentucky, contirmed from copies of her records that 

she sold a case of dynamite to Mr. Eugene Mills on October 27, 

1987, and a case of dynamite to Mr. Curtis Smith on 

November 11, 1987. She identified a photograph of a case of 

dynamite as the type she sold (Exhibit P-1). She also 

explained the procedure for purchasing explosives, and confirmed that a purchaser need only.show a driver's license and 

fill out a form, and that the company does not verify how the 

explosives were used (Tr. 8-14). 

On cross-examination, Mrs. Hamm stated that the explosives 

purchased by Mr. Mills and Mr. Smith are typical ot purchases 

made by many small mine operators, and that she deals with many 

such companies. She also indicated that more potent explosives 

are purchased by mine operators depending on their intended 

use, and that exp1osiv.es are also purchased tor agricultural 

use, stump renoval, or for small strip mine operations. 

Mrs. Hamm confirmed that she does not personally know Mr. Mills 

or Mr. Smith (Tr. 14-17). 

Thomas Spellman, Special Investigator, State of Kentucky 

Department ot Natural Resources, testified as to his duties, 

and he confirmed that they included flying in a helicopter to 

view "illegal" mine sites. Mr. Spellman identitied photographic exhibits P-3, as photographs which he took from the 

helicopter on November 18, 1987, and he confirmed that he recognized MSHA Inspector Sorke's truck on the ground and recognized 

him standing in the roadway near the site in question. 

Mr. Spellman stated that a legal mining operation pursuant 

to state law requires a permit, and that it is usually identitiable by markers. He confirmed that the site in question had no 

permit, and he observed no markers. He confirmed that he has 

investigated more than 1,000 such sites during his 7 years as a 

special investigator, and that the site in question had all of 

the usual characteristics of a surface mining operation, including a highwall, an exposed coal pit, and heavy equipment parked 

in the area. He stated that the site was approximately 

122 feet long and 50 feet wide, and that the exposed coal depth 

was approximately 2 feet. 

1157 
Mr. Spellman stated that in his opinion, the depth of the 

excavation at the site, and in particular the 40 foot highwall, 

was not necessary for the construction of a house seat. He 

also was of the opinion that the site in question looked like a 

typical mining operation (Tr. 17-31). 

On cross-examination, Mr. Spellman stated that he did not 

speak with Inspector Sorke on the day that he took the photographs, and that he had no knowledge that any MSHA citations 

were issued. Mr. Spellman confirmed that his. discovery ot the 

site in question was made during a routine "fly-over" of the 

area and that his ottice had received no complaint about any 

mining operation at the site. 

Mr. Spellman confirmed that while he observed that coal 

was exposed, as shown in the large photograph, he saw no evidence that any of it had been removed or stockpiled, and could 

not determine whether any explosives had been used at the site. 

Mr. Spellman stated that another separate state department 

has regulatory entorcement jurisdiction over surtace mining 

operations, but only in cases where more than 450 tons of coal 

is exposed, extracted, and removed from the property with the 

intent to sell it. In these instances, the state would prosecute the offending party. In the instant case, Mr. Spellman 

confirmed that he had no knowledge that any coal had been 

removed and taken oft the property, and that all of the information that he obtained with respect to the site in question was 

turned over to special investigator Michael Hall, a tellow 

enforcement officer in his department (Tr. 31-46). 

MSHA Inspector Alex R. Sorke, Jr., testified that his 

duties include the investigation of illegal mining activities, 

and that he went to the site in question after receiving an 

anonymous call. He considered the operation to be illegal 

because no mine plan or other paperwork had been filed with 

MSHA (Tr. 47). He visited the site with State of Kentucky Mine 

Investigators George Eugene Hollis and Herman Williamson, and 

found that the mine "was working." He observed a dozer, a 

tractor with a scraper pan on the rear, and a highlift. He 

also found explosives which were used to shoot and create the 

highwall, and push brooms were being used to sweep the coal in 

preparation for its removal. 

Mr. Sorke identified exhibit P-1 as a photograph of an 

empty box of explosives, and he confirmed that the explosives 

had already been used and were not at the site. He confirmed 

that he spoke with Mr. Mills, Mr. Harris, and Mr. Smith, at the 

site, and established that they were the operators (Tr. 49). 

1158 

~-
Mr. Sorke confirmed that he observed "leg wires," which 

are used to detonate explosives, in the overburden after it had 

been shot. He also confirmed that most of the equipment was 

removed trom the site during his initial visit on November 16, 

1987, and that when he next returned to the site on 

November 18, all of the equipment had been removed (Tr. 51). 

Mr. Sorke stated that when he left the site on 

November 16, he believed that the three individuals in question 

were going to visit the local UMWA office to determine what was 

required to complete their training, and they intormed him that 

they had cleared the site. However, at this time they said 

nothing to him about preparing a house seat or building a 

house, and during the course of his conversation with the 

individuals, Mr. sorke believed that they agreed to do what was 

necessary to obtain their mine plans and complete the required 

preliminary work CTr. 54). 

Mr. Sorke identified exhibits P-4Ca) through P-4Cg) as 

photographs ot the equipment, the site, and the pit, and he 

explained the procedure which would have been used to prepare 

the coal tor removal, and he contirmed that they were taken on 

November 16 CTr. 55-59). 

Mr. Sorke stated that he served the citations on 

November 18, because he had to tirst obtain a mine legal ID 

number to place on the citation forms. He confirmed that he 

helped the three individuals till out the necessary MSHA legal 

Mine ID form on November 16, and that he filled out the 

information for them (Tr. 60-61). 

Mr. Sorke confirmed that after completing the Mine ID form 

(exhibit ALJ-1), he returned to his office to complete the 

citations C exhibits P-5 through P-8), and he then to.ok them to 

the site on November 18. However, he confirmed that he issued 

the citations "verbally" on November 16, and that "I told them 

everything" (Tr. 66). He confirmed that he was aware of the 

fact that there was no mine ID number on file with MSHA before 

he visited the site CTr. 68). 

Mr. Sorke confirmed that the effect of his section 

104(g)(i) order was to close the site because it removed 

everyone from the site until they could be trained. He also 

confirmed that he issued Citation No. 3004623, because the 

individuals admitted that they had not received the required 

new miner training (Tr. 68-69). He issued Citation 

No. 3004624, because no mine training plan was on file with 

MSHA's district office (Tr. 70). 

1159 
Mr. Sorke stated that when he returned to the site on 

November 18, the individuals in question for the first time 

"started talking about it being a house seat" (Tr. 73). He 

then served the citations on them. Mr. Sorke confirmed that he 

subsequently returned to the site and made certain measurements. 

He determined. that the pit averaged 150 feet long, 50 feet 

wide, and that the coal was approximately 2 feet in depth. The 

hignwall center was 60 feet high, and the ends measured 

approximately 42 feet in height. Based on these measurements, 

he estimated that the pit contained approximately 488 tons of 

exposed coal (Tr. 75) •. He believed that the highwall and coai 

"was treshly exposed" and was not there tor any length ot time. 

He estimated that all ot the exposed coal could have been 

removed in one day (Tr. 75-76). 

Based on his prior experience with similar operations, and 

the equipment which was present, he estimated that the three 

individuals could have constructed the highwall, exposed the 

pit, and removed the coal in 2 weeks, working 40 hours a week 

(Tr. 76). He also confirmed that in the course of his prior 

investigations of similar sites, "I have been told hundreds of 

times that it is going to be a house seat, trailer park, a pond. 

I can show you a shopping center," but that he never saw any of 

these structures actually erected on these sites (Tr. 77). 

Mr. Sorke was of the opinion that the site was a mine site 

and not a house seat because the spoil was pushed over the hill 

and into the trees, and the trees were all knocked over. Anyone constructing a house seat would clear the land tirst and 

then smooth out the site and would not simply push the spoil 

over the hill. He also indicated that the grade leading to the 

site was very steep, and although there was a good road, it was 

not ditched, and was not the type of road that one would construct for access to a house because one would need a tractor 

or tour-wheel drive to reach the site (Tr. 79). He also contirmed that an old inactive strip pit was located below the 

site in question (Tr. 80). 

On cross-examination, Mr. Sorke stated that he communicated and spoke with Mr. Clarence Mills, the individual who had 

an ownership interest in the property, and the person who 

purportedly contracted with the respondents to construct the 

house seat, but was not certain whether he contacted him before 

or after he issued the citations (Tr. 85). Mr. Sorke confirmed 

that Mr. Mills told him that he was having a house seat built 

and that he was interested in being able to remove the coal 

(Tr. 86). He indicated that he met with Mr. Mills before and 

1160 
after the site was closed, during his investigation of other 

illegal mining operations on his property {Tr. 87). 

Mr. Sorke confirmed that Mr. Mills told him that the three 

respondents were building a house seat, and that when he told 

him this the mine had been closed. Mr. Sorke stated that 

Mr. Mills asked him whether or not he could remove up to 

250 tons of coal as permitted by the State of Kentucky, and 

also asked him about leaving the coal. Mr. Sorke stated that 

he advised Mr. Mills that no coal could be removed under MSHA's 

regulations because the site was closed {Tr. 90-96). Mr. Mills 

also advised him that the respondents were instructed not to 

take any of the coal (Tr. 97). 

Mr. Sorke confirmed that although no coal was actually 

removed from the site in question, had he not acted and closed 

the site, he believed the coal would have been removed {Tr. 98). 

He believed that all of the preparation work for coal removal 

had been completed at the time he issued the order, and that 

the sweeping ot the coal was the last step immediately prior to 

taking out the coal. At this point in time, it was Mr. Sorke's 

opinion that the site was in fact a coal mine {Tr. 99). 

Mr. Sorke stated.that his estimate that the coal in the 

pit was 24 inches deep was based on a hole that was dug in one 

section of the pit, but he did not know who dug the hole {Tr. 

107, Exhibit P-4{h)). He also agreed that "nobody in their 

right mind would build a house on coal" {Tr. 101). When asked 

whether a violation would occur it the coal were pushed aside 

in order to reach solid ground for a house seat, Mr. Sorke 

responded as follows {Tr. 101-102): 

A. It depends on what else is involved. If 

there's equipment used on the site, or if 

there's explosives used on the site, or there's 

other means to connect the site to Interstate 

Commerce, then yes. 

If they went up there and they 

hand-shoveled it all off and got down to the 

coal --

Q. Let's say they had four D-9s up there, and 

pushed it off to the side. 

A. Yes, pushed it to the side and they got to 

the coal and they pushed it up, we would still 

consider it a mine. 

1161 
Q. You would assume that at some time it would 

enter Interstate Commerce? 

A. It's the fact that the coal itself does not 

have to enter Interstate Commerce to make it an 

inspectible (sic) site under MSHA regulations. 

Q. So anybody that would be clearing an area on 

their land in eastern Kentucky that pushed the 

coal aside would be written up for not having a 

mine license, training and what these gentlemen 

have been written up for? 

A. Depending on the circumstances involved, 

yes. 

Q. And Mr. Mills told you the circumstances 

were, number one, he wanted a house seat; and 

number two, these boys weren't to remove any 

coa.L? 

A. That's correct. He also said that he got on 

to them tor getting down -- they weren't 

supposed to go down to the coal level. 

Mr. Sorke confirmed that he made no inquiries of any local 

tipples to determine whether the respondents had in tact sold 

any coal because he saw no need to in view of the fact that ·no 

coal was ever removed from the pit (Tr. 103). Mr. Sorke had no 

personal knowledge that the respondents were ever connected 

with any prior coal mining activities (Tr. 103). He contirmed 

that he suggested the initials "S H M" be used for the name of 

the respondent company because he needed a company name in 

order to obtain a mine ID number, and that the respondent's 

agreed to the use of the initial's ot their last names. 

Mr. Sorke denied that they said anything about any construction 

company, and he denied that the respondents told him on 

November 16, that they were clearing a house seat for 

Mr. Clarence Mills (Tr. 104-105). 

In response to further questions, Mr. Sorke confirmed that 

he did not completely discount the possibility that a house 

could have been placed of the site which was being excavated 

because "when you make a level spot out, you can put a house on 

it" (Tr. 115). He reiterated that in his 10-1/2 years of 

experience, he has never seen a house constructed on any site 

similar to the one in this case. However, he agreed that it 

would not be unusual to level out enough ot a spot on a 

1162 
hillside to build a home, and that the site in question could 

have been developed further in either direction (Tr. 116). 

Mr. Sorke confirmed that it would have been economically 

feasible to move the available 488 tons of coal out of the site 

over a 2-week period, and at the then-prevailing market price 

of $23 a ton, the coal would sell for close to $9,000 (Tr. 117). 

He also confirmed that he did not discuss with the respondent's 

their reasons for digging down to expose the coal seam, and he 

confirmed that they offered no explanation as to why this was 

done (Tr. 120). 

George Eugene Hollis, Investigator, Kentucky Department of 

Natural Resources, confirmed that he visited the site in 

question on November 16, 1987, with his partner Mr. Herman 

Williamson, and Mr. Sorke. Mr. Hollis stated that he observed 

that the pit had been opened up, the coal was exposed, and he 

observed a highlitt or loader, a small farm tractor, and a 

small bul.Ldozer at the site. He also observed James Harris 

sweeping otf the top of the exposed coal with a broom, and that 

was all of the work which was taking place. Mr. Hollis stated 

that "By virtue ot cleaning it off, by all appearances, they 

were getting· ready to load it, break it up and load it" (Tr. 

129-130). 

Mr. Hollis stated that based on his experience in investigating illegal mines since 1982, the site he observed on 

November 16, 1987, was in all general appearances, the same as 

any other site he has investigated. He considered the site in 

question to be a mine operation, and for that reason he posted 

a closure order on the site, "and that prohibits them trom 

hauling the coal" (Tr. 131). 

In response to a question as to what led him to conclude 

the site in question was a mining operating, Mr. Hollis 

responded as follows at (Tr. 131-134): 

A. As we said already, from all appearances of 

mining equipment, cleaning the coal oft to get 

rid of the hash, to make the coal as good a 

quality as possible, and also when we tirst went 

up, if I remember correctly, the men wouldn't 

talk to us hardly at all to start with. 

They just sort of hee-hawed around. But 

eventually -- well, one ot our tirst questions 

when we go on any site is who's the operator? 

Whose job is this? Ot course, they wouldn't 

tell us to start with. But after a while, after 

1163 
we began to talK and things get a little bit 

more at ease, then they finally said, "Yes, it's 

our job." 

Q. Did they say "It's our job building a house 

seat?" Did anybody mention a house seat when 

you were up there? 

A. No. 

Q. Were there any other things that led you to 

believe that it was a coal mine operation? 

A. Well, again, we just -- all of the assumptions that were made in all the appearances is 

that it was a coal mine, and when we asked them 

what name they wanted to put it in, the closure 

itself by virtue of it, was saying that this was 

a coal mine. 

We are going to write this closure to 

prohibit you from hauling the coal. You don't 

have a mine license on it with the Department of 

Mines and Minerals. The closure itself states 

that fact. Also what name do you want to put 

this in. Well, put it in S H M. 

Q. They told you to put it in S H M? 

A. Yes. 

Q. When you were giving them all these papers 

that said all this stuff about coal operations 

and mining coal, did they give you any indications by the conversation that they knew that 

you considered it a coal mine operation? 

A. Yes, as a matter of fact, when we began to 

explain our recommendations are the they did not 

have a license; they did not have mine maps; and 

also, that no coal would be produced. In 

explaining these, in other words, we show them 

the closure and give them a copy of the closure. 

* * * * * * * 

Q. When you left that, did you expect to have 

them come in the off ice in a short time and 

acquire a mine license? 

1164 

t
A. Yes, we told our supervisor, and the way my 

partner and myself, and I suppose Mr. Sorke, 

telt that within probably a week to two weeks' 

time that they would be in. That's the teeling, 

you know, again that we had. 

Q. Did they express anything about removing the 

coal? Did they say anything to you about 

removing the coal? 

A. Not exactly because all of the entire conversation was that as tar as the mine closure and 

everything was the fact that it was going to 

prohibit them from hauling the coal. 

And, at (Tr. 145-146; 148-149): 

A. Just on first notice, just on the top of my 

head, two things. The site on Mills Creek where 

the coal was exposed, it was pitted back. It 

had two sides to it. It was pitted back, the 

highwall, actually on either end and the back. 

Coal was exposed. They were cleaning the 

coal tor market use. You know, if the coal was 

just going to be generally taken up, you 

wouldn't have to worry about it. If you are 

going to take coal and market it, then that coal 

has to be as clean as possible, especially in a 

poor market, as it has been. 

* * * * * * * 

Q. Has the State of Kentucky or the Department 

of Mines and Miners ever received any kind of 

notice from these three gentlemen that they were 

building a house seat? Have they ever filed 

anything with the State of Kentucky? 

A. ~o, no, we have not. 

* * * * * * * 

Q. Did you see anything on November 16th when 

you were there with Mr. Sorke and Mr. Williamson 

that would indicate to you that these gentlemen 

intended to do more than just push the coal over 

to the side and leave it sit? 

1165 
A. Yes, with the loader there, and again, the 

fact that they were cleaning th.e coal. If they 

were going to dump it over the hill, or take it 

and even stockpile, there wouldn't be any 

purpose in cleaning it. 

On the lefthand side of the pit, water --

there was some water that had drained over the 

coal, you know, and it had the mud and what you 

could not scrape off it with the grader blade 

that was on the little farm tractor, he had the 

broom sweeping the coal, cleaning oft the 

remainder of that water and mud and so forth. 

Q. In your experience, if a person was going to 

use that coal tor house coal, would they take 

such action and use a pushbroom to clean the 

coal? 

A. In my opinion, no. 

Mr. Hollis stated that when he returned to the site on 

March 10, 1988, with Mr. Sorke, they spoke with Mr. Clarence 

Mills, and he identified the notes and communications made 

while communicating with Mr. Mills (Tr. 134-135, exhibit P-9). 

Mr. Hollis confirmed that he explained the mining law to 

Mr. Mills, and answered his questions concerning the taking of 

"house coal," requirements for obtaining mine permits, and the 

filing of mine plans (Tr. 138-144). 

Mr. Hollis confirmed that the State of Kentucky has not 

received any notice trom the respondents with respect to the 

construction of any house seat at the site in question, and 

that they have not challenged the issuance of the closure order. 

The closure order is still in effect, and the respondents would 

have to obtain a license in order to haul the coal or remove 

the closure order (Tr. 147-148). 

On cross-examination, Mr. Hollis confirmed that if 

Mr. Clarence Mills had exposed the coal in the pit and simply 

pushed it aside, or shoved it over the hill, he would not be in 

violation ot any state regulation (Tr. 150). Mr. Hollis 

confirmed that he observed no coal trucks at or near the site 

waiting to haul the coal away (Tr. 150). He also confirmed 

that anyone preparing a house seat who comes across a coal seam 

is not required to notify his department (Tr. 151). 

1166 
Mr. Hollis stated that on March 10, 1988, Mr. Clarence 

Mills did not inform him that he had hired the respondents to 

build him a house seat, and that he .was only interested in 

learning whether he could use the coal for his own purposes or 

moving out 250 tons or more (Tr. 153). He confirmed that the 

respondents told him to use the initials "S H M" for his state 

report, and that the respondents have not evidenced any desire 

to remove the .coal from the site in question (Tr. 15 5). 

Michael L. Hall, Investigator, State of Kentucky Natural 

Resources Academy of Spec.ial Investigations, test it ied that he 

has never investigated· the SH M Coal Company, or any of the 

three respondents in this ~ctse. However, he contirmed that 

after receiving an anonymous call on November 18, 1987, he went 

to the site in question on November 23, 1987, and spoke with 

Mr. Clarence Mills. At that time, he had no knowledge that 

MSHA or the State Department of Mines and Minerals had investigated the site, but learned about this after speaking with 

Mr. Mills (Tr. 163). 

Mr. Hall confirmed that he made notes of his conversation 

with Mr. Mills but did not have them with him at the hearing 

because he was notified about the hearing at 8:00 a.m. on the 

same day it w·as scheduled. However, he testified from his 

recollection, and confirmed that Mr. Mills informed him that he 

owned the property and intended to build a house seat at the 

site in question and that "they ran into coal" (Tr. 165). 

Mr. Hall stated that he explained the coal permit regulations 

to Mr. Mills and advised him that with the exception of extracting 250 tons for his pers9nal use, he would need a permit to 

take more CTr. 167). Mr. Hall confirmed that Mr. Mills was 

concerned about complying with the law and that he read him his 

Miranda rights, and that Mr. Mills wanted to know what he had 

to do to stay out of trouble (Tr. 167). 

Mr. Hall stated that Mr. Mills informed him that Federal 

and State mining people had visited the site, but said nothing 

to him about the closure of the site (Tr. 168). Mr. Hall 

estimated that the pit contained approximately 370 tons of 

coal, and based on his examination of the site, he was of the 

opinion that it was a mine site (Tr. 170). He based this 

conclusion on the fact that coal was exposed, overburden was 

pushed out over the outslopes, and extensive overburden had 

been removed to reach the coal (Tr. 170). 

On cross-examination, Mr. Hall stated that he did not 

believe Mr. Mills' assertion that he had a house seat built at 

the site in question. He confirmed that he did not charge 

Mr. Mills with any violation and did not seek any advice from 

1167 
the county or the Commonwealth attorney. Mr. Hall also 

confirmed that no coal was removed from the site and no law 

which he enforces was violated on November 23, 1987 (Tr. 171). 

Mr. Hall confirmed that he has recently built a house, and 

in all house sites he has observed, all that is necessary is to 

dig down to a clay surf ace rather than to go as deep as the 

site in question was dug (Tr. 174). 

Respondent's Testimony and Evidence 

Eugene Mills, testified that Mr. Clarence Mills is his 

uncle, and that sometime in July or August, 1987, his uncle 

asked him about the cost to build a house seat at the site in 

question, and although no price was agreed to, he and 

Mr. Curtis Smith, and Mr. James Harris worked together at the 

site to build a house seat for his uncle. Mr. Mills stated 

that they worked on the site periodically over a 3-month period 

(Tr. 179-182). 

Mr. Mills stated that when Mr. Sorke and the two state 

mining inspectors come to the site, Mr. Sorke looked at the 

exposed coal and remarked that "it looks to me like you are 

mining coal." Mr. Mills stated that he informed Mr. Sorke that 

they were not mining coal and were building a house seat, and 

that if they were doing anything wrong, they should be taken to 

jail. Mr. Mills stated that Mr. Sorke replied that "I'll try 

to help you out" (Tr. 183). 

Mr. Mills conceded that brooms were being used to clean 

off the coal when Mr. Sorke arrived at the site, and that the 

cleaning was necessary to remove the mud so the coal could 

burn. He stated that his uncle wanted the coal for his house, 

and he did not know the depth of the coal, but estimated that 

it was 8 inches deep (Tr. 184). · 

Mr. Mills stated that the respondents had no interest in 

the coal, and that he ottered to push it aside tor his uncle's 

use, but Mr. Sorke stated that it was "a shame to waste the 

coal," and that he would try to find a way tor the respondents 

to remove it legally and take it to the foot of the hill. 

Mr. Mills stated that Mr. Sorke informed him that he would need 

a Mine !1) number, and that he and the other respondents signed 

the required MSHA form (exhibit ALJ-1), but that it was not 

filled out when they signed it (Tr. 185). Mr. Sorke informed 

him that he would need a company name, and Mr. Mills stated 

that "S HM Construction sounds good to me," and that he 

advised Mr. Sorke to use that name if he needed to have one. 

1168 
Mr. Mills also contirmed that Mr. Sorke did not fill out the 

torm in his presence (Tr. 185-186). 

Mr. Mills stated that no coal had been removed from the 

site, or even broken up and made ready to be moved, and that he 

hired no trucks, or had any trucks waiting to pick up the coal 

CTr. 186). He denied that he and the other respondents had any 

interest in removing the coal, and confirmed that that they 

made no etfort to remove the closure order. Although they 

discussed obtaining a mining permit, "there were more obstacles 

in our way, and it was just out ot the question. In order to 

do that, • we were admitting to something that we weren't 

doing as far as mining" (Tr. 188). 

Mr. Mills stated that the access road to the site was not 

wide enough to allow coal trucks to come and go. He contirmed 

that he has never engaged in any coal mining business or sold 

any coal (Tr. 190-191). He stated that he has constructed 

other house sites and that he generally has to cut out the side 

ot a mountain in most areas where this has been done (Tr. 192). 

Mr. Mills confirmed that he and Mr. Curtis Smith purchased 

two cases of explosives, and it was used for shooting ditch 

lines, fill stone, and rocks. This work was done at the same 

time that he was on his uncle's property <Tr. 19J). Mr. Mills 

stated that no coal was ever broken or removed from the site, 

and he had no intention of removing it from the property (Tr. 

194). 

On cross-examination, Mr. Mills confirilled that in July and 

August, 1987, immediately preceding the work tor his uncle, he 

was working on removing creek rock and that he was using the 

same equipment. The rock was shipped to Lexington and sold, 

and it was removed by hand and loader and trucked out. The 

rock business was not good, and he engaged in some tarming on 

his father's and grandfather's land. The house seat for 

Mr. Mills was never completed, and none of the respondents were 

ever paid for the work (Tr. 196). 

Mr. Mills stated that his uncle did not intend to sell the 

coal, and that he simply wanted it moved so the house seat 

could be completed. Mr. Mills confirmed that he had an oral 

agreement with his uncle, had worked tor him in the past, and 

had expected to be paid tor the house seat work (Tr. 200). 

Mr. Mills stated that when he began the construction ot 

the house seat he had no idea that any coal was at the site, 

and that his intent was to build a house seat (Tr. 202). When 

asked about his intentions with respect to the coal had 

1169 
Mr. Sorke and the other investigators not arrived at the site 

on November 16, 1987, Mr. Mills responded "our intent was to 

break it up, pile it to the side, fi.nish the house seat, get 

our money and try to get a new pair of shoes" (Tr. 203). He 

stated that when his uncle first asked him about constructing a 

house seat, they did not discuss the disposition ot any coal 

which may have been found, a~d his uncle said nothing about 

stockpiling any coal or taking it for his own use. Mr. Mills 

confirmed that he would have to dig another 6 to 8 feet through 

the exposed coal in order to reach a suitable house seat (Tr. 

203) • 

Mr. Mills stated that the words "Coal Company" were 

inserted on the MSHA Mine ID form by Mr. Sorke, and that he 

told Mr. Sorke that he and the other respondents were not a 

coal company, and that they were constructing a house seat for 

his uncle and simply ran into the coal seam (Tr. 206). 

Mr. Mills stated that Mr. Sorke replied "Don't give me that 

bull crap" (Tr. 207). When asked why he was cleaning the coal 

if he simply intended to bulldoze it aside so that his uncle 

could have it, Mr. Mills stated that his uncle wanted to burn 

it, and rather than breaking it up, he decided that the simple 

solution was to push it aside, and that was his intent (Tr. 

209). 

Mr. Mills stated that he "checked out" the price of low 

quality coal in 1987, and that it sold for $12 or $13, and that 

"wildcat" coal was $6 or $8, and he questioned how he would 

benefit by "trying to haul it otf" (Tr. 208). He stated that 

his uncle came to the site after the coal seam was exposed, and 

asked if there would be a problem for him to break up and burn 

the coal (Tr. 209). Mr. Mills stated that his uncle wanted the 

house seat so that he could build a house for his son (Tr. 211). 

Mr. Mills confirmed that the son was 16 years old at the time 

the house seat was built (Tr. 213). 

With regard to the training citations, Mr. Mills confirmed 

that the respondents "hired a safety man" and had some preliminary discussions with an individual who provides training for 

the Chaney Creek Coal Company (Tr. 223). Respondent Curtis 

Smith, who was present at the hearing, but was not called to 

testify, confirmed that while this was true, the respondents 

have not in fact taken any training (Tr. 223). When asked why 

an inquiry would be made about training, if as claimed by the 

respondents, that they were not engaged in a mining operation, 

Bugene Mills responded "We were confused, and we didn't know 

which way to go. Finally, we came to the point that we sought 

legal help" (Tr. 224). 

1170 
Mr. Mills confirmed that some of the explosives in question were used to shoot some rock out of the road to the site 

in question, and that some was used .-to blast sandstone from the 

highwall. He also confirmed that the rest of the overburden 

was removed and pushed away with the bulldozer and highlift 

(Tr. 233). 

Inspector Sorke was recalled in rebuttal, and he testified 

that he filled out the MSHA Mine ID fonn in question in the 

presence of Mr. Eugene Mills on the same day of his initial 

visit to the site on November 16, 1987, and that the respondents signed it at that time. Mr. Sorke explained that since 

the form was completed that day, he terminated Citation 

No. 3004621, that same day (Tr. 215). Mr. Sorke reiterated 

that the subject ot the house seat was not discussed on 

November 16, and that this issue was first discussed on 

~ovember 18, 1967 (Tr. 215). 

Mr. Sorke confirmed t~at he wrote in the words "Coal 

Company" on the mine ID form, and that when he asked the respondents for a company name to insert on the form, they responded 

"Call us S HM Coal Company," and that is what he put on the 

form (Tr. 218). Mr. Sorke stated that he still does not 

believe Mr. Mills' assertion that the respondents were building 

a house seat at the site, and after hearing Mr. Mills' testimony that he inquired about the price of coal in 1987, 

Mr. Sorke remarked "I even believe it less now" (Tr. 219). 

Mr. Sorke had no knowledge with respect to the abatement of the 

training citations, and although he stated that the respondents 

may have since received training, he was not certain (Tr. 

221-222). 

Mr. Sorke explained the hazard ramifications connected 

with untrained persons who engage in strip mining, and the ~se 

of explosives. MSHA considers such untrained individuals to be 

hazards to themselves and to each other. Mr. Sorke confirmed 

that he based his unwarrantable failure finding on the fact 

that he believed that the respondents knew that they were 

required to be trained before beginning any mining (Tr. 228). 

He reiterated that he first spoke with Clarence Mills when he 

was with Mr. Hollis on March 10, 1988, and that he did not 

speak with him earlier because he had no reason to and did not 

know who owned the property (Tr. 228). Mr. Sorke stated 

further that when he left the site on November 18, 1987, after 

speaking with Eugene Mills, he ass~~ed that the respondents 

would go ahead and obtain their training (Tr. 230). 

Mr. Sorke confirmed that after Mr. Eugene Mills told him 

in ~ovember 18, that he was building a house seat for his 

1171 
uncle, he did not contact the uncle at that time (Tr. 230)~ 

Mr. Sorke further confirmed that he had no knowledge that 

Mr. Hall had spoken with Clarence Mills until the day prior to 

the hearing in this case (Tr. 230). When asked if he were 

aware of the fact that Clarence Mills has been hauling building 

materials to the foot of the site in question, Mr. Sorke 

replied "No, but it will not surprise me in the least. If I 

was hunting a way out, I'd be hauling, too" (Tr. 231). 

Mr. Sorke confirmed that although the equipment previously 

mentioned was at the site on November 16, 1987, the only work· 

he observed being done· was the sweeping of the exposed coal 

with pushbrooms. When he returned on November 18, the equipment had been removed from the site, and Mr. Sorke confirmed 

that he permitted the respondents to remove the equipment "as 

long as they didn't touch that coal" (Tr. 248). 

Findings and Conclusions 

The Jurisdictional Question 

The definition of "coal or other mine" found in 3(h)(l) of 

the 1977 Mine Act is as follows: 

"[C]oal or other mine" means (A) an area of 

land from which minerals are extracted in nonliquid form or, if in liquid form, are extracted 

with workers underground, (B) private ways and 

roads appurtenant to such area, and (C) lands, 

excavations, underground passageways, shafts, 

slopes, tunnels and workings, structures, facilities, equipment, machines, tools, or other 

property including impoundments, retention dams, 

and tailings ponds, on the surface or underground, used in, or to be used in, or resulting 

from, the work of extracting such minerals from 

their natural deposits in nonliquid form, or if 

in liquid form, with workers underground, or 

used in, or to be used in, the milling of such 

minerals, or the work of preparing coal or other 

minerals, and includes custom coal preparation 

facilities (emphasis added). 

The definition of "coal or other mine" is further clarified by the Legislative History of the Act. The Senate Report 

No. 95-181 (May 16, 1977) provides that: 

Finally, the structures on the surface to be 

used in or resulting from the preparation of the 

1172 
extracted minerals are included in the def inition of "mine." ••• [B]ut it is the 

Committee's intention that what is considered to 

be a mine and to be regulated under the Act be 

given the broadest possibly (sic) interpretation, and it is the intent of this Committee 

that doubts be resolved in favor ·of inclusion of 

a facility within the coverage of the Act. 

s. Rep. No. 181, 95th Cong., 1st Sess. 602, reprinted in (1977] 

U.S. CODE CONG. & ADMIN. NEWS 3401, 3414. 

The Joint Conference Committee continued along these same 

lfnes in stating that related structures, equipment or facilities, even though not yet in use in connection with mining 

activities, but which were to be used in connection with such 

mine related activities, are to be included in the definition 

of a mine. (Conference Rep. No. 461, 95th Cong., lst Sess. 

(1977) reprinted in LEGISLATIVE HISTORY OF THE FEDERAL MINE 

SAFETY AND HEALTH ACT 1279, 1316 (1977)). 

As a remedial statute, the Act has been given broad interpretation and has been found to apply to a broad spectrum of 

activities, including· prospecting, assessing value of ore 

bodies and quarrying in one's backyard. Marshall v. Wait, 

628 F.2d 1255, 1258 (9th Cir. 1980) (backyard rock quarry is 

within the definition of a mine); Marshall v. Stoudt's Ferry 

Preparation Co., 602 F.2d 589, 592 C3d Cir. 1979), 

cert. denied, 444 U.S. 1015 (1980) (sand and gravel preparation 

plant is a "mine" within the meaning of the Act); Secretary of 

Labor v. Cyprus Industrial Minerals Corporation, 3 FMSHRC 1 

(January 1981), aff'd by the Ninth Circuit Court of Appeals, 

December 28, 1981, Cyprus Industrial Minerals v. FMSHRC and 

Donovan, 2 MSHC 1554 (digging of a tunnel to assess the value 

of talc deposits within the definition of a "mine"). 

The Commission has held that the actual extraction of 

minerals is not a precondition for jurisdiction to apply. See: 

Carolina Stalite Company, 3 MSHC 1759 (September 12, 1984); 

Secretary ot Labor v. Alexander Brothers, 4 FMSHRC 541 (April 

1982). See also Marshall v. Stoudt's Ferry Preparation Co., 

supra, and Ma.rsilall v. Tacoma Fuel Company, No. 77-10104-B 

CW.D. Va. June 29, 1981, holding that extraction is not 

required under the Act for coverage of preparation facilities. 

In its posthearing brief, the petitioner cites the case of 

Godwin v. Occupational Satety and Health Review Commission, 

540 F.2d 1013 (9th Cir. 1976), a case arising under the Occupational Safety and Health Act relating to the growing of grapes. 

1173 
In that case the court found that the activity of clearing land 

was a necessary part of the growing process, and that waiting 

until the grapes were planted to find that the operation was 

covered would be a meaningless gesture. Petitioner argues that 

in like manner, the clearing and preparation of land for the 

removal of coal is an integral and necessary activity in the 

extraction of coal, and that in a strip mining operation the 

majority of the work and effort involved in the mining operation is in such preparatory activities. I agree with the petitioner's position and I conclude and find that the preparation 

of the land is an integral and necessary process in the extraction of coal and that such activities constitute mining and are 

covered by the Act. 

The thrust of the respondent's defense in this case is 

that it was not conducting a strip mining operation, and that 

it was engaged in clearing a site for the construction of a 

house seat. I find this contention to be lacking in credibility and it is rejected. For the reasons which follow, I 

conclude and find that the preponderance of the evidence establishes that the respondent was engaged in a strip mining operation and was in the last phase of land preparation prior to the 

actual removal of coal at the time Inspector Sorke arrived on 

the scene and issued the citations. 

The evidence in this case establishes that two of the 

respondents, Eugene Mills and Curtis Smith, purchased explosives which were used in part to clear the site in question. 

Inspector Sorke found evidence at the site that explosives had 

in fact been used, and although some of the explosives were 

used for other purposes, Eugene Mills admitted that some of it 

was used to construct a roadway to the site and to blast sandstone from the highwall. Mr. Mills also admitted that the rest 

of the overburden was removed and pushed away with a bulldozer 

and highlift which were used at the site. 

State of Kentucky Department of Natural Resources Special 

Investigator Thomas Spellman testified that he flew over the 

site in question and took aerial photographs of the site. 

Mr. Spellman, who had previously investigated over 1,000 illegal strip mining operations, testified that the site, which he 

described as approximately 122 feet long and 50 feet wide, had 

all of the characteristics of a surface mining operation, 

including a highwall, an exposed coal pit, and heavy equipment 

parked in the area. 

Kentucky Special Investigator Michael Hall, testified that 

when he visited the site he observed the pit containing approximately 370 tons of exposed coal, overburden pushed over the 

1174 
site outslopes, and he indicated that extensive overburden· had 

been removed to expose the coal. He was of the opinion that 

the oper~tion was a mine site. 

Kentucky investigator George Hollis testified that when he 

visited the site in the company of MSHA Inspector Sorke, he 

observed an open and exposed coal pit and a highlift or loader, 

a small tractor, and a bulldozer. He also observed one of the 

respondents, James Harris, sweeping off the top of the exposed 

coal with a broom, and he believed that this was being done in 

preparation of breaking up and loading out the coal. He testified that if the respondents merely intended to remove and push 

the coal aside, there would be no need for cleaning it, and in 

his opinion the site was an illegal strip mining operation 

similar to many that he has observed during his experience as 

an investigator. He confirmed that he posted a state closure 

order at the site prohibiting the removal of any coal, and that 

the order is still in effect and would require the respondents 

to obtain a license befor~ they could remove any of the coal. 

Inspector Sorke, who visited the site on at least two 

occasions, testified that the respondents admitted that they 

had cleared the site, and he found evidence that explosives 

were used to· shoot and create the highwall. He also observed a 

bulldozer, a tractor with a scraper pan attached to the rear, 

and a highlift at the site, and further observed that pushbrooms were being used to sweep the coal in preparation for its 

removal. He stated that the sweeping of the coal would be the 

last step in preparing it for removal. After taking measurements, he estimated th~t the coal pit was approximately 

150 feet long and 50 feet wide, and that the exposed coal was 

approximately 2 feet in depth. He confirmed that the highwall 

was approximately 60 feet high at its center, and approximately 

42 in height at each end. He further estimated that the coal 

pit contained approximately 488 tons of freshly exposed coal, 

and he believed that it could have been removed in one day. 

Based on his observations, and prior experience, Mr. Sorke 

concluded that the site in question was in fact a mine site. 

Mr. Clarence Mills, the owner of the property where the 

site in question is located, did not testify in this case, and 

the record establishes that he has impaired hearing and is mute. 

At the request of the respondent's counsel, a hearing impaired 

interpreter was provided at the hearing, but counsel did not 

call Mr. Mills as a witness. The only witness testifying for 

the respondent at the hearing was Eugene Mills, one of the 

three individuals who cleared the site in question. None of 

the other partners in this venture testified. 

1175 
Eugene Mills testified that the respondents never intended 

to mine any coal, and that they cleared the site in expectation 

of constructing a house seat for his uncle who wanted to build 

a house for his 16 year old son. Mr. Mills contirmed that he 

had an "oral contract" with his uncle to construct the site and 

that he has never been paid for the work. There is no evidence 

that a building or clearing permit was obtained for the work, 

and no proposed house plans were ever produced. Mr. Mills 

testified that when Inspector Sorke arrived at the site with 

the two state inspectors, he intormed Mr. Sorke that the respondents were constructing a house seat. Mr. Sorke testified that 

when he initially visited the site on November 16, 1987, none 

of the respondents said anything to him about building a house 

seat, and that they told him this when he next returned on 

November 18, 1987. Special Investigator Hollis testified that 

when he visited the site on November 16, 1987, in the company 

of Mr. Sorke, none of the respondents mentioned anything about 

building a house seat. I find Mr. Sorke's testimony, corroborated by Mr. Hollis, to be more credible than that of Eugene 

Mills, and I conclude and find that Mr. Mills did not intorm 

Mr. Sorke that he was constructing a house seat at the time 

Mr. Sorke initially visit the site, and that this contention on 

Mr. Mills' part came at a later time. 

Investigator Hall, who interviewed Clarence Mills on 

November 23, 1987, testified that Mr. Mills informed him that 

he was having a house seat constructed on the site, but 

Mr. Hall did not believe him because he had recently constructed a house and found that it was unnecessary to dig as 

deep as the site in question was being dug for a house seat. 

Mr. Hall also testified that Mr. Mills informed him that 

although he intended to have a house seat constructed, the 

respondents "ran into coal," and Mr. Mills wanted to know what 

he could do to "stay out of trouble." 

Investigator Hollis testified that he spoke with Clarence 

Mills on March 10, 1988, in the company of Mr. Sorke, and that 

Mr. Mills said nothing about hiring the respondents to construct a house seat. Mr. Hollis stated that Mr. Mills was only 

interested in knowing whether he could use the coal tor his own 

purposes, and that he (Hollis} answered Mr. Mills' questions 

about removing "house coal" and the state requirements tor 

obtaining a mine permit and filing mine plans. 

Inspector Sorke, who spoke with Clarence Mills on more 

than one occasion before and after the site was closed, confirmed that Mr. Mills informed him that the respondents were 

constructing a house seat. Mr. Mills also inquired as to 

whether it would be legal to remove any ot the coal from the 

1176 
site, and Mr. Sorke explained MSHA's requirements to him. 

Although Mr. Sorke did not completely discount the possibility 

that a house could be constructed on the site in question, he 

obviously did not believe that this was the case. Mr. Sorke 

commented that "no one in their right mine would build a house 

on coal," and he stated that in his 10-1/2 years of experience 

he has never seen a house constructed on a site similar to the 

one in question. He also alluded to the fact that in prior 

instances when he has encountered illegal strip mines, he has 

been told "hundreds of times" that house seats were being constructed, but he never saw a house built at any of these sites. 

Mr. Sorke was also of the opinion that the site in question was 

not conducive to the construction of a house because of steep 

terrain, the manner in which the site was being cleared, and 

the fact that one would need a tractor or four-wheel drive 

vehicle to reach the site. 

Mr. Eugene Mills further testified that he had no prior 

knowledge of the existence of any coal seam at the site in question, and that once the coal was exposed, the respondents only 

intended to remove it and pile it aside to finish the house 

seat (Tr. 202). He confirmed that he had no knowledge as to 

the actual depth of the exposed coal seam, and that in order to 

remove the coal to reach a suitable house seat depth, he would 

have had to dig another 6 or 8 feet, or "maybe more" (Tr. 184, 

203). In my view, such further digging would create an even 

higher highwall, and I seriously doubt that anyone would have 

constructed a house at the site in question. Having viewed the 

site at the conclusion of the hearing, I found that access to 

the purported location of the house seat was extremely diff icult, even on foot while walking up to the site along steep 

inclines. 

Mr. Mills also confirmed that in July or August of 1987, 

and prior to the clearing of the purported house seat, the 

respondents were engaged in the business of removing creek rock 

from Mill Creek, using the same equipment, and that the rock 

was trucked to Lexington for sale on the open market (Tr. 

194-195). I believe that the respondents intended to do the 

same thing with the coal which they were cleaning prior to its 

extraction, and that they would have done so had the inspectors 

not discovered the site. 

After careful consideration of all of the evidence and 

testimony presented in this case, I reject the respondents 

contention that they were clearing the site for a.house seat, 

and I conclude and find that they were engaged in a surface 

mining operation subject to the Act. 

1177 
Interstate Commerce Issue 

Article I, Section 8, Clause 3 ,. of the Cons ti tut ion gives 

Congress the power to "regulate commerce • • • among the 

several States." The U.S. Supreme Court has a long history of 

upholding Federal regulations of ostensibly local activity on 

the theory that such activi~y may have some affect on interstate commerce. Local activities, regardless of their size and 

their appearance as purely intrastate, may in fact affect interstate commerce if the activity falls within a class of regulated activity. See: Wickard v. Filburn, 317 U.S. 111 (1942); 

Fry v. United States, 421 U.S. 542 (1975). In Perez v. United 

States 402 U.S. 146, 155 (1971), the court held that where a 

class of activities is regulated and that class is within the 

reach of Federal power, the courts have no power to exclude "as 

trivial" individual instances of the regulated activity. 

Section 4 of the 1969 Coal Act, which is applicable in 

this case, states as follows with regard to the mines subject 

to the Act: "Each coal or other.mine, the products of which 

enter commerce, or the operations or products of which affect 

commerce, and each operator of such mine, and every miner in 

such mine shall be subject to the provisions of this Act." 

The 1977 Mine Act is intended to assure safe and healthful 

working conditions for miners, and Congress clearly stated its 

findings and purposes in this regard in the 1969 Coal Act, as 

well as in the 1977 Act which extended jurisdiction of the coal 

Act to all mining activities. The Congressional findings and 

purposes are set forth in section 2 of the 1969 Act, and they 

are equally applicable to all mines. Some of these findings 

and purposes are as follows: 

* * * * * * * 

Cc> there is an urgent need to provide 

more effective means and measures for improving 

the working conditions and practices in the 

Nation's coal mines in order to prevent death 

and serious physical harm, and in order to 

prevent occupational diseases originating in 

such mines; 

Cd) the existence of unsafe and unhealthful conditions and practices in the Nation's 

coal mines is a serious impediment to the future 

1178 
growth of the coal mining industry and cannot be 

tolerated; 

* * * * * * * 

Cf) the disruption of production and the 

loss of income to operators and miners as a 

result of coal mine accidents or occupationally 

caused diseases unduly impedes and burdens 

commerce. [Emphasis added.] 

Perez v. United States, 402 U.S. 146 (1971), held that 

Congress may make a finding as to what activity affects interstate commerce, and by doing so it obviates the necessity for 

demonstrating jurisdiction under the commerce clause in individual cases. Thus, it is not necessary to prove that any particular intrastate activity affects commerce if the activity is · 

included in a class of activities which Congress intended to 

regulate because that cla~s affects commerce. 

Mining is among those classes of activities which are covered by the Commerce Clause of the United States Constitution 

and thus is among those classes which are subject to the 

broadest readhes of Federal regulation because the activities 

affect interstate commerce. Marshall v. Kraynak, 457 F. Supp. 

907, CW.D. Pa. 1978), aff'd 1 604 F.2d 231 (3d Cir. 1979), 

cert. denied, 444 U.S. 1014 (1980). Further, the legislative 

history of the Act, and court decisions, encourage a liberal 

reading of the definition of a mine found in the Act in order 

to achieve the Act's purpose of protecting the safety of miners. 

Westmoreland Coal Company v. Federal Mine Safety and Health 

Review Commission, 606 F.2d 417 (4th Cir. 1979). See also: 

Godwin v. Occupational Safety and Health Review Commission, 

540 F.2d 1012 (9th Cir. 1976), where the court held that unsafe 

working conditions of one operation, even if in initial and 

preparatory stages, influences all other operations ·similarly 

situated, and consequently affect interstate commerce. 

The courts have consistently held that mining activities 

which may be conducted intrastate affect commerce sufficiently 

to subject the mines to Federal control. See: Marshall v. 

Kilgore, 478 F. Supp. 4 (E.D. Tenn. 1979);--secretary ot the 

Interior v. Shingara, 418 F. Supp. 693 (M.D. Pa. 1976); 

Marshall v. Bosack, 463 F. Supp. 800, 801 (E.D. Pa. 1978). 

Likewise, Commission judges have held that intrastate mining 

activities are covered by the Act because they affect interstate commerce. See: Secretary of Labor v. Rockite Gravel 

Company, 2 FMSHRC 3543 (December 1980); Secretary ot Labor v. 

Klippstein and Pickett, 5 FMSHRC 1424 (August 1983); Secretary 

1179 
of Labor v. Haviland Brothers Coal Company, 3 FMSHRC 1574 (June 

1981); Secretary of Labor v. Mellott Trucking Company, 

10 FMSHRC 409 (March 1988). 

A state highway department operating an intrastate open 

pit limestone mine, the product of which is crushed, broken and 

used to maintain county roads was held to be subject to the Act. 

Ogle County Highway Department, 1 FMSHRC 205 (January 1981). 

A crushed stone mine operation that had an MSHA "Mine ID" 

number and was inspected by MSHA was held to be subject to the· 

Act because the sales of rock products, as well as the use of 

equipment manufactured out of state, affected commerce within 

the meaning of the Act's jurisdictional language. Tide creek 

Rock Products, 4 FMSHRC 2241 (December 1982). See also: 

Southway Construction Co., 6 FMSHRC 174 (January 1984'T:'" 

A gravel mine operator conducting activities solely within 

a state was held to be subject to the Act because its local 

mining activity had an impact on interstate market. Rockite 

Gravel Co., 2 FMSHRC 2543 (December 1980), Commission Review 

Denied January 13, 1981; Scoria Products Branch, Ultro, Inc., 

6 FMSHRC 788 (March 1984); Southway Construction Co., supra. 

I conclude and find that the intent of the 1977 Mine Act, 

as well as the preceding 1969 Coal Act, as manifested by the 

legislative history, is that it is to be broadly construed so 

as to apply to all of the nation's mines as a class of activity 

which affects commerce, and the cited cases supports this 

conclusion. Accordingly, I further conclude and find that the 

respondent's mining operation is covered by the 1977 Mine Act 

and affects commerce within the meaning of the Act, and that 

the respondent is within reach of the Act. 

The Respondent's Liability 

In response to the petitioner's pretrial discovery 

requests, counsel for the respondents surnnitted a copy of a 

Commonwealth of Kentucky Certificate of Incorporation, and 

Articles of Incorporation, for a Corporation identified as the 

"SHS Corporation," and the registration agent is shown as James 

Harris, one of the individuals who along with Curtis Smith and 

Eugene Mills, were engaged in the mining activity in question 

in this case. However, I find no particular connection with 

this corporation and the work being performed by these 

individuals in connection with the mine site in question. 

Exhibit ALJ-1 is a copy of an MSHA Mine Legal Identification form, and it retlects that Mr. Harris, Mr. Smith, and 

1180 
Mr. Mills were partners operating the SHM Coal Company, under 

MSHA Mine Identitication Number 15-16245. There is a dispute 

as to who prepared and filled out the form. Although Eugene 

Mills conceded that he and the other individuals signed the 

form, he claimed that it was not tilled out when they signed it. 

He also claimed that atter Inspector Sorke intormed him that he 

needed a company name to put on the form, he told Mr. Sorke 

that "SHM Construction sounds good to me," and asked Mr. Sorke 

to use that name on the torm. Mr. Sorke claimed that he tilled 

out the form in the presence of Mr. Mills on the same day of 

his initial visit to the site on November 16, 1987, and that 

all three individuals signed it that same day. Mr. Sorke 

turther claimed that Mr. Mills told him to use the name "SHM 

coal Company," and that he inserted this name on the form. 

The form in question, on its face, is dated November 16, 

1987, the same day that Mr. Sorke issued Citation No. 3004621, 

citing the respondent with a violation ot section 41.10, for 

not submitting the legal identity torm to MSHA. Mr. Sorke 

explained that he terminated the citation that same day atter 

the form was executed by the respondents, and he contirmed that 

he knew that no legal identity form was on file with MSHA 

betore he visited the site. He also indicated that he had 

verbally issued all ot· the citations on November 16, but 

reduced them to writing and actually served them on the respondent on November 18, and that he did so because he had to 

include the mine identity number on the citations torms. I 

tind Mr. Sorke's explanation to be reasonable and credible. 

Irrespective of the information on the form, the evidence 

adduced in this case establishes that the three individuals in 

question were conducting a mining operation, and that they were 

doing so in association with each other as independent contractors. As such, they are clearly accountable and liable tor 

their actions, including the violations and any civil penalty 

assessments tor those violations. 

Fact ot Violations 

Docket No. KENT 88-159 

In this case the respondent is charged in a section 

l04Cd)(l) "S&S" citation with a single violation of the training requirements of 30 C.F.R. § 48.25(a), because Mr. Mills, 

Mr. Harris, and Mr. Smith had not received the new miner training required by this regulation. The respondent has not 

rebutted the reliable and probative evidence presented by the 

petitioner in support of the violation, and I conclude and tind 
that it establishes a violation. Accordingly, the violation IS 

AFFIRMED. 

Docket No. KENT 88-104 

In this case, the respondent is charged in a section 

104(a) non-"S&S" citation with a violation of the mine operator 

notification requirements found in 30 C.F.R. § 41.10. The 

reliable and probative evidence presented by the petitioner 

clearly establishes that the respondent did not file the 

required report in compliance with the cited regulation. 

Accordingly, I conclude and find that a violation has been 

established, and it IS AFFIRMED. 

The respondent is also charged in a section 104Cd)(l) 

"S&S" order with a failure to submit a training plan as 

required by mandatory training standard 30 C.F.R. § 48.23(a)(3). 

The reliable and probative evidence presented by the petitioner 

establishes that the respondent did not file any training plan, 

and I conclude and find that a violation has been established. 

Accordingly, it IS AFFIR~ED. 

Significant and Substantial Violations 

A "significant and substantial" violation is described in 

section 104(d)(l) of the Mine Act as a violation "of such 

nature as could significantly and substantially contribute to 

the cause and effect of a coal or other mine safety or health 

hazard." 30 C.F.R. § 814Cd>Cl). 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 "signif icant and substantial" as follows: 

In order to establish that a violation of a 

mandatory safety standard is significant and 

substantial under National Gypsum the Secretary 

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

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

hazard contributed to will result in an injury; 

and (4) a reasonable likelihood that the injury 

1182 

f

,
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 104Cd){l), it is the contribution of a violation to the cause and effect of 

a hazard that must be significant and substantial. U.S. Steel Mining Company, Inc., 6 FMSHRC 

1866, 1868 {August 1984); U.S. Steel Mining 

Company, Inc., 6 FMSH.RC 1573, 1574-75 (July 

19 84) • 

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 ot Labor v. Texasgulf, Inc., 10 FMSHRC 498 

{April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007 

C December 19 8 7) • 

Unwarrantable Failure 

The governing definition of unwarrantable failure was 

explained in Zeigler Coal Company, 7 IBMA 280 (1977), decided 

under the 1969 Act, and i~ 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 

1183 
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." Emery Mining Corporation, 9 FMSHRC 1997 

(December 1987); Youghiogheny & Ohio Coal Company, 9 FMSHRC 

2007 (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. * * * 

In Youghiogheny & Ohio Coal Company, 10 FMSHRC 603 (May 

1988), the Commission, citing UMWA v. Kleppe, 532 F.2d 1403 

CD.C. Cir. 1976), cert. denied sub nom. Bituminous Coal Operators• Assn., Inc., v. Kleppe, 429 U.S. 1405, held that while a 

signit1cant and substantial finding is a prerequisite for the 

issuance of a section 104(d)Cl) citation, there is no such 

~equirement for the issuance of a section 104(d)(l) order. 

1184 
The petitioner's posthearing brief does not address in any 

detail the alleged unwarrantable nature of the section 

104Cd)(l) citation and order, or the significant and substantial findings made by the inspector. The brief is limited to 

the following argument made at page 5: 

The failure of the respondent to obtain 

miner training and file mine plans prior to 

beginning mining was likely to result in a 

fatality because of the use of explosives, 

because of the lack of inspection of equipment 

used on the site, and because of the failure to 

use basic safety equipment such as hard hats and 

steel toe shoes on the site. The requirement of 

training and the filing of pre-mining plans are 

basic to the Federal Mine Safety regulatory 

scheme. Allowing respondent to mine without 

meeting these requirements def eats the purpose 

of the Act. 

During the direct questioning and cross-examination of 

Inspector Sorke, no testimony was forthcoming with respect to 

his unwarrantable failure and significant and substantial 

findings, and he offered no reasons for making these findings. 

However, when called in rebuttal by the petitioner, and after 

questions from the court, Mr. Sorke testified as follows with 

respect to the hazard ramifications in connection with the lack 

of training (Tr. 225-227): 

Most people that do strip m1n1ng, and we've 

heard them say they are not strip miners, they 

are not miners, have had initial training for 

new hired miners. 

This alerts them to the dangers involved in 

this work, and what could happen to them during 

this type of work, considering the type of 

machinery they use, the area, and the control 

that they must provide for the highwall, and all 

those type things. 

Q. If you assume that this is a mining operation, what kind of hazards would you expect them 

to be exposed to that the training would help 

them in dealing with? 

A. Falling material from the highwall; as far 

as knowing how to properly operate the equipment, knowing that when you are using equipment 

1185 
on elevated roadways and everything that berms 

are required; to keep over travel of equipment; 

knowing the condition the equipment is supposed 

to be in, and that's supposed to be handled; 

what records are required for that type of 

equipment. 

Q. What about the use of explosives on that 

site? 

A. Explosives are also in the training. 

Besides getting the training that I mentioned, 

they get first aid training for any accident 

that would happen on the site. They also would 

receive the proper use, handling and storage of 

explosives. If there is a site, and this one is 

not, where electricity is there, they get the 

proper use of electricity on a certain 

installation. 

There are several areas; you know, I could 

keep going on and on and tell you things that 

they would get in training that just the normal 

construction worker has no idea about. 

Q. What kind of accidents would you foresee as 

a result of working without that miner training? 

A. Anytime that MSHA finds an untrained person, 

we consider him a hazard to himself and everybody there. We feel like we could have a 

fatality, just from him not knowing the things 

about safety at a mining operation that he needs 

to know. That's why we always issue the G Order 

and remove those people until they have had this 

proper training. 

When asked whether the withdrawal of the respondents 

pursuant to section 104(g)(l) of the Act was the reason for his 

significant and substantial and unwarrantable failure findings, 

Inspector Sorke responded as follows (Tr. 227): 

Q. Is that why you also found the unwarrantable 

and the s & s in this case? 

A. Part of it. I mean, there's a lot of things 

that you have to consider. 

1186 
Q. What other factors did you consider in 

issuing the unwarrantable? 

A. !n an unwarrantable failure, you have to 

consider: one, that it's either a violation ot 

mandatory safety health standards or not1 and 

the two, the operator either knew or he should 

have know --

JUDGE KOUTRAS: Is that your position here that 

knew or should have known this was a mining 

operation? 

THE WITNESS: Yes, sir. It's that they knew, 

not should have .Known. 

Inspector Sorke testified that atter his initial contact 

with the respondents at the mine site, he assumed that they 

would take the necessary steps to obtain a legal mine plan and 

to receive training, and he believed that the respondents may 

have visited another MSHA inspector at his home to obtain 

further information in this regard (Tr. 54, 71). At the 

hearing, the respondents who were present contirmed that they 

had made an initial contact with an individual who conducts 

training for another coal company, but that they did not avail 

themselves of any training (Tr. 223). Respondent Eugene Mills 

confirmed that he had a preliminary talk with a "safety man" 

who was hired, and when asked why he did not follow through 

with any training, he responded "everyone we talked to kept 

advising this and that. We were contused, and didn't know 

which way to go. Finally, we came to the point that we sought 

legal help" (Tr. 224). 

Inspector Sorke confirmed that while it is common tor mine 

operators who are operating illegal mines to have someone 

serving "in the woods as a watch-out," he was not aware of any 

such activity at the site in question. H~ also confirmed that 

in such situations, both he and the operator are apprehensive 

and scared, and that in this case the individuals at the site 

did not tlee or attempt to run trom the site (Tr. 215-217). 

Mr. Sorke confirmed that although several other individuals 

present at the scene "scattered and walked off the hill," the 

three named respondents stayed (Tr. 52). He also confirmed 

that no harsh words were spoken, and that he engaged in a 

triendly conversation with the respondents (Tr. 54)~ Further, 

aside trom the inspector's mentioning the tact that one ot his 

fellow inspectors had seen Mr. Harris on "some jobs," he had no 

1187 
knowledge that any of the respondents had any previous connection with any other mining activities, or had ever been 

employed in coal mining (Tr. 103-104). 

After careful review and consideration of all of the evidence in these proceedings, I cannot conclude that it supports 

any finding or conclusion that the violation concerning the 

respondent's failure to receive new miner training (48.25(a)), 

or the violation for the failure to submit a mining training 

plan C48.23(a)(3)), constitute unwarrantable failure violations. 

I find no aggravated conduct on the part of the respondents, 

and the inspector confirmed that he based his findings in this 

regard on the fact that the respondent "knew or should have 

known" about the cited training regulations in question. 

Further, although the inspector marked the citation and order 

"high negligence," no testimony was forthcoming as why he did 

this, other than his belief that the respondent "knew" about 

the training regulations. Under the circumstances, the inspector's unwarrantable failure findings ARE REJECTED AND VACATED. 

With respect to the inspector's significant and substantial finding relating to the lack of new miner training 

(48.25(a)), there is no credible evidence showing that any of 

the individuals who were engaged in the mining activity in question were experienced miners, or had ever worked in the mining 

industry. Although none of the other respondents testified in 

this case, Eugene Mills confirmed that he had never before been 

involved in any coal mining (Tr. 191). 

The intent of the new miner training regulations is to 

promote mine safety by insuring that new miners are trained in 

a number of safety and health subjects, including their new 

work environment, ground control, working around highwalls, 

~-hazard recognition, and the use of explosives in a mining envir-

·~ oninent. In enacting the withdrawal provisions for untrained 

miners pursuant to section 104(g)(l) of the Act, Congress recognized and declared that untrained miners are hazards to themselves and to others, and I conclude and find that the failure 

of new miners to receive the requisite training pursuant to the 

Act and MSHA's regulations is in itself a safety hazard. 

The evidence in this case establishes that the respondents 

had engaged in work activities connected with the blasting and 

removal of overburden, the use of a bulldozer and other equipment, and the establishment of a 60 foot highwall. Mr. Mills 

confirmed that explosives were used to shoot the slate, stone, 

and large rocks from the highwall (Tr. 193). He also confirmed 

that the equipment was used to remove the overburden and push 

it over the steep hill and embankment adjacent to the site. 

1188 
funder these circumstances, I conclude and find that the individuals in question were exposed to the hazards inherent in such 

activities, and that their lack of training presented a reasonable likelihood of an injury or accident of a reasonably 

serious nature. Accordingly, I conclude and find that the 

violation was significant and substantial, and the inspector's 

finding in this regard IS AFFIRMED. 

With regard to the inspector's significant and substantial 

finding in connection with the violation for the failure to 

file a training plan C48.23(a)(3)), I find no credible probative evidence to establish that the failure to file such a plan 

cqnstituted a significant and substantial violation. The 

inspector's testimony in this case is totally lacking in any 

support for such a finding. Under the circumstances, the 

inspector's finding IS REJECTED AND VACATED. 

In view of the foregoing findings and conclusions, including the rejection of the inspector's unwarrantable failure findings, section 104(d)(l) Order No. 3004623, November 16, 1987, 

citing a violation of 30 C.F.R. § 48.25(a), for the failure to 

provide training for the three cited individuals in question is 

modified to a section_l04(a) citation, with "S&S" findings, and 

IT IS AFFIRMED. 

Section 104(d)(l) Order No. 3004624, November 16, 1987, 

citing a violation of 30 C.F.R. § 48.23(a)(3), for the failure 

to submit a mine training plan is modified to a section 104Ca) 

citation, with non-"S&S" findings, and IT IS AFFIRMED. 

Section 104(a) non-"S&S" Citation No. 3004621, 

November 16, 1987, citing a violation of 30 C.F.R. § 41.10, for 

failing to submit the required mine legal identity report IS 

AFFIRMED AS ISSUED. 

Size of Business and Effect of Civil Penalty Assessment on the 

Respondent's Ability to Continue in Business 

The evidence establishes that the mining operation in question was very small and was being operated by three individuals 

of unknown means and assets. The site has been closed by the 

State of Kentucky and MSHA's withdrawal orders. The individuals in question submitted no evidence with respect to the 

impact of any civil penalty assessments on their ability to pay 

such assessments. Aside from Mr. Eugene Mills, who testified 

in this case, there is no information as to whether or not the 

other individuals engaged in the mining activity in question 

are gainfully employed. Absent any evidence to the contrary, I 

1189 
cannot conclude that the payment of the civil penalty assessments will adversely affect the respondents. 

History of Prior Violations 

The respondent has no known history of prior violations. 

Gravity 

With the exception of the new miner training violation, I 

conclude and find that the remaining two violations were 

non-serious. With respect to the new miner training violation, 

I conclude and find that it was serious. 

Negligence 

In view of my unwarrantable failure findings, I conclude 

and find that all of the violations which have been affirmed in 

these proceedings resulted from the respondent's failure to 

exercise reasonable care, and that this constitutes ordinary 

negligence. 

Good Faith Compliance 

As stated above, the mine site in question is closed, and 

the violations remain unabated because of that closure. Under 

the circumstances, I cannot conclude that the respondents have 

abated the violations in good faith, and I doubt very much that 

they will have any opportunity to do so, or ever intend to. 

Civil Penalty Assessments 

On the basis of the foregoing findings and conclusions, 

and taking into account the requirements of section llO(i) of 

the Act, I conclude and find that the following civil penalty 

assessments for the violations which have been affirmed are 

reasonable and appropriate in the circumstances of these 

proceedings: 

Docket No. KENT 88-104 

Citation No. 

3004021 

3004624 

Date 

11/16/87 

11/16/87 

30 C.F.R. Section 

41.10 

48.23(a)(3) 

1190 

Assessment 

$ 20 

$ 20 
Docket No. KENT 88-159 

Citation No. Date 30 C.F.R. Section Assessment 

3004623 11/16/87 48.25Ca> $150 

ORDER 

The respondent IS ORDERED to pay civil penalty assessments 

in the amounts shown above within thirty (30) days of the date 

of these decisions. Upon receipt of payment by the petitioner, 

this matter is dismissed. 

~~~ Administrative Law Judge 

Distribution: 

Mary Sue Ray, Esq., Office of the Solicitor, U.S. Department of 

Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 

37215 (Certified Mail) 

John T. Aubrey, Esq., Aubrey & Bowling, 303 Main Street, Post 

Office Box 670, Manchester, KY 40962 (Certified Mail) 

/f b 

1191 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

TANNER SAND & GRAVEL, 

Respondent 

JUN 201989 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 89-6-M 

A.C. No. 41-03449-05501 

Tanner Sand & Gravel 

DECISION APPROVING SETTLEMENT 

Appearances: Sara D. Smith, Esq., Office of the Solicitor 

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

the Secrertary of Labor; 

Mr. Sammy Tanner, prose, Hutchins, Texas. 

Before: Judge Melick 

This case is before me upon a petition for assessment of 

civil penalty under Section 105(d) of the Federal Mine Safety 

and Health Act of 1977 (the Act). At hearing Petitioner in 

effect moved to approve a settlement agreement and to dismiss 

the case. Respondent has agreed to pay the proposed penalty 

of $40 in full. I have considered the representations and 

documentation submitted in this case, and I conclude that the 

proffered settlement is appropriate under the criteria set 

forth in Section llO(i) of the Act. 

WHEREFORE, the motion for approval i~f settlemen \ is 

GRANTED, and it is ORDERED that Responde t pay a pen ity of 

$40 within 30 days of this orde \ 

(.\ Jl~,, ,l' ~ ),, 

Gary r Me ~ck 

lJ 1\1; 

. ...._,, __ j I~--'· 

Administ~ative Law., Judge 

(703) 756~~261 \ 

\ 

Distribution: \ 

\ 

Sara D. Smith, Esq., Office of the Solicitor, U.S. Department 

of Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202 

(Certified Mail> 

Sammy Tanner, Partner, Tanner Sand & Gravel, P. o. Box 291, 

Hutchins, TX 75141 (Certified Mail) 

nt 

1192 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

WILLIAM WAYT, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 201989 

DISCRIMINATION PROCEEDING 

Complainant 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

. . 

. . 

. . 

Docket No. WEVA 89-114-D 

MORG CD 89-2 

Ireland Mine 

ORDER OF DISMISSAL 

Betore: Judge Maurer 

The Complainant, William Wayt, requests approval to withdraw 

his Complaint in the captioned case on the grounds that he has 

reconsidered his decision to proceed with the Complaint and no 

longer desires a hearing concerning this matter. Under the 

circumstances herein, permission to withdraw is granted. 

29 C.F.R. § 2700.11. The case is theretore dismissed. 

Accordingly, the hearing presently scheduled for June 29, 

1989, in Morgantown, West Virginia, is cancelled. 

Distribution: 

aurer~ rative Law Judge 

Thomas M. Myers, Esq., District Six, United Mine Workers of 

America, 56000 Dilles Bottom, Shadyside, Ohio 43947 (Certified 

Mail) 

Michael R. Peelish, Esq., Consolidation Coal Company, 1800 

Washington Road, Pittsburgh, PA 15241 (Certitied Mail) 

/ml 

1193 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

ON BEHALF OF CHARLES 

ARLES HERREN, 

Complainant 

v. 

DON GRIFFITH CONSTRUCTION, 

Respondent 

JUN 201989 

DISCRIMINATION PROCEEDING 

Docket No. CENT 89-25-D 

DENC CD 88-14 

Jewett Mine 

DECISION APPROVING SETTLEMENT 

ORDER OF DISMISSAL 

Before: Judge Broderick 

On June 18, 1989, the Secretary filed a new motion to 

approve settlement and an amended settlement agreement. 

By the settlement agreement, Respondent will pay to Charles Herren 

the sum of $2000 "in full payment of all backwages and damages 

alleged dur in this case." The $2000 represents three weeks 

back wages. Respondent completed its job and laid off all 

its crew at the worksite, three weeks after Herren left its 

employ. 

I have considered the motion in the light of the purposes 

of section 105(c) of the Act and conclude that it should be 

approved. 

Accordingly, the settlement agreement is APPROVED, and, 

subject to the payment by Respondent of $2000 to complainant 

Herren, this proceeding is DISMISSED. 

1'arttz5 ffint'c:~,.fA-/e-!~, 

iJI James A. Broderick j Administrative Law Judge 

Distribution: 

Brian Pudenz, Esq., U.S. Department of Labor, Office of the 

Solicitor, 525 s. Griffin St., Suite 501, Dallas, TX 75202 

(Certified Mail) 

Mr. Robert Hollenshead, President, Don Griffith Construction, 

Inc., P.O. Box 189, Carthage, TX 75633 (Certified Mail) 

slk 

1194 
FEDERAL MINE SAFETY AND.HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 201989 .· 

SECRETARY OF LABOR, . . CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

. . 

. . 

Docket No. KENT 88-113 

A.C. No. 15-15665-03512 

KT K MINING AND CONSTRUCTION,: 

Docket No. KENT 88-114 

A.C. No. 15-15665-03513 

COMPANY, 

Respondent 

DECISION 

Docket No. KENT 88-125 

A.C. No. 15-15665-03514 

Docket No. KENT 88-13-0 

A.C. No. 15-15665-03515 

Docket No. KENT 88-141 

A.C. No. 15-15665-03516 

K T K No. 2 Mine 

Appearances: w. F. Taylor, Esq., Office of the Solicitor, 

U.S. Department of Labor, Nashville, Tennessee 

for Petitioneri 

Barbara Krause, Esq., Smith, Heenan & Althen, 

Washington, D.C., for Respondent. 

Before: Judge Melick 

These cases are before me upon petitions for civil 

penalty under Section 105(d) of the Federal Mine Safety and 

Health Act of 1977 (the Act). At hearing and post hearing 

Petitioner filed motions to approve settlement agreements and 

to dismiss the cases. The following reductions in penalty 

have been proposed: 

Original Proposed Penalty Agreed Penalty 

Docket No. KENT 88-113 - $3,157 $ 335.00 

Docket No. KENT 88-114 16,331 2,826.00 

Docket No. KENT 88-125 - 80 13.32 

Docket No. KENT 88-130 - 1,294 824.33 

Docket No. KENT 88-141 - 460 148.33 

1195 
I have considered the representations and documentation 

submitted in these cases, and I conclude that the proffered 

settlement is appropriate under the criteria set forth in 

Section llOCi> of the Act. 

WHEREFORE, the motions for approval of settlement are 

GRANTED, and it is ORDERED that Respondent pay the following 

penalties within 30 days of this order: 

Docket 

Docket 

Docket 

Docket 

Docket 

No. 

No. 

No. 

No. 

No. 

88-113 - $ 335.00 

88-114 - 2,826~00 

88-125 - 13~32 

88-130 - 82~ 33 

88-141 - 148 33 

!Uv 

/ 

ary Mel'cK 

dminist ative L Judge 

(703) 7,5 -6261 I 

Distribution: I . . I . w. F. Taylor, Esq., G. Elaine Smi~h, Esq., Office of the 

Solicitor, U.S. Department of Labor, 2002 Richard Jones Road, 

Suite B-201, Nashville, TN 37215 (Certified Mail) 

Barbara L. Krause, Esq., Smith, Heenan & Althen, Suite 400, 

1110 Vermont Avenue, N.W., Washington, D.C. 20005-3593 

(Certified Mail) 

nt 

1196 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 211989 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA}, 

Petitioner 

v. . . 

BANDAS INDUSTRIES INCORPORATED: 

Respondent 

DECISION 

Docket No. CENT 89-30-M 

A.C. No. 41-01786-05525 

Docket No. CENT 89-42-M 

A.C. No. 41-01786-05526 

Nolanville Quarry Plant 

Appearances: Michael Olvera, Esq., Office of the Solicitor, 

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

for Petitioner; 

Robert Bandas, Vice President Bandas 

Industries, Inc., Temple, Texas for 

Respondent. 

Before: Judge Melick 

These cases are before me upon the petitions for civil 

penalty filed by the Secretary of Labor pursuant to sectiori 

105Cd} of the Federal Mine Safety and Health Act of 1977, 

30 o.s.c. § 801 et seq., the "Act," charging Bandas 

Industries, Inc., (Bandas) with 24 violations of regulatory 

standards. The general issues before me are whether Bandas 

violated the cited regulatory standards and, if so, the 

appropriate civil penalty to be assessed in accordance with 

section llOCi} of the Act. 

At hearing the Secretary moved for the approval of a 

settlement agreement with respect to 18 of the citations at 

bar. She has submitted sufficient information to show that 

the proffered settlement is appropriate under the criteria 

set forth in section llO(i) of the Act. Accordingly an order 

will be incorporated in this decision approving the proposed 

settlement and directing payment of the agreed upon 

penalties. 

At hearing the Secretary also moved to withdraw and 

vacate Citation No. 3276776 acknowledging that she did not 

have the necessary expert testimony to support the citation. 

Under the circumstances the motion to withdraw was granted. 

In addition, the inspector who issued Citation 

1197 
No. 3276766 acknowledged at hearing that he could not recall 

the specific facts regarding the nature of the alleged 

violative conditions. Accordingly, in the absence of 

probative evidence in support of .the alleged violation the 

citation was dismissed at hearing. Three citations therefore 

remain at issue. 

Citation No. 3276600 alleges a "significant and 

substantial" violation of th~ standard at 30 C.F.R. § 56.9087 

and charges as follows: 

Allegation: A caterpillar 988A front-end loader 

was provided with a back-up alarm which was not 

automatic. Violation: the caterpillar 988A 

front-end loader company number 145 was not 

provided with an operable back-up alarm. The unit 

was operating in the pit area loading haul trucks. 

The driver's view to the rear was obstructed and no 

ground observer was used to signal the driver when 

backing up. No evidence was found to indicate the 

back-up alarm was not automatic. 

The cited standard, 30 C.F.R. § 56.9087, provides as 

follows: 

Heavy duty mobile equipment shall be provided with 

audible warning devices. When the operator of such 

equipment has an obstructed view to the rear, the 

equipment shall have either an automatic reverse 

signal alarm which is audible above the surrounding 

noise level or an observer to signal when it is 

safe to back up. 

Inspector Robert Lemasters of the Federal Mine 

Safety and Health Administration (MSHA) testified that 

he had observed the cited the front-end loader at about 

1300 hours on September 13, 1988, operating without an 

operable back-up alarm and with no one in the area 

acting as a ground observer. Lemasters also observed 

·that the view to the rear of the front-end loader was 

obstructed for about 15 feet behind. He testified that 

he had observed some of the haul truck drivers outside 

of the truck cabs walking in the vicinity of the 

front-end loader. According to Lemasters these drivers 

were thereby exposed to the hazard of being run over. 

Based on this evidence and reports of "Fatalgrams" 

(MSHA reports involving similar violations causing 

fatalities) Lemasters opined that a fatality was 

reasonably likely under the circumstances. 

1198 
Lemasters found only low negligence because of 

evidence that the cited equipment had been examined 

before the shift began and had been reported as properly 

functioning at that time. The violation was promptly 

abated when a ground wire was reconnected. These 

findings are not disputed~ 

Robert Bandas, Vice President of the Respondent, 

testified that in his opinion it would be extremely 

remote for the back-up alarm to not function. 

According to Bandas the area in which the front-end 

loader was operating had no pedestrian traffic. 

Moreover the truck drivers were forbidden by company 

policy to leave their trucks. Bandas had personally 

never seen any driver outside of his truck in this area. 

In evaluating the above evidence I find that the 

violation is proven as charged. I further conclude that 

the uncontradicted testimony of Inspector Lemasters 

concerning his observation of truck drivers outside of 

their cabs in the vicinity of the front-end loader is to 

be credited. Bandas testified only that it was contrary 

to company policy to do so and that he had never 

personally ob$erved any driver outside of his truck in 

the area. This evidence does not contradict the direct 

observations of Lemasters. Accordingly I find under the 

circumstances that injuries of a reasonably serious 

nature, including fatalities were reasonably likely. 

Under the circumstances I find that the violation was 

serious and "significant and substantial". Secretary v. 

Mathies Coal Co., 6 FMSHRC 1 (1984). Under the 

circumstances and considering the size of the operator, 

its history of violations, and the fact that the 

violation was abated in accordance with the Secretary's 

directive, I find that a civil penalty of $136 is 

appropriate. 

Citation No. 3276515 alleges a "significant and 

substantial" violation of the standard at 

30 C.F.R. § 56.14003 and charges that "the guard on the 

tail pulley of the by-pass conveyor a·t No. 1 plant did 

not extend far enough to cover the pinch points." 

The cited standard provides as follows: 

Guards at conveyor-drive, conveyor-head, and 

conveyor-tail pulleys shall extend a distance 

sufficient to prevent a person from accidently 

reaching behind the guard and becoming caught 

between the belt and the pulley. 

1199 
According to MSHA Inspector John.Carter the cited guard 

on the tail pulley in fact did not cover the pinch points as 

noted in the photograph admitted in'evidence. (See Exhibit 

PX-16). According to Carter, workmen in the area such as 

miners cleaning-up around the cited tail pulley would be 

exposed to entanglement in the pinch point suffering loss of, 

or broken, limbs. Carter acknowledged however that the pinch 

point was not directly accessible because of the belt 

structure. At the same time he opined that there was no 

obstruction "that couldn't be gotten around". 

According to Robert Bandas there was very little foot 

traffic in the cited area and in any event it was nearly 

impossible because of the belt structure itself for an 

employee to get close enough to the cited pinch point to 

become untangled. Bandas also noted that at the time of the 

violation and since then the belt has not been cleaned while 

in motion. In light of the firsthand knowledge and 

experience of Bandas, corroborated in signficant respects by 

Inspector Carter, I find but limited exposure to this hazard. 

Accordingly while I find that the the violation is proven as 

charged, I find that exposure to the cited hazard was so 

remote as to make it unlikely that an employee would become 

entangled in the cited tail pulley. Accordingly I do not 

find the violation to be "significant and substantial" or of 

high gravity. In the absence of any evidence of negligence I 

am unable to evaluate this criterion. Under the 

circumstances I find that a civil penalty of $75 appropriate. 

Citation No. 3276517 alleges a "significant and 

substantial" violation of the standard at 30 C.F.R. § 56.9054 

and charges that "there was a build up of material at the 

bumper block at No. 3 Plant dump stat;.ion." 

The cited standard, 30 C.F.R. § 56.9054, provides that 

"berms, bumper blocks, safety hooks, or similar means shall 

be provided to prevent overtravel and overturning at dumping 

locations." It may reasonably be inferred that the cited 

standard requires that the safety devices not only be 

provided but must also be maintained "to prevent overtravel 

and overturning at dumping locations". 

According to MSHA Inspector John Carter there was indeed 

a buildup of material at the cited bumper block in an amount 

sufficient to enable a truck backing up to the dumping 

location to pass over the block and into the dum~ing station. 

According to Carter however, at most the driver would only be 

1200 
"shaken up" if his truck backed over into the dumping stat.ion. 

Carter also observed that the plant was not then in 

operation. 

According to Robert Bandas the blocks were 18 inches 

high and there was only 6 inches of material buildup so that 

the likelihood of the truck backing over the block was "very 

slim". He also noted that sufficient protection still 

remained in spite of the buildup to hinder the rear movement 

of any truck. · 

Within this framework of evidence I find that a 

violation existed as charged. In light of the testimony 

however that, at worst, the truck driver would only be 

"shaken up" I cannot find that the violation was of high 

gravity or "significant and substantial". I am also unable 

to find negligence in light of the absence of any evidence on 

this issue. Within this framework I find that a civil 

penalty of $50 is appropriate. 

ORDER 

Docket No. CENT 89-30-M: Citation No. 3276766 is 

vacated. The remaining citations are affirmed and Bandas 

Industries, Inc., is directed to pay civil penalties of 

$1,482 for the violations cited therein with 30 days of the 

date of this decision. 

Docket No. CENT 89-42-M: Citation No 3276776 is 

vacated. The remaining citations are aff ifrmed and Bandas 

Industries, Inc., is directed to pay civif p'enalties of .56 

for the violations cited therein wi hin 30 days of the d t'e 

of this decision. a ' ' < ' 

1 Ill 

I 

Gary Meli k 

?.\.dministr tive 

(703) 756 6261 

1201 

Judge 
Distribution: 

Michael Olvera, Esq.~ Office of the Solicitor, U.S. 

Department of Labor, 525 Griffin Street, Suite 501, Dallas, 

TX 75203 (Certified Mail) 

R. F. Bandas, Vice President, Banda's Industries, Inc., P.O. 

Box 3595, Temple, TX 76505 (Certified Mail) 

nt 

1202 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 22, 1989 

Sl?CRBT.ARY OF LABOR, CIVIL PENALTY PROCRBDTNGS 

MINE SAFBTY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

. . Docket No. VA 89-3-M 

A. C. No. 44-02965-05516 

v. . . Louisa Plant 

A. H. SMITH STONE COMPANY, 

Respondent 

Docket No. VA 89-4-M 

A. C. No. 44-03995-05511 

Appearances: 

l3ef ore: 

Culpeper Plant 

DECISION 

Jack Strausman, Esq., Office of the Solicitor, 

u. s. Department of Labor, Arlington, Virginia, 

for Petitioner; 

Lisa M. Wolff, Representative for A. H. Smith 

Stone Company, Branchville, Maryland, for 

Respondent. 

Judge Merlin 

~hese cases are petitions for the assessment of civil 

penalties filed by the Secretary of Labor against A. H. Smith 

Stone Company pursuant to section 110 of the Federal Mine Safety 

and Health Act of 1977, 30 U. s. c. § 820. A hearing was held on 

June 6, 1989, and the parties waived submission of post-hearing 

briefs. 

Penalty proceedings before the Commission are entirely de 

novo. Sellersburg Stone Company v. Federal Mine Safety and 

Health Review Commission, 736 ~.2d 1147, 1152 (7 Cir. 1984). 

Tennessee Chemical, Inc., 11 FMSHRC , at , (May 30, 1989). 

Section llOCi) of the Act, 30 u.s.c. § 820(i), provides that 

where a violation is proved the Commission in determining the 

amount of penalty shall consider, Cl) the operator's history of 

previous violations; (2) the appropriateness of the penalty to 

the size of the operator; (3) negligence; (4) the effect of any 

penalty upon the operator's ability to continue in businesa; 

(5) the gravity of the violation; and (6) the demonstrated good 

faith of the operator in attempting to achieve rapid compliance 

after notification of a violation. 

1203 
In accordance with the evidence of ~ecord and the uncontroverted submissions of the Solicitor, I find the operator's 

size is moderate. 

In the absence of evidence to the contrary, I find that 

imposition of penalties herein will not affect the operator's 

ability to continue in business. The unsupported and unverified 

financial statements submitted by the operator do not establish 

that the operator will be forced out of business due to payment 

of civil penalties under the Act. At the hearing in Docket 

~o. V~ 89-13-M, Administrative Law Judge William Fauver told the 

operator's representative what type of evidence was required to 

prove this defense. I adhere to the views expressed by Judge 

'Pauver. 

I further find the operator's history is as set forth in the 

Solicitor's pre-hearing statement, with the exception of the last 

two sentences of subparagraph ll(f). 

Pursuant to the stipulations I conclude that the violations 

were abated in a timely manner. 

VA 89-3-M 

Citation No. 3045443 

This citation sets forth the alleged violative condition or 

practice as follows: 

"'l'he guard for the drive pulley and V 

belts for the #1 jaw crusher had parts of the 

guard missing. This is along a travelway and 

would be hazardous to anyone traveling in the 

area. This condition was cited on the last 

regular inspection 1-27-88." 

Section 56.14006 of the regulations, 30 C.F.R. § 56.14006, 

provides: 

~xcept when testing the machinery, 

guards shall be securely in place while 

machinery is being operated. 

The inspector testified that two portions of the guard were 

missing, one on the drive belt for the electric motor of the jaw 

crusher and the other for the drive pulley of the crusher itself 

C~r. 28, 30, 59). The operator's former plant manager remembered 

as missing only the portion of the guard for the electrical 

motor, but admitted that there could very well have been two 

missing pieces (Tr. 62). t accept the inspector's testimony that 

two pieces of the guard were missing. I further adopt the inspector's statement that when he issued the citation the machinery 

was running and the plant was in full operating condition 

1204 
(Tr. 31, 38)~ Based upon the foregoing, I find a violation of 

30 C.F.R. § 56.14006. 

The inspector stated that a ladder, which was used to go to 

and from the control booth of the crusher, was one foot in front 

of where the guard for the pulley of the jaw crusher was missing 

(Tr. 27, 35, 38). He believed there was a danger that if the 

belt broke, an individual on the ladder could be killed before he 

could get out of the way (Tr. 35, 38). He had read of fatal 

accidents where belts like the ones in this case had weakened and 

broken (Tr. 43). There was also a risk that an employee could 

loose his footing on the ladder and fall with his foot becoming 

caught in the drive pulley {Tr. 40). He saw employees going up 

and down the ladder (Tr. 41). The operator's former manager 

agreed that any injury would be permanently disabling or fatal 

(Tr. 54). Based upon the possibility of serious or fatal 

injuries from the missing guard, I £ind the violation was 

serious. 

The inspector also found that the violation was significant 

and substantial. The Commission has held that a violation is 

properly designated significant and substantial if, based on the 

particular facts surrounding that violation, there exists a reasonable likelihood that the hazard contributed to will result in 

an injury or illness of a reasonably serious nature. Cement 

Division, National Gypsum Co., 3 FMSHRC 822, 825 (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: Cl) the underlying violation of a mandatory safety standard; (2) a discrete safety hazard--that is, 

a measure of danger to safety--contributed to 

by the violation; (3) a reasonable likelihood 

that the hazard contributed to will result in 

an injury; and (4) a reasonable likelihood 

that the injury in question will be of a 

reasonably serious nature. 

The Commission subsequently explained that the third element 

of the Mathies formula "requires that the Secretary establish a 

reasonable likelihood that the hazard contributed to will result 

in an event in which there is an injury" U. S. Steel Mining Co., 

6 FMSHRC 1834, 1836 (August 1984). 

As set forth above, the evidence shows a violation and 

discrete safety hazards. What is lacking however, is proof of a 

reasonable likelihood that the hazards will result in injury. 

When asked why he believed injury or illness was reasonably 

likely, the inspector merely referred to previous accidents and 

1205 
fatalities· in other operations (Tr. 34-35). He did not indicate 

the frequency of those occurrences. Moreover, he did not address 

the circumstances which led him to conclude that in this case 

there was reasonable likelihood. He spoke only of the possibility of an individual on the ladder becoming caught in a pinch 

point or losing his footing on the ladder due to grease or water, 

without indicating the condition of the ladder or surrounding 

areas at the time (Tr. 39-40). ~he statement of the operator's 

former manager that injury was reasonably likely to an individual 

on the work platform must be discounted because he made clear 

that a person would be on this platform only for pre-shift inspection and maintenance and not during normal operations (Tr. 48, 

57-58). Accordingly, the finding of significant and substantial 

must be vacated. 

As set forth herein, a violation may be serious while not 

satisfying the criteria required by Commission precedent for 

establishing significant and substantial. Quinland Coals, Inc., 

9 FMSHRC 1614, 1622, n. 11 (September 1987); Youghiogheny and 

Ohio Coal Company, 9 FMSHRC 2007, 2013 (December 1987); Columbia 

Portland Cement, 10 FMSHRC 1363, 1373; 1375, 1384-1385; 1387, 

1397; 1399, 1403; 1405, 1409 (September 1988). As also explained 

supra, penalty proceedings are de .!!.£Y.2 before the Conunission 

which is bound to determine penalty assessments in accordance 

with the six criteria in section llOCi> of the Act. The Commission is not bound by the Secretary's penalty assessment 

regulations. 

I accept the inspector's testimony that the foreman observed 

this violation but took no action to correct it (Tr. 35-36). On 

this basis I find the operator was negligent. 

1n light of the foregoing, a penalty of $175 is assessed for 

this violation. 

Order No. 3045449 

~his order sets forth the alleged violative condition or 

practice as follows: 

"The disconnecting device for the electrical 

distribution box for the jaw crusher was broken. The 

device would not connect or disconnect the electrical 

current. This is an order of withdrawal [sic] all 

employees shall be withdrawn from in and around the 

electrical control house for the #1 jaw crusher until 

repairs are made to the electrical disconnect device. 

~he repairs must be made by an electrician that understands the hazards of working on electrical devices. 

~he repairs must be inspected by an authorized representative of the Secretary of Labor before the plant 

can be restarted". 

1206 
Section 56.12030 of the regulations, 30 C.F.R. § 56.12030 

provides: 

When a potentially dangerous condition 

is found it shall be corrected before 

equipment or wiring is energized. 

The inspector testified that after he issued the citation 

for missing guards discussed supra, he went back to the area to 

see how the employees were corning along in correcting that 

situation (Tr. 66). He inquired whether power was disconnected 

from the electrical motor on the jaw crusher and was told it had 

been (Tr. 67). The foreman and the crusher operator then 

accompanied the inspector to the switchhouse where the electrical 

control boxes were located,(Tr. 66-67). The inspector stated 

that the disconnect handle on the outside of the control box was 

not working and just flopped up and down (Tr. 67-68). The 

crusher operator then opened the box and pulled the inside switch 

down (Tr. 68-69). According to the inspector, contrary to what 

he had been told power had not in fact been disconnected and the 

equipment was energized (Tr. 69). Moreover, a plate that was 

supposed to be inside the box covering wires was missing (Tr. 

69-70). The wires inside the-box were uninsulated, live and 

exposed (Tr. 70, 72-73). The wires carried 480 volts which were 

sufficient to kill or seriously injure anyone who touched them 

(Tr. 72, 90-91). The ·inspector further reported that the wires 

were only 2" from the crusher operator's hand when he reached in 

to pull the inside switch (Tr. 72). The operator's former 

manager did not dispute the inspector's account of what he saw 

(Tr. 98, 104). I accept the inspector's testimony on the 

foregoing matters. 

The condition of the control box including the broken outside handle, missing inside plate and exposed live wires was 

potentially very dangerous. The wires which could cause death or 

serious injury by electrocution were just a few inches away from 

the hand of anyone who would use the inside switch to disconnect 

power. The cited mandatory standard requires that this condition 

be corrected before equipment or wiring is energized. Based upon 

the evidence that power was not disconnected, I find a violation. 

Because of the close proximity of the live and uninsulated 

wires to an individual disconnecting the inside switch as the 

crusher operator did, there was a very real danger of injury or 

death from electrocution. T find the violation was very serious. 

The requirements necessary to support a finding of signif icant and substantial have already been explained. In this instance there was a violation. Second, the danger of electrocution presented a discrete safety hazard. Third, a reasonable 

likelihood existed that the hazard would result in an injury 

because a person's hand inside the box would be only 2" from live 

1207 
wires. 1t would not be at all unusual for an individual to place 

his hand in that dangerous position since the inside switch would 

be used every time power was disconnected (Tr. 80). Tndeed, the 

crusher operator told the inspector that for the past six months 

it had been his practice to shut off power in this manner 

(Tr. 81). Fourth, there was a reasonable likelihood the injury 

would be of a reasonably serious nature since electrocution by 

the 480 volts would cause serious injury or death. Accordingly, 

pursuant to Commission precedent I conclude the violation was 

significant and substantial. 

The violation existed for six months. It was the crusher 

operator's practice to use the inside switch (~r. 81). He did so 

in the presence of not only the inspector but also of his foreman 

who was not surprised, did not dispute this was the procedure 

followed, and did not attempt to stop him (Tr. 82). These circumstances demonstrate that supervision, training and discipline 

were all far from what was required. The negligence of the rank 

and file crusher operator is therefore, attributable to the operator. A. H. Smith Stone Company, 5 FMSHRC 13 (January 1983); 

Som:.hern Ohio Coal Company, 4 FMSHRC 1459 CA.ugust 1982). The 

foreman also was extremely negligent and, as a supervisor, his 

negligence is attributable to the operator. Wilmot Mining 

Company, 9 FMSHRC 684 (April 1987), affirmed in part, reversed 

and remanded in part, per curiam Wilmot Mining Company v. Secretary of Labor, (6 Cir. No. 87-3480) (May 17, 1988). Finally, the 

plant manager who was responsible for all operations was not even 

aware that employees were disconnecting power with the- inside 

switch (~r. 97-98). In light of the foregoing, T find that at 

all levels the operator was highly negligent. 

~he operator's assertion that the main power switch was used 

to disconnect power is without merit. The crusher operator's 

conduct and statements demonstrate that the main was not being 

used to disconnect power C~r. 81). In addition, I do not find it 

plausible that the main would be used in this manner because it 

would be impractical and expensive CTr •. 92-93). 

A violation such as this is cause for great concern. The 

likelihood of grievous bodily harm was very great and the 

operator condoned perilously unsafe practices. 

A penalty of $1,800 is assessed for this violation. 

Citation No. 3045442 

This citation was issued for a violation of 30 C.F.R. 

§ 56.15002 because employees in the plant area were observed not 

wearing hard hats. The original assessment was $168 and the 

recommended settlement is $150. ~he Solicitor explained that the 

violation was significant and substantial as well as serious 

1208 
because employees were working in areas where there was a danger 

of falling materials. According to the Solicitor the operator 

was negligent because the violation was obvious. The Solicitor 

stated he agreed to the slight reduction because the plant was 

not operating at the time the citation was issued (Tr. 12-14). 

At the hearing I accepted the Solicitor's representations and 

approved the recommended settlement (Tr. 14). 

Citation No. 3045444 

This citation was issued for a violation of 30 C.F.R. 

§ 56.9087 because the back-up alarm on the front-end loader was 

inoperative. The original assessment was $147 and the recommended settlement is for the same amount. The Solicitor 

explained that the violation was significant and substantial as 

well as serious because customers and truck drivers in the area 

wer~ subject to a risk of injury. According to the Solicitor the 

operator was negligent because the foreman himself was operating 

the loader (Tr. 14-16). At the hearing I accepted the Solicitor's representations and approved the recommended settlement 

(Tr. 16). 

Citation No. 3045445 

This citation was issued for a violation of 30 C.F.R. 

§ 56.15003 because an employee was observed wearing tennis shoes 

in areas where a hazard·existed which could cause an injury to 

the feet. The original assessment was $74 and the recommended 

settlement is for the same amount. The Solicitor explained that 

the violation was significant and substantial as well as serious 

because of the risks posed to feet by heavy hand-held tools. 

According to the Solicitor the operator was negligent because the 

violation was obvious (Tr. 16-17). At the hearing I accepted the 

Solicitor's representations and approved the recommended 

settlement (Tr. 17). 

Citation No. 3045447 

This citation was issued for a violation of 30 C.F.R. 

§ 56.12016 because two employees were observed working on 

electrically powered equipment without the power switches being 

properly locked out. ~he original assessment was $178 and the 

proposed settlement is $168. The Solicitor explained that the 

violation was significant and substantial as well as serious 

because employees could be injured if the conveyor belt were 

started from push button switches without the employees' knowledge. According to the Solicitor the operator was negligent 

since the foreman observed the condition. ~he Solicitor stated 

that he agreed to the slight reduction because the feared injury 

was not quite as serious as had originally been thought (Tr. 19). 

At the hearing I accepted the Solicitor's representations and 

approved the recommended settlement (Tr. 19). 

1209 
Citation No. 3045448 

This citation was issued for a violation of 30 c.F.R. 

§ 56.16005 because four compressed gas cylinders were not secured. 

At the hearing the operator offered to settle this violation for 

the $20 original assessment and the Solicitor accepted. At the 

hearing I approved the recommended settlement (Tr. 65). 

VA 89-4-M 

Citation No. 2852770 

This citation was issued for a violation of 30 C.F.R. 

§ 56.15003 because employees including the plant superintendent 

were observed not wearing proper footwear in areas where a hazard 

existed which could cause injury to the feet. The original 

assessment was $68 and the settlement is for the same amount. ~he Solicitor explained that the violation was significant and 

substantial as well as serious because hazards to the feet 

existed in the plant at the time the citation was issued. ~mployees were engaged in various tasks using heavy hand-held 

tools. According to the Solicitor the operator was negligent, 

especially since the superintendent himself was not wearing the 

required shoes (Tr. 6-7). At the hearing I accepted the 

Solicitor's representations and approved the recommended 

settlement (Tr. 7). 

Citation No. 2852771 

This citation was issued for a violation of 30 C.P.R. 

§ 5~.16005 because there were two unsecured gas cylinders in the 

area of the primary crusher where four employees were working. ~he original assessment was $157 l/ and the recommended settlement is for the same amount. The-Solicitor explained that the 

violation was significant and substantial.as well as serious 

because the tasks being performed by .. the employees required the 

use of compressed gas (Tr. 8-9). According to the Solicitor the 

operator was negligent, because the superintendent was in the 

area. At the hearing I accepted the Solicitor's representations 

and approved the recommended settlement (Tr. 9). 

Citation No. 2852772 

This citation was issued for a violation of 30 C.F.R. 

§ 56.12016 because employees were observed working on the crusher 

without the electrically powered switches being properly locked 

out and tagged. The original assessment was $178 and the proposed settlement is for the same amount. 'T'he Solicitor explained 

!/ 'J'he transcript erroneously gives the amount as $175 (Tr. 9). 

1210 
the violation was significant and substantial as well as serious 

because the crusher could be inadvertently started while work was 

being performed. According to the Solicitor the operator was 

negligent because the superintendent should have known and probably did know that the employees were working on electrically 

powered equipment C~r. 11). At the hearing I accepted the Solicitor's representations and approved the recommended settlement 

(Tr. 13). 

Order 

Citation No. 3045443 

It is ORDFR~D that the finding of a violation be AFFIRMFD. 

Tt is further ORDRRED that the finding of significant and 

substantial be VACATFD. 

Tt is further ORD~RED that a penalty of $175 be ASSESSED. 

Order No. 3045449 

It is ORDERED that the finding of a violation be AFFIRMED. 

It is further ORDERFD that the finding of significant and 

substantial be AFFIRMED. 

It is further ORDERED that a penalty of $1,800 be ASSESSED. 

Citation Nos. 3045442, 3045444, 3045445, 3045447, 3045448 

2852770, 2852771 and 2852772 

It is ORDPRFD that the recommended settlements for these 

citations be ~PPROVED. 

1211 
ORDER '1'0 PAY 

It is ORDBRF.D that the operator pay the following amounts 

within 30 days from the date of this decision. 

Citation or Order No. 

3045443 

3045449 

3045442 

3045444 

3045445 

3045447 

3045448 

2852770 

2852771 

2852772 

Distribution: 

-

Total 

\~ Paul .Merlin 

Amount 

$175 

$1,800 

$150 

$147 

$74 

$168 

$20 

$68 

$157 

$178 

$2,937 

Chief Administrative Law Judge 

Jack Strausman, Bsq., Office of the Solicitor, u. s. Department 

of Labor, 4015 Wilson Boulevard, Room 516, ~rlington, VA 22203 

(Certified Mail) 

Ms. Lisa M. Wolff, Director of Safety/Government Affairs, A. H. 

Smith Associates, 9101 Railroad Avenue, Branchville, MD 20740 

(Certified Mail) 

/gl 

1212 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

JUN 2 31989 

BEAVER CREEK COAL COMPANY, 

Contestant 

: CONTEST PROCEEDINGS 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

Docket No. WEST 88-84-R 

: Citation No. 3044384; 12/17/87 

. . 

. . 

. . 

Docket No. WEST 88-104-R 

Order No. 3044357; 1/6/88 

Docket No. WEST 88-106-R 

Citation No. 3227085; 1/6/88 

Trail Mountain Mine No. 9 

Mine ID 42-01211 

DECISION 

Appearances: David M. Arnolds, Esq., Beaver Creek Coal Company, 

Denver, Colorado, 

for Contestant; 

Robert J. Murphy, Esq., John J. Matthew, Esq., 

Off ice of the Solicitor, U.S. Department of Labcir, 

Denver, Colorado, 

for Respondent. 

Before: Judge Cetti 

Contestant, Beaver Creek Coal Company, filed Notices of 

Contest on Citation Nos. 3044384, 3044357 and 3227085 in a timely 

manner to initiate contest proceedings which are respectively 

Docket Nos. WEST 88-84-R, WEST 88-104-R and WEST 88-106-R. 

Beaver Creek, however, failed to file the "Blue Cards" with 

respect to those citations which were attached to Proposed 

Assessments. Upon realizing Beaver Creek's failure to file the 

appropriate Blue Cards, the attorney for Beaver Creek filed a 

Motion to Vacate the Orders to Pay on the basis of excusable 

neglect. 

The Federal Mine Safety and Health Review Commission has 

ruled in a similar case Rivco Dredging Corporation v. MSHA, 10 

FMSHRC 624. (May 26, 1988), that the operator should be granted 

relief in that situation "because innocent procedural missteps 

alone should not operate to deny a party the opportunity to 

present its objection to citations." In that case, the operator 

had timely filed a notice of contest relating to the citation but 

failed to contest the civil penalty proposal and the Administrative Law Judge had issued an order of dismissal. In ruling 

1213 
for the operator, the Commission cited Kelley Trucking Co., 

FMSHRC 1867, [MSHC 1223] (December 19, 1986) and M.M. Sundt 

Construction Co., 8 FMSHRC 1269. (4 11171 (September 1986) with 

approval. In Kelley, the Commission stated as follows: 

"As to the substantive aspects of Kelley Trucking's 

request, we have observed repeatedly that default is a 

harsh remedy and that if the defaulting party can make a 

showing of adequate or good cause for the failure to 

respond, the failure may be excused and appropriate proceedings on the merits permitted." 4 MSHC 1225. 

The Commission also quoted in pertinent part the standard 

set forth in Federal Rule of Civil Procedure 60Cb)(l) as follows: 

"On motion and upon such terms as are just, the court may 

relieve a party or his legal representative from a final 

judgment, order, or proceeding for the following reasons: 

• . • mistake, inadvertence, surprise or excusable neglect1 

• • • or • • • any other reason justifying relief from the 

operation of the judgment." (4 MSHC 1225). 

The Secretary in her initial response to the motion to 

vacate order to pay attempted to distinguish Rivco in that there 

the operator was acting pro se and was unaware that it should 

file an objection to the proposed penalty. The Secretary argued 

that Beaver Creek can not claim it misunderstood the requirement 

because Beaver Creek is a large operator which appears regularly 

before the Commission. The Secretary further argues that the 

attorneys for Beaver Creek are experienced, appear regularly 

before the Commission, and are fully aware of the requirements to 

file the blue cards. 

Beaver Creek contends, however, that the Secretary's 

argument fails because it is both factually inaccurate and 

legally wrong. Although Beaver Creek is represented in these 

contests by an attorney, he is new to the coal industry and has 

never handled MSHA matters before. Beaver Creek's attorney did 

not know that, after he initiated a contest proceeding on the 

citations, he would be denied a hearing and remedy if the mine 

personnel failed to file the blue cards that were sent to them. 

MSHA did not send the Notice of proposed assessment to the 

attorney and, therefore, he was unable to respond to it. 

Beaver Creek asserts that the safety supervisor at the mine 

in Price, Utah who received the proposed assessment with the 

blue cards and was responsible for handling them was unaware of 

the procedural requirement of filing blue cards for already 

init.ated contests. The safety supervisor has been in his 

position at Beaver Creek since the middle of 1985 and during his 

tenure, Beaver Creek had contested no citations. In 1986 Beaver 

Creek received four citations, in 1987 it received 13 citations, 

1214 
all of which Beaver Creek considered to be valid. As of March 

29, 1988, the date of the proposed assessment for the citations 

at issue, Beaver Creek had received 95 citations or orders for 

the year 1988. 

Beaver Creek also contends that the Secretary's argument is 

also legally wrong because it ignores the fact that F.R.C.P. 

60{b){l) applies to a party "or his legal representative." 

Therefore, the fact that Beaver Creek is represented by an 

attorney is irrelevant to the issue of whether the ruling in 

Rivco whould be followed. 

The reasoning of the Commission in Rivco, Kelley and Sundt 

plus that of F.R.C.P. 60{b){l) all are focused on the situation 

in which Beaver Creek finds itself. Beaver Creek clearly 

intended to seek review of the subject citations and initiated 

contest proceedings to do so. However, due to the number of 

citations being received, the lack of experience of Beaver 

Creek's people in contesting citations, and the geographical 

distance between the mine in Price, Utah and the attorney's 

office in Denver, Colorado, Beaver Creek admittedly "failed to 

jump through the procedural hoop" of filing the Blue Cards. 

A grant of Beaver Creek's motion does not prejudice MSHA 

because contest proceedings were already pending with respect to 

these citations. 

MSHA's practice of sending the proposed assessment for a 

contested citation, which is in effect a pleading, to the mine 

personnel instead of the attorney, can result in the blue card 

not being filed through no fault of the attorney. Only careful 

coordination between the mine personnel and the attorney could 

ensure that a proposed assessment does not inadvertently slip by 

on a pending contest case. 

The cases were set for hearing on the merits at the same 

place and time as other cases involving the same parties and 

their attorneys were heard on the merits. At the hearing, 

counsel for the Secretary on the record stated the parties had 

reached an agreement and the parties jointly moved for approval 

of the proposed settlement dispositions which provides for 

granting Beaver Creek's motion to vacate the automatic final 

order to pay that resulted from the inadvertent failure to file 

the blue card with respect to the contested citations. The 

agreement also provides as follows: 

Docket No. WEST 88-84-R 

Citation No. 3044384 

This citation alleges a violation of 30 C.F.R. § 75.301. 

The Secretary agreed and moved to redesignate this Citation from 

1215 
Section 104(d}(l} to Section 104Ca} - S & S. Beaver Creek Coal 

Company agreed and moved to withdraw its contest to the newly 

redesignated Section 104(a) - S & S citation and pay the 

Secretary's new proposed penalty of $100.00. 

Citation No. 3044357 

This citation alleges a violation of 30 C.F.R. § 75.316. 

The Secretary agreed and moved to redesignate this Citation from 

Section 104(d}(l} to Section 104(a) - S & S. Beaver Creek Coal 

Company agreed and moved to withdraw its contest to the newly 

redesignated Section 104(a) - S & S citation and pay the Secretary's new proposed penalty of $100.00. 

Docket No. WEST 88-106-R 

Citation No. 3227085 

This citation alleges a violation of 30 C.F.R. § 75.400. 

The citation and Docket No. 106-R were stipulated to be tried 

during the above referenced hearing. Beaver Creek Coal Company 

agreed and moved to withdraw its contest and pay a proposed 

penalty of $50.00. 

Further Discussion 

There was no objection to the motions of the parties. The 

motions are granted. In support of this proposed disposition of 

the cases the parties submitted information pertaining to the six 

statutory civil penalty criteria found in Section llO(i) of the 

Act. After review and consideration of the pleadings, arguments, 

and submissions I find that the proposed disposition is reasonable, appropriate, and in the public interest. 

ORDER 

The joint motion for 

dispositions is granted. 

civil penalty in the sum 

approval of ·the agreed settlement 

The contestant is directed to pay a 

of $250.00 within 30 days of the date of 

this decision. 

a ~ // . - "'-Jr'"'~ . \! (;,_ft-; Aug'1st F. Cett1 

Administrative Law Judge 

1216 
Distribution: 

David M. Arnolds, Esq., 555 Seventeenth Street, Denver, CO 80202 

(Certified Mail) 

Robert J. Murphy, Esq., John Matthew, Esq., Office of the 

Solicitor, U.S. Department of Labor, 1585 Federal Building, 1961 

Stout Street, Denver, CO 80294 (Certified Mail) 

/bls 

1217 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 2 61989 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONSOL PENNSYLVANIA COAL 

COMPANY, 

Respondent 

. . 

. . 

. . 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 88-200 

A.C. No. 36-07230-03541 

: Bailey Mine . . 

. . 

DECISION 

Appearances: Anita D. Eve, Esq., Office of the Solicitor, U.S. 

Department of Labor, Philadelphia, Pennsylvania, 

for the Secretary of Labor (Secretary); 

Michael R. Peelish, Esq., Pittsburgh, Pennsylvania, 

for Consol Pennsylvania Coal Co. (Consol). 

Before: Judge Broderick 

STATEMENT OF THE CASE 

The Secretary seeks a civil penalty for an alleged violation 

of 30 C.F.R. § 75.1101-8(a) which requires that at least one 

water sprinkler be installed above each belt drive, belt take-up, 

electrical control, and gear reducing unit. The Secretary cited 

Consol because it did not have sprinklers installed above nine 

combination belt starter-transformer units. Consol takes the 

position that such units are not electrical control units, but 

rather are power centers and not covered by the regulation. 

Pursuant to notice, the case was heard in Washington, 

Pennsylvania on March 28, 1989. Robert G. Santee testified on 

behalf of the Secretary. John F. Burr and Carl H. Trickett 

testified on behalf of Consol. Consol filed a posthearing brief; 

the Secretary did not. I have considered the entire record and 

the contentions of the parties in making the following decision~ 

FINDINGS OF FACT 

Consol is the owner and operator of an underground coal mine 

in Greene County, Pennsylvania. Consol is a large mine operator, 

producing over 10 million tons of coal annually. The subject 

mine produces over 2 million tons annually. The subject mine has 

a history of 106 paid violations in the 24 months prior to the 

1218 
violation involved herein. None of these prior violations 

involved 30 C.F.R. § 75.1101. This history is not. such that 

penalties otherwise appropriate should be increased because of 

it. 

In the belt entry in the subject mine, there are belt 

drives, drive motors, belt takeups, gear-reducing units, spill 

switches, contractor. controls, on-off switches and fire detection 

systems. These five latter named units are forms of electrical 

controls. The adjacent entry contains a combination unit 

sometimes called a combination belt starter-transformer, and 

sometimes called a combination power center. This unit supplies 

power to the belt entry~ it also contains a belt starter. The 

entry in which this unit is located is separated from the belt 

entry by a permanent stopping. 

In October 1982, Consol filed a Petition for Modification 

under section lOl(c) of the Act requesting that the application 

of 30 C.F.R. § 75.1101-8 be modified to permit the use of a 

single line of automatic sprinklers at all main and secondary 

belt-conveyor drives in the subject mine. Drawings accompained 

the Petition showing the location and configuration of the 

sprinkler system along the belt line, particularly at the belt 

drive and the car spotter areas. Neither the Petition nor the 

drawings referred to or depicted the combination 

belt-starter/transformer units which were not in the belt entry. 

MSHA investigated the Petitioner in November 1984, and a Report 

of Investigation was made January 9, 1985. In June 1985, a 

Proposed Decision and Order was issued by MSHA granting the 

modification. Neither the Investigation Report nor the Decision 

and Order ref erred to the combination belt-starter/transformer 

units. 

On March 31, 1987, Federal mine Inspector Robert Santee 

issued a citation alleging a violation of 30 C.F.R. § 

75.1101-8(a) because combination belt electrical control starter 

transformers in nine locations in the subject mine were not 

provided with at least one water sprinkler. All of these units 

were in entries adjacent to the belt entries. All were housed in 

fireproof structures, vented to the return aircourse. 

Prior to the issuance of the citation referrred to above, 

Consol on February 5, 1987, filed a Petition for Modification of 

30 C.F.R. § 75.1101-8(a) to permit it to install a thermostat 

device inside the belt starter box which would deenergize the 

equipment at a certain temperature. This would be in lieu of an 

overhead sprinkler. The citation was continued during the period 

the Petition was investigated, and was terminated when the 

Petition was granted, on or about March 17, 1988. 

1219 
REGULA.TI ON 

30 C.F.R. 75.1101-S(a} provides: 

Ca} At least one sprinkler shall be installed above 

each belt drive, belt take-up, electrical control, and 

gear reducing unit, and individual sprinklers shall be 

installed at intervals of no more than 8 feet along all 

conveyor branch lines. 

ISSUES 

1. Whether the combination belt-starter-transformer units 

in the subject mine are electrical controls and covered by the 

standard set out above? 

2. If the units are covered, what is the appropriate 

penalty for the violation? 

CONCLUSIONS OF LAW 

Respondent is subject to the provisions of the Mine Safety 

Act in the operation of the subject mine. I have jurisdiction 

over the parties and subject matter of this proceeding. 

The facts in this case are not in dispute. The legal issue 

is a very narrow one: whether the combination belt starter 

transformer units are covered by 30 C.F.R. § 75.1101-S(a} as 

electrical control units. These units are not in the belt entry; 

the entry in which they are placed is separated from the belt 

entry by a permanent stopping. The units have two functions: 

they supply high voltage power to the belt entry, and low voltage 

power to the belt drive. 30 C.F.R. § 75.1105 requires 

underground transformer stations to be housed in fireproof 

structures, and air currents used to ventilate the structures 

must be coursed directly into the return. Belt starter boxes and 

transformers need not be enclosed in the same structure. Where 

they are separate, normally the belt starter box is in the belt 

entry and under the required sprinkler system. The newer units 

are in combination and enclosed in a fireproof structure outside 

of the belt entry. 

The regulations contained in 30 C.F.R. § 1101-1 and 

following were designed to prevent and contain fires primarily in 

underground belt entries where the danger of fire is particularly 

great: the rollers and bearings can get hot; the belt itself can 

burn; oil and grease are present; coal is transported on the 

belt; the belt can slip. For these reasons a sprinkler system is 

required. None of these reasons would support having a sprinkler 

over a belt starter unit which is enclosed in a fireproof 

1220 
structure along with a high voltage transformer, and is located 

outside the belt entry. Furthermore, permitting water to contact 

a high voltage power unit could cause a ground fault which is an 

extremely dangerous condition in an underground coal mine. For 

these reasons, I conclude that the standard contained in 30 

C.F.R. § 75.1101-8(a) was not intended to apply to the 

combination belt starter-transformer units involved in this case. 

Therefore, I conclude that the violation charged in the citation 

did not occur, and the citation must be vacated. 

ORDER 

Based on the above findings of fact and conclusions of law, 

IT IS ORDERED: 

Citation 2684504 issued March 31, 1987, is VACATED, and no 

penalty may be assessed. 

' ' l !~~~:: 11:::~:~~:-rd( · Administrative Law Judge 

Distribution: 

Anita D. Eve, Esq., U.S .• Department of Labor, Office of the 

Solicitor, 3535 Market Street, Phlladelphia, PA 19104 (Certified 

Mail) 

Michael R. Peelish, Esq., Consol Pennsylvania Coal Co., 1800 

Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

slk 

1221 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June· 27, 1989 

SFCRF.T~RY OF LABOR, CIVIL PENALTY PROC~EDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA}, 

Petitioner 

Docket No. SE 89-51-M 

A. C. No. 40-02968-05502 

v. . . Moltan Company 

MOL't'AN COMPANY, 

Respondent 

Before: 

DISAPPROVAL OF SETTLEMENT 

PARTIAL APPROVAL OF SETTLEMENT 

Judge Merlin 

This case involves two violations. Citation No. 3253027 was 

originally assessed at $20 and T approve the settlement for this 

item. 

Eowever, T am unable to approve the recommended settlement 

for Citation No. 03252473 which was originally assessed at $98 

and for which $20 now is the recommended settlement. 'rhe 

Solicitor advises as follows regarding this item: 

"* * * the No. 1 cooler control electrical cabinet's three circuit breakers and six 

starter relays could only be operated and/or 

reset by opening the cabinet door and reaching inside the cabinet. Rmployees thus 

exposed themselves to the bare 480 volt 

terminals and conductor ends inside the 

cabinet." 

I recently considered a comparable situation in A. H. Smith 

Stone Company, 11 FMSHRC dated June 22, 1989 (copy 

enclosed), wherein it was shown that 480 volts would cause 

serious injury or death. ~ penalty of $1,800 was assessed in 

that case. The Solicitor has provided no basis for her 

representation that in this instance occurrence of an accident 

would be unlikely. 

'rhe parties should be aware that I have repeatedly held that 

significant and substantial is not synonymous with gravity for 

purposes of determining an appropriate penalty assessment. 

~. H. Smith Stone Company, supra. 

1222 
Tn light of the foregoing, it is ORDBRFD that the $20 settlem~nt for Citation No. 3253027 be APPROV'PD and that the operator 

pay $20 within 30 days from the date of this order. 

It is further ORDBRFD that within 30 days from the date of 

this order the Solicitor submit information sufficient to support 

her settlement recommendation for Citation No. 3252473. 

Paul Merlin 

Chief Administrative Law Judge 

l"nclosure: 

Oistribution: 

G. Blaine Smith, ~sq., Office of the Solicitor, U. S. Department 

of Labor, 2002 Richard Jones ~oad, Suite B-201, Nashville, TN 

37215 (Certified Mail> 

Mr. Rdward J. Lucas, Moltan Company, Post Office Box 9, 

Middleton, KY 38052 (Certified Mail) 

/gl 

1223 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 2 91989 

JAMES L. WOODY, 

Complainant 

v. 

CLINCHFIELD COAL COMPANY, 

Respondent 

DECISION 

DISCRIMINATION PROCEEDING 

Docket No. VA 89-14-D 

Moss No. 3 Prep Plant 

Appearances: Jerry O. Talton, Esq., Front Royal, Virginia, for 

Complainant; w. Challen Walling, Esq., Penn, 

Stuart, Eskridge & Jones, Bristol, Virginia, 

for Respondent. 

Before: Judge Broderick 

STATEMENT OF THE CASE 

Complainant contends that he was discriminated against in 

violation of section lOSCc) of the Federal Mine Safety and Health 

Act of 1977 (the Act), 30 u.s.c. § 815(c), in that he was 

required to work beyond his regular shift on August 4, 1988. 

Respondent denied that Complainant suffered any adverse action 

and asserted that if he did, it was not because of activity 

protected under the Act. Pretrial discovery was had, and both 

parties responded to my prehearing order. Pursuant to notice the 

case was heard on the merits in Abingdon, Virginia, on April 25, 

1989. Billy L. Bise, James L. Woody, Jerry D. Hearl, and 

James w. Hicks testified on behalf of Complainant; Thomas Asbury, 

Danny Lee Cromer, Samuel Glen Sanders, and John Bel, Jr., 

testified on behalf of Respondent. Both parties have filed post 

hearing briefs. I have considered the entire record and the 

contentions of the parties, and make the following decision. 

FINDINGS OF FACT 

I 

At all times pertinent hereto, Respondent was the owner and 

operator of a coal mine in the State of Virginia known as the 

Moss No. 3 Preparation Plant. Complainant was employed by 

Respondent at the Preparation Plant as a boom shack operator and 

was a miner as defined in the Act. Complainant worked at the 

mine for approximately 28 years. The preparation plant is one of 

1224 
the largest such facilities in the country. 

approximately 150 people, and processes and 

approximately three-and-a-half million tons 

year period. 

II 

It employs 

ships out 

of coal in a three 

In the latter part of 1987, Complainant Woody and others 

complained on several occasions about excessive dust in their 

working area. When the amount of coal·coming from the mine to 

the preparation plant is reduced, the dryer (part of the prep 

plant) will, unless its heat is reduced, over-dry the coal. The 

result is excessive dust in the area. During such periods, the 

dust severely limited Woody's vision from the boom shack. It 

also resulted in respirable dust entering the boom shack where 

Woody worked. On December 15, 1987, Woody and two other miners 

filed a grievance alleging that Clinchf ield had not controlled 

the dust problem at the loading out area. Woody complained that 

on December 14, 1987, the dust was so bad he could not see to 

load the railroad cars. A meeting was held concerning the 

grievance on January 19, 1988. Four company representatives, two 

union representatives and the three grievants attended. 

Respondent presented a written dust control plan which was 

accepted by the union as a settlement of the grievance. Woody 

testified that the condition was "a lot better" after the meeting 

(Tr. 127). However, he also testified that "some days it (the 

dust control plan) works, some days it doesn't." (Tr. 122) No 

further grievances were filed and no section 103(g) complaints 

were filed with the Mine Safety and Health Administration 

alleging a dust violation. 

III 

Beginning in late 1987, miners in the subject plant worked a 

mandatory six day week. Coal was processed five days a week and 

the sixth day (Saturday) was devoted to maintenance. Prior to 

that time, work on Saturday and Sunday was voluntary. The 

workers were paid time-and-a-half for Saturday work and double 

time for Sunday work. A sufficient number of workers volunteered 

for overtime or Sunday work to enable Respondent to maintain its 

five day coal production schedule. At some time in 1987 or 1988, 

the number of employees volunteering for Sunday work declined; 

this resulted in Respondent establishing what was called a 

mandatory overtime policy. This policy referred only to work 

beyond the normal work day of 7-1/2 or 8 hours. Saturday work 

was being performed as a matter of course. A notice was posted 

notifying the employees that all employees were subject to 

mandatory overtime effective August 1, 1987. (RX3) The policy 

was not implemented until the summer of 1988, when the number of 

volunteers for overtime and Sunday work sharply fell off. 

1225 
IV 

Complainant Woody is 60 years of age. He has worked for 

Respondent almost 29 years. He is a member of the United Mine 

Workers of America. He has been an officer in the union and was 

mine committeeman until 1984. He worked the majority of 

Saturdays and 13 Sundays in 1987. In 1988, he worked 20 

Saturdays and two· Sundays; however, he only worked one additional 

overtime hour (beyond his normal workday) in 1987 and 4-1/2 such 

hours in 1988. 

v 

The Union objected to the mandatory overtime policy 

established in 1987, and prepared a protest form. CCXl) Woody 

and most of the union employees signed the forms and submitted 

them to management. Among other things the form advised 

management "that because of the unsafe conditions which the 

extended day will create, I contend that this policy of 

involuntary overtime interferes with my safety rights under the 

Federal Mine Safety and Health Act. If my health and safety are 

jeopardized by this policy, I may file a 105(c) discrimination 

complaint ••• under the authority of Eldrige v. Sunfire Coal 

Company, 5 FMSHRC 4 8 O (19 83) • " 

VI 

Beginning in July 1988, the mandatory overtime policy was 

implemented at the preparation plant. This was done because of 

large orders for coal, higher than normal absenteeism, the 

failure of employees to volunteer for overtime and other factors. 

Woody was scheduled to work four hours C 4 p .m. to 8 p .m.) on 

Thursday, August 4, 1988 CRX7). When the schedule was posted, 

Woody protested to his immediate supervisor and to the acting 

plant superintendent. He also protested to the union safety 

committeeman, telling him that he had doctors' statements 

excusing him from working overtime. The Safety Committeeman 

asked Sam Sanders, the Plant Superintendent on August 3 for a 

meeting on the matter. Sanders said he would review the doctors' 

statements and tell Woody the next morning of his decision. The 

letters (Comp. Ex. 13 and 14) were addressed to Sanders. 

Dr. James Cross concluded that if possible Woody should not work 

more than 8 hours per day and that 11 12 hour days ••• I feel 

would cause excessive fatigue, aggravation of his hiatal hernia, 

increased anxiety, and deterioration of his health." Dr. W.A. 

Davis stated that in his opinion Woody "is able to work eight 

hours a day for six days a week but • • . is not able to work 12 

hours a day, due to his physical condition and his age." Sanders 

was not satisfied with the reports, and he called Dr. Davis. 

1226 
Davis told him that Woody had requested that he write the letter 

because Woody did not feel like working over eight hours and 

"felt exhausted if he worked over eight hours." (Tr. 281) Based 

on the letters and this conversation, Sanders concluded that 

there was no bona fide medical reason for Woody not working 

overtime. He so notified woody during the morning shift. At the 

conclusion of the shift, Sanders met with Woody and the mine 

committee, and the evening shift foreman. Sanders repeated his 

decision, and Woody reacted angrily. When Woody threatened to go 

home and not work the overtime, Sanders told him that before he 

returned to work, he would have to bring a doctor's slip stating 

that he was "100 percent able to perform [his] ••• work." (Tr. 

290). Woody took this to mean that he had to work overtime or be 

discharged. For this reason, he went to the job and worked the 

remaining 3 or 3-1/2 hours (the meeting took 30 to 45 minutes, 

and Woody was permitted to leave 30 minutes early because he did 

not take a lunch hour). He was paid four hours at the overtime 

rate. His work involved cleaning and washing the tipple floor 

with a water hose. The hose was approximately 1-1/4 or 1-1/2 

inches in diameter. The floor was wet and slippery. He returned 

to his regular work in the boom shack the following day, and was 

not requested to work beyond his 8 hour day thereafter. 

VII 

As a boom shack operator, woody worked in an enclosed area, 

operating levers to fill railroad cars with coal coming from the 

dryers. The work does not involve heavy lifting or other 

strenuous activity. When he worked on Saturdays or other 

overtime hours, he had various duties, including washing and 

cleaning the tipple floor, cleaning track, working on pumps or 

other machinery. Some of the work is strenuous. There are 

normal mining hazards in connection with some of it. Woody has a 

hiatal hernia, and had surgery for the removal of polyps in July 

1988. He also complained of the symptoms of an ulcer. He 

testified that after he worked his regular shift on Saturdays, he 

was exhausted and had to rest all day Sunday. 

ISSUES 

1. Did complainant Woody suffer adverse action by being 

required to work 4 hours overtime on August 4, 1988? 

2. If he did, was the adverse action the result of activity 

protected under the Mine Act? 

3. If it was, what are the appropriate remedies? 

1227 
CONCLUSIONS OF LAW 

I 

Complainant and Respondent are subject to and protected by 

the provisions of the Mine Act, complainant as a miner and 

Respondent as a mine operator. I have jurisdiction over the 

parties and subject matter of this proceeding. 

Under the Act, a miner establishes a prima facie case of 

discrimination if he proves that Cl> he was engaged in protected 

activity, and (2) was subjected to adverse action, which (3) was 

motivated in any part by the protected activity. 

Secretary/Fasula v. Consolidation Coal Co., 2 FMSHRC 2786 (1980), 

rev'd on other grounds sub nom. Consolidation Coal Co. v. 

Marshall, 663 F.2d 1211 (3rd Cir. 1981); Secretary/Robinette v. 

United Castle Coal Co., 3 FMSHRC 803 (1981). The mine operator 

may rebut the prima facie case by showing either that no 

protected activity occurred or that the adverse action was not 

motivated in any part by the protected activity. If the operator 

cannot rebut the orima facie case in this manner, it may defend 

affirmatively by proving that it was also motivated by the 

miner's unprotected activity, and would have taken the adverse 

action for that activity in any event. 

II 

Complainant Woody was not discharged, did not lose any pay, 

was not reprimanded or otherwise disciplined. So £ar as the 

record shows, his personnel file does not contain any reference 

to the incident involved here. He was required to work 4 hours 

overtime to which he objected ostensibly for health reasons. But 

he did work and was paid for the work. So far as the record 

shows, he did not suffer any ill effects and no safety problems 

were encountered. He returned to his regular work the following 

day and worked continually until the mine went on strike April 5, 

1989. 

For many personal reasons Woody disliked working overtime. 

The Union objected on behalf of all its members to the mandatory 

overtime policy of the operator. But neither Woody's distaste 

nor the Union's objection establishes an adverse action. Had 

Woody refused to work the 4 hours overtime and been disciplined, 

he would have suffered adverse action and, if he could show that 

it was related to protected activity, could make out a prima 

facie case of discrimination. But the facts are that he did not 

refuse, and was not disciplined. I conclude that Complainant 

James Woody has failed to show that adverse action was visited on 

him when he was required to work overtime on August 4, 1988. 

1228 
III 

Assuming that requiring Woody to work 4 hours overtime 

constituted adverse action, the next question is whether it 

resulted in any part from activity protected under the Mine Act. 

Complaints of excessive dust detailed in Findings of Fact II 

above clearly constitute protected activity. Refusal to work is 

protected if it results from a good faith reasonable belief that 

the work is unsafe or unhealthful. Pasula, supra. Refusal to 

perform overtime work because of a reasonable good faith belief 

that a miner's physical and mental exhaustion would present a 

safety hazard to himself and others is protected. Eldridge v. 

Sunfire Coal Company, 5 FMSHRC 408 (1983) CALJ). Cf. 

Secretary/Bryant v. Clinchfield Coal Company, 4 FMSHRC 1379 

( 19 8 2 ) ( ALJ ) • 

IV 

There is no credible evidence that Respondent's requiring 

Woody to work overtime on August 4, 1988, was in any way related 

to his complaints of excessive dust in 1987 and thereafter. I 

conclude that it was not. 

v 

Complainant objected to the overtime work because he 

believed that his age, poor health and physical exhaustion, would 

result in safety hazards to himself or his co-workers. Although 

the objection to mandatory overtime was sponsored by the union, 

and Respondent tried to create the inference that woody was a 

front or stalking horse for the union, I conclude that 

Complainant Woody's objections to the overtime were made in the 

good faith belief that his health would be endangered. The work 

Woody was asked to perform on August 4, 1988 after his shift was 

not more onerous or hazardous than the work he normally performed 

on Saturdays.. There was nothing about the nature of the work 

that created special hazards, nor is the discrete (4 hours) 

period of overtime so onerous as to create health or safety 

problems per se. I conclude that in the terms of the Mine Act, 

complainant's objection to overtime work though made in good 

faith was not reasonably related to a health or safety hazard. 

VI 

For all the above reasons, I conclude that Complainant has 

failed to establish that he was subjected to adverse action 

because of activity protected under the Mine Act. 

1229 
ORDER 

Based on the above findings of fact and conclusions of law 

IT IS ORDERED that the complaint of discrimination filed herein 

is DISMISSED. 

Distribution: 

*·VIAP~"':, .4Jd11cfe_1,;tfl 

() ~ames A. Broderick 

Administrative Law Judge 

Jerry O. Talton, Esq., 222 East Main Street, Front Royal, VA 

22630 (Certified Mail) 

Mr. James L. Woody, P.O. Box 284, Castlewood, VA 24224 (Certified 

Mail) 

W. Challen Walling, Esq., Penn, Stuart, Eskridge & Jones, P.O. 

Box 2009, Bristol, VA 24203 (Certified Mail) 

Mr. Sam Sanders, Superintendent, Clinchfield Coal Company, Prep 

Plant, P.O. Box 4000, Lebanon, VA 24266 (Certified Mail) 

slk 

-ttU .s. Government Printing Office: 1989-241-155/04757 12 3 Q