MARCH 1997

COMMISSION DECISIONS AND ORPERS
03-07-97
03-12-97
03-12-97
03-12-97
03-14-97
03-17-97
03-19-97
03-27-97
03-31-97

Whayne Supply Company
Kellys Creek Resources, Inc.
Del Rio, Inc.
Amax Coal ·company
Broken Hill Mining Company
Jim Walter Resources, Inc.
Eastern Associated Coal Corp.
Jim Walter Resources, Inc.
Sec . Labor on behalf of Kenneth Hannah
et al. v. Consolidation Coal Co.

KENT 94-518-R

94-639
KENT 97-138
LAKE 94-197
KENT 94-1199
SE
94-74
WEVA 97-81
SE
95 - 459

Pg .
Pg.
Pg.
Pg .
Pg.
Pg .
Pg .
Pg.

LAKE 94-704-D

Pg . 506

CENT 96-91-M

Pg . 509

LAKE 94-704-D
WEVA 95-194-M
CENT 96-123-M
CENT 96-123-M
KENT 94 - 518-R
KENT 96-269-D
WEST 96-253
CENT 96-10-M
YORK 96-24-M
94 - 639
SE
YORK 94-51-M
LAKE 96-146-DM
PENN 96-221

Pg.
Pg.
Pg .
Pg .
Pg.
Pg.
Pg.
Pg.
Pg.
Pg.
Pg.
Pg.
Pg .

WEVA 97-52

Pg. 659

KENT 95 - 604-D

Pg. 661

SE

447
457
467
470
477
480
494
498

ADMINISTRATIVE LAW JUPGE DECISIONS
03-06-97
03-06-97
03-07 - 97
03-10-97
03-21-97
03-12-97
03-12-97
03-12-97
03-18-97
03-20-97
03-26 - 97
03-26-97
03-28-97
03-31-97

New Mexico Potash Corporation
Sec. Labor on behalf of Kenneth Hannah
et al . v. Consolidation Coal Co.
Capitol Cement Corporation
Southern Refractories, Inc.
Southern Refractories (Correction)
Whayne Supply Company
Steve Napier v. Bledsoe Coal Corp.
S & M Construction Inc.
Bob Bak Construction
Advance Stone Incorporated
Kellys Creek Resources Inc.
Buffalo Crushed Stone
James C. Tysar v. Akzo Nobel Salt, Inc .
Lion Mining Company

525
531
539
554
555
556
566
582
616
618
620
625
651

APMINIST&ATIYE LAW JUPGE ORPERS
03-20-97
03-24-97

Eastern Associated Coal Corp.
Sec. Labor on behalf of Lonnie
Bowling v . Mountain Top Trucking

i

KARCH

1997

Review was granted in the following case 4uring the month of March;
Secretary of Labor, MSHA v. Medusa Cement Corporation, Docket Nos.
PENN 97-20-RM, PENN 97-25-RM.
(Interlocutory Review of Judge Feldman's
December 2, 1996 Order.)
Secretary of Labor, MSHA v. Broken Hill Mining Company, Docket Nos.
KENT 94-1199, KENT 94-1200, KENT 95-240, KENT 95-310.
(Judge Maurer,
February 14, 1997.)
Secretary of Labor, MSHA v. Williams Natural Gas Company, Docket Nos.
CENT 96-124-M, CENT 96-158-M .
(Judge Feldman, February 7, 1997.)
United Mine Workers of America on behalf of William K. Burgess, et al.
v. Secretary of Labor, et al . , Docket Nos . SE 96-367-D, SE 97-18-D.
(Judge Bulluck, February 11, 1997 . )
Secretary of Labor, MSHA v . Bellefonte Lime Company, Docket No. PENN 95-467-M.
(Judge Weisberger, February 26, 1997.)
Secretary of Labor on behalf of Kenneth Hannah, et al. v. Consolidation Coal
Company, Docket No. LAKE 94-704-D.
(Judge Melick, March 6, 1997. February 18,
1997 petition denied, March 28, 1997 petition granted.)

No cases were filed in which review was denied 4uring the month of March;

ii

COMMISSION DECISIONS AND ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

March 7, 199 7

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket Nos.

WHAYNE SUPPLY COMPANY

KENT 94-518-R
KENT 94-519-R
KENT 95-556

BEFORE: Jordan, Chairman; Marks and Riley, Commissioners'

DECISION
BY THE COMMISSION:
These consolidated contest and civil penalty proceedings, arising under the Federal Mine
Safety and Health Act of 1977,30 U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"), raise the
question whether a violation of30 C.F.R. § 77.405(b'f by Whayne Supply Company
("Whayne"), which led to the death of a miner, resulted from the operator's unwarrantable
failure. Administrative Law Judge Arthur Amchan determined that the miner was not Whayne's
agent, that his conduct was nevertheless imputable to the operator because ofWhayne's lack of
supervision and training of the miner, but that his conduct was not sufficiently aggravated to
support a finding of unwarrantable failure. 17 FMSHRC 1573 (September 1995) (ALJ). The
Commission granted the Secretary's petition for discretionary review challenging the negative
unwarrantable failure determination. 3 For the reasons set forth below, we vacate and remand.

1

Pursuant to section 113(c) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 823(c), this panel of three Commissioners has been designated to exercise the powers of
the Commission.
2

Section 77 .405(b) provides:
No work shall be performed under machinery or equipment
that has been raised until such machinery or equipment has been
securely blocked in position.

3

The judge also determined that the operator did not violate the on-shift inspection
requirement contained in 30 C.F.R. § 77.1713(a). 17 FMSHRC at 1583-84. The Secretary has
not appealed that determination.

447

I.
Factual and Procedural Backiround
Whayne is a contractor that sells and services Caterpillar machinery and equipment in
Kentucky and Indiana. 17 FMSHRC at 1575. On January 19, 1994, Whayne dispatched James
Paul Blanton, an experienced field service technician with 16 years of service with Whayne, to
Addington Mining Inc.'s Job #17A, a surface coal mine in Pike County, Kentucky. ld at 157475; Tr. 244. On January 20, Blanton drove his Whayne truck to Job # 17A. 17 FMSHRC at
1575. The truck was equipped with a crane (or "boom"), chain and cable "come-along" for
securing raised loads. Jd. at 1575, 1577. Addington personnel directed Blanton to repair a
disabled Caterpillar Dl'ON bulldozer. ld. at 1575. Blanton examined the D10N dozer and
concluded that the torque converter was defective and needed to be removed. 17 FMSHRC at
1575; Tr. 155-56.
In order to gain access to the torque converter on the D10N bulldozer, one of three belly
pans on the underside of the dozer had to be lowered. 17 FMSHRC at 1575 n.2. The belly pan is
hinged on one side and secured to the bulldozer by three bolts each on two other sides. !d.; Tr.
51. When the belly pan is freed from the bolts, it swings down on its hinge. ld. The belly pan
weighs about 500 lbs. 17 FMSHRC at 1576.
The normal practice for removing the belly pan in the field is to first dig a trench and
place the vehicle over it. Tr. 61-62. Then a chain is run from the crane on the truck, passed
under the belly pan and attached to the opposite bulldozer track to prevent the pan from falling
abruptly when the bolts are loosened. 17 FMSHRC at 1575. An alternate method involves use
of the come-along to secure a cable beneath the pan. ld. at 1577. After the pan is loosened from
the bolts, the crane or come-along is used to slacken the restraint and allow the belly pan to safely
swing open. ld. at 1575; Tr. 79-80, 160.
Consistent with this procedure, Addington employees dug a trench and then pushed the
bulldozer over it so Blanton could begin removing the torque converter. 17 FMSHRC at 1575;
Tr. 62-66. Blanton moved his truck so that the right rear portion, where the crane was located,
was next to the bulldozer. 17 FMSHRC at 1575. The Addington employees left Blanton alone
to repair the bulldozer. !d. at 1575-76. Shortly before noon, Blanton was discovered pinned
under the belly pan, which had swung down on its hinges. ld. at ~576 . Blanton was pulled from
underneath the bulldozer but could not be revived, and probably died at the scene. ld.; Tr. 71-73,
138-39. Before the pan fell, Blanton had removed the nuts securing the pan to the bolts. Tr. 7374; Gov't Ex. 6, p.4, ~4. In addition to the nuts, an air hose, air gun or air wrench, power drill,
socket and screwdriver were discovered under the dozer at the time of the accident. Tr. 27-28,
73-74, 139-40, 158. There was no evidence that Blanton had attempted to secure the belly pan
with the crane and chain, cable come-along, or any other device. 17 FMSHRC at 1576. The
crane was not "on," and was not extended, but instead was in the "down" position. Tr. 227-28.

448

Whayne gives its field mechanics general verbal instructions to minimize the time spent
under raised equipment; however, its employees receive no formal training regarding the proper
procedures for lowering belly pans in the field, nor does Whayne maintain a written policy on
this subject. 17 FMSHRC at 1579; Tr. 216, 218, 349. Whayne did supply formal training on
removing belly pans when the vehicle is in the shop; however, the procedure for removing belly
pans in the shop differs from that used in the field. Tr. 216-17,344-45,383-85.
Whayne hires experienced mechanics for its field service positions, and relies heavily on
on-the-job training for these employees. 17 FMSHRC at 1579. New field mechanics begin as
"helpers" and are assigned to jobs with more experienced field technicians. Tr. 208-09, 372.
After gaining experience in the field, field mechanics may be assigned to jobs alone, or with less
experienced helpers. ld The field mechanic tells the helper what to do when they get to the job.
Tr. 245. Whayne field mechanics are dispatched by and receive ·performance evaluations from
the field service foreman, a supervisor. Tr. 242-45, 254. Field mechanics are dispatched to a
customer's premises, and assigned by the customer to work on a particular piece of equipment.
Tr. 212-13. Whayne field mechanics are not supervised by mining company employees while on
mine property. ld The field mechanic evaluates the problem and corrects it, without direct
supervision from the field service foreman. Tr. 209, 254.
. MSHA inspector Buster Stewart issued several citations and orders to Addington and
Whayne on January 25, including Citation No. 4011760 to Whayne under section 104(d)(1) of
the Act, 30 U.S.C. § 814(d)(1), for violating section 77.405(b). Gov't Ex. 6, p.5. The citation
alleged that blocking was not provided by Whayne to secure the belly pan. Gov't Ex. 3. Stewart
also drafted an Accident Investigation Report, which stated, inter alia: "The cause of the
accident was the failure to use blocking material to prevent movement of the belly pan while
work was in progress." Gov't Ex. 6, p.3.
Following an evidentiary hearing, the judge concluded that Whayne violated section
77.405(b).4 17 FMSHRC at 1577. He ruled that any negligence on Blanton's part could be
"imputed" to the operator if the operator has not "taken reasonable steps to prevent the rank-andfile miner's violative conduct." ld. at 1578. The judge found that, although Blanton was not a
"supervisory employee," his negligence could be imputed to Whayne because the operator did
not take "such reasonable steps in training and supervising Blanton[] that it should be completely
absolved of responsibility for his violative conduct .... " ld. at 1578-79. Examining Blanton's
conduct in light of his finding that "Blanton's actions did not compromise the safety of others,"
the judge found that Blanton's conduct "defie[d] explanation" and characterized it as "'thoughtless,' rather than 'inexcusable or aggravated.'" ld at 1580 & n.6. He concluded that Blanton's

4

The judge found that the crane on Blanton's truck was working on the morning of
January 20. 17 FMSHRC at 1576. The Secretary does not challenge this finding.

449

negligence did not rise to the level of unwarrantable failure. Jd s The judge rejected the Secretary's proposed $50,000 penalty. ld at 1582. Characterizing Whayne's negligence as "moderate,'' considering "both the 'thoughtlessness' of Mr. Blanton and the lack of formal training
provided by Whayne Supply regarding belly pan removal[,]" the judge assessed a civil penalty of
$1500. ld

II.
Disposition
The Secretary argues that, although the judge correctly determined Blanton's negligence
was imputable to the operator due to Whayne's failure to properly train and supervise, the judge
erred in failing to impute negligence on the ground that Blanton was Whayne's agent. S. Br. at
5-6. The Secretary contends that Blanton was authorized· by Whayne to act on its behalf at the
mine site, that experienced Whayne technicians "supervise themselves" on the job, and that they
are therefore agents ofWhayne. Id at 8-11. The Secretary asserts that Blanton's conduct was
well within the definition of aggravated conduct in that it was deliberate, the hazard was obvious,
and the condition created was extremely hazardous. ld at 11-15. He argues the judge's negative
unwarrantable failure determination is inconsistent with his finding that Blanton's conduct defied
explanation, and that ~he number of miners put at risk by the conduct in question is not determinative. ld at 15-16. The Secretary asks that the Commission remand the matter for assessment
of an appropriate civil penalty. ld at 17.
Whayne responds that, inasmuch as the citation never charged it with responsibility for
Blanton's negligence, it would be a breach of due process to increase the magnitude of the
violation by reinstating the unwarrantable designation. W. Br. at 10-12. Whayne contends that
Blanton was exercising the normal responsibilities of his rank-and-file position of field mechanic
at the time of the accident, and was in no meaningful sense an agent of the operator at any
relevant time. ld at 13-25. Whayne asserts that, assuming arguendo Blanton's status as
Whayne's agent, a comparison of the conduct ofWhayne and Blanton shows that Blanton was
principally responsible for the accident, and it would therefore be unfair to disturb the judge's
negative unwarrantable failure conclusion as to Whayne. !d. at 25-31. Finally, Whayne argues
that the Commission should upho.Jd the judge's penalty assessment. ld at 32-36.
A.

Unwarrantable Failure

Under section 104(d)(1) of the Act, the Secretary is authorized to issue a citation
specifying that a violation was "caused by an unwarrantable failure of [an] operator to comply

s In another holding not challenged by the Secretary, the judge concluded that section
77 .405(b) does not require the use of cribbing or two chains. 17 FMSHRC 1580-82.

450

with ... mandatory health or safety standards . . . ." 30 U.S.C. § 814(d)(1). It is well settled that
"an agent's conduct may be imputed to the operator for unwarrantable failure purposes."
Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (February 1991) ("R&P"). However,
in the context of evaluating negligence for penalty assessment purposes, the Commission has
held that "(t]he conduct of a rank-and-file miner is not imputable to the operator." Fort Scott
Fertilizer-Cullor, Inc., 17 FMSHRC 1112, 1116 (July 1995). In analyzing a miner's duties to
determine whether he is an agent, the Commission examines whether the miner was exercising
managerial or supervisory responsibilities at ~e time the negligent conduct occurred. U.S. Coal,
Inc., 17 FMSHRC 1684, 1688 (October 1995).
The Secretary bases his contention that Blanton was Whayne's agent on the grounds that
(1) Blanton worked "mainly on his own without management supervision out in the field," had
"the responsibility and discretion while on the job to determine the problem and to take care of it
without supervisory intervention or guidance" and essentially supervised himself, (2) he was
hired with prior experience, "thereby not receiving any formal training from Whayne," (3) he did
not receive performance appraisals, (4) "he sometimes supervised junior technicians on bigger
jobs," and (5) "Whayne guarantees the labor of its field mechanics[.]" S. Br. at 9-10. The
Secretary seeks to distinguish U.S. Coal on the basis that, in the present case, Blanton and the
other Whayne field mechanics were "responsible for the operation of that part of the mine which
the repairs were to be made." S. Br. at 9-10 n.4.
We reject the Secretary's argument as lacking legal and evidentiary support. Although
the record evidence indicates that Blanton was a highly experienced repairperson who needed
little supervision and helped less experienced employees, this does not convert him into a
supervisor, much less a manager. Cf NLRB v. Aquatech, Inc., 926 F.2d 538, 549 (6th Cir. 1991)
("Although it is true that [the employee's] considerable experience allowed him to train and
guide workers in the performance of their jobs, ·'[a]n individual does not become a supervisor
merely because he possesses greater skills and job responsibilities than his fellow employees"')
(quoting NLRB v. Lauren Mfg. Co., 712 F.2d 245,248 (6th Cir. 1983)).6 In addition, there is no
evidence that Blanton exercised any of the traditional indicia of supervisory responsibility such
as the power to hire, discipline, transfer, or evaluate employees. Nor was there evidence that
Blanton "controlled" the mine or a portion thereof; rather, he merely carried out routine duties
involving the repair of Caterpillar machinery. His duties for Whayne carried out at the customer's premises are consistent with those of a·non-supervisory leadperson.7

In addition, Blanton was covered by a union co~tract and therefore presumably part of a
collective bargaining unit from which supervisors are excluded. Tr. 369, 374; see 29 U.S.C.
§§ 152(3), 159(a).
6

7

The Secretary's assertions that Blanton was not trained by Whayne, and did not receive
performance appraisals, are inaccurate. In addition to the on-the-job training Blanton would have
received on removing belly pans in the field, the record shows that Whayne field technicians
received formal training on repair in the shop and from Caterpillar itself. Tr. 216- 17,255-56.

451

Moreover, if Blanton were considered supervisory on the basis of his duty to evaluate a
given problem and ·effect a repair without checking frrst with his supervisor, potentially all repair
personnel would fall into this category. The essence of the repair function is to evaluate a
problem and fix it. An employee need not check in with his supervisor at specified intervals in
order to maintain his non-supervisory status.
The Secretary's assertion that Whayne's warranty of its field mechanics' work converts
them into agents is also unpersuasive. As Whayne cogently points out (W. Br. at 21), an
assembly-line worker may contribute to the production of a product that her employer warrants,
and her employer may have to pay out. under the warranty based on the employee' s error, but this
does not confer the status of agent on the worker.
In any event, as the Secretary concedes (S. Br. at 10 n.4), at the time the accident
occurred, Blanton was performing the routine duties of a rank-and-file field mechanic. Thus,
under US. Coal, Blanton was not an agent of the operator whose negligent conduct may be
imputed to the operator. We find unsupported by record evidence the Secretary' s attempt to
distinguish US. Coal by comparing Blanton with a section foreman. Blanton was alone and not
supervising any employees at the time of the accident.
In sum, substantial evidence supports the judge's conclusion that Blanton was not a
supervisory employee. We therefore affirm the judge' s conclusion that Blanton's conduct may
not be imputed to Whayne on the basis of agency. 8
2.

Whayne's Conduct

Although an operator is not liable for aggravated conduct based on the actions of a rankand-file miner, it may nevertheless be held responsible for an unwarrantable failure based on its
own conduct. In Southern Ohio Coal Co., 4 FMSHRC 1459 (August 1982) ("SOCCO"), the
Commission stated that, in the context of evaluating operator conduct for the purposes of penalty
assessment,
where a rank-and-file employee has violated the Act, the operator 's supervision, training and disciplining of its employees must

Further, although Blanton's evaluation was not based on his supervisor's direct review of his
work, his supervisor did evaluate Blanton based on feed~ack from customers and co-workers.
Tr. 254.
8

The judge merely noted that "Blanton was not a supervisory employee," without a
further finding that he was not in any other sense an agent of Whayne. 17 FMSHRC at 1578.
Such a conclusion is implied, however, by his reasoning that Blanton's conduct may be examined
only on account ofWhayne's own negligence. Id at 1578-79.

452

be examined to determine if the operator has taken reasonable
steps to prevent the rank-and-file miner's violative conduct.

/d. at 1464 (emphasis in original). Although the Commission has not expressly held this doctrine
applicable to the examination of operator conduct for unwarrantable failure detenninations, its
applicability in the unwarrantable failure context was implied by the holding in R&P that the
conduct of a rank-and-file miner who acts as the operator's agent is imputable to the operator for
unwarrantable failure purposes. Holding the operator responsible for its supervision, training and
disciplining of employees is consistent with section 104(d)(1) of the Mine Act, which provides
that a violation "caused by an unwarrantable failure ofsuch operator" shall be so recorded on the
citation.
The judge, however, mistakenly viewed SOCCO as announcing a theory of imputed
liability. 17 FMSHRC at 1578. Based on this perspective, the judge, fmding that Whayne was to
some degree responsible for Blanton's conduct, went on to analyze Blanton's actions to
determine whether the operator had acted unwarrantably. /d. at 1578-80. On review, the
Secretary has adopted the judge's framework. He does not quarrel with the judge's view that,
under SOCCO, a rank-and-file miner's conduct may be "imputed" to the operator. Nor does the
Secretary dispute the judge's characterization ofWhayne's supervision and training of employ·
ees,9 or claim that Whayne's conduct, in and ofitself, constituted aggravated conduct or more
than ordinary negligence. Rather, he argues that the judge erred in evaluating Blanton's conduct
as being less than aggravated. S. Br. at 15-16.

9

The judge's characterization ofWhayne's conduct was vague. He stated that Blanton's
negligence should be imputed to Whayne "because the record does not establish that Whayne
Supply took such reasonable steps in training and supervising Blanton, that it should be completely absolved of responsibility for his violative conduct for negligence and penalty purposes."
17 FMSHRC at 1578-79. He went on to hold that "[i]n the absence of training in the proper
procedure, the failure of a technician to secure the belly pan was not completely beyond Whayne
Supply's control." ld. at 1579. In evaluating the operator's negligence for penalty assessment
purposes, the judge stated:
The Secretary, in its narrative findings for a special assessment,
characterizes Whayne Supply's negligence as "high." I would
characterize it as "moderate." This assessment considers both the
"thoughtlessness" of Mr. Blanton and the lack of formal training
provided by Whayne Supply regarding belly pan removal. While I
conclude that Whayne Supply may have relied too much on Mr.
Blanton's prior experience, it certainly was not a ridiculous assumption that he knew not to place himself under a belly pan after
the bolts had been loosened.

ld. at 1582.

453

We think the approach of the Secretary and the judge amounts to bootstrapping a
conclusion of unwarrantable failure based on a rank-and-filer's conduct which, under Commission precedent, should not have been imputed to the operator. ·Nothing in SOCCO sanctions the
imputation of negligence to the operator in these circumstances. Instead, SOCCO clearly focuses
on the operator's conduct, while making clear that the rank-and-file miner's conduct may not,
absent agency, be imputed to the operator.
Because the judge misstated the law of unwarrantable failure and failed to analyze the
unwarrantable failure i~sue by focusing on Whayne's, as opposed to Blanton's, conduct, we
vacate the judge's decision with respect to the issues of unwarrantable failure and penalty, and
remand on the present record for analysis ofWhayne's conduct in light of its training and
supervision of Blanton. 10

B.

Remand

The judge's civil penalty assessment was infected with the same error that tainted his
unwarrantable failure conclusion: he analyzed the negligence criterion with reference to both the
conduct of Whayne and that of Blanton. On remand, in accordance with SOCCO, the judge must
take care when assessing the civil penalty to examine only the operator 's conduct.

10

Given our disposition, we do not reach the question whether Blanton's conduct
constituted more than ordinary negligence.

454

III.
Conclusion
For the foregoing reasons, we vacate the judge's negative unwarrantable failure determination and penalty assessment, and remand to the Chief Administrative Law Judge for reassignment, 11 reanalysis and penalty assessment, on the present record, consistent with this opinion.

•
Marc Lincoln Marks, Commissioner

,,;,.;:.=~ -~~· :.. -._ •• •.

11

Judge Amchan has transferred to another agency.

455

Distribution

Yoora Kim, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Andrew J. Russell, Esq.
Smith & Smith
400 North, First Trust Centre
200 South Fifth Street
Louisville, KY 40202-3238
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

jhe

456

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

March 12, 1997

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 94-639

V.

KELL YS CREEK RESOURCES, INC.

BEFORE: Jordan, Chairman: Marks and Riley, Commissioners'

DECISION
BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety and Health Act of
1977,30 U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"). At issue is Commission
Administrative Law Judge Avram Weisberger's decision that the conceded violation by Kellys
Creek Resources, Inc. ("Kellys Creek") of30 C.F.R. § 75.388(a)(2),2 involving the failure to drill
required boreholes, was not significant and substantial ("S&S") or the result of the operator's
1

Pursuant to section 113(c) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 823(c), this panel of three Commissioners.has been designated to exercise the powers of
the Commission.
2

Section 75.388(a) provides:
Boreholes shall be drilled in each advancing working place
when the working place approaches-(1) To within 50 feet of any area located in the mine as
shown by surveys that are certified by a registered engineer or
registered surveyor unless the area has been preshift examined;
(2) To within 200 feet of any area located in the mine not
shown by surveys that are certified by a registered engineer or
registered surveyor unless the area has been preshift examined; or
(3) To within 200 feet of any mine workings of an adjacent
mine located in the same coalbed unless the mine workings have
been preshift examined.

457

unwarrantable failure. 3 17 FMSHRC 1325 (August 1995) (ALJ). The Commission granted the
Secretary's petitio~). for discretionary review. For the reasons that follow, we reverse the judge's
determinations that the violation of section 75.388(a)(2) was not. S&S or the result of an
unwarrantable failure on the part of Kellys Creek, and remand this matter for penalty
reassessment.

I.
Factual and Procedural Background
Kellys Creek operated the No. 78 Mine in Whitwell, Tennessee. Tr. 12. On January 27,
1994, while using conventional mining, it inadvertently cut through from a working place into an
adjacent sealed mine area. 17 FMSHRC at 1326; Tr. 17, 35. The flame in the safety lamp of
foreman Jerry McGowan was extinguished when the cut-through occurred. Tr. 27-28. Because
that was an indication that the oxygen level at the cut-through had fallen below 16%, the miners
were immediately withdrawn from the mine and the local Mine Safety and Health Administration
('"MSHA") office notified of the incident. Tr. 16-17, 19, 27-28.
Tommy Frizzell, then a Coal Mine Inspector and Ventilation Specialist in MSHA's
Jaspar, Tennessee, field office, went to the mine that day . 17 FMSHRC at 1326; Tr. 9, 19-20.
Before entering the mine, Inspector Frizzell examined maps of the mine area in question at the
Kellys Creek office trailer. Tr. 21-27, 30.
The sealed area in question was shown on the mine map then in effect to be an abandoned
mine that had been previously sealed at three locations. Tr. 17-19, 46-47; Gov't Exs. 5, SA.
Most of the boundaries of the worked-out areas of the abandoned mine were denoted on the map
by solid lines, but certain boundaries were denoted by brQken lines, including some which were
shown as being within 200 feet of the January 27, 1994 working place. Tr. 43-44; Gov't Exs. 5,
SA. Hollis Rogers, Kellys Creek's President, estimated that, at the time of the cut-through,
mining operations were 90 feet away from the area denoted by broken lines. 17 FMSHRC at
1326-27; Tr. 124. The map confirmed Rogers' estimate. Tr. 44-45.
Once Inspector Frizzell was within 200 feet of the cut-through, he began inspecting the
ribs for test boreholes. 17 FMSHRC at 1326; Tr. 32-33. When he found none, he asked foreman
McGowan why boreholes had not been drilled in advance ofthe work. 17 FMSHRC at 1327; Tr.
38. McGowan told Inspector Frizzell that Rogers said "he didn't have to drill those test holes
until he got within 50 feet of that area." 17 FMSHRC at 1327. Inspector Frizzell eventually
3

The S&S terminology is taken from section 104(d) of the Mine Act, 30 U.S.C.
§ 814(d), which distinguishes as more serious in nature any violation that "could significantly
and substantially contribute to the cause and effect of a ... mine safety or health hazard." The
unwarrantable failure terminology is also taken from section 104(d) of the Act and refers to more
serious conduct by an operator in connection with a violation.

458

determined that a cut the full width of the working place, approximately 17 Y2 feet wide, had
been made, which resulted in a hole into the sealed area measuring 3 feet wide and 6 to 8 inches
high. 17 FMSHRC at 1326; Tr. 34-36.
Inspector Frizzell issued a citation alleging that Kellys Creek had violated section
75.388(a)(2) by fai ling to drill boreholes as the working place approached within 200 feet of an
area of the mine not shown by certified surveys. 17 FMSHRC at 1326. The inspector designated
the violation S&S and the result of the operator's unwarrantable failure. Gov't Ex. 4.
The operator stipulated to the violation. 17 FMSHRC at 1326. With respect to the S&S
issue, the judge held that the likelihood of an injury-producing event, such as a fire, explosion, or
exposure to low oxygen, would depend upon the manner in which the continuous miner was
being operated, its distance to the sealed area, and the presence in the sealed area of low oxygen
and explosive methane. !d. at 1328. Because the judge found those factors operated
independently of failure to drill boreholes, he concluded the Secretary had not established that an
injury-producing event was likely to have occurred as a result of the violation, and that the
violation was therefore not S&S. !d. With respect to the allegation of unwarrantable failure, the
judge concluded that the Secretary had also not established that the operator's negligence rose to
the level of aggravated conduct. Id. at 1327. The judge refused to accept as conclusive Inspector
Frizzell's testimony that the broken lines are a universal mine map symbol used by engineers that
indicated the area in question was uncertified, and noted that on the mine map legend in this case
a broken line was being used to indicate a line curtain. Id. at 1326-27. In addition, the judge was
persuaded by evidence that the operator thought that only the 50-foot standard of section
75.388(a)(l) was applicable in this instance. ld. at 1327.
The Commission granted the Secretary's petition for discretionary review, which
challenged the judge's findings that the violation of section 75.388(a)(2) was not S&S or the
result of the operator's unwarrantable failure. 4
II.
Disposition

The Secretary contends that the judge erred in his analysis of whether the violation was
S&S by failing to address evidence showing that exposing miners to an environment devoid of
the requisite boreholes was reasonably likely to result in an injury-producing event. S. Br. at 5.
He alleges that exposing mine personnel to an atmosphere deficient in oxygen could reasonably
4

Kellys Creek did not participate in the case beyond the trial stage. The record shows
that Kellys Creek ceased operations approximately 2 months before the hearing took place. Tr.

119.

459

be expected to result in serious injury and even death, and that in the instant case there was
evidence of a low level of oxygen. Id. at 5-6. The Secretary also warns that the unplanned cutthrough could have resulted in an inundation of water or methane, raising the possibility of an
explosion. ld. at 6.
A violation is S&S if, based on the particular facts surrounding the violation, there exists
a reasonable likelihood that the hazard contributed to will result in an injury or illness of a
reasonably serious nature. Cement Div., Nat 'I Gypsum Co., 3 FMSHRC 822, 825 (April 1981 ).
In Mathies Coal Co., 6 FMSHRC 1 (January 1984), the Commission further explained:
In order to establish that a violation of a mandatory safety
standard is significant and substantial under National Gypsum, the
Secretary of Labor must prove: ( 1) the underlying violation of a
mandatory safety standard; (2) a discrete safety hazard -- that is, a
measure of danger to safety-- contributed to by the violation; (3) a
reasonable likelihood that the hazard contributed to will result in
an injury; and (4) a reasonable likelihood that the injury in question
will be of a reasonably serious nature.
/d. at 3-4 (footnote omitted). See also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 135 (7th
Cir. 1995); Austin Power, Inc. v. Secretary of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving
Mathies criteria). An evaluation of the reasonable likelihood of injury should be made assuming
continued normal mining operations. U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (August
1985).

The first and second elements of the Mathies criteria have been established, as the judge
found that Kellys Creek violated section 75.388(a)(2) and thereby contributed to a measure of
danger to safety. 17 FMSHRC at 1327. The issue on review is whether substantial evidence
supports the judge's conclusion that the Secretary failed to establish the third element of Mathies,
the reasonable likelihood of an injury-producing event.5
By tying the S&S determination solely to an analysis of the reasonable likelihood of
injury resulting from low oxygen or methane ignition, the judge misapprehended the prophylactic
purpose of the borehole requirement. The borehole drilling requirements of section 75.388 track
5

The Commission is bound by the substantial evidence test when reviewing an
administrative law judge's factual determinations. 30 U.S.C. § 823(d)(2)(A)(ii)(l). "Substantial
evidence" means "such relevant evidence as a reasonable mind might accept as adequate to
support [the judge's] conclusion." Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163
(November 1989) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197,229 (1938)). In
reviewing the whole record, an appellate tribunal must consider anything in the record that "fairly
detracts" from the weight of the evidence that supports a challenged fmding. Universal Camera
Corp. v. NLRB, 340 U.S. 474,488 (1951).

460

and expand upon those imposed by section 317(b) of the Mine Act, 30 U .S.C. § 877(b). The
borehole provision was originally enacted in the Federal Coal Mine Health and Safety Act of
1969, 30 U.S.C. § 801 et seq. (1976), and carried over without change to the Mine Act. Its
legislative history is short, but telling: "The necessity of maintaining drill holes in advance of the
face in any working place approaching abandoned mine openings known or suspected to contain
dangerous quantities of water or noxious or explosive ga~es is obvious and such holes are
required by law in many coal-mining States." S. Rep. No. 411 , 91st Cong., lst Sess. 84 (1969),
reprinted in Senate Subcommittee on Labor, Committee on Labor and Public Welfare, 94th
Cong., 1st Sess., Part I Legislative History ofthe Federal Coal Mine Health and Safety Act of
1969, at 210 (1975).
Inspector Frizzell testified at trial that the purpose of borehole drilling in the vicinity of a
sealed mine area is to attempt to safely detect in the sealed area the presence of water or an
atmosphere containing methane or an abnormally low level of oxygen, referred to as
"blackdamp." 17 FMSHRC at 1327; Tr. 79-80.6 He explained that if water, methane, or
blackdamp were to escape in an unplanned cut-through in sufficient quantities, the result could
be fatal to miners in the area. 17 FMSHRC at 1327; Tr. 80-82. Thus the 50-foot and 200-foot
requirements of section 75.388(a) are essentially safety zones, with the size of the zone
dependent upon the degree of certainty regarding the boundaries of the inaccessible area.
The text of section 75.388(a) makes plain that the borehole drilling requirements apply in
lieu of the preshift examination required by 30 C.F.R. § 75.360, which by its nature cannot take
place in inaccessible areas of a mine, such as areas that have been sealed off from a mine's active
workings. In its twin goals of preventing entry into sealed areas containing unknown hazards and
promoting the timely ascertainment of those hazards, section 75.388 is similar in function to the
preshift examination requirement; both standards seek to prevent the exposure of miners to
undetermined hazards. In Buck Creek Coal Co., 17 FMSHRC 8, 13-15 (January 1995), the
Commission, describing the preshift examination requirement as one "of fundamental
importance in assuring a safe working environment underground," held that a preshift violation
was S&S irrespective of the absence of a specific hazardous condition disclosed upon the
inspector's examination of the mine.
Here, substantial record evidence establishes both the violation of the prophylactic

6

When a borehole penetrates an area of the mine that cannot be examined, a certified
person is required to determine, if possible: ( 1) airflow direction in the borehole; (2) the pressure
differential between the penetrated area and the mine workings; (3) the concentrations of
methane, oxygen, carbon monoxide, and carbon dioxide; and (4) whether water is impounded
within the penetrated area. 30 C.F.R. § 75.388(d). Moreover, concern that blackdamp,
accumulations of water, or concentrations of dangerous gases, such as methane, may lurk behind
sealed areas of a mine prompted MSHA to require that a sampling pipe or pipes, as well as a
water pipe, be installed as part of each mine seal constructed after November 15, 1992. 30
C.F.R. § 75.335.

461

borehole standard and presence of one of the hazards against which the standard is designed to
protect: exposure of miners to dangerously low levels of oxygen. Had the operator been drilling
boreholes within 200 feet of the area denoted on the mine map by broken lines, as required by
section 75.388(a)(2), the IJear boundary of the sealed area would have been ascertained, the
miners would have been safely alerted to the presence of low oxygen within that area, and the
unplanned cut-through would have been avoided.
While 30 C.F.R. § 75.32l(a)(1) requires an oxygen content of at least 19.5% in any mine
area where persons work or travel, Inspector Frizzell testified that the oxygen level in the sealed
area in question had been measured almost 3 months earlier at I 0.68%. Tr. 75-78; Gov't Ex. 9.
The cut-through was extensive enough that the flame in the foreman's safety lamp was
extinguished when the cut-through occurred, indicating that the oxygen level at the cut-through
had fallen below 16%. Tr. 27-28. Oxygen levels less than the required level constitute
substantial evidence of a reasonable likelihood of an injury-producing event occurring. The
dangers of low oxygen are. well-known and obvious. 7
Accordingly, we reverse the judge's determination that the third Mathies element was
not established by the Secretary.8 In addition, given the dangers outlined above, we find that the
fourth element of Mathies has also been established, as injuries resulting from the hazard posed
were reasonably likely to be of a reasonably serious nature.
B.

Unwarrantable Failure

The Secretary argues that the judge erred in his analysis of the unwarrantable failure issue
by failing to address material record evidence regarding the extent of the violation cited. S. Br. at
7-8. He asserts that the judge also failed to consider the operator's past history of compliance
problems. !d. at 8. The Secretary also contends that the judge failed to take into account the
operator's knowledge of the requirements for compliance with the standard in question,
maintaining that the operator's specific experience and expertise in the field of mining should
have alerted him to the dangers of unplanned cut-throughs. !d.

7

Miners exposed to air containing less than 16% oxygen may experience dizziness, a
buzzing in the ears, blurred vision, rapid heartbeat, and headaches. 1 Training Manual for
Miners: Underground Mining 160 (Nicholas P. Chironis ed., 1980).
8

Commissioner Marks states that reversal and a finding of S&S is appropriate because
the risk to the miners' health and safety was neither purely technical nor remote or speculative.
Furthermore, and as indicated in his concurring opinion in U.S. Steel Mining Co., 18 FMSHRC
862, 868-75 (June 1996), notwithstanding his present adherence to the construction of S&S as set
forth in Alabama By-Products Corp., 7 IBMA 85 (November 1976), the case expressly cited with
approval in the Senate Committee Report on the 1977 Mine Act (S. Rep. No. 181, 95th Cong.,
1st Sess. 31 ( 1977)), he continues to "remain open to revisit this issue after it has been
thoroughly briefed and argued." U.S. Steel, 18 FMSHRC at 875 n.6.

462

In Emery Mining Corp., 9 FMSHRC 1997 (December .1987), the Commission determined
that unwarrantable failure is aggravated conduct constituting more than ordinary negligence. /d.
at 2001. Unwarrantable failure is characterized by such conduct as "reckless disregard,"
"intentional misconduct," "indifference," or a "serious lack of reasonable care." /d. at 2003-04;
Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 193-94 (February 1991 ).
Substantial evidence does not support the judge's finding that the operator's negligence
did not constitute aggravated conduct. 17 FMSHRC at 1327. In making that finding, the judge
failed to take into account the high degree of danger posed by a violation of the borehole drilling
requirements. The Commission has relied upon the high degree of danger posed by a violation to
support an unwarrantable failure finding. See, e.g., Midwest Material Co., 19 FMSHRC 30, 34
(January 1997) (citing cases).
The Commission's treatment of unwarrantable failure in the context of the analogous
preshift examination requirements is instructive. In Buck Creek, the Commission held that the
failure to comply with preshift examination requirements "was the result of aggravated conduct,
constituting more than ordinary negligence" because "(b]y sending miners underground
prematurely, Buck Creek exhibited 'the serious lack of reasonable care' that constitutes
unwarrantable failure." 17 FMSHRC at 15 (quoting Cyprus Plateau Mining Corp., 16 FMSHRC
1610, 1616 (August 1994)).
Given that the borehole drilling requirements are designed to substitute for a preshift
examination when the latter is not possible, we conclude that, by failing to comply with the
borehole drilling requirements, Kellys·Creek exhibited a simi"lar "serious lack of reasonable
care." That failure to comply led to the dispatching of miners underground to mine coal in an
area adjacent to a sealed mine whose boundaries were uncertain and whose oxygen level had
been measured less than 3 months earlier at 10.68%, a level which borders on the deadly range.
Tr. 75-78.
We are not persuaded by the operator's defense that its agents thought they were in
compliance with applicable law. In Cyprus Plateau, 16 FMSHRC at 1615-16, the Commission
held that if an operator acted on the good-faith belief that its cited conduct was actually in
compliance with applicable law, and that belief was objectively reasonable under the
circumstances, the operator's conduct will not be considered to be the result of an unwarrantable
failure when it is later determined that the operator's belief was in error. See also Wyoming Fuel
Co., 16 FMSHRC 1618, 1628-29 (August 1994) (operator's conduct was not aggravated where
judge implicitly found that operator's good faith belief that it was in compliance with regulations
was reasonable under circumstances), aff'd, 81 F.3d 173 (lOth Cir. 1996) (unpublished table
decision); Consolidation Coal Co., 18 FMSHRC 1541, 1549 (September 1996) (examining
reasonableness of operator's interpretation of regulation offered as defense to unwarrantable
failure allegation).
The record in this case establishes that the operator believed the 50-foot standard of

463

section 75.388(a)(1) applied, instead of the 200-foot standard of section 75.388(a)(2). 17
FMSHRC at 1327. The Secretary did not challenge the good faith of the operator's belief, so we
turn to the question whether the operator's belief was reasonable.
If the mine map in effect on January 27, 1994 established that all parts of the sealed area
within 200 feet of the working place were "shown by surveys that are certified by a registered
engineer or registered surveyor," borehole drilling was only necessary within 50 feet of the sealed
area, pursuant to section 75.388(a)(l ). However, if any part of the sealed area within 200 feet of
the working place was "not shown by surveys that are certified by a registered engineer or
registered surveyor," drilling should have begun 200 feet in advance of the uncertified or
unsurveyed area under section 75.388(a)(2). Thus, for the operator to reasonably believe that the
50-foot provision applied, it would have to reasonably believe that it was not within 200 feet of
an uncertified or unsurveyed area.
At trial, to establish that the operator should have known that its mining operations had
advanced within 200 feet of an uncertified area, the Secretary relied entirely on Inspector
Frizzell's testimony that the broken lines within the sealed area on the mine map are a universal
symbol used to indicate an area that was not certified as accurate. 17 FMSHRC at 1326; Tr. 3839, 43-44, 91. However, the judge correctly found that the legend on the MSHA-approved map
being used by the operator indicated that broken lines were meant to signify a line curtain. 17
FMSHRC at 1327; Gov't Ex. 5. Read literally, therefore, the map did nothing to put the operator
on notice that it was mining near an uncertified area.
The operator, however, was not reading the map literally. From Rogers' testimony it is
apparent that he did not rely on the map legend in determining at what point section 75.388
would be applicable. Rather, Rogers believed that the broken lines represented an area in which
surveyors could not "adequately" survey because an area of gob, or loose rock within the gob
area, prevented them from entering any further. 17 fMSHRC at l327; Tr. 120-21.9 The
Secretary claims that such an understanding is the equivalent of knowing that the area was not
certified as having been accurately surveyed, because "[i]f surveyors and engineers could not
enter the area in question, it follows that surveying and certifying were virtually impossible." S.
Br. at 9.
We agree with the Seeretary on this point. The import of Rogers' testimony is that he
recognized that, with respect to the portion of the sealed area denoted by broken lines, the gob
prevented a complete survey from being undertaken. In this case the mine map showed that the
area recognized by Rogers as the gob area was between the seals and that part of the perimeter of
the sealed area near which Kellys Creek was mining. Gov't Ex. 5. In addition, the map contains
It is not surpri~ing that Rogers did not interpret the broken lines to indicate a line
curtain, as it would be unusual for a line curtain to be within a sealed area of a mine. In addition,
a post-citation version of the mine map did include the word "GOB" within the broken lines in
question. Tr. 50-52; Gov't Exs. 6, 6A.
9

464

no survey marks between the gob area and the area being mined. /d. Thus, not only should the
map have alerted Rogers that the· extent of the gob area was uncertain, but it should also have
meant to him that it was impossible to know with certainty the exact boundary of that part of the
sealed area. Accordingly, Rogers should have recognized that there was no way of knowing
from the map exactly how close to the sealed area Kellys Creek was mining. Under these
circumstances, we conclude that it was unreasonable for Rogers to believe that the 50-foot
standard of section 75.388(a)(.l) applied instead of the 200-foot standard of section 75.388(a)(2).
That belief therefore cannot serve as a defense to the unwarrantable failure charge. We
accordingly reverse the judge' s determination that the violation was not the result of the
operator' s unwarrantable failure.
III.

Conclusion
For the foregoing reasons, we reverse the judge' s determinations that the violation of
section 75.388(a)(2) was not S&S or the result of unwarrantable failure by Kellys Creek. We
conclude that the violation was S&S and unwarrantable, convert the section 104(a) violation to a
section 104(d)(l) violation, and remand this case for assessment of an appropriate civil penalty in
light of our S&S and unwarrantable failure determinations.

Marc Lincoln Marks, Commissioner

ames C. Riley, Commissioner

465

Distribution

Cheryl C. Blair-Kijewski, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Hollis Rogers, President
Kellys Creek Resources, Inc.
Route 4, Box 662
Whitwell, 1N 37397
Administrative Law Judge Avram Weisberger
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

jhe

466

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

March 12, 199 7

SECRETARY OF LABOR;
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. KENT 97-138
A.C. No. 15-17432-03541

V.

DEL RIO, INC.

BEFORE: Jordan, Chairman; Marks and Riley, Commissioners 1

ORDER

BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 80i et seq. (1994) ("Mine Act"). On February 24, 1997, the Commission received from Del
Rio, Inc. ("Del Rio") a request to reopen a penalty assessment that had become a final order of
the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). It has been
administratively determined that the Secretary of Labor does not oppose the motion for relief
filed by Del Rio.
Under section 105(a) of the Mine Act, an operator has 30 days following receipt of the
Secretary of Labor's proposed penalty assessment within which to notify the Secretary that it
wishes to contest the proposed penalty. If the operator fails to notify the Secretary, the proposed
penalty assessment is deemed a final order of the Commission. 30 U.S.C. § 815(a).
Del Rio states that it mailed its request for a hearing ("Green Card") to the Department of
Labor's Mine Safety and Health Administration ("MSHA") one week late because the card was

1

Pursuant to section 113(c) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 823(c), this panel of three Commissioners has been designated to exercise the powers of
the Commission.

467

inadvertently misfiled in its accounts payable file and the error was not discovered until after the
expiration of the 30-day period for submitting the Green Card. Del Rio requests the Commission
to reopen this matter and accept its late-filed Green Card.
The Commission has held that, in appropriate circwnstances and pursuant to Fed. R. Civ.
P. 60(b), it possesses jurisdiction to reopen uncontested assessments that have become final
under section 105(a). . Jim Walter Resources, Inc., 15 FMSHRC 782,786-89 (May 1993); Rocky
Hollow Coal Co., 16 FMSHRC 1931, 1932 (September 1994).
The Commission has observed 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 timely respond, the case
may be reopened and appropriate proceedings on the merits permitted. See Coal Preparation
Services, Inc., 17 FMSHRC 1529, 1530 (September 1995). In accordance with Rule 60(b)(1),
the Commission has previously afforded a party relief fmm a final order of the Commission on
the basis of inadvertence or mistake. See General Chemical Corp., 18 FMSHRC 704, 705 (May
1996); Kinross DeLamar Mining Co., 18 FMSHRC 1590, 1591-92 (September 1996).
On the basis of the present record, we are unable to evaluate the merits of Del Rio's
position. In the interest of justice, we remand the matter for assignment to a judge to determine
whether Del Rio has met the criteria for relief under Rule 60(b). If the judge determines that
such relief is appropriate, this case shall proceed pursuant to the Mine Act and the Commission's
Procedural Rules, 29 C.F.R. Part 2700.

Marc Lincoln Marks, Commissioner

468

Distribution

Michael Roan
Del Rio, Inc.
P.O. Box 2218
Middlesboro, KY 40965

W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

469

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

March 12, 1997

SECRETARY OF .LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. LAKE 94-197

V.

AMAX COAL COMPANY

BEFORE: Jordan, Chairman; Marks and Riley, Commissi.oners1

DECISION
BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"). At issue is a citation issued by the
Department of Labor's Mine Safety and Health Administration ("MSHA") charging AMAX Coal
Company ("AMAX'') with violating 30 C.F.R . § 77.201 2 when the methane reading in an aboveground structure exceeded 1 percent. Former Commission Administrative Law Judge Arthur
Amchan concluded that AMAX did not violate section 77.201 and vacated the citation. 17
FMSHRC 48 (January 1995) (ALJ). The Commission granted the Secretary of Labor's petition
for discretionary review challenging the judge' s dismissal of the citation. For the reasons that
follow, we reverse the judge and remand the case for further proceedings.

1

Pursuant to section 1 J3(c) of the Federal Mine Safety and Health Act of 1977, 30
U.S. C. § 823(c), this panel of three Commissioners has been designated to exercise the powers of
the Commission.
2

Section 77.201 provides, "The methane content in the air of any structure, enclosure or
other facility shall be less than 1.0 volume per centum."

470

I.
Factual and Procedural Background

On February 7, 1994, MSHA Inspector Arthur Wooten entered the "head house" that was
on top of Silo No. 1 at the Wabash Mine. 17 FMSHRC at 49. Silo No. 1 is used to store clean
coal after preparation prior to shipping. ld The house, which is approximately 16 by 20 feet, is
enclosed and contains electrical equipment, including a 4160-volt conveyor belt, a 220 volt
lubrication system, 480 v9lt heaters, and 120 volt lighting circuits. ld at 50; Tr. 22, 30. The
conveyor which carries coal to the silo enters the head house through an enclosure before
dumping the coal through an opening into the silo. Tr. 48; Ex. R-50. The head house is
constructed with tin sheeting placed over a steel framework. 17 FMSHRC at 50. The floor of
the house is approximately 6 feet above the roof of the silo. ld The roof of the silo has several
holes in it for ventilation and access. ld AMAX tests for methane in the head house on every
shift. ld In the twenty years that the house had been located on the silo, neither AMAX nor
MSHA had ever detected measurable amounts of methane. Id
As Wooten entered the head house, his methane detector activated, indicating a methane
concentration in excess of 1 percent. Wooten took several readings that ranged from .4 to 1. 4
percent. The highest readings were found near a light switch and the opening where the conveyor
dumps coal into the silo. Both locations are about 3Yz feet off the floor and about 1 foot away
from the sides. AMAX's Safety Director, Charles Burggraf, who accompanied Wooten, opened
several doors to dilute the methane, and the methane concentration dropped below 1 percent. Id
at49.
Previously, on January 13, 1994, AMAX had experienced a brief ignition at the base of
Silo No. I, where coal was loaded into railroad cars. On February 1, another MSHA inspector
had detected a methane concentration of 3.1 percent at the train loading area, about 200 feet
below the head house. The next day -- the same day as the citation at issue -- the methane
concentration at that location was 4 percent. ld at 50.
Wooten issued a citation alleging a violation of section 77.201. ld at 49. Wooten
designated the citation significant and substantial (S&S). !d. at 50. In order to abate the
violation, he required AMAX to remove two sides of the house to keep concentrations of
methane below 1 percent. ld at 49. AMAX accomplished this by shutting down its preparation
plant and moving its five employees to the silo where they removed the head house sides. Id
AMAX challenged the penalty assessment, and the case went to hearing. In his decision,
the judge stated that the plain language of section 77.201 indicates that a methane reading of 1
percent or more establishes a violation. ld at 50. However, the judge agreed with AMAX that
the regulation must be read in context with other parts of section 77.201 and the Secretary's

471

enforcement policy for the provisions relating to methane accumulations in underground coal
mines. ld Section 77.201-2 specifies the corrective action that ·an operator is required to take
when methane readings are 1 percent or higher. 3 The Secretary's Program Policy Manual
guidelines for 30 C.P.R. § 75.323 4 specifies that an operator is in violation only if it fails to take
corrective action when methane readings exceed 1 percent in underground coal mines. 17
FMSHRC at 51. The judge found that "any interpretation of 77.201 that makes a per se violation
of a methane concentration of one percent or more to be an unreasonable one, to which I need not
defer." ld at 51 . Because there was no evidence that AMAX either failed to act prudently to
anticipate the presence of excessive methane or failed to take appropriate and timely corrective
action, the judge vacated the citation. ld at 51-52. ·

3

Section 77.201-2 provides:
If, at any time, the air in any structure, enclosure or other facility
contains 1.0 volume per centum or more of methane changes or
adjustments in the ventilation of such installation shall be made at
once so that the air shall contain less than 1. 0 volume per centum of
methane.

4

Section 75.323, which pertains to methane accumulations in underground coal mines,
provides in pertinent part:
(b) Working places and intake air courses. (1) When 1.0
percent or more methane is present in a working place or an intake
air course, including an air course in which a belt conveyor is
located, or in an area where mechanized mining equipment is being
installed or removed-(i) Except intrinsically safe atmospheric monitoring systems
(AMS), electrically powered equipment in the affected area shall be
deenergized, and other mechanized equipment shall be shut off;
(ii) Changes or adjustments shall be made to the ventilation
system to reduce the concentration of methane to less than 1.0
percent; and
(iii) No other work shall be permitted in the affected area until the
methane concentration is less than 1.0 percent.

472

n.
Disposition
The Secretary states that the main issue in this proceeding is whether the judge failed to
give plain meaning to the regulation. S. Br. at 1, 4-6. The Secretary argues that, by invalidating
the plain meaning of the regulation, the judge essentially acted outside his jurisdiction by engaging
in rulemaking under the Administrative Procedure Act. ld at 6-7. The Secretary further argues
that, even if the meaning of section 77.201 is not plain and unambiguous, the judge failed to defer
to the Secretary's reasonable interpretation of the regulation. ld at 7-11. The Secretary contends
that, by interpreting section 77.201 to require remedial action, the judge made superfluous the
corrective steps described in section 77.201-1s and 77.201-2. ld. at 11-12. The Secretary
contends that the judge's reliance on the Program Policy Manual guidelines for section 75.323 is
misplaced because that section is dissimilar to section 77.201 . !d. at 12-13. The Secretary
explains that the regulations regarding underground mines differ from those involving surface
structures because there is a "nonstatic environment" in underground mines, while conditions in
surface structures that give rise to methane accumulations are in the operator's control. ld. at 1314.6 Finally, in response to AMAX's arguments, the Secretary argues that his interpretation of
the regulation is entitled to deference, even though the interpretation was enunciated for the first
time in litigation, and that the Commission has no independent policy making role under the Mine
Act. S. Rep. Br. at 1-5.
AMAX's primary argument on review is that section 77.201 must be read together with
other parts of the standard. A. Br. at 6-8. AMAX argues that section 77.201 "is merely a
generalized goal within the standard." ld at 8 n. 4. Further, AMAX asserts that a 1 percent
methane concentration is not a hazard but rather requires corrective action to ensure that a
hazardous condition does not develop. ld at 10. AMAX relies on the caseJaw and the
Secretary' s Program Policy Manual for the regulations in 30 C.F.R. Part 75, which pertain to
methane accumulations in underground coal mines, as support for the position that a 1 percent
reading is an "action level" at which steps must be taken to lower methane concentrations. ld at

s Section 77.201-1 provides:

Tests for methane in structures, enclosures, or other facilities, in
which coal is handled or stored shall be conducted by a qualified
person with a device approved by the Secretary at least once during
each operating shift, and immediately prior to any repair work in
which welding or an open flame is used or a spark may be
produced.
6 The Secretary further notes that the underground coal mine regulations contain an
absolute prohibition against methane in bleeders and return air courses at more than 2 percent. S.
Br. at 13 n. 7 (citing 30 C.F.R. § 75.323(e)).

473

10-13 . AMAX further argues that the Secretary's interpretation of the regulation is illogical
because it contains a more stringent requirement for addressing methane accumulations in surface
structures than in underground mines, and that therefore it is unreasonable and not entitled to
deference. /d. at 13-18. Finally, AMAX asserts that it acted quickly in response to the methane
reading by opening the door to the bead bouse to dilute the concentration. /d. at 18
The primary issue on review is whether AMAX violated section 77.201 because methane
in an above-ground structure exceeded 1 percent.
The Commission bas recognized that, where the language of a regulatory provision is
clear, the terms of that provision must be enforced as they are written unless the regulator clearly
intended the words to have a different meap.ing. See, e.g., Utah Power & Light Co., 11 FMSHRC
1926, 1930 (October 1989) (citing Chevron US.A., Inc. v. Natural Resources Defense Counsel,
Inc., 467 U.S. 837, 842-43 (1984)). In determining the meaning of regulations, the Commission
thus utilizes "traditional tools of ... construction," including an examination of the text and the
intent ofthe drafters. Local Union 1261, UMWA v. FMSHRC, 917 F.2d 42, 44-45 (D.C. Cir.
1990) (interpretation of Mine Act provision). It is only when the meaning is doubtful or
ambiguous that the issue of deference to the Secretary's interpretation arises. See Pfizer Inc. v.
Heckler, 735 F.2d 1502, 1509 (D.C. Cir. 1984).
We conclude that the language of section 77.201 is clear and unambiguous. The first
provision of that section states that the methane content of the air of any above-ground structure
"shall be less than 1.0 volume per centum" (emphasis added). We reject AMA.X's argument that,
by applying the plain meaning of the regulation to prohibit methane accumulations above I
percent, the other provisions of the standard are rendered superfluous. Section 77.201 - 1 provides
for methane testing, and section 77.201 -2 requires ventilation changes in a structure when
methane exceeds 1 percent. Testing for methane and appropriate remedial action for
accumulations above 1 percent are important steps in addressing the problem that methane
presents. Our reading gives effect to all provisions in section 77.201, see Morton /nt 'l, Inc., 18
FMSHRC 533, 536 (April 1996), while that of AMAX reads out of the regulation the prohibition
against accumulations in excess of I percent.
AMAX further argues that section 77.201 cannot be read to prohibit methane
accumulations above 1 percent, because the regulations pertaining to methane accumulations in
underground mines do not. The judge, while acknowledging the plain meaning of the regulation,
agreed with AMAX that the regulation must be read in accordance with the regulations regarding
methane accumulations in underground coal mines. 17 FMSHR.C at 50. The regulation at issue
stands in marked contrast to the regulations involving methane in underground metal/nonmetal
mines (30 C.F.R. § 57.22234), and in underground coal mines (30 C.F.R. § 75.323). In each
instance, those regulations specifY the corrective actions that are required when methane

474

accumulations exceed i percent but do not contain the same express prohibition regarding
methane accumulations over 1 percent. For the same reason, AMAX's reliance on the Program
Policy Manual provision for section 75.323 is also misplaced.'
Based on the foregoing, we conclude that the judge erred when he determined that
AMAX did not violate the regulation when the methane in the headhouse exceeded 1 percent, and
we reverse his decision.

III.
Conclusion
For the foregoing reasons, we reverse and vacate the judge's decision and remand the case
to the Chief Administrative Law Judge for assignment to ?<judge for further proceedings to
dispose of the S&S designation of the citation and to assess an appropriate penalty. 8

Marc Lincoln Marks, Commissioner

7

Whether, as AMAX argues, such disparate treatment is illogical is not an issue that we
need reach in light of our determination that section 77.201 is clear and unambiguous.
8

Judge Amchan has since transferred to another agency.

475

Distribution
Robin A. Rosenbluth, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203

R. Henry Moore, Esq.
Buchanan Ingersoll
301 Grant St.,.20th Floor .
Pittsburgh, PA 15219-1410
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

jhc

476

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH F\.OOR

WASHINGTON, D.C. 20006

March 14 , 1997
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket Nos.

v.

KENT 94-1199
KENT 94-1200
KENT95-240
KENT 95-310

BROKEN HILL MINING COMPANY

BEFORE: Jordan, Chairman; Marks and Riley, Commissioners'

DIRECTION FOR REVIEW
DECISION
BY THE COMMISSION:
~

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. ( 1994) ("Mine Act"). The Secretary of Labor seeks a total civil penalty assessment
of $26;300 against Broken Hill Mining Company ("Broken Hill") for eight alleged violations of
the mandatory safety standards found in 30 C.F.R. Part 75.
On January 9, 1997, a hearing was convened in Paintsville, Kentucky, before
Administrative Law Judge Roy Maurer. Representatives of Broken Hill failed to attend the
hearing, and the judge proceeded without them? The Secretary presented evidence on the record
regarding the alleged citations.
On February 14, 1997, the judge issued an order finding Broken Hill in default and
concluding that the Secretary proved the violations by a preponderance of the evidence.
19 FMSHRC 318, 320 (February 1997)(ALJ). He ordered Broken Hill to pay the proposed civil
penalty of$26,300. For the following reasons, we grant review of the judge' s decision sua

1

Pursuant to section 113(c) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 823(c), this panel of three Commissioners has been designated to exercise the powers of
the Commission.
2

A Notice of Hearing dated December 19, 1996 was received by Broken Hill on
December 23, 1996, as evidenced by a green postal receipt card for certified mail. 19 FMSHRC
at 319.

477

sponte, pursuant to section 113(d)(2)(B) of the Mine Act, 30 U.S.C § 823(d)(2)(B), and remand
for further analysis.
The judge's decision contains no findings of fact or conclusions of law, as required
by Commission Procedural Rule 69(a), 29 C.F.R. § 2700.69(a). Consequently, we cannot
ascertain from the decision which standards the operator allegedly violated, whether any injuries
occurred, or whether the penalty assessed is appropriate. The Commission has made clear that
"[a] judge must analyze and weigh the relevant testimony of record, make appropriate findings,
and explain the reasons for his decision." Mid-Continent Resources, Inc., 16 FMSHRC 1218,
1222 (June 1994). See also L & J Energy Co., 18 FMSHRC 118 (February 1996). Similarly, we
have held that a judge must make findings of fact on the penalty criteria set forth in section 11 O(i)
of the Mine Act that "not only provide the operator with the required notice as to the basis upon
which it is being assessed a particular penalty, but also provide the Commission and the courts
... with the necessary foundation upon which to base a determination as to whether the penalties
assessed by the judge are appropriate, excessive, or insufficient." Sellersburg Stone Co.,
5 FMSHRC 287,292-93 (March 1983), aff'd, 736 F.2d 1147 (7th Cir. 1984). Notwithstanding
the operator's failure to appear at the hearing, the judge's terse decision fails to comply with this
requirement.
Accordingly, we remand this case to the Chief Administrative Law Judge for
reassignmen~ and entry of appropriate findings of fact and conclusions of law supporting both
the liability and penalty determinations.

Marc Lincoln Marks, Commissioner

3

Judge Maurer has transferred to another agency.

478

Distribution

Mary Sue Taylor, Esq.
Office of the Solicitor
U.S. Department of Labor
2002 Richard Jones Rd., Suite B-201
Nashville, lN 37215
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Hobart W. Anderson, President
Broken Hill Mining Company, Inc.
P.O. Box 356
Sidney, KY 41564
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

479

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET KW, 8TH FLOOR
WASHINGTON, D.C. 20006

March · 17 . 1997

SECRETARY OF LABOR,
MINE SAFETY~ HEALTil
ADMlNISTRATION (MSHA)

v.

Docket Nos. SE 94-74
SE94-84
SE 94-115

llM WALTER RESOURCES, INC.

BEFORE: Jordan, Chairman; Marks and Riley, Commissioners1
DECISION
BY: Jordan, Chairman; Marks, Commissioner
These civil penalty proceedings, arising under the Federal Mine Safety and Health Act of
1977,30 U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"), raise the issue of whether two
violations of30 C.F.R. § 75.17252 and three violations of30 C.F.R. § 75.40Ql resulted from

1

Commissioner Holen participated in the consideration of this matter, but her term
expired before issuance of this decision. Pursuant to section 113(c) of the Federal Mine Safety
and Health Act of 1977,30 U.S.C. § 823(c), this panel of three Commissioners has been
designated to exercise the powers of the Commission.
2

Section 75.1725, "Machinery and equipment; operation and maintenance," states in

part:
(a) Mobile and stationary machinery and equipment shall
be maintained in safe operating condition and machinery or
equipment in unsafe condition shall be removed from service
immediately.
3

Section 75.400, "Accumulation of combustible materials," states:
Coal dust, including float coal dust deposited on rock-

480

unwarrantabie failure4 by Jim Walter Resources, Inc. ("JWR") to comply with those standards.
Former Commission Administrative Law Judge Arthur J. Amchan concluded that the five
violations were not a result of unwarrantable failure. 16 FMSHRC 2477 (December 1994)
(ALJ). For the following reasons, we vacate and remand the judge's unwarrantable failure
determinations with respect to the section 75.1725 violations and we reverse his unwarrantable
failure determinations as to the section 75.400 violations.

I.
Factual and Procedural Back~und
The five violations at issue stem from several inspections in 1993 of JWR's No. 7 Mine
in Tuscaloosa County, Alabama by the Department of Labor's Mine Safety and Health
Administration ("MSHA"). 16 FMSHRC at 2477. The violations concern JWR's maintenance
of conveyor belts and cleanup of coal dust accumulations. ld. In all five instances, JWR
challenged MSHA' s enforcement actions and the matters were consolidated for hearing before
Judge Amchan.
A.

July 29. 1993 Belt Maintenance violation (Order No. 3015087)

On July 29, 1993, MSHA Inspector Kirby Smith observed that the isolated portion of the
East A conveyor belt was inadequately supported because the top rollers of the conveyor belt had
slid together. 16 FMSHRC at 2484; Tr. 215-16. He also noted that the belt was misaligned due
to missing bottom rollers, causing it to rub against its structure and fray. 16 FMSHRC at 2484.
The flanunable belt fibers became entangled in the rollers and created a friction point. Id.
The inspector issued an order under Mine Act section 104(d)(2), 30 U.S.C. § 814(d)(2),
charging a violation pf section 75.1725(a), and characterized the violation as significant and
substantial ("S&S")5 and a result of JWR's unwarrantable failure. 16 FMSHRC at 2484-85.

dusted surfaces, loose coal, and other combustible materials, shall
be cleaned up and not be permitted to accumulate in active
workings, or on electric equipment therein.
4

The unwarrantable failure terminology is taken from section 104(d)( I) of the Mine Act,
30 U.S.C. § 814(d)( I), which establishes more severe sanctions for any violation that is caused
by "an unwarrantable failure of [an] operator to comply with .. . mandatory health or safety
standards . . . ."
s The S&S terminology is taken from section 104(d)(l) of the Act, which distinguishes as
more serious in nature any violation that "could significantly and substantially contribute to the
cause and effect of a ... mine safety or health hazard ....''

481

The judge found a violation of the standard and determined that the violation was S&S.
Id. He concluded that the violation was not unwarrantable because, in the absence of evidence
indicating the measures that a reasonably prudent employer would have taken with regard to the
East A belt, the Secretary failed to establish JWR's aggravated conduct, a necessary element of
the unwarrantable failure detennination. Jd. Tl)e judge fotind that,, because JWR had received
complaints from the union about the poor condition of the belt, JWR's violation was the result of
"at least ordinary negligence." ld The judge assessed a civil penalty of $2,000. Jd
B.

Auillst }6. 1993 Accumulation Violation (Order No. 3182957)

MSHA Inspector Oneth Jone~ inspected the West B conveyor belt on August 16, 1996, at
8:05a.m., and discovered a buildup of wet, damp and fine dry coal dust at the tailpiece and
beneath the bottom belt. 16 FMSHRC at 2486; Gov't Ex. 1-B. Three rollers were turning in this
accumulation, which measured 19 inches deep, approximately 20 feet long and extended wider
than the belt. 16 FMSHRC at 2486; Gov't Ex. 1-B; Tr. 237-38. One of the rollers had heated to
the extent that it was "hot to the touch." 16 FMSHRC at 2486. The inspector issued an order
under section 104(d)(2) for a violation of section 75.400, alleging that the violation was S&S and
a result of unwarrantable failure. Id.
The judge concluded that an S&S violation of section 75.400 had occurred, but that the
violation was not a result of JWR's unwarrantable failure because the accumulation was not of
sufficient extent. Id. at 2486-87. He also found it "unclear how long the condition cited had
existed prior to Inspector Jones' arrival at the scene." ld. at 2486. The judge recognized that
JWR had 192 violations in the preceding two years but determined that the number of past
violations, "standing alone," did not establish JWR's aggravated conduct. ld at 2486-87. He
also found that although JWR had not initiated cleanup by the time Inspector Jones arrived, this
failure did not amount to aggravated conduct. ld. at 2487. He assessed a penalty of$1,000. Jd
C.

Auillst 17. 1993 Belt Maintenance Violation COrder No. 3015093t

On August 17, 1993, at 3:50 p.m., while inspecting the East A conveyor belt, Inspector
Smith noticed that the belt was out of alignment, running from side to side, and cutting into the
metal support structure in several places. 16 FMSHRC at 2477-78; Gov't Ex. 1. Inspector Smith
also observed that a number of rollers on which the belt moved were dislodged, damaged or
stuck in a mud-like mixture of coal dust and water. 16 FMSHRC at 2478. He issued a section
104(d)(2) order for a violation of section 75.1725(a), designating the violation as S&S and
unwarrantable. ld at 2477-78.
The judge affmned the violation, concluded that it was S&S, but detennined that it was
not a result of JWR's unwarrantable failure because the Secretary failed to "establish the standard
of care from which the cited operator departed." ld. at 2479-80. Concluding that the violation
6

The judge inadvertently referred to this order as ''No. 3015993." 16 FMSHRC at 2477.

482

was of high gravity-due to the number of defective rollers and the methane liberation of No.7
Mine, the judge assessed a civil penalty of $2,000. ld at 2480.
D.

Auiust 17. 1993 Accumulation Violation (Order No. 30 15095)

At 4:00p.m. on the same day, Inspector Smith arrived at the section 4 belt feeder7 and
found accumulations of loose coal and coal dust 6 to 42 inches in depth, 20 feet wide and 15 feet
long. /d. at 2483; Gov't Ex. 3. The Section 4 belt feeder lud been improperly positioned so that
some of the coal from the ram cars was being dumped on the ground. 16 FMSHRC at 2483. The
inspector issued a section 104(d)(2) order alleging an S&S and unwarrantable violation of section
75.400. ld.
The judge determined that JWR had violated section 75.400, and that the violation was
S&S but not the result of unwarrantable failure. ld He reasoned that, although ~e condition
was noted in the preshift examination book, the evidence fell short of that necessary to establish
more than ordinary negligence. ld. The judge assessed a $500 civil penalty for the violation. I d.
E.

September 2. 1993 Accumulation Violation (Order No. 3183157)

On September 2, 1993, at 7:50a.m., Inspector Jones observed loose coal and coal dust,
including float coal dust that had accumulated beneath the East A tailpiece. Jd. at 2487; Gov't
Ex. 2·B. The tailpiece was turning in the accumulation for a distance of three feet and generating
airborne fme dry coal dust that was clearly visible. Jd. The inspector, who had issued a citation
for the same condition two weeks earlier, issued a section 104(d)(2) order, alleging an S&S and
unwarrantable failure violation of section 75.400. 16 FMSHRC at 2487.
The judge determined that the violation occurred and that it was S&S. Jd. He concluded
that the violation was not a result of JWR's unwarrantable failure because he was not persuaded
that the buildup occurred before the preshift examination, and because the record failed to
establish "conduct sufficiently worse than ordinary negligence." Id. The judge assessed a
penalty of$1,000. Jd.
The Commission granted the Secretary's petition for discretionary review challenging the
judge's determinations that the five violations were not the result of JWR's unwarrantable
failure.

7

The belt feeder transfers the freshly mined coal from ram cars coming from the working
face to a belt conveyor. 16 FMSHRC at 2483.

48 3

II.

Disposition
A.

Belt Maintenance Violations

The Secretary asserts that the judge applied an erroneous unwarrantable failure analysis
by requiring the Secretary to establish the standard of care violated by the mine operator and
detail what measures areasonably prudent operator would have taken in order to prove
aggravated conduct. S. Br. at 7. The Secretary argues that nothing in Commission law requires
him to prove what behavior would not have constituted aggravated conduct, and that he need
only prove that the operator's behavior amounted to aggravated conduct. ld at 8. The Secretary
submits that the judge also failed to adequately address evidence that demonstrated unwarrantable failure. ld at 10-17,20-23. JWR responds that the judge applied the proper analysis
and that the Secretary erroneously seeks to equate unwarrantable failure with ordinary
negligence. JWR Br. at 8-13, 17-19.
In Emery Mining Corp., 9 FMSHRC 1997 (December 1987), the Commission determined
that unwarrantable failure is aggravated conduct constituting more than ordinary negligence. Jd.
at 2003-04. Unwarrantable failure is characterized by such conduct as "reckless disregard,"
"intentional misconduct," "indifference" or a "serious lack of reasonable care." Jd.; Rochester &
Pittsburgh Coal Co., 13 FMSHRC 189, 194 (February 1991). The Commission examines
various factors in determining whether a violation is unwarrantable, including the extent of a
violative condition, the length of time that it has existed, whether the violation is obvious,
whether the operator has been placed on notice that greater efforts are necessary for compliance,
and the operator's efforts to prevent or remedy the violative condition. See Mullins & Sons Coal
Co., 16 FMSHRC 192, 195 (February 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261
(August 1992) (citations omitted); Quinland Coals, Inc., 10 FMSHRC 705, 709 (June 1988); Kitt
Energy Corp., 6 FMSHRC 1596, 1603 (July 1984). Repeated similar violations are relevant to
an unwarrantable failure determination to the extent that they serve to put an operator on notice
that greater efforts are necessary for compliance with a standard. Peabody, 14 FMSHRC at
1261, 1263-64.
We agree with the Secretary that, under Commission precedent, the Secretary is not
required to prove what behavior would not have constituted "aggravated conduct." Therefore,
we reject the judge's proposed test that "[t]o establish aggravated conduct, the Secretary must
establish the standard of care from which the cited mine operator departed." 16 FMSHRC at
2480. In addition, with respect to the two belt maintenance violations, the judge failed to discuss
any of the factors that comprise the unwarrantable failure analysis. Accordingly, with respect to
Order Nos. 3015087 and 3015093, we vacate the judge' s conclusion that these violations were
not a result of JWR's unwarrantable failure. We remand for application of all the factors of the
unwarrantable failure analysis in light of the record evidence.

484

Because we conclude that the judge erred by failing to apply the correct unwarrantable
failure test, we do not reach the additional evidentiary issues raised by the Secretary. We note,
however, that the judge's decision with respect to the July 29 and August 17 violations contains
~dings bearing on the unwarrantable failure factors. In both instances, the judge found that
management had received complaints, prior to the violations, about the recurring belt problem.
16 FMSHR.C at 2478,2485. Whether an operator has been placed on notice that greater efforts
are necessary for compliance is an element of the unwarrantable failure analysis. Peabody, 14
FMSHR.C at 1261. As to the August 17 violation, the judge's finding that there were 200
defective rollers on the belt bears on the extensiveness of the violation. 16 FMSHR.C at 2478-80
& n.1. He also referred to a "number of defective rollers" that caused the July 29 violation. Jd.
at 2485. In reaching a determination of whether JWR's conduct was "aggravated," the judge on
remand should consider this evidence in conjunction with evidence relating to the other
unwarrantable failure factors.
B.

Accumulation Violations

The Secretary asserts that the judge applied the same improper legal test, requiring the
Secretary to prove the operator's standard of care, in the accumulation violations. S. Br. at 7 n.6.
Alternatively, the Secretary contends that the judge failed to address or inadequately addressed
record evidence that established that the violations were unwarrantable. ld at 10-12, 17-20, 2328. JWR disputes that the judge applied an incorrect legal analysis and contends that substantial
evidence in the record supports the judge's determinations. JWR Br. at 12-16, 19-23.
With respect to the accumulation violations, we disagree with the Secretary that the judge
required him to prove the standard of care from which the operator departed. The judge did not
use the standard of care language in his discussion of the accumulation violations. Additionally,
when analyzing an accumulation violation, not under review, from Docket No. SE 94-74, the
judge properly stated that Commission precedent requires consideration of a number of factors in
reaching an unwarrantable failure determination. 16 FMSHR.C at 2482 (citing Peabody, 14
FMSHRC 1258; Mullins, 16 FMSHR.C 192). In his discussion of the August 16 accumulation
violation, he expressly applied the unwarrantable failure criteria and cited to Peabody. 16
FMSHRC at 2486. He utilized the factors of extensiveness, duration and prior warnings when
evaluating whether the three accumulation violations were unwarrantable. Id at 2483, 2486-87.
We next turn to the question of whether substantial evidence supports the judge's
determination for each of the three violations: When reviewing the judge's factual
determinations as to unwarrantable failure, the Commission is bound by the tenns of the Mine
Act to apply the substantial evidence test. 30 U.S.C. § 823(d)(2)(A)(ii)(I). "Substantial
evidence" means "such relevant evidence as a reasonable mind might accept as adequate to
support [the judge's] conclusion." Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163
(November 1989) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197,229 (1938)). The
substantial evidence standard of review requires that a fact-finder weigh all probative record
evidence and that a reviewing body examine the fact-fmder's rationale in arriving at his decision.
See Universal Camera Corp. v. NLRB, 340 U.S. 474,487-89 (1951). We are guided by the

485

settled principle that, in reviewing the whole record, an appellate tribunal must also consider
anything in the record that "fairly detracts" from the weight of the evidence that supports a
challenged finding. ld at 488. ·

1.

Auillst 16.1993 West B Accumulation (QrderNo. 3182957)

The Secretary asserts that the judge based his negative unwarrantable failure
determination on three erroneous grounds: that the accumulation was not sufficiently extensive;
that it was unclear how long the condition cited existed; and that the operator's 192 violations of
section 75.400 in the preceding two years, "standing alone," were not sufficient to support a
finding of aggravated conduct. S. Br. at 23 (citing 16 FMSHRC at 2486-87). JWR counters that
the judge properly weighed the evidence and concluded that the accumulation was not of certain
duration nor sufficiently extensive to support an unwarrantable failure finding. JWR Br. at 1921.
As to the extensiveness of the accumulation, the judge disregarded evidence that it took
15 miners 45 minutes for its cleanup. Tr. 243. An accumulation that requires 11 man-hours to
clean up is extensive. The buildup of wet, damp, and fme dry coal dust at the West B conveyor
belt tailpiece measured 19 inches deep, approximately 20 feet long and extended wider than the
belt. The Commission has affirmed unwarrantable failure determinations involving
accumulations of similar size to the one here. See Peabody, 14 FMSHRC at 1259
(unwarrantable accumulations with measurements of 15 feet long and 30 inches high; 4 feet long,
4 feet wide and 30 inches high; 4 feet wide and 24 inches high); New Warwick Mining Co. , 18
FMSHRC 1568, 1573 (September 1996) (unwarrantable accumulations of float coal dust 1/4
inch deep along section, loose coal 6 inches deep and coal mixed with rock 22 inches deep); cf
Doss Fork Coal Co. , 18 FMSHRC 122, 125 (February 1996) (vacating negative unwarrantable
failure determinations for accumulations up to 26 inches deep in ten crosscuts). The record does
not support the judge's finding that the accumulation was not extensive and we reverse that
fmding.
The judge did not make an express finding as to the obviousness of the violation, but
noted that the accumulation was in an area adjacent to the manbus stop and the oncoming and
outgoing shifts passed by the area. 16 FMSHRC at 2486; Tr. 248. We conclude that, because
the extensive buildup was in a conspicuous location in the mine, it was obvious.
With respect to the factor of prior warnings, the judge stated that, "standing alone,"
JWR' s citation history, which showed that JWR's Mine No.7 had incurred 192 violations of
section 75.400 did not persuade him that the violation was due to an unwarrantable failure. 16
FMSHRC at 2487. The judge's statement is incorrect for two reasons. First, the prior violations
were not "standing alone." As we indicated previously, other factors such as the extensiveness
and obvious nature of the violation were also present. See, e.g., Mullins, 16 FMSHRC at 195;
Quinland, 10 FMSHRC at 709. Second, the judge overlooked that, on July 7, 1993, at a
preinspection conference, Inspector Smith discussed with JWR management the extensive
history that JWR had with respect to accumulation violations. Tr. 112-13. The Commission has

486

held that prior warnings and past enforcement actions concerning accumulations should engender
in the operator a heightened awareness of a continuing problem. Mid-Continent Resources, Inc.,
16 FMSHRC 1226, 1232 (June 1994). On this record, it is undisputed, and we conclude, that
JWR had been placed on notice that heightened scrutiny was necessary to prevent accumulations.
No miner was cleaning the accumulation at the time of the inspector's anival. 16
FMSHRC at 2487. Where an operator has been placed on notice of an accumulation problem,
the level of priority that the operator places on addressing the problem is a factor properly
considered in the unwarrantable failure analysis. Peabody, 14 FMSHRC at 1263; see also U.S.
Steel Corp., 6 FMSHRC "1423, 1437 (June 1984) (unwarrantable failure may be proved by a
showing that the violative condition y.ras not corrected or remedied prior to issuance of a citation
or order). JWR had been.placed on notice of the need to exercise greater cleanup efforts.
Accordingly, we reverse the judge's finding (16 FMSHRC at 2487), that JWR's failure to start
cleanup of the accumulation by the time of Inspector Jones' ani val did not constitute aggravated
conduct.
The judge's finding that it was unclear how long the cited condition existed (id. at 2486),
rested on a credibility assessment of the testimony of JWR assistant foreman Phillips. Phillips,
who accompanied Jones on the inspection, testified that a similar accumulation occurred quickly.
Tr. 279-83, 286. Absent exceptional circumstances, the Commission will not disturb such
credibility determinations. Farmer v. Island Creek Coal Co., 14 FMSHRC 1537, 1540-41
(September 1992); Hollis v. Consolidation Coal Co., 6 FMSHRC 21, 25 (January 1984), aff'd
mem., 750 F.2d 1093 (D.C. Cir. 1984).
Although it may be unclear how long the accumulation at issue existed prior to the order,
the undisputed evidence on the other unwarrantable factors establishes that JWR was on notice,
through numerous prior cited violations and a warning, that greater efforts were necessary to
control accumulations. Nevertheless, JWR permitted an obvious, extensive accumulation to
build up at the West B conveyor belt and tailpiece and took no steps prior to the issuance of the
order to abate the violative condition. Taken together, this evidence fails to support the judge's
detennination that the violation did not result from JWR' s unwarrantable failure. Accordingly,
we reverse, on substantial evidence grounds, the judge's determination.
2.

AuiUst 17. 1993 Feeder Accumulation COrder No. 3015095)

The Secretary asserts that the judge failed to address or inadequately addressed record
evidence on the unwarrantable factors of prior warnings and violations, obviousness,
extensiveness, duration and abatement of the accumulation. S. Br. at 17-20. JWR responds that
the judge properly determined that its conduct did not amount to unwarrantable failure for the
primary reason that the record failed to show how long the accumulation had built up. JWR Br.
at 14-16.
The judge' s finding that the accumulation was not sufficiently extensive to support an
unwarrantable failure fmding (16 FMSHRC at 2483) is not supported by the record. At 20 feet

487

by 15 feet and nearly 4 feet at its greatest depth, the accumulation was substantial and extensive.
As to obviousness, the accumulation was in an area that wa5 well-traveled and by which both the
day and evening foremen passed. Tr. 85-86, 142-43. As to duration, the judge noted, but seems
to have placed no importance on, the fact that the preshift examiner recorded the condition. 16
FMSHRC at 2483. An operator' s failure to rectify a condition noted in the preshift book is a
factor to be considered in the unwarrantable failure analysis. Peabody, 14 FMSHRC at 1262.
The judge failed to discuss JWR's prior warnings and violations. It is undisputed, and we
conclude, that JWR should have been placed on heightened awareness of its accumulation
problem by the July 7·preinspection conference, the August 16 accumulation order issued just the
day before, and the 192 prior citations for accumulations issued in the preceding two years.
Further, as to abatement, the judge found ''no evidence of abatement measures when Smith
observed the violation." 16 FMSHRC at 2483.
The overwhelming weight of record evidence on the unwarrantable failure elements of
extensiveness, obviousness, duration, prior warnings and violations and abatement, taken
together, establishes JWR's aggravated conduct and renders unreasonable the judge's conclusion
that the violation of section 75.400 was not unwarrantable. Accordingly, we reverse that
determination on substantial evidence grounds.
3.

September 2. 1993 East A Tailpiece Accumulation (Order No. 3183157)

The Secretary argues that the judge failed to address material evidence pertaining to the
factors of prior warnings and violations and the duration and extent of the accumulation. S. Br.
at 26-28. In particular, the Secretary contends that the judge failed to consider that the inspector
issued a citation for the identical condition only nine days earlier and that JWR had made no
efforts to improve the condition since then. S. Br. at 26-27. JWR counters that the judge's
vacation of the unwarrantable failure designation is supported by the record which showed that
this accumulation could have occurred rapidly and that JWR responsibly assigned miners to deal
with accumulation problems. JWR Br. at 22.
As to extensiveness, the accumulation consisted of loose coal and coal dust, including
float coal dust that had accumulated beneath the East A tailpiece. 16 FMSHRC at 2487; Gov't
Ex. 2-B. The bottom belt was running in the material for a distance of three feet and causing coal
dust to become airborne. /d. The suspended dust was highly visible. 16 FMSHRC at 2487.
Additionally, the judge failed to consider that the material had compacted to the degree that its
cleanup required 10 to 15 miners utilizing pry bars and working for approximately 45 minutes.
Tr. 256,267, 272. On this record, we conclude that the accumulation was extensive. The
violation was ·also obvious; the judge noted that miners, as well as management personnel,
passed by the cited location while getting on and off the manbus at the beginning of their shifts.
16 FMSHRC at 2487.
The factor of prior warnings and violations is significant for this violation. As the judge
found, an identical citation bad been issued for the same problem at the same location less than

488

two weeks earlier, on August 24, 1993. ld Union representative Keith Plylar, who accompanied
the inspector on the August 24 and September 2 inspections, testified without contradiction that
when the earlier citation was issued, "it was stated ... that [JWR had] a problem with the area
and they [needed] to stay on top of it .. . ." Tr. 274. The inspector and the union representative
testified that management had not made efforts to improve the tailpiece condition at issue
between the August and September violations. Tr. 257, 274. The judge failed to consider that
this prior warning should have heightened JWR's awareness that substantial effort would be ·
necessary to prevent accumulations. See New Warwick, 18 FMSHRC at 1574; Youghiogheny &
Ohio Coal Co., 9 FMSHRC 2007,2010-11 (December 1987) (unwanantable failure premised
upon the fact that inspector issued a citation for a similar violation in the same area). The prior
citation, combined with the two preceding orders in this case and JWR's two-year history of
accumulation violations, permits no oth~r conclusion than that JWR was placed on notice that it
had a serious accumulation problem.
JWR asserts that it took appropriate steps to prevent accumulations because one or two
miners were assigned to clean up the area. JWR Br. at 22. The judge makes no finding on this
issue (16 FMSHRC at 2487), nor do we. However, even if JWR had stationed miners to the
area, the record established that such efforts were inadequate because extensive combustible
materials were still permitted to accumulate. See Peabody, 14 FMSHRC at 1263 (operator's
efforts to effectively deal with accumulations insufficient when operator assigned only one miner
to clear the area).
Although the record does not reveal precisely how long the accumulation was in
existence, undisputed evidence regarding the extensive and obvious nature of the violation, and
the operator's history of prior warnings and violations, viewed as a whole, establishes JWR's
aggravated conduct and fails to support the judge' s conclusion that JWR's violation of section
75.400 on September 2, 1993, was not the result of unwarrantable failure. Accordingly, we
reverse that determination on substantial evidence grounds.•

8

Our dissenting colleague believes we should not determine here whether the three
accumulation violations were unwarrantable, but should instead remand the issue to the judge
because we do not have "the benefit of knowing everything the fact-finder knew before he sat
down to draft his opinion." Slip op. at 13. Thankfully, the Mine Act does not require the
omniscience demanded by our colleague. It permits us to modify a judge's opinion "in
conformity with the record," 30 U.S.C. § 823(d)(2)(C), and does not require that we ascertain
what the fact-finder actually "knew." The judge's decision, like ours, can only be based on
record evidence. Our review of this record as a whole - particularly the undisputed evidence
regarding the prior warnings and the extensive and obvious nature of the violation -leads us to
conclude that there is not substantial evidence to support the judge's finding that no aggravated
conduct occurred. In such a case, the proper course of action is reversal, not remand.

489

lll.
Conclusion
We vacate the judge's conclusion that the two belt maintenance violations in Order Nos.
3015087 and 3015093 were not a result of JWR•s unwarrantable failure and remand this matter
to the Chief Administrative Law Judge for assignment to a judge for analysis consistent with this
opinion.9 If on remand the judge determines that the violations resulted from JWR's
unwarrantable failure, the judge should reassess the applicable civil penalties. As to the
accumulation violations, we reverse the judge's negative unwarrantable failure determinations,
reverse his modification.of Order Nos. 3182957, 3015095, 3183157 to section 104(a) citations,
reinstate those orders under section 104(d)(2) of the Mine Act, and remand for reassessment of
civil penalties.
·

Marc Lincoln Marks, Commissioner

9

Judge Amchan has since transferred to another agency.

4 90

Commissioner Riley, concurring in part and dissenting in part:
I concm with my colleagues with respect to the belt violations. I respectfully dissent with
regard to their disposition of the accumulations violations.
While we agree that the judge failed to adequately develop and explain his conclusions, I
believe that a remand and not a reversal is the appropriate response to an incomplete and
insufficient evidentiary record.
In Emery Mining Corp., 9 FMSHRC 1997 (December 1987), we determined that
unwarrantable failme is aggravated conduct constituting more that ordinary negligence. ld. at
2002-04. Unwarrantable failme is characterized by such conduct as "reckless disregard,"
"intentional misconduct," "indifference," or a "serious lack of reasonable care." Jd.; Rochester &
Pittsburgh Coal Co., 13 FMSHRC 189, 193-94 (February 1991). The Commission examines
various factors in determining whether a violation is unwarrantable, including the extent of a
violative condition, the length of time it had existed, whether the condition was obvious, whether
the operator had been placed on notice that greater efforts are necessary for compliance and the
operator's efforts in abating the violative condition. Mullins & Sons Coal Co., 16 FMSHRC
192, 195 (February 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (August 1992); Kitt
Energy Corp., 6 FMSHRC 1596, 1603 (July 1984).
I am unable to uncover any case law which allows a judge to determine whether a
violation is unwarrantable by analyzing "the best three out of five" criteria that he chooses to
discuss in hls decision. Judges cannot be permitted to "shortchange" the adjudicative process
by discussing only the obvious and ignoring more subtle but nonetheless important distinctions.
It is not enough to draw selective conclusions that each of the accumulations was or wasn't large
enough to literally trip over, or that each was wet or dry, or that each had been present for a day
or an entire shift. In the absence of a proper application of all the factors which constitute a
thorough unwarrantability analysis, disposition ofthls case comes down to the question of who is
best equipped to complete the process.
When reviewing the Judge's factual determinations as to unwarrantable failme, the
Commission is bound by the terms of the Mine Act to apply the substantial evidence test.
30 U.S.C.§ 823(d)(2)(A)(ii)(I). The substantial evidence standard of review requires that a factfinder weigh all probative record evidence and that a reviewing body examine the fact-finder's
rationale in reaching hls decision. See Universal Camera Corp. v. NLRB, 340 U.S. 474,487-89
(1951). An appellate body reviewing a judge's factual findings will not affirm hls findings if
they are unreasonable, incredible or if there is dubious evidence to support them. See, e.g.,
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).
After careful examination of the record, I cannot affirm the judge's findings as to whether .
various accumulations were unwarrantable because his analysis is incomplete and hls

491

interpretation of the evidence is inconsistent with the record. However, while I am comfortable
vacating his initial.decisions, I cannot make the leap of faith embraced by the majority which
appears willing to bridge gaps in the record to fmd the crucial elements of aggravated conduct,
even if it requires engaging in creative fact-finding to unequivocally determine that each violative
condition was due to an unwarrantable failure. ·
I see no compelling reason for this Commission to do the judges' homework for them.
As fact-finders, the judges control development of the evidentiary record. Consequently, they
have more exposure to the testimony and exhibits than members of the Commission do from a
careful review of that record on appeal. The judges also have singular access to witnesses.
However, the opportunity for enhanced perspective arising from proximity may have been
squandered in this case because the judge failed to consider every element and drew a series of
premature and, in the minds of every member of this Commission, improper conclusions. When
a judge fails to adequately address the evidentiary record before him, a remand is necessary for
fuller evaluation. Mid-Continent Resources, Inc., 16 FMSHRC 1218, 1222-23 (June 1994).
Similarly, when a judge's conclusion is insufficiently explained, the Commission is
unable to exercise meaningful review as to whether the conclusion is legally proper and
supported by substantial evidence. In such situations a remand is required. U.S. Steel Corp., 6
FMSHRC 1908, 1916 (August 1984) (citing The Anaconda Co., 3 FMSHRC 299,299-302
(February 1981)). Ifl had the benefit of knowing everything the fact-finder knew before he sat
down to draft his opinion, I might have been able to resolve the question of unwarrantability
differently. The trouble is that no one knows exactly what he knows because the analysis on this
issue is deficient. I am concerned that those hungry for guidance from the majority opinion,
which finds unwarrantable failure, will find their plate as empty as those who might pick through
morsels of wisdom offered by the judge who fmds none.
After analyzing the facts and reviewing the record of this case, I have come to the
conclusion that I can best do my job by allowing the judges to do theirs.

James C. Riley, Commissioner

492

Distribution
Susan E. Long, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Boulevard
Arlington, VA 22203
Warren B. Lightfoot, Jr, Esq.
David M. Smith
Maynard, Cooper, & Gale, P.C.
1901 Sixth Avenue North
2400 AmSouth!Harbert Plaza
Birmingham, AL 35203-2602
R. Stanley Morrow, Esq
Jim Walter Resources, Inc.
Mining Division
P.O. Box 133
Brookwood, AL 35444

Chief Administrative Law Judge Paul Merlin
Federal Mine Safety and Health Review Commission
1730 K Street, Suite 6003
Washington, D.C. 20006

493

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

March 19, 1997

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEVA 97-81
A.C. No. 46-01456-04119

V.

EASTERN ASSOCIATED COAL CORP.

BEFORE: Jordan, Chairman; Marks and Riley, Commissioners 1

ORDER

BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (1994) ("Mine Act"). On March 4, 1997, the Commission received from Eastern
Associated Coal Corp. ("Eastern") a request to reopen a penalty assessment that had become a
final order of the Commission pursuant to section IOS(a) of the Mine Act, 30 U.S.C. § 815(a). It
has been administratively determined that the Secretary of Labor does not oppose the motion for
relief filed by Eastern.
Under section IOS(a) of the Mine Act, an operator has 30 days following receipt of the
Secretary of Labor's proposed penalty assessment within .which to notify the Secretary that it
wishes to contest the proposed penalty. If the operator fails to notify the Secretary, the proposed
penalty assessment is deemed a final order of the Commission. 30 U.S.C. § 815(a).
Eastern states that it failed to submit its request for a hearing ("Green Card") to the
Department of Labor's Mine Safety and Health Administration ("MSHA") within 30 days

1

Pursuant to section 113(c) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 823(c), this panel of three Commissioners has been designated to exercise the powers of
the Commission.

494

following receipt because a substitute employee who was working in its mailroom temporarily
failed to refer the proposed assessment to its legal department, and that the error was not
discovered until almost two months later. Eastern requests the Commission to reopen this
matter. Attached as exhibits to Eastern's motion are copies of the certified mail receipt that
accompanied the Proposed Assessment Form from MSHA, and affidavits from the employee in
charge of its mail room and an administrative assistant and an attorney in its legal department.
The Commission has held that, in appropriate circumstances and pursuant to Fed. R. Civ.
P. 60(b), it possesses jurisdiction to reopen uncontested assessments that have become final
under section 105(a). Jim Walter Resources, Inc., 15 FMSHRC 782, 786-89 (May l993kRocky
Hollow Coal Co., 16 FMSHRC 1931, 1932 (September 1994).
The Commission has observed 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 timely respond, the case
may be reopened and appropriate proceedings on the merits permitted. See Coal Preparation
Services, Inc., 17 FMSHRC 1529, 1530 (September 1995). In accordance with Rule 60(b)(l),
the Commission has previously afforded a·party relief from a final order of the Commission on
the basis of inadvertence or mistake. See General Chemical C01p. , 18 FMSHRC 704,705 (May
1996); Kinross DeLamar Mining Co., 18 FMSHRC 1590, 1591-92 (September 1996).
On the basis of the present record, we are unable to evaluate the merits ofEastem'' s
position. In the interest of justice, we remand the matter for assignment to a judge to determine
whether Eastern has met the criteria for relief under Rule.60(b). If the judge determines that such

495

relief is appropriate, this case shall proceed pursuant to the Mine .Act and the Commission's
Procedural Rules, 29 C.F .R. Part 2700.

...

496

Distribution
Caroline A. Henrich, Esq.
Eastern Associated Coal Corp.
P.O. Box 1233
Charleston, WV 25324
C. Bryan Don
Chief, Compliance Office
U.S. Department of Labor
40 15 Wilson Boulevard
Arlington, VA 22203 W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Boulevard
Arlington, VA 22203
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety and Health Review Commission
1730 K Street, N.W. Suite 600
Washington, D.C. 20006

497

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

March 27 , 1997
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 95-459

v.
JIM WALTER RESOURCES, INC.

BEFORE: Jordan, Chairman; Marks and Riley, Commissioners'

DECISION
BY: Marks and Riley, Commissioners
This civil penalty proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"), and involves the question whether
Administrative Law Judge William Fauver erred in assessing a civil penalty by considering
"deterrence," a factor not among those set forth in section llO(i) of the Mine Act, 30 U.S.C.
§ 820(i).2 The judge assessed a civil penalty of $15,000, more than double the penalty proposed
by the Secretary of Labor. 18 FMSHRC 906, 912 (June 1996) (ALJ). The Commission granted
the petition for discretionary review filed by Jim Walter Resources, Inc. ("JWR") challenging the
1

Pursuant to section 11 3(c) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 823(c), this panel of three Commissioners has been designated to exercise the powers of
the Commission.
2

Section 11 O(i) provides in pertinent part:
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
notification of a violation.

498

penalty assessment. For the reasons that follow, we vacate the judge's penalty assessment and
remand for reassessment.
I.
Factual and Procedural Background
JWR owns and operates the No. 7 mine, an underground coal mine in Alabama. 18
FMSHRC at 906; JWR Prehearing Resp. at 1, Stip. I; Tr. 109, 163. On June 8, 1995, John
Terpo, an inspector for the Department of Labor's Mine Safety and Health Administration,
observed substantial accumulations of coal, coal dust and float coal dust around the West A belt
line. 18 FMSHRC at 907. Twelve rollers were totally submerged in coal dust, and 32 were
turning in combustible accumulations. /d. Three other rollers were locked up and "extremely
hot." /d. At the seventh discharge point, the bottom belt was running on top of the accumulations, which at this point averaged two feet deep for about 300 feet. /d. Based on his observations, Inspector Terpo issued Order No. 3194917 under section l04(d)(2) of the Act, 30 U.S.C.
§ 814(d)(2), for violation of30 C.F.R. § 75.4003 based on extensive combustible accumulations
in the West A belt entry. ld. 4 JWR admitted the violation, but challenged the inspector's
designation of the violation as significant and substantial and resulting from JWR' s unwarrantable failure.
The judge concluded that the violation was S&S and the result of JWR's unwarrantable
failure. 18 FMSHRC at 908-10. With respect to the civil penalty, the judge specifically
discussed three ofthe six penalty criteria: the operator's history of previous violations, negligence, and gravity. /d. at 910-12.5 As to the operator's history of previous violations, the judge
found that JWR had a "very poor record of violations of§ 75.400[,]" that JWR's record in this
regard had worsened over the previous two-year period, and that its "overall compliance history

3

Section 75.400 states:
Coal dust, including float coal dust depdsited on rockdusted surfaces, loose coal, and other combustible materials, shall
be cleaned up and not be permitted to accumulate in active workings, or on electric equipment therein.

4

Inspector Terpo also issued JWR four citations for accumulations of combustible
material on the two section belts that dumped material onto the West A belt, for failing to
maintain the West A belt in safe condition, and for an inadequate preshift examination. 18
FMSHRC at 907. These citations are not at issue in this appeal.
s The judge introduced his discussion of the penalty factors by stating, "Section 11 O(i) of

the Act provides the following six criteria for assessing civil penalties[.]" 18 FMSHRC at 910.
However, he went on to discuss only three of the section 110(i) factors. !d. at 910-12.

499

under the Mine Act ... is very poor." /d. at 910-11. The judge also concluded that, in view of
the "obvious, extensive and dangerous" accumulations, JWR's·negligence was high. /d. at 911.
Based on the presence of extremely hot rollers, rubbing points cr~ating friction due to contact
between the belt and the steel belt structure, and substantial accumulations, the judge determined
that the gravity of the violation was high. /d. The judge further stated:
Respondent's prior history and the instant violation demonstrate a serious disregard for the safety requirement to prevent
combustible accumulations in an underground coal mine. Respondent's repeated violations of§ 75.400 indicate that there has been
no deterrent effect from prior civil penalties.
Considering Respondent's very poor compliance history,
the need for an effective deterrent, and the six statutory criteria as a
whole, I find that a civil penalty significantly greater than the
$7,000 proposed by the Secretary should be assessed. Accordingly, I find that a civil penalty of$ I 5,000 is appropriate for the
violation proved in this case.

/d. at 912.

II.
Disposition
JWR argues that in "[c]onsidering ... the need for an effective deterrent, and the six
statutory criteria as a whole," the judge enhanced the penalty based on a factor, deterrence, not
set forth in section 11 O(i). PDR at 2.6 The Secretary responds that, although the judge may not
rely on deterrence as "a penalty consideration that is in addition to the six statutory criteria," in
this case all the judge did was make explicit that he was assessing a penalty, based on the six
criteria, that provided an effective deterrent. S. Br. at 7-8. The Secretary asserts that this is
consistent with the deterrent purpose of penalties under the Mine Act. /d. at 6-7.
Commission judges are accorded broad discretion in assessing civil penalties under the
Mine Act. Westmoreland Coal Co., 8 FMSHRC 491, 492 (April 1986). Such discretion is not
unbounded, however, and must reflect proper consideration of the penalty criteria set forth in
section llO(i) of the Mine Act. !d. (citing Sellersburg Stone Co., 5 FMSHRC 287,290-94
(March 1983), aff'd, 736 F.2d 1147 (7th Cir. 1984)). In Sellersburg, the Commission stated that,
in assessing a civil penalty, "[f]indings of fact on each of the statutory criteria" must be made by
the judge "not only [to] provide the operator with the required notice as to the basis upon which
it is being assessed a particular penalty, but also [to] provide the Commission and the courts ...

6

JWR designated its petition as its brief.

500

with the necessary foundation upon which to base a determination as to whether the penalties
assessed by the judge are appropriate, excessive, or insufficient." .Sellersburg, 5 FMSHRC at
292-93.
The Commission has also held that a judge may not go beyond the six criteria set forth in
section 11 O(i). In Ambrosia Coal & Constr. Co., 18 FMSHRC 1552 (September 1996), the
Commission vacated an assessment of civil penalties based in part on deterrence, stating:
[A]lthough deterring future violations is an important purpose of
civil penalties, deterrence is achieved through the assessment of a
penalty based on the six statutory penalty criteria. . . . Deterrence
is not a separate component used to adjust a penalty amount after
the statutory criteria have been considered.

ld at 1565 (citing Dolese Bros. Co., 16 FMSHRC 689, 695 (April1994)).
The judge's statements that "there has been no deterrent effect from prior civil penalties[,]" and that his penalty assessment was based in part on "the need for an effective deterrent,
and the six statutory criteria as a whole[,]" 18 FMSHRC at 912 (emphasis added), indicate that
he may well have considered deterrence as a separate factor in his analysis. Accordingly, we
vacate his penalty assessment and remand with instructions to reassess the penalty considering
only the six criteria set forth in section 11 O(i).
On remand, the judge should make specific findings on all six penalty criteria. Although
stipulations in the record contain facts pertaining to the size of the operator's business and the
effect of the penalty on its ability to continue in business, the judge failed to make the requisite
findings in his decision.7 With respect to the criterion of the operator' s good faith attempts to
achieve rapid compliance, the judge recited in his findings of fact and discussion of the unwarrantable failure issue that JWR assigned 20 miners to clean up the accumulations after notification of the order and that it took the miners seven hours to clean up the accumulations. 18
FMSHRC at 907, 910. He also stated:
The abatement work was prompt, but this must be considered in relation to the withdrawal order, which stopped the belt line
until the accumulations were removed. There was no evidence of
clean up work at the time the order was issued.
/d. at 910. Because the judge did not indicate how or whether these fmdings and conclusions
relate to his penalty assessment, he should do so on remand.
7

The parties agreed that JWR is a large operator and that payment of the proposed
assessment will have no effect on the operator's ability to continue in business. JWR Prehearing
Resp. at 1, Stips. 3, 5; S. Resp. to Prehearing Order at 1, Stips. 3, 5.

501

III.
Conclusion
For the foregoing reasons, we vacate the judge's penalty assessment and remand for
reassessment.

Marc Lincoln Marks, Commissioner

502

Jordan, Chairman, dissenting:
The majority opinion effectively reads the deterrent function of civil penalties out of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act"). It
vacates the judge's penalty assessment, fearing that he might have "considered deterrence as a
separate factor in his analysis." Slip op. at 4.
To the contrary, I believe that the judge properly evaluated the role that deterrence must
play in setting a penalty, and accordingly would affirm his penalty determination.' He did not
include it among the initial criteria (set forth in the Mine Act) he used to determine the penalty.
He did not include it as a "seventh penalty criterion" or a subsequent multiplier. Rather, he
applied the statutory criteria, and, at the same time, rightfully acknowledged that the resulting
penalty must provide an effective deterrent, consistent with Commission case law and the
legislative history of the Mine Act. 2 He did state that the operator's past history of violations
showed that prior civil penalties had not effectively deterred safety violations. 18 FMSHRC 906,
912 (June 1996) (ALJ). But in taking this into consideration, he was simply articulating a basic
premise of the Mine Act- that the point of a civil penalty is to ensure that the violation does not
reoccur. 3 As the D.C. Circuit noted in Coal Employment Project v. Dole, 889 F.2d 1127, 1133
(D.C. Cir. 1989), "Congress was intent on assuring that the civil penalties provide an effective
deterrent against all offenders, and particularly against offenders with records of past violations."
The record of past violations in this case is substantial. During the preceding two years,
the Department of Labor's Mine Safety and Health Administration issued 291 citations and
orders to the No. 7 mine charging violations of this very same standard. 18 FMSHRC at 911.

1

Unlike my colleagues in the majority, I believe that there is no need to remand for
further analysis of the six statutory criteria. The judge adequately addressed four of the criteria in
his decision. The parties stipulated as to the remaining two criteria Slip op at 4, n.7. Thus, we
can enter findings on these questions instead of remanding them to the judge. See Sunny Ridge
Mining Co., 19 FMSHRC 254, 262·68 (February 1997); Sellersburg Stone Co., 5 FMSHRC 287,
294 (March 1983), aff'd, 736 F.2d 1147 (7th Cir. 1984).
2

In Ambrosia Coal & Constr. Co., the Commission, quoting the legislative history of the
Mine Act, noted that "the purpose of civil penalties is to 'convinc[e] operators to comply with
the Act's requirements." 18 FMSHRC 1565, n.17 (September 1996) (also citing Consolidation
Coal Co., 14 FMSHRC 956,965 (June 1992) (recognizing importance of civil penalties as
deterrence)).
3

In reviewing penalty regulations under the Mine Act's predecessor legislation, the
Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801 et seq. (1976), the Supreme
Court observed that a "major objective of Congress was prevention of accidents and disasters;
the deterrence provided by monetary sanctions is essential to that objective." National Indep.
Coal Operators' Ass'n v. Kleppe, 423 U.S. 388,401 (1976).

503

Even more disturbing, however, is the fact that the violations increased rather than decreased
during this time. From June 8, 1993, through June 7, 1994, JWR was issued 123 citations and
orders charging violations of section 75.400. The following year the number of charges
increased to 168. /d.
The judge carefully looked at this compliance history, took into account the instant
accumulation violation, and found the operator to have demonstrated a "serious disregard for the
safety requirement to prevent combustible accumulations in an underground coal mine." 18
FMSHRC at 912. He understood that in the process of employing the statutory criteria to set a
penalty. he could acknowledge the need for deterrence, particularly in considering the factors of
history and negligence. The judge simply applied the standards, and subsumed in that analysis
was the proper realization that the final outcome must, consistent with fundamental Mine Act
principles, discourage future health and safety violations.
My colleagues, however, seem to view any express reference to deterrence as an
indication that the judge has gone beyond the six criteria set forth in section 11 O(i), 30 U.S.C.
§ 820(i). Apparently, our judges must treat the deterrent function of a penalty like the proverbial
emperor's new clothes. Although it is an obvious consideration when assessing a penalty, the
judges must never publicly acknowledge that fact.

504

Distribution

R. Stanley Morrow, Esq.
Jim Walter Resources, Inc.
P.O. Box 133
Brookvvood,~ 35444
William Lawson, Esq.
Office of the Solicitor
U.S. Department of Labor
I 50 Chambers Bldg.
I 00 Centerview Drive
Birmingham, AL 352I6
Cheryl Blair-Kijewski, Esq.
Office of the Solicitor
U.S. Department of Labor
40I5 Wilson Blvd., Suite 400
Arlington, VA 22203
Administrative Law Judge William Fauver
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite I 000
Falls Church, VA 2204I

505

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW~ 6TH FLOOR
WASHINGTON, D.C. 20006

March 31, 1997

SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of KENNETH HANNAH,
PlllLIP PAYNE, and FLOYD MEZO
Docket No. LAKE 94-704-D

v.
CONSOLIDATION COAL COMPANY

BEFORE: Jordan, Chairman; Marks and Riley, Commissioners1
DIRECTION FOR REVIEW AND ORDER
BY THE COMMISSION:
This discrimination proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act"or "Act"). On December 10, 1996, the
Commission reversed Administrative Law Judge Gary Melick's determination that the miners'
work refusal was unreasonable and unprotected and his fmding that the operator's subsequent
conduct did not violate the Mine Act and remanded this matter to the judge for computation of a
backpay award and assessment of a civil penalty. 18 FMSHRC 2085 (December 1996). On
February 5, 1997, the judge issued a partial decision, stating that the parties had agreed to the
amounts ofbackpay and interest to be awarded, but that significant issues remained concerning
the assessment of a civil penalty. 19 FMSHRC 435 (February 1997) (ALJ). On February 18,
1997, Consolidation Coal Company ("Consolidation") filed a petition for discretionary review of
that decision. Thereafter, on March 6, 1997, the judge issued a final decision on the assessment
of a civil penalty. 19 FMSHRC __ (March 1997). On March 28, 1997, Consolidation filed an
additional petition for discretionary review of the· March 6, 1997 decision.
Consolidation's February 18, 1997 petition for discretionary review is denied.
1

Pursuant to section 113(c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 823(c), this panel of three Commissioners has been designated to exercise the powers of the
Commission.

506

Consolidation's March 28, 1997 petition for discretionary review is granted. In addition,
pursuant to section 113(d)(2)(B) of the Mine Act, 30 U.S.C. § 823(d)(2)(B), the Commission, on
its own motion, directs. review of the March 6, 1997 decision on the ground that it may be
contrary to law in that the judge may have failed to make all the requisite findings under section
llO(i) of the Mine Act, 30 U.S.C. § 820(i), in assessing penalties against Consolidation.

Marc Lincoln Marks, Commissioner

James C. Riley, Commissioner

·so7

Distribution

L. Joseph Ferrara, Esq.
Jackson & Kelly
2401 Pennsylvania Avenue, N.W.
Suite 400
Washington, D.C. 20037
David J. Hardy, Esq.
Jackson & Kelly
1600 Laidley Tower
P.O. Box 553
Charleston, WV 25322
Colleen A. Geraghty, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Administrative Law Judge Gary Melick
Federal Mine Safety and Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

508

ADMINISTRATIVE lAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 1Oth FLOOR
6203 LEESBURG PIKE
FAUS CHURCH, VIRGINIA 22041

J.tAR .6 1997.

.
.
.
.

SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. CENT 96-91-M
A. C. No. 39-00170-05559

.

.

Hobbs Potash Facility
NEW MEXICO POTASH CORPORATION,
Respondent
DECISION

Appearances: Daniel Curran, Esq., Office of the Solicitor,
U. S. Department of Labor, Dallas, Texas, for
the Secretary;
W. T. Martin, Jr . , Esq., Carlsbad, New Mexico,
for the Respondent.
Before:

Judge Barbour

This is a civil penalty proceeding brought by the Secretary
of Labor (Secretary) against New Mexico Potash Corporation (New
Mexico Potash or the company) pursuant to sections 105 and 110
(30 U.S.C. § 815, 820) of the Federal Mine Safety and Health Act
of 1977 (Mine Act or Act) (30 U.S.C. § 801 ~ ~- (1994)). The
Secretary seeks the assessment of aggregate civil penalties of
$19,000 for two all~ged violations of mandatory safety standards
found in Part 57 of the Secretary's safety and health standards
for underground metal and nonmetal mines (30 U.S.C. Part 57).
The case arises out of a fatal accident that occurred on
September 7, 1995, at the company's Hobbs Potash Facility, an
underground potash mine, located in Lea County, New Mexico. The
accident involved the electrocution of a miner who was trying to
remove an energized power cable from an auxiliary fan. After the
accident, the Secretary's Mine Safety and Health Administration
(MSHA) issued to the company citations for the violations. The
citations included findings that the violations were significant
and substantial (S&S ) contributions to mine safety hazards. ·
The company denied liability. It argued that the victim's
death was caused by his own negligence, that no action by the
company contributed to the accident, and that the company should

509

not be penalized for the victim's actions. In the company's
view, the imposition of civil penalties would violate the
company's constitutional due process rights (Tr. 10-11).
A hearing was conducted -in Lovington, New Mexico, at which
the parties presented oral testimony and documentary evidence.
TIE ACCIDENT AND TIE XNVESTIQATIQNS

On September 7, Michael Buffington, a 28 year old miner, was
working unde~ground at the.mine. A shift change was in progress .
The old crew had left the area where Buffington was located. A
new crew was on its way to the area. Buffington and others were
preparing the area for the new crew (Tr. 29).
Eugene Galvan, an underground maintenance mechanic at the
mine, went to the area. Galvan needed to weld some equipment
prior to the arrival of the new crew. Buffington was about to
take a break for lunch. As Buffington started to walk toward the
dinner hole, Galvan asked him to "get ••. some power to the
welder" (Tr. 27) . Buffington indicated that he would, and Galvan
turned to go the welder. In order to energize the welder
Buffington had to disconnect a power cable supplying electricity
to the section's auxiliary fan and connect that cable to the
welder.
The cable was approximately 175 feet long . It was energized
and was carrying 480 volts of electricity (Tr. 58, 68). The
cable was covered by a rubber outer jacket. Inside the jacket
were four insulated conductors and one insulated ground wire
{Tr . 50). The cable was attached to the fan at the nip . iA
"nip" is defined a~ a "contact end of [a] cable" (U.S. Department
of the Interior, A Dictionary of Mining, Mineral, and Related
Terms (1968) at 750}}.
Galvan was on his way to the welder when he heard Buffington
yell . Galvin turned, and he saw that Buffington, who was wearing
cotton gloves, was holding the cable with both hands (Tr. 28,
112). Buffington continued to yell, and Galvan realized that
something was terribly wrong.
Galvan ran about 150 feet to the circuit breaker panel where
he was joined by the section foreman , Lupe Rodriquez (Tr~ 27).
The men shut off the electricity to the cable and Buffington fell
to the mine floor. Galvan and Rodriquez rushed to his side and
administered cardiopulmonary resuscitation. A short time later,
the rescue squad arrived and Buffington was taken to the
hospital, where he was pronounced dead .

510

The Eddy County Sheriff's Office and MSHA were advised of
the accident. Jim Estrada, a deputy sheriff, went to the mine to
investigate, as did MSHA Inspector Henry Mall and MSHA Special
Investigator Ronald Mesa.
Estrada arrived first. When he got to .the accident site,
Buffington's body had been removed. That aside, the site was as
it had been at the time of the accident. Estrada viewed the
area. He noted especially that the ground where the accident
occurred as "muddy" · (Tr. 21). ·Estrada then left the mine and
went to examine Buffington's body. While viewing the body,
Estrada noted that there were burn marks on Buffington's left
palm. (Tr. 24; Exh. P-7).
Mall and Mesa reached the mine shortly after Estrada left.
First, they discussed the situation with company officials. ·
Then, they proceeded underground. They were accompanied by
Curtis Davidson, the company's safety director (Tr. 47). The
accident scene had been cordoned off.
Mall and Mesa inspected the area (Tr. 48, . 87-88; Exh. P-9).
They agreed with Estrada that the floor in th~ area was muddy
(Tr. 81). In addition to the mud, Mall observed puddles of
standing water (Tr. 81).
During the course of the inspection, Mall picked up and
examined the cable. It was not scraped or worn. This indicated
to Mall that the cable had not been in use for very long, perhaps
2 or 3 days at the most. Davidson agreed with this assessment
(Tr. 70, 79-80, 144; Exh. R-2).
While looking closely at the cable, Mall found a small tear
in the cable's outer jacket •. The tear was located approximately
2 1/2 feet from the fan (Tr. 79, 88). The tear was about
1 1/2 inch long (Tr. 79). The tear exposed one of the cable's
insulated power conductors for approximately 3/4 to 7/8 of an
inch (~;see also Exh's P-10, P-11). Five or six stYands of
the conductor's internal cooper wires had broken through the
insulation and also were exposed. (Tr. 48, 69).
Mandatory safety standard 30 C.F.R. § 56.18002 requires a
person designed by the operator to examine each working place at
least once each shift for conditions that may adversely 9ffect
safety and to record the results of the examinations. Mall
checked the report of the onshift examiner who inspected the area
prior to the accident. Mall wanted to find out if the tear in
the cable had been reported. It had not. Rather, the examiner
reported that everything on the section was "okay" (Tr. 49) .

511

Mall and Mesa took photographs of the accident site and the
equipment that was involved in the accident. They also spoke
with miners about what had happened (Tr. 49). Based upon their
investigation, they concluded that when Buffington was asked to
get power to the welder, he took a fatal procedural short cut.
Instead of first disconnecting -and locking out the power to the
cable, Buffington picked up the energized cable and tried to pull
or yank it out of the nip (Tr. 62-63). In the process,
Buffington touched the exposed wires of the conductor (Tr. 63).
Mall also concluded the wet floor played a part in
Buffington's death. In Mall's opinion, had the floor been dry,
Buffington probably would have been severely shocked, but might
not have been electrocuted (Tr. 81-82).
Mall and Mesa discovered they were not the only MSHA
personnel to visit the area where the accident occurred. On
September 7, shortly before the accident, another MSHA inspector,
who was conducting a regular inspection at the mine, traveled
through the area. The inspector was accompanied by Duane Morris,
the company's underground safety supervisor (Tr. 143). Both men
saw the cable, but the inspector issued no citations involving
it.
Morris visited the area again after the accident. He
believed that between the time he first saw the cable and the
time Buffington picked it up, someone -- he did not know who -moved the cable a short distance, perhaps 5 to 15 feet (Tr. 170171) •

Morris also testified that during the inspection, he and the
MSHA inspector met ~uffington. The inspector asked Buffington to
tape a defective cable. (The defective cable was not the one
that later was involved in the accident.) Morris and the
inspector watched as Buffington followed all of the proper
procedures. First, he deenergized the power to the cable. Next,
he locked out the cable's circuit. Then, he applied the tape.
There was no indication that just a short time later Buffington
would fail to follow analogous procedures when he tried to
disconnect the auxiliary fan's cable (Tr. 168).
Another person who investigated the accident and whq visited
the area where it occurred was Jerry Cline, a professional
accident investigator hired by the company. When he came to the
mine a few days after September 7, the area was still wet; or, as
Cline put it, was still covered with "a thick coating of mud"
(Tr. 215). Cline's view was that the wet floor "probably"
enhanced contact between Buffington and the electrical current
(Tr. 205) •

512

Cline did not believe that wet conditions were hazardous in
and of themselves, provided all "equipment [was) up to snuff"
(Tr. 209-210). However, there were times when wet conditions
required greater vigilance on an operator's part. Cline
explained that a "lot of water" ·(Tr. 213) can cause the
"degradation of • • • cables," and therefore that an operator
must be more attentive to the maintenance of equipment when
working in such areas (Tr. 213-214). Nonetheless, in Cline's
opinion, the moisture where Buffington was electrocuted was not
extensive enough to warrant intensified precautions by the
company (Tr. 215).
Cline agreed that when cables are moved in an underground
mine, they are subject to a "fairly abusive environment"
(Tr. 206). He also stated that in general a cable should be
inspected during the course of a shift if it is going to be
moved, or if work is going to be done on the equipment it
services (Tr. 205-206). However, if the cable is moved 25 feet
or less, as the auxiliary fan cable apparently was, Cline did not
believe it needed to be examined "unless there's something that
happens during the move that gives • • • cause for concern"
(Tr. 207).
Finally, in addition to inspecting the accident site, Mall
and Mesa reviewed the company's training procedures and work
rules to determine if they contributed to the accident. The men
concluded they did not. Mall and Mesa agreed that New Mexico
Potash properly trained its employees, including Buffington.
They also agreed that had Buffington followed the company's
rules, the accident would not have happened because the rules
required power to be deenergized at the terminal and the cable's
circuits to be lock~d out (Tr. 59-60, 104).
TiE Cl:TA'll:ONS

As a result of their investigation, Mall and Mesa each
issued a citation to the company. Mall issued Citation
No . 4330836, which charges a violation of 30 C.F.R. §57 . 12004.
Among other things, the standard requires an operator to protect
electrical conductors that are exposed to mechanical damage.
Mall believed the tear in the cable jacket, the exposed
conductor, and the bare conductor wires evidenced a lack of the
protection required.

513

Mesa issued Citation No. 4447563, which charges a violation
30 C.F.R. § 57.12014. Among other things, t ·h e standard requires
a person moving an energized power cable to use insulated
devices, unless other suitable means for moving the cable are
provided. Mesa believed the company violated the standard when
Buffington manually picked up the energized -cable while wearing
only cotton gloves (Tr. 97).
USOLJJTION OF 'l'BE XSSUES

Citation No.

30 C.F.Jl.
•eetion

~

Propo•eci
Penalty

433C836

57.12004

9/18/95

$9,500

The citation states in part:
The 4/conductor type • . • 480 volt[,] 3 phase
power cable was damaged exposing a bare copper
conductor through the outer rubber covered jacket. A
miner was electrocuted when he came in contact with the
exposed bare copper conductor. The power cable was
energized and was providing power to the face intake
fan in area 289.
Section 57.12004 states in part:
Electrical conductors exposed to mechanical damage
shall be protected.
THE VIOLATION

There is no doubt that the conditions alleged in the citation existed. The company does not dispute that the cable's
jacket was torn, that an insulated conductor was exposed, and
that strands of the conductor's copper wire extruded through the
insulation (Tr. 48, 69). The .cable was subject to mechanical
damage in that it had to be moved from time to time and miners
worked and operated equipment in its vicinity. Given the
existence of the tear, the exposed conductor, and the bare copper
wires, the cable and its conductors were not protected as
required, and the cited standard was violated.

514

Although counsel for the company asserts the company is not
culpable because the circumstances of the acc;dent represent a
"'clear . • • case • • • of unforeseen employee misconduct"
(Tr. 216), I find the argument inapposite to the issue of whether
a violation of the cited standard occurred. The violation lies
in the failure of the company, to protect adequately the cable's
electrical conductors from damage. There is nothing in the
record to indicate that Buffington's duties included protection
of the cable's conductors or that Buffington was responsible for
the failure to protect them. Rather, those duties lay with
New Mexico Potash. Its failure to meet them establishes the
violation.
SiS AND GBdVXTY

A violation is properly designated S&S, "if, based on the
particular facts surrounding the violation there exists a
reasonable likelihood that the hazard contributed to will result
in an injury or illness of a reasonable serious nature" (Cement
Division, National Gypsum Co . , 3 FMSHRC 825 (April 1981)). There
are four things the Secretary must prov·e to sustain an S&S
finding:
(1) the underlying violation of a
mandatory safety standard; (2) a discrete
safety hazard -- that is, a measure of danger
to safety contributed to be 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 reasonable serious
nature (Mathies Coal Co . , 6 FMSHRC 1,3-4
(January i984); see also Austin Power Co. v.
Secretary, 861, F.2d 99, 104-105 (5th Cir.
1988) (approving Mathies criteria) .
Here, the Secretary has proven all four.
There was a violation of section 57.12007. The violation
resulted in a discrete safety hazard. Failure to protect the
conductors, meant that when the cable's outer jacket was torn and
the conductor wires were exposed, miners working in the vicinity
of the energized cable were subjected to the possibility .. of
coming in contact with the "live" wires. Given the fact that the
tear in the jacket was small, it was reasonably likely that
miners would s~ep o~ or near the cable and not realize that the
conductor and conductor's wires were exposed. Further, if, like
Buffington, they manually picked up the energized cable without

515

using a protective device it was reasonably likely they would
come in contact with the conductor and its wires. In either
situation, the miner involved was likely to be seriously injured
or killed. In making this latter finding, I not only note that
the cable was carrying 480 volts of electricity, but also that
the area surrounding the cable was wet, a condition that Mall and
Cline agreed enhanced the possibility of an electrocuted (Tr. 8182, 205).
In addition to being S&S, the violation was very serious.
It long has been held that . the gravity of a violation is
determined by analyzing the potential hazard to the safety of
miners and the probability of the hazard occurring (Robert G.
Lawson Coal Co., 1 IBMA .115, 120 (May 1972)). Th~ potential
hazard was serious injury or death due to electrical shock.
Because the failure to protect the conductors in the cable
resulted in the exposure of an insulated conductor and of several
bare wires, in a wet area, and in the presence of miners who
worked in the area, it was likely that as mining continued a
miner would come in contact with the exposed conductor and wires
and suffer a severe shock injury or worse.
I am mindful the record established New Mexico Potash
trained its miners, including Buffington, in ·the proper
procedures for handling and moving electrical cables, and that if
such procedures always were followed, the hazard, although not
totally eliminated, would have been greatly obviated. However
and as the history of enforcement of the· Act consistently has
shown -- miners do not always act as instructed. They do the
unexpected. They manually pick up cables without first locking
out and disconnecting their circuits, or they move energized
cables without using approved protective devices or without
wearing safety gloves. While the company's training and work
rules certainly diminished the likelihood that an accident would
occur, they did not eliminate it, and the hazard caused by the
inadequately protected conductors was so great that even if
Buffington had acted as trained, I would still find this a very
serious violation.

HEGLIGEBCI
Negligence is the failure to exercise the care required by
the circumstances. Here, several f~~tors called for hei9htened
caution on the company's part. Witnesses for the Secretary and
the company agreed that because the cable was used in a muddy and
wet area, there was an increased hazard to miners from an
electrical defect (Tr. 81-82). While it is true that the cable
looked to be in good condition and had been in use underground

516

for only a short period of time -- 2 or 3 days, at most (Tr. 58,
iO, 144, 155) -- this did not mean management could relax its

vigilance against possible cable defects, especially when the wet
conditions under which the cable was used increased the likelihood that such defects could be lethal.
Mall testified that when miners are assigned to work around
a cable, management "need[s] to check the work area" (Tr . 75).
There was agreement among the witnesses that, as a general rule,
cables experience a great deal of stress when used underground.
As Cline observed, when cables are moved, they are subject to "a
fairly abusive environment" (Tr. 206).
Morris saw the cable both before and after the accident and
believed that the cable had been moved by as much ·as 15 feet
prior t o Buffington picking it up (Tr. 170-171). I credit this
testimony. Although Cline did not think it necessary to examine
a cable after such a short move, "unless • . • something •
happens during the move that gives you cause for concern"
(Tr. 207), and while there is no evidence that "something"
happened when the cable was moved before the accident, given the
wet condi tions, the generally "abusive environment" to which the
cable was subjected, and the extreme danger presented under such
conditions when cable conductors are not adequately protected, I
conclude that management should have checked for defects in the
cable after it was moved and prior to assigning Buffington the
task of connecting the cable to the welder. Failure to check the
cable and to reinsulate adequately the conductor and wires
represen t e d a negligent failure to meet the standard of care
required under the circumstances .
Citation No.

30 C.F.P..
seCtion

I2.Utl

Proposed
Penalty

4447563

57.12014

9/8/95

$9,500

The citation states in part:
A miner was fatally electrocuted when he •
attempted to remove an energized 480 volt power cable
from the face intake fan. The insulation had a break
in it exposing the conductors. The miner made contact
with the exposed conductors causing his electrocution.
The miner was not using any suitable protective devices
when he handled the power cable.

51 7

Section 57 . 12014 states in part :
When • • • [power cables energized to potentials
in excess of 150 volts] are moved manually, insulated
hooks, tongs, ropes, or slings shall be used unless
suitable protection for persons is provided by other
means.
J'BE VIOLATION

The regulation is straight forward. It requires miners who
move by hand energized power cables to use the devices specified,
or to wear or otherwise to use suitable protection. The standard
recognizes that handling a cable energized to a potential of more
than 150 volts can be so dangerous that a miner must be protected
from direct contact with the cable by placing .an insulated
barrier between the miner and the cable. This is in addition to
the barrier that already is provided by the cable's interior
insulation and its rubber jacket. The goal is to prevent the
miner from being shocked, or at least to lessen the degree of any
shock.
Buffington violated the standard . The record establishes
that the cable Buffington manually moved was energized to
450 volts, and that he moved it without using the devices
specified in the standard or without using other suitable
protection.
In finding the violation, I recognize Mall testified that he
did not believe Buffington was trying to "moven the cable when he
picked it up (Tr. 60-64). However, Mall was using the word
"move" in the sense of transporting the cable from one location
to another and the regulation is not as restrictive in its use of
the verb. While "move" means "to go • • . from one point or
place to another," it also means a change of position or posture
(Webster's Third New International Dictionary 1479 (1986)). Even
though Buffington was not trying to carry the cable to another
location, he brought himself within the regulation's scope when
he picked up the cable and manually moved it from the floor into
his hands; in other words, when he changed the cable's position.
As Mesa persuasively testified, to comply with the
standard Buffington either should have used "a small rop~" to
pull the cable or should have worn "a pair of hot gloves"
(Tr. 111). Buffington did neither. The only barrier between

518

Buffington and the cable was his cotton gloves. The company does
not assert that the gloves were "suitable pro·tection" within the
meaning of the standard, and clearly, they were not.
Buffington's actions were due solely to his own conduct.
Had he acted in accordance with his training and with the
company's work rules, the violation and the accident would not
have occurred (~ Tr. 59-60, 104, 163, 201-202). There is no
evidence that Buffington's prior actions placed the company on
notice that he might pick up the cable without first complying
with company safety procedures or with the regulation. Indeed, I
accept Morris' testimony that shortly before his electrocution,
Buffington's actions in taping a cable were in complete accord
with company safety procedures. Nor is there evidenc~ Buffington
was disciplined previously for failing to obey work rules.
Therefore, here, unlike the previous violation, the question of
the company's liability for a violation caused by its employee's
unforeseen and unforeseeable misconduct is presented squarely.
The Commission long has held that under the Mine Act an
·operator is liable for the violations of its employees without
regard to fault. It has based this conclusion on the wording of
the Act and the act's legislative history (~ Asarco, Inc.,
Northwestern Mining Dept., 8 FMSHRC 1632, 1634-35 (November
1986), aff'd 868 F.2d 1195 (lOth Cir. 1989) (and cases cited
therein)). The Commission has stated that the employee's
misconduct and the operator's lack of fault are factors to
consider in assessing a civil penalty rather than factors having
an impact on liability (Asarco, 8 FMSHRC at 1636).
New Mexico Potash is fully cognizant of this holding, but
asserts that the Co~ssion and the courts have yet to address
whether implementation of liability without fault under the Mine
Act deprives a company of its Fifth Amendment right to due
process. Because New Mexico Potash believes it does, it suggests
that I take a "very bold step . . . and give exactly that
opinion" (Tr. 222-223). (~Kenny Richardson, 3 FMSHRC 8, 21
(January 1981), aff'd 689 F.2d (6tb Cir. 1982), cert. denied 461
U.S. 928 (1983) (Commission may resolve constitutional challenges
raised against enforcement of the Act)).
I am respectful of the company's argument, but I decline the
suggestion. The company's position is grounded in the general
principle of law that there should be no individual liability for
an act which ordinary human care and foresight can not guard
against and that a consequent loss should rest where it chances
to fall. However, above and beyond this principle lies the power
of the legislature to enact laws for the general public welfare ·

519

and to impose obligations and responsibilities that would not
otherwise exist. In such instances, the concept of constitutional due process requires that the means chosen be reasonably
related to a legitimate end (United States v. Jones, 735 F.2d 785
{4~ Cir. 1984), cert~ denied 496 U.S. 918 (1984)).
Under the Mine Act, that "means" is imposition of a civil
penalty on the operator whenever there is a violation of the Act
or its regulations. The "end" is "the health and safety of the
[the mining indu~try's] most precious resource-- the miner" (30
U.S . C. § 801(2)), through lessening "disruption[s) of production
and the loss of income
as a result of • • . mine accidents"
(30 U~S.C. § 801(d)). The end is accomplished by placing primary
responsibility upon "operators • • • with the assistance of the
miners" to "prevent the existence of •
[unsafe and unhealthy]
conditions and practices"· (30 U.S . C. § 801(f)).
I

• •

I

•

The drafters chose to retain in the Mine Act, the liability
without fault structure of Mine Act's immediate predecessor, the
Coal Mine Health and Safety Act of 1969 (30 U.S.C. § 801 ~ ~·
(1976)) (Western Fuels-Utah, Inc . , 10 FMSHRC 256-260 (March
1988)). In requiring the ·operator to pay a civil penalty for
each violation, the legislatprs expressed their belief that such
penalties were necessary "to effectively induce compliance"
(S . Rep. 181, 95~ Cong . 1st Sess. at 16 (1977), reprinted in
Senate Subcommittee on Labor, Committee on Human Resources,
95~ Cong . , 2~ Sess., Legislative History of the Federal Mine
Safety and Health Act of 1977, at 604 (1978)).
While this assumption is perhaps debatable, it certainly is
not unreasonable. A logical argument can be made that when an
operator knows it will be liable for unanticipated employee
negligence, it will·go to additional lengths to try to reduce
violations due to such negligence. For example, it will heighten
scrutiny of its employees; or, it will intensify their training.
Therefore, arguments concerning the efficacy of liability
without fault are for the legislature, not the Commission or the
courts, to resolve. Hence, I conclude the Secretary is not
barred constitutionally from seeking to impose a civil penalty on
the company for Buffington's violation of section 57.12014 and
that the company is liable as charged.
S &S AND GRAVI:'l'Y

All of the criteria set forth in Mathies (6 FMSHRC at 3-4)
have been met .· There was a violation of the cited standard. By
picking up and moving the cable without using the devices

520

specified in the standard, or without using other suitable
protection, Buffington subjected himself to the danger that a
defect in the energized cable could injure or kill him.
Moreover, there was a reasonable likelihood that an injury would
result, given the fact that the cable was indeed damaged to the
point that an insulated conductor and some if its bare wires were
exposed. Finally, the likelihood that the injury would be
reasonably serious was attested to by the fate that befell
Buffington.
In addition to being S&S, the violation was very serious .
Picking up a power cable without using the devices specified in
the standard or without using other suitable protection was
folly. The standard, which is designed to prevent exactly what
happened, recognizes this, as do the company's safety procedures.
Given the conditions under which the violation occurred -- the
wet floor and the exposed conductor and wires -- the tragedy that
resulted was likely.
NIGLX(jENCE

Mesa testified that he considered the fact that New Mexico
Potash had a supervisor in the area as indicative that the
company was negligent (Tr. 96). He amplified this testimony by
stating that he believed the supervisor had the cable dragged
into the area, that the supervisor knew there was going to be
welding done and that the cable was going to be removed from the
fan . Therefore, Mesa asked, "Why didn't the [supervisor] go back
and kick the breaker?" (Tr. 109 ).
The issue, however, is whether the company was negligent in
causing the alleged .violation, and Mesa's testimony does not
address how the failure· of the company or its agents caused
Buffington to manually move the cable without an approved device
or other suitable protection.
As noted previously, there is no suggestion that the
company's training program was defective or that New Mexico
Potash should have known Buffington might act as he did.
Supervisors can not reasonable be expected to monitor a miner's
every move when there is no prior hint or suggestion his or her
conduct may be in violation. For these reasons, I conclude that
New Mexico Potash was not negligent.

521

<n'IER CIVIL PENALTY CBXDJUA
BISTOBX OF QEVXOUS V1QLATIONS

In the 24 months prior to September 8, 1995, 39 violations
cited at the mine were assess by the Secretary and paid by the
company. The Secretary did not take a position on whether the
number of previous violations was small, medium, or large, given
the size of the company (Tr. 17).
I find that ·the overall number is small. However, I note
that of the 39 violations, 11 violations, or approximately
28 percent, were violations of mandatory electrical standards
(Exh. P-1), and I conclude that although the number of previous
violations is small, the percentage of electrical infractions
warrants somewhat larger penalties than I might otherwise have
assessed for the electrical violations here at issue.
BUSINESS SIZE

There was disagreement over the number of miners employed at
the Hobbs facility. Mall testified that 330 miners were employed
(Tr. 119, 56), and Davidson testified that the· number was 307
(Tr 119) • While the exact number of employees obviously
fluctuated, I find that more than 300 miners worked at the mine
and that the company was large.
ABILITY TO COHTtNOE tN BUSINESS

The company did not introduce evidence to show that the
penaities assessed would adversely affect its ability to continue
in business, and I find that they will not.

GOOD FAXTB AI.A'l'EMEN'l'
The company abated the violation of section 57.12004 by
removing the defective cable from service within the ti~e set,
and it abated the violation of section 57.12104 by timely
instructing its workers on_ the proper procedures for handling
cables. The company's actions constituted good faith abatement.

522

CIVIL PEAN'l'LJ ASSESSMENTS

30 C.F.R.
Citation No.

section

~

4330836

57.12004

9/18/95

The violation was very serious and was caused by the
company's negligence. Moreover, when combined with Buffington's
violation of section 75.12014, the violation proved fatal to
Buffington . In view of these factors, and given the company's
large size, and its previous history of violations, a substantial
penalty is warranted . I find that a civil penalty of $9,000 is
appropriate. I have mitigated the assessment to some extent to
reflect the company's good faith abatement.
30 C.F.R
Citation No.

section

J2AtA

4447563

57.12014

9/8 / 95

The violation was extremely serious. Wheh combined with the
violation of section 57.12004, the violation proved fatal to
Buffington . In view of these factors, and given the company's
large size, and its previous history of violations, a penalty
like that assessed for the violation of section 57.12004 would
have been appropriate. However, the company's total lack of
culpability and its good faith abatement call for a significant
mitigation of the penalty. I find that a civil penalty of $1,500
is appropriate.
ORDER

New Mexico Potash IS ORDERED to pay a civil penalty of
$9,000 for the violation of section 57.12004 (Citation
No. 4330836) and to pay a civil penalty of $1,500 for the
violation of section 57.12014 (Citation No. 447533). The
payments are to be made to the Secretary within 30 days of the
date of this decision, and upon their receipt, this proceeding IS
J)ISMISSED.

J)vV;d ~/?_ ~
David F.~~
Administrative Law Judge

523

Oistributio~ :

Daniel Curran, Esq., Office of the Solicitor, U. S. Department of
Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202 (Certified
Mail)

W. T. Martin, Jr., Esq., 509 West Pierce Street, P. 0. Box 2168,
Carlsbad, NM 88221 (Certified Mail)
dcp

\

524

PEDERAL MINE SAFETY AND HEALTH REVIEW COMMISS:ION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYUNE, 10th FLOOR
6203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

MAR
SECRETARY OF LABOR,
M:INE SAFETY AND HEALTH
ADMIN:ISTRATION (MSHA) ,
ON BEHALF OF JtENNETB H.
HANNAH, PBIL:IP J. PAYNE
AND FLOYD MEZO,
Complainants
v.
CONSOLIDATION COAL COMPANY,
Respondent

6 1997
:

PROCEEDING
.
.: Docket No. LAKE 94-704-D
DISCRrM~TION

:

:
:
:

.
:
.

MSHA Case No. VINC CD 94-07
Rend Lake Mine
X.D. No . 11-00601

DECISION
Appearances:

Ruben R. Chapa, Esq. , Office of the Solicitor,
U.S. Dept. of Labor, Chicago, Illinois, for the
Complainants;
Elizabeth Chamberlin, Bsq., Consolidation Coal
Company, Pittsburgh, Pennsylvania, for the
Respondent;
David J. Hardy, Esq., Jackson and Kelly,
Charleston, West Virginia, for the Respondent.

Before:

Judge Melick

This case is before me upon remand by the Commission on
December 10, 1997, for the specific and limited purpose of the
•computation of a backpay award and assessment of a civil
penalty• against the Consolidation Coal Company (Consol). 1
Following remand, the Secretary, by proposed Amended Complaint,
requested a single civil penalty of $3,000 for the three
1

The parties had previously agreed to the amount of backpay
and interest and those amounts were incorporated in a Partial
Decision issued February S, 1997. At oral argument held
Pebruary 27, 1997, it was disclosed that Consol had not yet
actually made these payments. Accordingly an Order addressing
continuing interest charges accompanies this decision.

525

violations of Section lOS(c) of the . Pederal ~ne Safety and
Health Act of 1977, the •Act,• found by the .Cammission . 2 Consol
has objected to the proposed amendment. I find that, in any
event, there is no need for any amendment of -the complaint in
order to properly dispose of the issues on r .e mand.
First, I find that Consol waived any objection to the
Secretary's non-compliance with Commission Rule 44{a) by its
failure to have filed a timely objection at the initial
hearings.' Since the Commission has Bpecifically dire~~ed the
undersigned to assess a civil penalty, de novo, the Secretary's
motion to amend and proposed amendment is,. for this additional
reason, unnecessary and the issue is accordingly moot. In
issuing its specific remand order it may be presumed that the
Commission, too, found that the Secretary's non-compliance with
Rule 44(a) had been waived by Consol.
Section llO(i) provides in part as follows :
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

2

The Commission found that each of the three Complainants
was suspended in violation of the Act. In accordance with
Section llO(a) of the Act a civil penalty must therefore be
assessed for each of the three violations. The Secretary's
position at oral argument, that only one violation occurred and
only one civil penalty should be assessed, is inconsistent with
this statutory mandate.
3

Commission Rule 44(a) provides as follows:

A discrimination complaint filed by the Secretary shall
propose a civil penalty of a specific amount for the alleged
violation of Section lOS(c) of the Act, 30 u.s.c. 815(c). The
petition for assessment of penalty shall include a short and
plain statement of supporting reasons based on the criteria for
penalty assessment set forth in Section llO(i) of the Act. 30
u.s .c. 820(i).

526

ability to continue in business, the gravity
of the violations, and the demonstrated good faith of
the person charged in attempting to achieve rapid
compliance after notification of a violation.

ope~ator'e

At oral argument held by teleconference on
February 27, 1997, the Secretary acknowledged that there is no
record evidence as to four of the aix c~iteria.• Accordingly,
the penalty in this case must necessarily be based upon the only
two criteria for which there i• record evidence, i.e. whether the
operator was negl~gent and the gravity of the violations. Xn
regard to the former issue, the Secretary acknowledges that
Consol's actions were not egregious and that it was only
•moderately negligent• (Oral Argument Tr. 6,27). ·The Secretary
nevertheless maintains that a moderate level of negligence is
appropriate because Consol administered an excessive degree of
punishment to the three complainants who, she maint~ins, were
•good workers• (Oral Argument Tr. 8,13 . ) The Secretary also
acknowledged however that employees refusing to comply with
lawful work orders may appropriately be suspended or dismissed
and, presumably, such discipline would therefore not be
excessive.
In this case I find that the operator acted in good faith in
disciplining the Complainants for what it perceived in a good
faith and reasonable belief to have been an unprotected work
refusal . In addition no clear legal precedent governed the
precise facts and Consol's position in this regard was upheld by
the decisions of th• arbitrator and administrative law judge~ At
worst, Consol's decision may be considered as an error in
judgment as to whether the Complain&n·ts continued to entertain a
reasonable and good faith belief in the claimed hazardous
condition. Moreover Consol made its decision only after it was
confirmed by the State inspector that euch condition was not in

~

Namely, the operator's history of previous violat~ons, the
appropriateness of such penalty to the size of the business of
the operator charged, the effect on the operator'• ability to
continue in b~siness and the demonstrated good faith in
attempting to achieve rapid compliance afte~ notification of a
violation.

527

violation of State -law nor hazardous and only after this
information was communicated to the Complainants.
Zt should also be noted in considering the operator's good
faith and reasonableness that Consol officials along with some of
the mine examiners themselves had, several weeks before this
incident, been advised by the same State inspector that this same
practice/condition was neither in violation of State law nor
hazardous. Finally, the record shows that Consol officials, most
notably Mr. Moore, were prudent and cautious in attempting to
allay the Complainant's f-ars . Zt appears that Consol's
shortcoming was its decision not to insist that the State
in9pector come to the mine site in person (even though he was
available to communicate with the Complainants by telephone).
The Secretary also maintains that the alleged hazard
underlying the work refusals appears to have been a violation of
federal regulations governing ventilation plans . However the
question of whether the alleged hazard, which was not a violation
of Zllinois law, was a violation of any federal regulation was
not an issue litigated in this case. Moreover there is no basis
from the record in this ease to conclude that any federal
regulation had been violated and accordingly no inference of
operator negligence can properly be drawn as here suggested by
the Secretary.
Finally, the Secretary maintains that operator negligence
may be determined from the fact that the Commission has found
that the miners exe~eised a reasonable good faith belief in
refusing to work in the face of what they perceived to be
hazardous conditions. While negligence may be inferred if clear
legal precedent governed the precise factual situation presented
thereby leading to the inference that Consol officials should
have known that the disciplinary action they were taking was in
violation of Section lOS(e) of the Act, such was not the case
herein. Consol's decision was clearly a close judgment call. It
cannot therefore be inferred that Consol should have known that
in disciplining the Complainants it was in violation of Section
10S(c) of the Act. Under the circumstances I find that Consol is
chargeable with but little negligence for the violations of
Section lOS(c) found by the Commis•ion.

528

The Secretary further argues that the gravity of the
violations was ~igh in that these acts of discrimination would
have a chilling effect on the future exercise by miners of their
rights to refuse work and to report unsafe or ·unhealthful
conditions . A Commission majority in Secretary v. Tanglewood
BDergy, Inc . , 18 FMSHRC 1320 at 1320-7321 (August 1996), recently
held that determinations of whether a chilling effect resulted
from a Section lOS(c) violation should not be presumed but rather
should be made on a case-by-case basis considering both objective
and subjective evidence. In this case the Secretary has cited no
evidence that could support such a finding . In searching the
record I, likewise, find no objective or subjective evidence of a
chilling effect. The Secretary baa failed to sustain her burden
of proving her allegations of high gravity.
Under the circum.tances I find that a civil penalty of $10
is appropriate for each of the three violations found by the
Commission.
The Secretary has additionally requested ·an order directing
that a certain notice be posted at the subject mine and the
expungement of Complainants' •employment records of any and all
references to the discipline issued • • • including, but not
limited to, records pertaining to the arbitration action and the
Section lOS(c) action brought pursuant to the Mine Act•. These
requests are clearly beyond the scope of the Commission's
specific remand order and I am therefore without jurisdiction to
rule on them. I note, however, that both requests are for
appropriate remedie~ customarily granted in cases such as this
and upon subsequent remand I would grant the requests. The
Complainants' employment records should be expunged of references
t~ discipline issued as a result of actions found protected under
the Act. This would clearly include the decision of the
arbitrator (Operator's Exhibit No. l) which was based upon the
same •work refusal• which is also the basis for the instant
cases. I would therefore assume the parties would reach
agreement on these issues without the need for further Commission
intervention.

529

ORDER

Consolidation Coal Company is directed to payz (1) civil
penalties totaling $30 to the Secretary of Labor within. 30 days
of the date of this decision and (2) the agreed upon back pay to
each of the Complainants plus interest to the date of actual
payment.

Distribution:
Ruben R. Chapa, Esq., Office of the Solicitor, u.s. Dept . of
Labor, 230 s. Dearborn Street, 8th Floor, Chicago, ZL 60604
(Certified Mail)
Elizabeth Chamberlin, Esq., Consolidation Coal Company, 1800
Waahington Road, Pittsburgh, PA 15241
David J. Hardy, Esq., Jackson~ Eelly, 1600 Laidley Tower, P.O.
Box 553, Charleston, WV 25322 (Certified Mail)
/jf

530

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES .
2 SKYLINE, Suite 1000
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

MAR 7 199I
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION {MSHA),
Petitioner

v.

CAPITOL CEMENT CORP.,
Respondent

..:•
..••
..••
..:•
..

CIVIL PENALTY PROCEEDINGS
Docket No. WEVA 95-194-M
A. C. No • 46-00007-05550
Docket No. WEVA 95-221-M
A. C. No • 46-00007-05551
Docket No. WEVA 95-321-M
A. C. No • 46-00007-05554
Martinsburg Plant

DECISION
.Appearances:

Pamela s . Silverman, Esq., Office of the
.s olicitor, u.s. Department of Labor,
Arlington, Virginia, for the Petitioner;
Dana L. Rust, Esq., and E. E. Matthews, III, Esq.,
McGuire, Woods, Battle and Boothe, LLP,
Richmond, Virginia, for the Respondent.

Before:

Judge Melick

These consolidated cases are before me pursuant to
Section 105(d) of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 801 et seq., the MAct,• to challenge two citations
and a withdrawal order issued by the Secretary of Labor to the
Respondent, capitol Cement Corporation (Capitol), under Section
104(d) (1) of the Act and to challenge the civil penalties
proposed for the violations charged therein. 1 The general issue
1

Section 104(d) (1) of the Act provides as follows:

If, upon any inspection of a coal or other mine, an
authorized representative of the Secretary finds that there
has been a violation of any mandatory health or safety
standard, and if he also finds that, while the conditions
created by such violation do not cause imminent danger, such
violation is of such 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

531

before me is whether the violations and the charging documents at
bar should be affirmed and, if so, what is the appropriate civil
penalty to be assessed considering the criteria under Section
llO(i) of the Act.
"Section 104(d)(l)" Citation No. 4294023 alleges a
•significant and. substantial- violation of the standard at 30
C.F.R. S 56.12016 and charges as follows:
On 10/21/94 an employee suffered a disabling injury
(electrical burns) when he inadvertently contacted a 480 VAC
energized circuit (overhead crane hot rail) while checking
the rail mounting bolts in the clinker shed. Electrically
powered equipment shall be de-energized and locked out
before work ~s done on such equipment.
The cited standard provides as follows :
Electrically powered equipment shall be de-energized
before mechanical work is done on such equipment. Power
switches shall be locked out or other measures taken which
shall prevent the equipment from being energized without the
knowledge of the individuals working on it. Suitable
warning notices shall be posted at the power switch and
signed by the individuals who are to do tbe work . Such
locks or preventive devices shall be removed only by the
persons who installed them or by authorized personnel.
"Section 104{d) (1)" Order No. 4294024 alleges a "significant
and substantial~ violation of the standard at 30 C.F.R.
S 56.15005 and charges as follows :
It was learned during the investigation of a disabling
injury (electrical burns) which occurred on 10/21/94 that

Footnote 1 continued
given to the operator under this Act. If, during the same
inspection or any subsequent inspection of such mine within
90 days after the issuance of such citation, an authorized
representative of the Secretary finds another violation of
any mandatory health or safety standard and finds such
violation to be also caused by an unwarrantable failure of
such operator to so comply, he shall forthwith issue an
order requiring the operator to cause all persons in the
area affected by such violation, except those persons
referred to in subsection (c) to be withdrawn from, and to
be prohibited from entering, such area until an authorized
representative of the Secretary determines that such
violation has been abated.

532

the injured employee was not wearing a safety belt and line
where there was a danger of falling. This violation was not
a contributing factor to the injury.
The cited standard provides in relevant part that •safety
belts and lines shall be worn when persons work where there is
danger of falling.•
It is undisputed that on October 21, 1994, an accident
occurred at the clinker shed in Capitol's Martinsburg plant in
which shift supervisor Gregory Bonfili suffered disabling
electrical burns. He inadvertently contacted a 480 volt
alternating current energized circuit on the overhead crane •hot
rail• while checking the rail mounting bolts. The clinker shed
within which the crane operates is 600 feet long, 80 feet wide
and 75 feet high. It is used to store material and two cranes
with clamshell buckets run on rails across the building powered
by •hot rails". It is approximately 60 feet from the crane
runway to the ground but the height varies depending on the
amount of stored material.
At the beginning of the shift, crane operator Charles Cook
found that his crane was shaking and therefore called the
maintenance department . When no one appeared to correct the
problem Cook called his foreman, Bonfili, who climbed onto the
craneway to investigate. Bonfili told Cook to cut the power to
the crane. However, as noted by the issuing Inspector, Edward
Skvarch of the Mine Safety and Health Administration (MSHA), deenergizing the crane alone does not in fact de-engergize the "hot
rail" since they are on separate power feeds. The disconnect
switch for the "hot rail" is located in the same building but one
level below the crane. While investigating the problem Bonfili
reached over the side and contacted the 480 volt energized •hot
rail" suffering significant burns. There is no dispute that the
"hot rail" was not de-energized or locked out and that Bonfili,
while on the 3 foot craneway some 50 feet above ground, was not
wearing a safety belt. (Respondent's Brief p. 11).
Skvarch opined that the violations were •significant and
substantial" . In the former case he opined that it could
reasonably be expected that a person working in close proximity
to the •hot rail" could suffer fatal electrocution. In the
latter case he opined that working on a three-foot cat walk 50
feet above ground without a safety belt could also reasonably be
expected to result in fatal injuries. The inspector concluded
that in both cases the violations were also the result of high
negligence and "unwarrantable failure" because the injured ·p arty
himself was a supervisory agent of the operator committing an
"obvious serious violation in the presence of a subordinate."

533

Respondent does not dispute the violations nor that they
were •significant and substantial" and serious but contests only
that the violations were the result of its "unwarrantable
failure" or negligence and disputes the amount of proposed
penalties. (Respondent's Brief p . 11). "Unwarrantable failure"
is defined as aggravated conduct · constituting more than ordinary
negligence. Emery Mining Corp., 9 FMSHRC 1997 (December 1987).
Unwarrantable failure is •intentional misconduct,• •indifference•
or a •lack of reasonable care.• Id. At 2003-04; Rochester and
Pittsburgh Coal Company, 13 FMSHRC 189, 194-194 (February 1991).
The Secretary maintains in her brief, as to the violation
charged in Citation No. 4284023, that it was the result of
"unwarrantable failure" bec'ause "[i)t is undisputed that
Mr. Bonfili failed to de-energize and lock-out the power to the
craneway prior to performing work thereon in direct violation of
30 C.F.R. § 56.12016." At oral argument the Secr~tary further
maintained that all three violations were the result of
"unwarrantable failure" because they were obvious and dangerous
and because they were committed by foremen who are held to a high
standard of care in safety matters. See Midwest Material
Company, 19 FMSHRC 30, 35 (January 1996).
In 'this regard it is undisputed that after Bonfili rode
back-and-forth on the crane in an effort to identify the source
of the problem but before working in the vicinity of the "hot
rail" Bonfili directed the crane operator only to de-energize the
crane. It may reasonably be inferred from Respondent's training
records that Bonfili knew that de-energizing the crane alone
would not also de-energize the "hot rail". Moreover he failed to
lock out any of the power sources.
The violation was also obvious, extremely dangerous and
committed by a foreman held to a high standard of care. The
violation was there-fore the result of "unwarrantable failure" and
high negligence. Midwest Material at p. 35. Under the
circumstances, the Secretary has clearly sustained her burden of
proving the necessary aggravating circumstances to justify
"unwarrantable failure" and high negligence.
The Secretary similarly alleges that the violation charged
in Order No. 4294024 was the result of "unwarrantable failure"
because "[i)t is undisputed that Mr. Bonfili failed to wear a
safety belt and line while working where there was a danger of
falling, ·in direct violation of 30 C.F.R. S 56.15005." Clearly
it again may reasonably be inferred from Respondent's training
records that Bonfili knew that the failure to use a safety belt
under the circumstances of this case was a violation. ·
Respondent next argues, citing the so-called Nacco defense,
that, in any event, the negligence of shift supervisor Bonfili is

534

not imputable. See Nacco Mining Company 3 FMSHRC 848, 849-850
(April 1981) • . Under the Nacco defense the negligence of a
supervisor is not imputable to the operator if the operator can
demonstrate that no other miners were put at risk by the
supervisor's conduct and that the operator took reasonable steps
to avoid the particular class of accident . The commission has
emphasized however that even an agent's unexpected or willful and
intentional misconduct may result in a negligence finding where
his lack of care exposed others to risk or harm. Id at 851;
Rochester and Pittsburgh Coal Co. 13 FMSHRC 189, 197
(February 1991) • .
In this case it is clear that, by his negligent misconduct,
Bonfili not only put himself at risk but also placed crane
operator Charles Cook at risk ~ According to MSHA Special
Investigator Charles Weber, when Cook saw what happened when
Bonfili contacted the 480 volt •hot rail", he exited the crane,
ran along the exposed craneway some 50 feet above ground and down
to the next level to cut power to the •hot rail". In running
along the exposed craneway, Cook was thereby exposed to the
hazard of falling from the 50 foot craneway and suffering
potentially fatal injuries. It may also reasonably be inferred
from the record evidence that if Bonfili had slipped or otherwise
lost control on the exposed craneway without a safety belt and
was thereby placed in a precarious position and Cook had
therefore come to his rescue he too would have been exposed to a
falling hazard with its potentially fatal consequences. It may
reasonably be inferred therefore that the negligence of Bonfili
in failing to de-energize the •hot rail" and in failing to wear a
safety belt, indeed exposed crane operator Charles Cook to the
significant risk of fatal injuries. Accordingly the Nacco
defense is inapplicable on these facts and Bonfili's negligence
may be imputed to the Respondent .
In assessing a·. civil penalty herein I do consider, however,
what appears to have been a responsible training program in
effect before the incident herein and that Bonfili's actions were
contrary to Respondent's own work ruies . I also note that,
consistent with Respondent's written disciplinary rules, Bonfili
was subjected to a five day suspension and written warning for
his violations of the company safety rules . Bonfili was further
advised that further disregard for these rules would lead to more
progressive discipline up to and including discharge
(Respondent's Exhibit No. 11). Finally, there is no evidence to
suggest any negligence in the hiring of Bonfili. Thus, while the
violations were of a serious nature and the negligence o~ Bonfili
is imputable to Respondent, these factors warrant some mitigation
of the penalty amount. Considering all the criteria under
Section 110(i) of the Act I find that civil penalties of $2,500
for the violation charged in Citation No. 4294023 and $1,250 for
the violation charged in Order No. 4294024 are appropriate.

535

"Section l04(d)(l)" Citation No. 4294714 alleges a
•significant and substantial• violation of the standard at
30 C.F.R. S 12016 and charges as follows:
on March 15, 1995, a shift supervisor was injured when
his right hand and arm became caught between the No. 2
collecting belt and head drum. The supervisor was
attempting to •train• the belt by installing duct tape to
lag the east side of the head drum while the belt was
running. The pulley guard had been moved out of position,
and the conveyer had not been de-energized and locked out as
is required when doing such work. There is an unwarrantable
failure violation.
As previously- noted, that standard prov_ides as follows:
Electrically powered equipment shall be .de-energized
before mechanical work is done on such equipment. Power
switches shall be locked our or other measures taken which
shall prevent the equipment from being energized without the
knowledge of the individuals working on it. Suitable
warning notices shall be posed at the lower switch and
signed by the individuals who are to do the work. Such
locks or preventive devices shall be removed only the
persons who installed them or by authorized personnel.
Inspector Skvarch discovered the instant violation while
reviewing injury reports at the mine on April 18, 1995. The
record shows that shift supervisor Arthur Lozano injured his hand
while using duct tape to Mtrain" a conveyer belt. The injury
resulted in four days of restricted duty for Lozano but Skvarch
op.ined that, by placing his hand in close proximity to the moving
belt, Lozano subjected himself to permanently disabling injury.
Skvarch also opined that it was reasonably likely that Lozano
could have suffered·. the loss of a finger or hand. This evidence
is undisputed and I therefore find this violation also to be
•significant and substantial" and serious. Skvarch also found
the violation to have been the result of high operator negligence
and •unwarrantable failure" on the grounds that Lozano, as shift
supervisor, was the operator's agent and intentionally committed
a serious and obvious violation. Respondent again claims the
Nacco defense . Nacco Id. pps. 849-850.
Jeffrey Miller was working as a general laborer on March 15.
He had been directed to assist Lozano. He was shoveling beneath
the belt when Lozano told him •come here, I want to show .you a
trick". Miller testified that he did not know what Lozario
planned to do but observed that Lozano placed his hand between
the head pulley and the moving belt. Lozano's left arm was then
caught and pulled into the head pulley. The belt was then shut
down.

536

~:

This violation was of an obvious and dangerous nature and
was committed by a shift supervisor, a person held to a high
degree of care. Even without the cited regu1atory standard it
shows reckless disregard to do what the shift supervisor did
here. The violation was clearly the result of aggravated
circumstances constituting "unwarrantable failure" and high
negligence. Midwest Material p. 35.
Miller testified, however, that he was not placed in any
danger by Lozano's action. MSHA Special Investigator Charles
Weber disagreed, observing that Miller was only 3 or 4 feet from
Lozano when Lozano was pulled into the moving belt. Weber
observed that if Lozano had been further engaged by the belt
Miller may then have attempted to extract Lozano from the belt
thereby also exposing himself in the same way thereby also
suffering potentially serious injuries. I agree that Weber's
analysis may reasonably be inferred from the evidence and, under
the circumstances, I must again conclude that the Nacco defense
is inapplicable. In assessing a civil penalty however I also
consider in mitigation the absence of negligence in Lozano's
hiring, the operator's training program, and the fact that Lozano
was disciplined with a 3-day suspension for violating its safety
rules. I also note that Lozano was warned that further disregard
of company safety rules would lead to more serious discipline, up
to and including discharge .
Considering the criteria under Section 110(i) of the Act I
find that a civil penalty of $1,600 is approp~iate for this
violation.
QBDER

Citation No. 4294023, Citation No. 4294714 and Order
No. 4294024 are hereby affirmed. Capitol Cement Corporation is
directed to pay civil penalties of $5,350 withi 30 days of the
date of this decision.

537

Distribution:
Pamela s. Silverman , Esq., Office of the Solicitor, u.s. Dept. of
Labor, 4015 Wilson Blvd., Suite 516, Arlington, VA 22203
(Certified Mail)
Dana L. Rust, Esq., McGuire, Woods, Battle and Boothe, LLP, One
James Center, 901 East Cary Street, Richmond, VA 23219-4030
(Certified Mail)
Jjf

538

FEDERAL MINE SAFETY AND HEALm REVIEW COMMISSION
OmCE OF111E ADMINISTRAnvE LAW JUDGES
l SKYLINE, IOnl FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 21041

MAR 1 0 1997
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, . (MSHA),
Petitioner
v.
SOUTHERN REFRACTORIES, INC.,
Respondent

.: CIVIL PENALTY PROCEEDING
:
:

Docket No. CENT 96-123-M
A. C. No. 41-00072-05501 R5U

.
. Plant & Quarry
...
.

DECrSrON
Appearances :

Jennifer W. Hilburn, Esq . , Office of the
Solicitor, U.S. Department of Labor,
Dallas Texas, for the Petitioner;
Joe D. Gregory, Esq . , Gregory & Gregory,
Grapevine, Texas, for the Respondent .

Before :

Judge Feldman

This ma·t ter concerns a petition for assessment of civil
penalty filed by the Secretary of Labor against the respondent,
Southern Refractories, Inc. (SRI), pursuant to section 110(a)
of the Federal Mine Safety and Health Act of 1977 (the Act),
30 U.S . C. § 820 (a). SRI is a refractory sales and installation
company. Briefly stated, SRI removes and replaces old and worn
refractory material in preheaters and kilns. Refractory material
typically consists of a concrete mixture, called •castable,"
which lines the interior ceiling and walls of the preheater or
kiln.
The assessment petition that serves as the basis for this
proceeding sought to impose a total civil penalty of $353.00 for
five alleged violations of mandatory safety standards in
Part 56, 30 C. F.R. Part 56, cited in Citation Nos. 4448249
through 4448253. This case was heard in Fort Worth, Texas, on
November 19 and November 20, 1996 . The parties' post-hearing
findings of fact and conclusions of law, as well as their reply
briefs, have been considered in the disposition of this .
proceeding .
At the beginning of the hearing, the Secretary moved to
withdraw Citation No. 4448253, and the respondent agreed to pay a
reduced civil penalty of $56 . 00, rather than the $75.00 penalty
initially proposed , for Citation No . 4448249 based on a reduction
in the degree of the respondent's . During the hearing, the

539

respondent. also agreed to pay the $50.00 civil penalty proposed
for Citation No. 4448252 in view of the Secretary's agreement to
reduce the degree of the respondent's negligence from moderate to
low. (Tr. 330).
Decision Concerning
Citation No . 4448251

~ench

Citation ~o. 4448251, citing an alleged violation of the
mandatory standard in section 56.13021, was vacated in a bench
decision entered at the cu~mination of the hearing. The bench
decision is finalized below .

Section 56 . 13021 provides, in pertinent part, that •suitable
locking devices shall be used at connections . . . between high
pressure hose lines of ~-inch. inside diameter or larger, where a
connection failure would create a hazard.• (Emphasis added).
The refractory service process (discussed in further detail
below), involves the process of •chipping" away castable material
inside preheaters and kilns by using pneumatic air guns. SRI's
air guns are powered by compressed air. The compressed air is
fed through an incoming hose into the main line in each of two
Y-type quick connectors. Each connector splits the compressed
air into two outgoing hoses that carry the compressed air to the
air guns. On March 5, 1996, MSHA inspector Mike Davis observed
that a clip used to lock an outgoing hose to the Y-connector was
missing.
At the hearing, Davis acknowledged two conditions that are
to s ustain the cited violation . Namely, the incoming
hose to the Y- connector must be connected to the air compressor
to create the potential •connection failure," and, the outgoing
hoses must be at le~st ~-inches in inside diameter. The
Secretary. has failed to satisfy his burden of establishing that
either of these conditions existed at the time of the cited
violation. At the time of the inspection, SRI foremen,
Jack Kennedy, advised Davis that the air guns had been taken out
of service for cleaning, and that the incoming air hose was not
attached to the compressor . However, Davis did not check the
compressor, which was located outside of the preheater, to
determine if the hose was connected . Thus, the evidence is
inadequate to support a finding that the missing clip constituted
the requisite connection failure hazard to support the cited
violation.
requ~red

Moreover, SRI asserts, although the incoming hose off the
compressor is ~-inch inside diameter, the split outgoing hoses
are only ~-inch inside diameter . In support of its assertion,
SRI demonstrated a Y-type quick connector at the hearing that had
a ~-inch incoming fitting and two ~-inch outgoing fittings. SRI

540

explained this is a standard Y-connector design so that the
compressed air supplied through the·~-inch hose can be
efficiently ·transferred to the two narrower ~-inch hoses without
a diminution in air pressure.
In addition, as demonstrated at trial, it is difficult to
determine the inside diameter of the subject high pressure air
hoses solely through observation because of the thickness of the
outer jackets. At trial, Davis admitted he did not compare the
cited hose to other ~-inch or ~-inch hoses to obtain a basis for
comparison to ensure the outgoing hoses were, in fact, ~-inch
inside diameter. Thus, the Secretary has failed to establish, by
a preponderance of the evidence, that section 56.13021 applies .
Consequently, Citation No. 4448251 is vacated.
Preliminary Findings of Fact
for Citation No . 4448250
Remaining for disposition is the Secretary's proposed
$128.00 civil penalty for Citation No. 4448250 that alleges a
significant and substantial (S&S) violation of the mandatory
safety standard in section 56.11001, 30 C.F.R. § 56.11001. This
standard requires that •[s]afe means of access shall be provided
and maintained to all working places.• The Secretary alleges
SRI failed to provide its employees with safe access to the
inside of the preheater during the castable removal process.
MSHA's concern with respect to the hazards associated with
the removal of castable in this case was heightened as a result
of a fatal accident, involving SRI employees, that occurred at
another location on February 9, 1996, shortly before the issuance
of the subject citations on March 5, 1996. In that incident,
which occurred at the North Texas Cement Company (NTCC) mine site
in Midlothian, Texas, an .entire portion of castable liner around
a portal door opening, measuring approximately 12 inches thick,
by 10 feet wide, by 12 feet long, fell and struck SRI employees,
killing one and seriously injuring another. 1 The cause of this
accident is still under MSHA investigation.
Refractory is material that will withstand extreme heat and
abrasion, and is typically used in preheaters and kilns. As
noted above, SRI is a distributer of refractory product, buying
directly from manufacturers and selling to end-users for use in
1

Although the NTCC accident has been referred to as a double
fatality, one victim was killed as a result of the castable
collapse. The other victim of this accident died during the
course of treatment for his leg injuries. However, the cause of
death apparently was not related to the accident.

541

refractory linings in various heat enclosures. Refractory
material includes •castable•, which is a concrete mixture
anchored to steel base plates, that lines the interior ceiling
and walls of the preheater or kiln, where bricks cannot be used
because of curvature. SRI contracted with Texas Lime Company
(TLC), located in Cleburne, Texas, to recondition TLC's No. 5
preheater. The preheater is used to preheat limestone before the
limestone is heated in the kiln.
In resolving the issue of •safe access•, the construction
and dimensions of · TLC's No.5 preheater are significant
considerations. The preheater is constructed in a circular
pattern with an outer circle of 29'4" in diameter and an inner
circular roof area of 20'4~" in diameter. The inner, circle roof
is wrapped with ten bullnose modules constructed of refractory
castable material. Limestones, ranging from baseball to softball
in size, enter the preheater from ten conveyor .belts that drop
limestones onto the ten bullnose modules located around the
perimeter of the preheater.
The inner circle height from I-beams to the preheater floor
is approximately 4 feet. However, this distance is diminished by
SRI's placement of a temporary platform over the preheater floor
that is installed in order to level the slope in the floor.
Thus, the pertinent distance from the I-beams to the platform
below is no more than 3~ feet.
The outer circle height from the bottom (lowest part)
of the bullnose modules to the preheater floor is approximately
30 inches . Each bullnose module is approximately 20 inches thick
at the bottom and extends up the outer diameter of the inner
circular roof area a distance of several · feet . Each module is
7~ inches in length at the outer perimeter.
Each module is
separated by a dry joint . Thus, removal of a castable bullnose
module with jack hammers does not compromise the structural
integrity of the adjoining modules.
The refractory castable material comprising the bullnose
modules is anchored to steel base plates by a system of two
alternating types of anchors: (i) V-type stainless steel alloy
anchors welded to steel base plates; and (ii) refractory or
ceramic, ribbed brick anchors held in place by stainless steel
alloy clips welded to . steel base plates . The ribbed brick
anchors are located on 12 inch centers with V-type anchors welded
to the base plates between the brick anchors. The castable
includes small nail-like brads mixed with the concrete material
to provide added strength.

542

The inner circular roof is constructed primarily of ceramic
brick (3" x 4" x 9" long) hung from steel I-beams placed on
8 inch centers. An expansion joint separates the ceiling from
the bullnose modules to prevent the ceiling, which expands during
the heating process, from pushing against, and damaging the
bullnoses . Thus, removal of the ceramic ceiling bricks does not
compromise the structural integrity of the bullnose modules.
Because the round ceiling is constructed with 3• x 4• brick
rectangles, castable plugs 9" in depth are poured to finish out
the smooth circle in order to form the expansion joint between
the inner diameter roof and the modules . Layers of lightweight
castable and insulating castable are poured over the brick and
castable plugs.
SRI contracted with TLC to remove the complete brick ceiling
section of the No.5 preheater that was supported· by the 8 inch
centered I-beams. This was accomplished by SRI personnel
knocking the castable and brick out from above while they stood
on the I-beams outside, and on the top of, the preheater . SRI
also contracted to remove the castable liner material from 4* of
the 10 bullnose modules surrounding the inner most preheater
ceiling area.
All of the brick, and approximately ninety-eight percent of
the insulating castable, were removed while working from the roof
using a nail bar, chipping hammer and brick hammer. The small
portion of the remaining castable roof, that could not be
accessed from above because of a walkway located over a portion
of the preheater, was removed from below by standing or kneeling
on the preheater floor .
SRI's foreman, Jack Kennedy, testified regarding his method
for determining whether castable is safe to work under.
Initially, Kennedy observes the castable to determine if there
are any cracks, missing or sagging pieces, or any indications the
castable has pulled away from the steel anchored base plates.
Next, he •sounds" the castable, by hitting it with a two-pound
hammer in several places, to see if it sounds hollow or has a
ring to it. Kennedy stated both he, and the TLC plant inspector,
had "sounded" the bullnose module castable prior to entering the
No. 5 preheater. MSHA inspector Davis conceded that he has used
the same •sounding" methods •a thousand times" to determine if
castable is stable and well secured. (Tr . 222-23).
On February 29, 1996, Inspector Davis began an inspection of
TLC's limestone facility in Cleburne, Texas. On March 5, 1996,
during the course of his TLC inspection, Davis arrived at the
preheater area where he was informed by TLC's plant engineer,

543

Tom Hoff, that SRI was replacing castable in the No . 5 preheater .
Davis proceeded to inspect SRI as an independent contractor
performing refractory service on mine property.
Hoff accompanied Davis to the top of the preheater where
Davis met Kennedy. Davis observed that SRI employees had already
removed a majority of the ceramic ceiling (roof) section of the
preheater . Davis was informed the center portion of the ceiling
had been removed by SRI personnel from the top while they stood
on top of the I-beams. At this time, Davis observed men inside
the preheater, standing in the center on the work platform that
was installed to level the preheater floor. The men were
chipping the castable liner with jack hammers from the inside of
the circle in an outward direction towards the outside of the
preheater .ring. The castQble material lined the ceiling, as well
as the outer walls, and was approximately 12 to 1~ inches thick.
Davis subsequently observed an SRI employee climb out from
the shell of the preheater through an opening in the ceiling
where the castable or brick had been removed. The employee
exited the preheater by hoisting himself up a distance of
approximately 3~ feet onto the !-beams in an area where the
I-beams, normally spaced 8 inches apart, had been moved to create
an ~pening of approximately 2~ to 3 feet. The employee then
walked approximately 3 to 4 feet on the I-beams to a walkway,
where he stepped over the walkway handrails and exited on the
walkway. Davis testified that Kennedy had informed him that
employees had been accessing the preheater in this manner for
several hours.
Davis concluded that an employee entering or exiting in such
a manner could fall from the I-beams to the preheater floor
below . Davis concluded a slip and fall hazard of approximately
4 to 6 feet existed depending on whether the employee fell from
the I-beams, or, from the walkway as he was attempting to climb
over the handrail . Davis took a photograph of the area where the
!-beams had been separated which was admitted into evidence as·
Exhibit P-7.
Based on his observations, Davis issued Citation No. 4448250
for SRI's alleged failure to provide a safe means of access to
the workplace by allowing men to enter the preheater through the
overhead framework in violation of section 56.11001. Davis
considered this condition to be S&S in nature. To abate the
citation, Davis required SRI to install a ladder from ~he
preheater floor to the walkway by removing a cross piece from the
handrail and securing the ladder to the walkway.
Davis was then advised that the primary means of access to
the preheater was by using an access door to traverse an 8 foot
sectional ladder that had been placed down a vertical passageway.

544

Davis observed the passageway had only elbow room from side to
side in that it was only approximately 42 inches in width . The
area behind th~ ladder was wide open space into the preheater.
As Davis descended, he felt the second rung below the slip joint,
located approximately 6 feet above the preheater floor, bow under
his weight of 170 pounds . Davis concluded the ladder was not
sturdy enough for commercial use. Thus, Davis concluded it . was
reasonably likely the ladder will fail, causing an employee to
strike his head on the castable, metal liner or base of the
ladder. Consequently, Davis included this condition in Citation
No. 4448250 as further evidence of the cited section 56.11001
violation.
As Davis reached the bottom of the ladder, he observed
employees chipping remaining castable (that could not be reached
from above because of the walkway) from the center of the
preheater toward the exterior wall and expansion . joint. The
castable hung down 12 inches from the ceiling. Davis estimated
the castable was approximately 3 to 4 feet deep from the inside
edge of the castable to outside wall . It is not clear whether
Davis was observing removal of 9 inch castable plugs, removal of
bullnose modules, or both.
As Davis observed these individuals working, he noticed
others accessing the preheater by climbing down the access door
ladder, and then crawling under the castable material to be
removed so that they could turn around and chip the castable in
the direction of the outside perimeter wall. Davis concluded
there was no means of exiting the preheater by the ladder in the
access door without traveling under castable that had already
been compromised during the ceiling removal process. Davis'
conclusion was based on his belief that there was no area of
castable that was undisturbed during the demolition process
because the entire center area (inner circle ceramic brick
ceiling ) had been r~moved. Thus, Davis felt the perimeter
castable on the bullnose modules had been compromised. However,
as discussed below, Davis' conclusion concerning the lack of the
modules' structural integrity, fails to consider the effect of
dry joint between each bullnose module as well as the expansion
joint between the ceiling and the bullnose modules .
Davis did not believe chipping away castable was hazardous
because employees were using pneumatic air guns to chip straight
ahead at the castable, and, the castable over their heads had
already been removed from above. Davis explained, however, that
it was hazardous for employees to crawl underneath castable that
was in the process of being chipped away.
Davis concluded that SRI •could have blocked and braced that
area of the castable that they were crawling . under• to provide a
safe system of temporary support. (Tr. 138-39) . In view of the

545

recent fatality of an SRI employee at NTCC, Davis concluded that
it was reasonably likely that an SRI employee entering or exiting
the preheater under castable will suffer serious or ·fatal
injuries by a sudden castable collapse. Consequently, Davis
determined that SRI's failure to designate a discrete access area
for travel under castable, by providing temporary structural
support, constituted an additional failure to provide safe access
in violation of section 56.11001 in Citation No. 4448250.
Further Findings and
Conclusions of Law
Safety standards cannot possibly contemplate every condition
encountered during the mining process. Thus, as a general
proposition, mandatory safety standards must be broadly adaptable
to a myriad of circumstances. Kerr McGee CohP., 3 FMSHRC 2496,
2497 (November 1981). Here, MSHA seeks to broadly apply its safe
access standard to the ~efractory industry.
The policy of broadly applying mandatory standards is
outweighed by the due process requirement that application of a
mandatory regulatory safety standard must afford an operator
adequate notice. Alabama By-Products Corp., 4 FMSHRC 2128, 2129
(December 1982). Thus, standards, as applied, cannot be Mso
incomplete, vague, indefinite or uncertain that [persons) of
common intelligence must necessarily guess at its meaning and
differ as to its application.• ~ When faced with whether
MSHA's application of a standard provides adequate notice, the
Commission has concluded that the test is whether a reasonably
prudent person familiar with the mining industry (~, the
refractory industry), and the protective purposes of the
standard, would have recognized the specific prohibition or
requirement of the standard. Ideal Cement Co., 12 FMSHRC 2409,
2416 (November 1990).
Section 56.110b1 states that •[s]afe means of access
shall be provided and maintained to all working places.•
Citation No. 4448250 cites three distinct conditione that
allegedly constituted unsafe access to the preheater floor
(the workplace). Namely, use of a ladder that was too light
and bowed at the expansion joints; traveling under castable to
position oneself to chip away at the castable material; and
climbing through overhead framework to access the preheater
floor. Thus, the Commission's -prudent person• test must be
applied to determine if these conditions were properly cited
under section 56.11001.

546

The Sectional Ladder
Obviously, a ladder is a fundamental means of accessing a
workplace. Consequently, the application of. the safe access
standard to the condition of a ladder creates no due process
notice issues. Thus, with respect to the fact of occurrence of
the cited violation, use of an unsafe ladder to access a
workplace would constitute a violation of section 56.11001.
In determining whether the ladder was properly characterized
by Davis as •unsafe,• the Commission has stated that equipment is
•unsafe• when a reasonably prudent person familiar with industry
standards, and the factual circumstances surrounding the
allegedly hazardous condition, would recognize a hazard
warranting corrective action. 4 FMSHRC at 2129. I credit Davis'
testimony that the 8 foot ladder in prebeater access door was a
sectional ladder that bowed under Davis• weight at the second
rung below the slip joint . Although subjective in nature, I also
credit Davis' conclusion that this sectional ladder was not fit
for its intended use . In this regard, the respondent does not
contend that the ladder was rated as a Type I ladder manufactured
for heavy duty commercial applications. Since the ladder was not
intended for heavy use, the Secretary bas met his burden of
establishing a lack of the requisite .,safe access" mandated by
section 56.11001 .
A violation is properly designated as significant and
substantial (S&S) in nature if, based on the particular
facts surrounding that violation, there exists a reasonable
likelihood that the hazard contributed to [by the violation] will
result in an injury or an illness of a reasonably serious nature .
Cement Division. National Gypsum, 3 FMSHRC 822, 825 (April 1981);
Mathies Coal Co., 6 FMSHRC 1 (January 1984); United States Steel
Mining Company. Inc., 7 FMSHRC 1125 (August 1985) . Although
Davis felt the ladder bow under his weight, the subject ladder,
photographed in Exhibits R-9 through R-12, is constructed of
steel and does not appear to be defective . In this regard, Davis
did not observe any structural defects in the ladder's rungs.
The sensation of •give• on a ladder's rung, especially near a
slip joint, does not mean that it is reasonably likely that a
failure of the rung will occur. Although the ladder was a
technical violation, in that it did not provide •safe access• as
contemplated by section 56.11001, the evidence fails to establish
that continued use of the ladder was reasonably likely to result
in serious injury. Consequently, although the fact of the
section 56.11001 violation with respect to this ladder shall be
affirmed, Citation 4448250 shall be modified to delete the S&S
designation.

547

Traveling under Castable
The Commission has noted there are various factors that
dictate what a reasonable person would do under particular
circumsta.n ces. In this case, the pertinent factors include
accepted safety standards in the refractory service field,
considerations unique to the refractory industry, and the
circumstances at the No. 5 preheater. ~u.s. Steel CohP.,
5 FMSHRC 3, 5 (January 1983).
Here, the castable was anchored with a system of steel based
plates and steel hangers and clips, not unlike the pouring of
reinforced concrete. The castable was further strengthened with
steel nails in the concrete mixture. This method of. castable
installation is the industry standard. With the exception of the
NTCC accident, it has never been known to fail .
In this regard, SRI called several witnesses to testify that
they had never heard of castable falling down in large pieces.
Kennedy testified, in his 27 years of experience in the industry,
he has never seen or heard of a large structural failure.
Likewise, Mike McPherson, who was employed for 34 years by
A. P . Green, a company that develops, markets and installs
refractory products, was not aware of any other incident
comparable to the NTCC accident where castable fell in large
pieces. Mark Stanfield, President of SRI, testified in his
38 years in the refractory business, he has never known of a
failure similar to that wh1ch occurred at NTCC. Finally,
Gerald Forrester, SRI's safety consultant, attended MSHA health
and safety conferences arising out of the NTCC incident.
Forrester stated MSHA officials were unaware of any previous
event like the NTCC accident.
In view of the unrebutted testimony of McPherson and
Forrester, the Secr~tary has failed to show that the unexplained
systematic failure of castable at NTCC is a basis for a blanket
prohibition of travel under any castable, under any
circumstances, during the removal process. The enclosed work
environment in a preheater or kiln is analogous to the
environment in underground mining. While this case concerns the
issue of safe access to a preheater rather than travel under
unsupported roof, the similarities are inescapable. By analogy,
surely MSHA would not assert that travel under roof supported by
roof bolts in a given mine should be prohibited simply because of
an isolated roof fall of a roof supported by roof bolts at
another mine site.
In this case, it is important to note that the respondent
was not cited because SRI employees were observed crawling under
a discrete section of castable that had been compromised by the
•chipping" removal process. Rather, Davis considered all ·

548

eastable to have been compromised as a consequence of the ceramic
brick ceiling removal. The perimeter castable comprised the
bullnose modul~s. However, only 4~ of the 10 bullnose modules
were replaced. These bullnose modules, under which personnel
crawled a distance of approximately 20 inches in order to reach
the inner circle so as to work in an outward direction, were
separated from each other by dry joints. The bullnose modules
were also separated from the ceramic brick ceiling by an
expansion joint.
Despite the utilization of separation joints in the bullnose
module construction design, Davis did not view the bullnose
modules as separate units . (Tr. 155). In addition, because
•the entire core• consisting of the ceramic bricks and the
expansion joint haq been removed from the inner perimeter of the
bullnose modules, Davis did not consider any portion of the
bullnose castable to be •untouched . • (Tr. 151) .
However, the evidence fails to support Davis' concern that
virtually all of the bullnose castable had been compromised .
Rather, given the circular configuration of the preheater, SRI
employees could access the preheater under various areas of
castable where little or no removal activity had occurred, or,
under areas where castable had been removed . As noted, the
respondent was not cited because personnel accessed the preheater
under a particular, identifiable area where the structural
integrity of the castable was in doubt.
In his reply brief , the Secretary asserts the NTCC fatality
placed SRI on notice that greater safety measures were required.
However, the accident at NTCC was an isolated, and as yet
unexplained, event. Moreover, the circumstances in this case are
significantly distinguishable from the NTCC case . NTCC involved
a kiln that was lined entirely with castable material. Thus, the
victims in NTCC were surrounded by castable. The injuries
occurred as a result of a systematic failure of an entire section
of castable. While that NTCC accident is apparently still under
MSHA investigation, the structural failure due to metal fatigue
of the steel clips and/or V-type anchors, as a cause of the
collapse of an entire castable section, has not been ruled out.
By contrast, in this case, Davis testified that he did not
consider the removal of castable in the No. 5 preheater as
hazardous because the air hammer removal is a •chipping•
process •that doesn't generally bring down really large pieces.•
(Tr. 131) . Davis also did not consider this chipping process
dangerous because the preheater ceiling had been removed . Thus,
unlike NTCC, employees were not surrounded by castable . Thus,
SRI's abatement in NTCC, which required use of remote controlled
equipment, in an enclosed kiln where a large area of castable had
already failed, is not relevant to the issue of notice in the

549

instant case, where only relatively small areas of castable were
being removed. Thus, I do not view the circumstances surrounding
the fatal accident as comparable or otherwise material in this
case. 2
Finally, MSHA's difficulty in identifying a suitable
mandatory standard that would provide adequate notice to a person
familiar with the refractory industry that travel under castable
is prohibited is illustrated by Citation No. 4447554 issued on
April 9, 1996, as a result of the NTCC fatality. 3 That citation
initially charged SRI with a violation of the mandatory standard
in section 56.16009 that requires •[p]ersons [to] stay clear of
suspended loads.• Apparently, however, MSHA concluded that
castable is not properly characterized as a •suspended load"
because the citation was ultimately amended to reflect an alleged
violation of section 56.11001 for failure to provide safe access.
Thus, MSHA's uncertainty with regard to the proper mandatory
standard to apply, is a further indication that its enforcement
efforts in this case have failed to provide SRI with the notice
required to pass constitutional muster.
Accordingly, I am unpersuaded that a reasonably prudent
person familiar with the refractory castable removal process
would have recognized that crawlin~ under castable, a material
comparable to reinforced concrete, constituted unsafe access
to working places as contemplated by section 56.11001.
Consequently, t his basis for the cited section 56 . 11001 violation
in Citation No. 444825 0 shall be deleted .

2

0n March 3, 1997, SRI filed a written obj ection to the copy
of Citation No . 4447554 issued on April 9, 1996, that was
submitted as an attachment to the Secretary's March 1, 1997,
reply brief. This citation concerns the NTCC fatality. SRI
objects to this citation, which was not proffered at trial, as
being outside the record . The citation merely documents record
testimony and does not unduly prejudice or surprise SRI . While
not admitted as an exhibit, the citation is relevant in this
proceeding and shall be accepted as part of the Secretary's reply
brief . Accordingly, SRI's objection is overruled.
.

3 Although

the fatality occurred on February 9, 1996, prior
to the March 5, 1996 , issuance of the subject citations , Citation
No . 4447554 was issued after the citations in issue. Thus, it is
the occurrence of the accident, rather than Citation No. 4447554,
that is relevant on the question of notice .
4

Forrester, a former materials engi neer with the Army Corps
of Engineers, equated the structural strength of castable with
that of concrete bridges and highways . (Tr . 513-14, 525).

550

Use of Oyerhead !-Beams to
Access the Preheater
We next address whether the prohibition in section 56.11001
is applicable to accessing and departing the preheater floor by
traversing the I-beam framework under these circumstances. As an
initial matter, it should be noted that the primary, and normally
exclusive, access into the preheater is by way of a ladder in the
vertical passageway leading from the access door. The l-beams
were used as a secondary means of accessing the preheater floor
only after the ceiling bricks had been removed. The I-beams are
less than 40 inches above the temporary platform that had been
installed to level the preheater floor.
Ordinarily, the Secretary's interpretation of his own
regulations should be given deference ... unless ~tis plainly
wrong" so long as it is •logically consistent with the language
of the regulation and . . . serves a permissible regulatory
function." Buffalo Crushed Stone, 19 FMSHRC __... (February 1997)
(citations omitted) . It follows that the Commission normally
should not substitute its own reasonable interpretation of a
mandatory standard if the Secretary's interpretation of that
standard is also reasonable. Thunder Basin Coal Company, 18
FMSHRC 582, 592 (April 1996) (citations omitted).
However, the Commission's deference policy is not without
its limitations. While it is difficult to quarrel with the goal
of ~safe access," the Secretary's application of such a broadly
worded mandatory standard cannot be so obscure as to deprive an
operator of adequate notice of the condition or practice sought
to be prohibited. Ideal Cement, 12 FMSHRC at 2415-16; ~ AlaQ
Thunder Basin, 18 FMSHRC at 592 (dissenting opinion of
Commissioner Marks ) .
The . refractory' removal process is a demolition project .
Such projects do not always lend themselves to conventional means
of passage such as stairs, ladders or platforms. I am
unconvinced that a person familiar with the refractory service
industry would recognize that entering the preheater, as a
secondary means of access, from I-beams above, to the preheater
platform floor less than 40 inches below, was a violation of the
safe access provisions of section 56 . 11001. Such access would
facilitate the transfer of tools and equipment, and may be a
preferred method of entry to climbing down a ladder in some
instances.

551

Significantly, the Secretary has not alleged that standing
on the I-beams to remove the ceiling brick from above was unduly
hazardous or otherwise prohibited conduct. 5 Accorqingly, I
conclude that section 56.11001 cannot be applied to prohibit this
method of accessing the platform that was temporarily installed
over the sloped preheater floor~
The Secretary has proposed a civil penalty of $128.00 for
Citation No. 4448250. Given the deletion of two of the three
conditions that were cited as a basis for the section 56.11001
violation, the deletion of the S&S designation, the low gravity
(which is also ·reflected by the relatively small civil penalty
initially proposed by the Secretary), and the moderately low
degree of the respondent's negligence, a civil penalty of $75.00
shall be imposed.
As a final note, I recognize the Secretary's legitimate
concerns regarding hazards that are unique to the refractory
service industry. However, there is no mandatory standard that
addresses the methods by which castable should be removed, or,
that requires supplemental support of castable during the removal
process. These safety concerns can best be addressed through the
notice and comment provisions in the rulemaking process.
QRDER

XN ~EW OF THE ABOVE, the parties• settlement agreement
wherein the respondent has agreed to pay a civil penalty of
$56.00 for Citation No. 4448253, and a $50.00 civil penalty for
Citation No. 4448252, XS APPROVED . The Secretary's motion to
vacate Citation No. 4448253 XS GRANTED . Pursuant to the bench
decision, formalized herein, Citation No. 4448251 %8 VACATED.
XT xs ORDERED that ~itation No. 4448250 as modified herein,
including deletion of the significant and substantial
designation, XS APFXRMED . The respondent shall pay a civil
penalty of $75.00 for Citation 4448250 .

5 Applying

the Secretary's theory of this case, accessing
the ceiling of the preheater, ~, the workplace, via the
I-beams to remove the ceramic tiles, would be prohibited by
section 56.11001. such an approach ignores the unique
circumstances inherent in demolition work.

552

ACCORDrNGLY, IT IS FURTHER ORDERED that the respondent pay a
total civil penalty of $181.00 in satisfaction of the subject
citations. Payment shall be made to the Mine Safety and Health
Administration within 30 days of the date of this decision. Upon
timely receipt of payment, this matter IS DISMISSED.

Jerold Feldman.
Administrative Law Judge
Distribution:
Jennifer W. Hilburn, Esq., Office of the Solicitor, U.S. Dept.
of Labor, 525 Griffin St., Suite 501, Dallas, TX 75202
(Certified Mail)
Joe D. Gregory, Esq., Gregory & Gregory, Gregory Building,
Suite 100, 342 South Main Street, Grapevine, Texas, 76051
(Certified Mail)
\mea

553

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF THE ADMINISTRATIVE LAW JUDGES
2 SKYLINE, lOTH FLOOR
5203 LEESBURG PIKE ·
FALLS CHURCH, VIRGINIA 22041

March 21, 1997
SECRETARY OF LABOR,
MINE SAFETY ~ND HEALTH
ADMINISTRATION, (MSHA ) ,
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. CENT 96-123-M
A. C. No. 41-00072-DSSOl RSU

Plant & Quarry
SOUTHERN REFRACTORIES, INC.,
Respondent
ORPER CORRECTING DECISIQN
Before:

Judge Feldman

This order corrects the decision released in this proceeding
on March 10, 1997. 19 FMSHRC _____ . The decision erroneously
ordered the respondent to pay a $56.00 civil penalty in
satisfaction of Citation No. 4448253. However, Citation 4448253
was vacated. The decision IS HEREBY CORRECTED to reflect that
the respondent IS ORDERED TO PAY a civil penalty of $56.00
in satisfaction of Citation No. 4448249 instead of Citation
No. 4448253.

Distribution:
Jennifer W. Hilburn, Esq., Office of the Solicitor, U.S. Dept.
of Labor, 525 Griffin St., Suite 501, Dallas, TX 75202
(Certified Mail)
Joe D. Gregory, Esq., Gregory & Gregory, Gregory Building,
Suite 100, 342 South Main Street, Grapevine, Texas, 76051
(Certified Mail)
\mea

554

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 1Oth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

MAR 1 2 1997

. CONTEST PROCEEDING

WHAYNE SUPPLY COMPANY,
contestant

v.

.

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent

:

Docket No. KENT 94-518-R
order No . 4011758;1/25/94

Job No. 17A

ORDER OF DISMISSAL ON REMAND

Before:

Judge Melick

This Contest Proceeding is moot. The Secretary failed to
seek timely review of this proceeding before the Commission. The
decision of the administrative law judge vacating the underlying
order is therefore final. Under the circumstances this case on
remand is dismissed.

.

~

t

!I\\ lf1\ \)•,J~· " . \
J
•I \.

Ga y M lie \_i
Administrat've
703-756-626
Distribution:

.

\

'\.

.\'~ --

.

Yoora Kim, Esq., Office of the Solicito~~ u.s. Dept. of Labor,
4015 Wilson Blvd., suite 400, Arlington, .VA 22203
Brian w. Dougherty, Esq., Office of the Solicitor, u.s. Dept. of
Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 37215
Andrew J. Russell, Esq., Smith & Smith, 400 North, First Trust
Centre, 200 South Fifth Street, Louisville, KY 40202
/jf

555

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF AOMINISTRATNE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE .
FALLS CHURCH, VIRGINIA 22041

MAR 12 1997.
STEVE NAPIER,

v.

DISCRIMINATION PROCEEDING
qomplainant
Docket No. KENT 96-269-D
MSHA Case No. BARB CD 96-03

BLEDSOE COAL CORP.,
f/k/a BITUMINOUS- LAUREL·
MINING, INC. ,

No. 4 Mine
Mine ID 15-11065

Respondent
DECXSXON

Appearances:

Neville Smith, Esq., Manchester, Kentucky,
for the Complainant;
Julie 0. McClellan, Esq ., MarcoM . Rajkovich, Jr.,
Esq., Wyatt, Tarrant & Combs, Lexington, Kentucky,
for the Respondent.

Before:

Judge Weisberger

I.

Statement of the Case

This case is before me based on a Complaint filed by Steve
Napier alleging that he was discriminated against by Bledsoe Coal
Corporation {Bledsoe} in violation of Section 105 of the Federal
Mine Safety and Health Act of 1977 {The Act} . Pursuant to notice
the case was heard in Richmond, Kentucky on October 30, and 31,
1996. On December 13, 1996, Complainant filed a Brief and a
Proposed Decision containing Proposed Findings of Fact, and
Respondent filed Proposed Findings of Fact and a Brief. On
January 8, 1997, Complainant and Respondent each filed objections
to the other party's proposed findings of fact .
II.

Bledsoe's Operation

Bledsoe Coal Corporation operates the Number 4 Mine, an
underground coal mine. Bledsoe's roof control plan provides for
entries, 20 feet wide, to be cut to a maximum depth of 40 feet.
In normal mining operations, after the entry is cut by the
continuous miner, it is bolted by a Fletcher single head bolter
by drilling holes in the roof and installing bolts at four foot
centers in the sequence illustrated in Respondent's Exhibit
No. 1.

556

III. Complainant's Evidence
Steven Napier had more than five years ~xperience as a roof
bolter prior to October 19, 1995, operating a Galix 300, and
Fletcher single head bolter. During that period of time, Napier
never received any complaints from any of his employers
concerning his roof bolting. Jerry Pierson, a mine foreman at
Union Mining where Napier had wqrked as a bolter, testified that
he would judge Napier • . . . as equal, if not better, as anybody
that ever worked for me• (Tr. 190).
On October 19, 1995, Napier was interviewed by Ron Heiton,
mine manager at Bledsoe's No. 4 mine, for a position at Bledsoe
as a bolter. Helton told Napier that he was being hired •on a
90-day trial" (Tr . 37), and that he was required to insert 200 to
250 bolts per 8 hour shift.
Napier commenced employment with Bledsoe on Thursday,
October 5, 1995. On the first day that Napier actually worked,
he removed rock from a roof fall that had left a void of 30 feet
into the roof . He was then assigned to work as bolter on a
Fletcher single head bolter in the third shift, which began at
3:00p.m., and ended 11:30 p.m. According to Napier, in general,
during the time he worked as a roof bolter at Bledsoe none of his
supervisors voiced any complaints about his work. Napier
testified that about a week prior to October 25, Clifford Sams,
who was his Section Foreman for two or three days, told him that
he (Napier) • . . . was doing alright as far as he [Sams] could
see" (Tr. lOS ). According to Napier, in the same time period
Harold Hacker, the mine General Foreman, watched him bolt for
about five minutes and said •keep the good work up" (Tr. 103).
According to Napier, during the time he worked for Bledsoe,
until October 25, ·1 995, he had seen draw rock on a couple of
occasions in the mine. Each time he saw the draw rock he pulled
it down himself.
Napier testified that prior to October 25, the canopy on his
the bolter had been removed. Napier indicated that a mechanic,
whose first name was Rodney and whose last name Napier did not
know, told him that the bolter could not clear the low roof with
the canopy on. According to Napier, he asked Rodney to put the
canopy on, and Rodney complied, but later on it was removed
again.
According to Napier, during the time that he was working
underground until October 25, he saw entries that had been cut
between 42 to 60 feet. 1
1

Napier•s testimony is confusing regarding the depth of the
cuts that he observed that exceeded 40 feet. He indicated that

557

On October 25, 1995, Napier worked the third shift which was
extended four hours into the morning of October 26. For the
first eight hours of Napier's shift, his supervisor, was James E.
OWens, the section foreman. According to Napier, sometime during
the shift, he noted draw rock in the roof of the Number 4 entry.
He had also noted that the entry extended 60 to 65, feet rather
than 40 feet as provided by the roof control plan. Napier
testified that he brought these two conditions to the attention
of Owens, and that Owens told him that M • • • if I complained or
said anything else about a deep cut, that I would be fired right
on the spot, and -for me to get my butt back up to work• (Tr. 85}.
Napier testified that when he was traveling out of the mine in a
scoop bucket, Owens told him that M • • • if he would hear me say
anything about a deep cut, th~t he would fire me• (Tr. 96} .
Napier then left the mine and went home.
The next day, when Napier arrived at the mine, another
foreman, Clifford Sams, told him that Clyde Collins, Bledsoe's
Superintendent, wanted to see him. Napier related that he went
to see Collins, who asked him how many bolts he had put up the
prior shift . · Napier said that he told Collins that he put up
200 to 250 bolts . According to Napier, Collins told him that he
had received reports that Napier had not been keeping his work
up. According to Napier, Collins told him that he was fired.
IV.

Discussion
A.

Napier's Position

It is Napier's position in essence, that Collins disciplined
him on October 26 , because of information furnished by Owens that
Napier was not competent to perform his work . 2 Napier argues
Footnote 1 cont '·d. ·
an evening that was not October 25 he saw a deep cut. He said
he counted 19 rows and the deep cut was about 76 foot (Tr. 138}.
·He agreed with Respondent's counsel that it "would be seventy-six
foot cut because there's generally one four foot per bolt . . . . •
(Tr. 138). However, at a point later on in his cross examination
he was asked whether he counted the rows and he indicated that
the bolt machine operator told him that •I•ve got 19 rows of
bolts in this place here" (Tr. 139).
2

It is significant to note that there is no evidence that
Collins had the authority to fire Napier. Collins' testimony
that he did not have such authority was not contradicted or
impeached. Further, there is no evidence that Collins had
knowledge of any safety complaints made by Napier. Moreover,
Napier was not subject to any disparate treatment. The same
evening that Collins spoke to Napier, he also told another

558

that Owens wanted to get rid of him became he had complained
about draw rock, and a deep cut. Napier cites Owen's testimony
that a supervisor who permitted deep cuts at Bledsqe would be
fired . It is thus argued that since Owens had just returned from
a week off for permitting a safety violation to have occurred in
his section, he would have been fired if Bledsoe's management
would have become aware of a deep cut.
B.

Applicable Case Law and Aoalysis

The Commission, in Braithwaite v. Tri-Star Mining,
15 FMSHRC 2460 (December 1993), reiterated the legal standards
to be applied in a case where a miner has alleged that he was
subject to acts of _discrimination. The Commission, Tri-Star, at
2463-2464, stated as follows:
The principles governing analysis of a discrimination case
under the Mine Act are well settled.
A miner establishes a
prima facie case of prohibited discrimination by proving
that he engaged in protected activity and that the adverse
action complained of was motivated in any part by that
activity. Secretary on behalf of Pasula y. Consolidation
Coal Co., 2 FMSHRC 2786, 2797-800 (October 1980}, rey'd on
other grounds. sub nom. Consolidation Coal Co .. y. Marshall,
663 F.2d 1211 (3d Cir. 1981); Secretary on behalf of
Robinette y. United Castle Coal Co., 3 FMSHRC 803, 817-18
(April 1981} . The operator may rebut the prima facie case
by showing either that no protected activity occurred or
that the adverse action was in no part motivated by
protected activity. Pasula, 2 FMSHRC at 2799-800. If
the operator cannot rebut the prima facie case in this
manner, it never~heless 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, 2 FMSHRC at 2800; Robinette, 3 FMSHRC at 81718; see also Eastern Assoc. Coal Corporation. y. United
Castle Coal Co., 813 F.2d 639, 642 (4th Cir. 1987).
Hence, in order for Napier to prevail, he must first
establish that he had engaged in protected activities. In
general, Napier testified to having observed draw rock, and entry
cuts in excess of 40 feet. He also testified that he had to
operate a roof bolter without a canopy. These conditions could
be found to be within the preview of safety concerns. However,
Footnote 2 cont'd.
employee, Steve Sizemore, that he was not doing his job, and
instructed him to talk to Ron Helton, Bledsoe's General
Superintendent who had the authority to fire employees.

559

although Napier testified to having observed these conditions
prior to October 25, at no time prior to·october 25, did he bring
to the attention of any of Bledsoe's agents . the existence of
these conditions, or his concerns in these regards.
According to Napier, on the last night that he worked, i.e.,
October 25, he did complain to Owens regarding the deep cut, and
draw rock that he had observed . Napier said that in response,
Owens told him •that if I complained or said anything else about
a deep cut, that I would be fired right on the spot, and for me
to get my butt back up to work• {Tr. 85). On the other hand,
Owens, when asked regarding this complaint, stated that Napier
never complained to him about deep cuts or draw rock. I observed
the demeanor of Napier and Owens, and found Owens to be more
credible on this critical point . Also, Napier failed to produce
any witnesses to support his observations of draw rock and deep
cuts 3 , and his having reported these conditions to Owens.
According to Napier, when he complained to Owens on October 25,
about the deep cuts and the draw rock, Joe B. Smith and another
roof bolter by the name of Lonnie Hill, were located
approximately eight feet away. However, neither Hill nor Smith
corroborated Napier's version. Hill was not called to testify on
Napier's behalf, and Smith testified that he did not hear Napier
report deep cuts to Owens .
Further, in general, Napier's testimony concerning the
length of the deep cut taken on October 25, and the number of
bolts he installed that shift is both confusing and
contradictory, and hence unreliable. Initially, Napier was asked
how many 30 inch holes he had drilled and he stated "I would say
approximately 120 that nightw (Tr. 62). He said that all of
these 120 holes were in the No. 4 heading (Tr. 63). Later on his
testimony the indicated that he had drilled holes in a break
(Tr. 69). Napier indicated that the second time the miner went
into the Number 4 heading, it made a cut that was between 60 and
65 feet deep. He was asked how many rows of bolts he had put in
this heading, and he indicated that he put up 15 or 16, but he
was not positive, and that "I didn't count the bolts that dayw
(Tr. 89). A little bit later on in the questioning, he was asked
how many bolts he put in, and he said that after he put 40 bolts,
he put up 10 or 12 more rows, each row consisting of four bolts
(Tr. 90). On cross examination, he was asked whether it was

3

In this connection, I note that Joe B. Smith, a miner
operator who worked on the second shift, testified that he had
never taken any deep cuts. Also, Bledsoe's witnesses, Owens, and
David Wayne Osborne, who worked in the 002 Section, and Sams who
worked in the mine daily in October 1995, all testified that they
never saw any deep cuts.

560

correct that he put up 40 bolts, and then put up 10 to 12 more
rows which would have made it an 80 foot. deep cut, and he
answered as follows (Tr. 143):
A.

Well, I said between 10 and 12. I bolted 10
rows -- 5 rows up, I think. That's when I
came back and I bolted the two. That's when
they had me to back out because they was
going to cut the break through. Okay. After
they cut that break through , then that's when
they went back up in there and cut that
heading again. And I wasn't even done with
it yet.

Q.

But you ' re not sure how many more rows of bolts
you put up?

A.

No, not exactly sure , no.

Q.

Well, then how do you know how deep the cut
was? I mean were you just looking at it and
you were thinking that it was probably 60 to
65 feet?

A.

Right (Tr. 143-144).

In subsequent questioning, on cross-examination, he
indicated that he put up 19 rows in the heading (Tr. 144-145).
In follow-up questioning he was asked whether he counted the 19
rows and he indicated that he did (Tr. 145-146). Continued
cross-examination further confuses the matter. His testimony is
as follows:
Q.

Now on this night , the night before you were sent
into see Clyde Collins, first you said that there
was about 60 or 65 and you were just judging by
looking, but now is your testimony that you
weren't just judging by looking, that you actually
counted and you put up 19 rows? I just want to
make sure I understand you.

A.

Right. I put up about 18 or 19 rows, but I didn't add
them up to see if it was actually 76 foot . I just knew
it was over 40 foot, and I figured, you know, without
adding up, it was about 60, 65 foot. I didn't add it
up to make sure it was deep. But I really didn't think
nothing else about it.
BON. AVRAM WEISBERGER:
MR. NAPIER:

*

You didn't really think what?

*

*

I said I really didn't think too much

561

about it. I just didn't add it ~p to make sure that it
was 76 feet. You know, I just took a guess that's what
it was without adding them up.
Q.

Are you saying that Y<?U counted bolts that night
or not?

A.

Yes.

Q.

You did count them?

A.

Right _

Q.

There were 19 rows?

A.

19 rows.

Q.

So you weren't just judging by looking when you're
saying there was 19 rows of bolts?

A.

Right (Tr. 146-147).

The redirect examination of Napier in these regards is also
confusing. The pertinent testimony is as follows:
Q.

. . . [W]ould you, again, explain the sequence of
mining in the Number 4 heading and how you got
this 60 to 65 foot figure and these other figures
that you've testified about?

- A.

Okay. When they cut it, they cut it about 60 to
65 foot. That's by me just visually looking at

i.t..
Q.

That's the first~ they cut it?

A.

Right.

Q.

Okay.

A.

Okay --

AVRAM WEISBERGER: You're referring to the area
that's inby the break that has 3 Rand 4 R in it in
Complainant's Exhibit 1?

BON~

MR. NAPIER: Right.
like five rows up.
Q.

And when I started bolting, I put
Then I backed up and --

And that was five rows of two bolts?

562

A.

Right.

Q.

Okay.

A.

And then I backed up and I started putting two
more rows up . The rest of it up here -BON. AVRAM WEISBERGER: Excuse me. You're
going fast. You started then on the two rows
on the right?

MR. NAPIER: Right.
BON. AVRAM WEISBERGER: Okay

MR. NAPIER: That's when Eddie told me tp back
up and start drilling my 30-inch holes
b e cause they was going to cut 4 right .
BON. AVRAM WEISBERGER: Where did he tell you

t o drill the 30-inch holes?
MR. NAPIER: Back in the breaks, back behind.
BON. AVRAM WEISBERGER : In the breaks 3R and

4R, or in the breaks with the 'X' ? 4
MR. NAPIER : Where the 'X ' is, the piece where
I left off at.
BON. AVRAM WEISBERGER: Sir?

Q.

Then what happened?

A.

After they cut 4 right, they backed up and
went right back into 4 heading again, which
was not completely bolted. That ' s when they
c ut another 10 or 12 rows deep up in it
t here .

Q.

So that when you first looked at the 4 heading
inby the yellow line that's drawn on Exhibit 1 of
the Complainant, you estimated it to be 60 to 65
feet deep?

A.

Right .

•see Complainant's Exhibit 1

563

Q. · And then after you did that partial bolting, then

the company went back in and cut that same one
deeper before it was completely bolted?
A.

That's right.

Q.

And then did you -- was that when you counted
rows, or did you ever count rows? I'm not sure
about that.

A.

I -- I counted them as -- at the end of the shift
when I backed out. When I -when it was time to
go · home, that's when I counted by rows back out.

Q.

And did you count them to the point where you had
initially bolted the five rows and the ·two rows?

A.

Yes, sir.

Q.

Did you include that in the count?

A.

Yes. (Tr. 179-181) .

Hence, the record evidences confusion and lack of clarity
in Napier's testimony regarding the sequence of events on
October 25, the depth of the cut that had exceeded 40 feet, when
this cut was taken, and the basis for Napier's conclusion that
the depth of the cut exceeded 40 feet. I find that this lack of
clarity in Napier's testimony tends to taint the credibility of
the balance of his uncorroborated testimony, especially that of
his alleged conversation with Owens which was contradicted by
Owens.
For all the above reasons, I find that Napier has failed to
establish that he was engaged in protected activity, i.e., that
he communicated safety concerns about draw rock, the lack of a
canopy, and deep cuts to Owens . Further, there is no evidence
that Napier at any time communicated safety concerns to any of
Bledsoe's agents . Although Napier testified that he was fired by
Collins, Napier did not allege that he had communicated any
safety concerns to him. For these reasons, I find that Napier
has failed to establish a prima facie case. (See, Pasula, supra . )
As such, his claim of discrimination must fail.
V.

Order

It is ORDERED .that Napier's Complaint be dismissed, and that
this case be DISMISSED .

am
isberger
Administrative t.;lw Judge
564

Distribution:
Neville Smith, Esq . , 110 Lawyer Street, P.O. Box 447, Manchester, .
KY 40962 (Certified Mail)
MarcoM. Rajkovich, Jr., Esq., Julie 0. McClellan, Esq., Wyatt,
Tarrant & Combs, 250 W. Main Street, Suite 1700, Lexington, KY
40507 (Certified Mail)
/~

565

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22641 .

MAR 1 2 1997
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION .(MSHA) ,
Petitioner

v.

S & M CONSTRUCTION INC.,
Respondent

CIVIL PENALTY PROCEEDINGS
Docket No . WEST 96-253
A.C. No . 48-01215-03525
Docket No. WEST 96-254
A.C. No. 48-01215-03526
coal Creek Mine
DECIS];ON

Appearances :

Tambra Leonard, Esq., Margaret A. Miller, Esq. ,
(On Brief), U.S. Department of Labor, Office of
the Solicitor, Denver, Colorado, for the
Petitioner;
Stephen Kepp, S & M Construction, Gillette,
Wyoming, and J . Stan Wolfe, Esq., Gillette,
Wyoming (On Brief), for the Respondent.

Before: Judge Weisberger
Statement of the Case
These cases are before me based upon petitions for
assessment of penal~y filed by the Secretary of Labor
(Secretary), alleging violations of various mandatory safety
regulations set forth in Title 30 of the Code of Federal
Regulations by S & M Construction Incorporated (MS & M") . A
hearing was held on October 22, 1996, in Gillette, Wyoming. On
December 9, 1996, the Secretary filed a Post-Hearing Brief. On
December 11, 1996, S & M filed Proposed Findings of Fact and
Conclusions of Law. On December 26, 1996, S & M Filed a Reply
Brief.
I.

Docket No. WEST 96-254

s & M performs mining operations at the Thunder Basin Coal
Company's Coal Creek Mine. After coal is mined and crushed, it
is transported to a 200 foot high silo for storage. In order to
remove coal dust from the air at various coal transfer points in
the operation, a fan pulls the air filled with coal dust through
a duct from the silo to a baghouse . The baghouse is approximately 38 feet high, 10 feet in diameter, and is located at the
top of the silo. When the air filled with coal dust enters the

566

baghouse, the coal dust is filtered out of the air by way of 368
ten foot long _bags that hang vertically inside the baghouse. A
rotating air jet knocks the dust from the· bag, and _the dust then
drops down through a funnel shaped cone where it is expelled from
the baghouse through a rotating valve. If the coal dust is not
expelled properly throughout the valve, it · can accumulate inside
the baghouse. If the accumulation of dust reaches a level of
five feet and eight inches from the floor of the baghouse, a
sensor located at that level inside the baghouse shuts off power
to the fan so that air laden with coal dust is no longer being
drawn to the baghouse .
On August 27, 1995, Inspector Herbert A. Skeens, inspected
the subject site pursuant to an investigation of a fire that had
occurred there the previous day . He observed sparks falling from
the horizontal beam inside the silo. He issued a section l07(a)
withdrawal order covering the silo, an adjacent silo, and a
conveyor, but did not alle~e the violation of any specific
mandato ry safety standard.
Skeens set forth the following sequence of events based on
his invest igation2 : the sensor had tripped the fan on Monday,
August 21, 1996; miners tried two to three times to reset the
power to the fan without checking to diagnose and repair the
problem ; several hours later they succeeded in getting the power
running but that the sensor tripped the power to the fan again on
August 2 2 , 1996; miners tried several times to restart the power
without diagnosing or trying repair the problem, but were
unsuccess ful; the baghouse was unattended from August 22 until
August 26; on August 25, a miner detected the smell of burning
coal and suspected a fire; the coal silo was emptied and water
was spraye d into the silo; and on August 26, smoke was discovered
coming from the top of the silo, and firefighters were called
from the neighboring black thunder mine, but they could not
control the fire. The Campbell county fire department was then
called and extinguished the fire in the baghouse.

1

S & M did not file any notice of contest of the Section
l07(a ) withdrawal order pursua.n t to 29 C. F . R. § 2700.22 . Also,
the petition for assessment of civil penalty filed by the
Secretary seeks a penalty in this case only for Citation No.
4058552 which was issued alleging a violation only of 30 C.F.R.
§ 77 . 404(a), but not alleging a violation of Section l07(a) of
the Act. Accordingly the propriety of the issuance of the
Section l07 (a ) withdrawal order is not an issue before me, and
will not be di~cussed.
2

Those persons furnishing information and/or present during
the investigation are listed in the appendix to Skeens' Accident
Investigat ion Report (Exhibit P-6).

567

Skeens issued a Citation alleging a violation of 30 C.P.R .
77.404(a), which provides as follows: [m)obile and stationary
machinery and equipment shall be maintained in safe operating
condition and machinery or equipment in unsafe condition shall be
removed from service immediately.•
8

§

It appears to be the position of the Secretary as argued by
Counsel in her post-hearing brief, and as articulated by Skeens
in the citation he wrote and in his testimony, that the baghouse
was not in a safe condition. This conclusion appears to be based
upon the existence of the following •facts": the sensor had been
tripped on August 21 and August 22, coal dust had accumulated in
the baghouse to at least the level of the sensor i.e., five feet
and eight inches, and that the resulting accumulation was not
cleaned up. However, the Secretary has failed to establish the
existence of these facts based upon competent evi~ence. Skeens
did not have any personal knowledge of the existence of these
conditions. His testimony regarding these conditions was based
solely upon information he gathered during an investigation, and
inferences he drew from that information. In support of her
case, the Secretary did not proffer the testimony of any persons
having personal knowledge regarding the existence of the above
conditions that are relied upon. Nor is there any competent
documentary evidence in the record to support the Secretary's
position. S & M introduced in evidence six pages of handwritten
notes (Defendant's Exh. R-1) which, according to its
representative, are part of an Activity Report prepared by the
control room operator. However, the person or persons who
prepared this report where not called to testify, and hence there
is no explanation in the record for any of the entries, some of
which are ambiguous. I thus find that the Secretary has failed
to establish by way of competent evidence, the existence of the
facts she relies upon to establish the violation herein. 3
3

I take cognizance of the serious hazards created by an
accumulation of coal dust inside a baghouse. As explained by the
Secretary's expert, Thomas Koenning, the seam in which the coal
mine at issue is located is considered to be highly susceptible
to spontaneous combustion. Also, in the past five years there
had been five baghouse fires in the county in which the subject
mine is located. In each of these instances, the baghouse had
been shut down for a period of a few days with an accumulation of
coal left inside the baghouse, and then spontaneous combustion
had occurred. It would thus appear that the serious hazard of
spontaneous combustion was created by a dangerous accumulation.
However, S & M was not cited for allowing coal dust to
accumulate. (c.f., 30 C.P.R . § 77.202). Instead the Secretary
chose to citeS & M for violating Section 77.404(a) which does
not deal with accumulations, but requires that machinery and
equipment be maintained not free of accumulations, but in asafe
operating condition . " (Emphasis added.). There is no evidence

568

For all these I find that the Secretary. has failed
to establish that S & M violated Section 77.404{a).
Accordingly, Citation No. 4058552 shall be dismissed, and
Docket No. WEST 96-254 shall be dismissed.

II.
A.

Docket No. WEST 96-253
Citation No. 9894926. and Order No. 4058625
1.

Background

Sometime prior· to September 19, 1994, a · designated work
position 001-0375 {375) had been established for a 14G
Caterpillar road grader at the Campbell Creek Mine operated by
S & M. Respirable dust sampling taken on September 14, 1994, for
the designated work position 375, designated work. position 368, a
rubber tire dozer, and designated work position 310, indicated
that the former two were in compliance but that the designated
work position 310, a Caterpillar scraper, was not in compliance.
Stephen Kepp, s & M's Safety Director, indicated that the
Caterpillar scraper was then removed from service, and was
removed from the mine property . According to Kepp, in subsequent
telephone conversations with Leo Boatwright, of the McAlister,
Oklahoma MSHA office, the former advised him that the designated
work position that had been established for the Caterpillar
scraper was abandoned. Kepp indicated that Boatwright also
informed him not to worry about any citations that would be
subsequently computer generated.
A· computer generated notice to S & M from MSHA, dated
Februa ry 7 , 1995, advised that MSHA had not received valid
samples f or the designated work occupation 375 for DecemberJanuary 1995. A similar notice was generated April 10, 1995,
for the period February-March 1995. On June 7, 1995, a similar
notice was generated for the period April-May 1995. On June 8,
1995, Citation No. 9894915 was issued alleging that there was no
dust sample received for the period April-May 1995, for the
designated work position, 375. This citation was abated on
August 16, 1995, based on a valid sample taken on July 20, 1995.
On October 13, 1995, Citation No. 9894926 was issued to
S & M alleging that 30 C.F . R. § 71.208 was violated as there was
no sample taken for the designated work position 375 in the
Bi-monthly period August-September 1995 . The citation set
November 15, 1995, as the termination date.
footnote 3 cont'd.
that the baghouse was not in safe working condition. There is no
evidence that there was any defect in any element of the baghouse
affecting its operation.

569

On December 5, 1995, Skeens issued a section 104(b) Order
(No . 4058625) ,· alleging that no apparent effort had been made to
collect a respirable dust sample on the designated work position
375. Skeens subsequently modified the order to allow the
Caterpilar grader to be operated for the collection of a dust
sample on the designated work position 375. However, Skeens
subsequently reinstated the order on the ground that a respirable
dust sample had not been taken. This order was finally
terminated on January 30, 1996.
2.

Discussion

It appears to be S & M's argument that, since sampling of
the grader on September 14, 1994, indicated that it was in
compliance with . the applicable standard, no designated work
position should have been subsequently established. For the
reasons that follow, I find this argument to be without any
merit.
30 C.F.R. § 71.208(e) provides, as pertinent, that the MSHA
District Manager shall designate work positions at each mine for
Respirable dust sampling. 30 C.F.R. § 71.208(f), provides that a
designation of a work position for sampling is to be withdrawn
upon a finding that * . . . the operator is able to maintain
continuing compliance with the applicable respirable dust
standard . . . . "
Section 71.208(f) supra, goes on to
specifically sets forth the required basis for this finding as
follows: *[t)his finding shall be based on the results of samples
taken during at least a one-year period under this part and by
MSHA" .
The record does not contain any evidence to establish that
in at least a one-year period results of sampling by MSHA
indicated compliance for the designated work position 375.
Accordingly, it was-clearly proper for MSHA to continue requiring
sampling on the designated work position 375.
30 C.F.R. § 71.208(a) provides, in essence, that the
operator shall take one valid respirable dust sample from each
designated work position during each bi-monthly period. The bimonthly periods are set forth as follows : February 1 - March 31,
April - May 31, June 1 - July 31, August 1 - September 30,
October 1 - November 30, and December 1 - January 31. S & M has
not presented any facts or argument to challeng~ the allegation
set forth in the citation at issue that no samples were submitted
for the bi-monthly period August - September 1995. In essence,
S & M argues that Kemp was confused regarding the requirement to
sample for work occupation 375. In this connection, Kepp
referred to a conversation that he had with Boatwright ·who
advised him that the desi~ated work position of the Caterpilar

570

scraper was being abandoned, and that he should not be concerned
about any citations that would be subsequent~y computer
generated.
The regulatory scheme set forth in Title 30 imposes strict
liability upon an operator.
(Asarco. Incorporated-Northwest
Mining Dept., 8 FMSHRC 1632 (1986) aff'd, 868 F2d 1195 (lOth Cir,
1989)). The operator is not allowed to escape compliance based
upon any confusion. I thus reject S & M's argument.
I find that it has been established that no samples were
submitted for the period August-September 1995. Accordingly, the
citation at issue was properly issued, as s & M did violate
Section 71.208 supra.
Citation No. 9894926 set a termination date of November 15,
1995. S & M did not comply with this date. s & M did not ' submit
any sample between October 13, 1995, the date of the citation and
the termination date of November 15, 1995.
S & M has not specifically challenged the issuance of the
l04{b) order. The time set for termination was more than 30 days
beyond the date of the original citation. There is no evidence
· in the record of any technical or other difficulty that would
have prevented S & M from submitting samples by November 15,
1995.
Based on all the above, I find that it has not been
established that there was any abuse of abuse of discretion in
the issuance of the Section ~04(b) order, that it was properly
issued, and that S & M did violate the Section l04{b) order.
3. Penalty
In essence, it . is the position of S & M that any penalty to
be assessed should be reduced on the ground that there was no
negligence on its part relating to the violation. S & M takes
the position that it was of the opinion that it was not required
to sample the 375 designated work occupation, because the
sampling on September 14, 1994, of that position did not exceed
the pertinent standard. However, subsequent to that date, S & M
was put on notice that it was required by MSHA to submit testing
for that position, and that such testing had not been received
for the following bi-monthly periods : December-January 1995,
February-March 1995, and April-May 1995. Also, in response to
the issuance of citation on June 8, 1995, based upon the failure
to submit a sample for the bi-monthly period April-May 1995,
4

Although no one at S & M's mine was qualified to take a
sample, Julie Hart, who was certified, worked at a neighboring
mine.

571

S & M had a valid sample taken on designated work position 375 on
July 20, 1995. Hence, when the instant citation was issued on
October 13, 1995, based on the failure to have submitted a sample
for the period August-September 1995, S & M clearly should have
known of its responsibility in this regard. I do not put much
weight on Kepp's testimony that, in telephone conversations with
Boatwright, the latter told him not to worry about any subsequent
citations that might be computer generated, as the designated
work position that had been established for the Caterpillar
scraper had been. abandoned. This alleged statement by Boatwright
has no bearing on the obligation of S & M to submit a sample for
the designated work position at issue, i.e., 375, the 14G grader .
I thus find that . S & M's negligence was relatively high.
However, in reviewing the history of violations, Exhibit P-1, I
conclude that the number of vioJ.ations from April 18, 1994 to
February 6, 1996, 35, is not inordinately high. According to
Skeens, and not contradicted or impeached by S & M, the
designated work position at issue had previously been tested, and
a dust reading of 1.0 m.g. per cubic meter was the result. I
accept Skeens' uncontradicted testimony that dust samples at the
mine site at issue "have been found to contain as hish as 12percent quartz silica" (Tr. 130). (Emphasis added). Further, I
accept Skeens' testimony that exposure to quartz silica can cause
lung disease . I find that the level of gravity of the violation
was moderate. Taking all of these factors into account, I find
that a penalty of $1,000 is appropriate.
B.

Citation No. 4058621
1.

violation of 30 C.F.R .

§

72.620

On December 5, 1995, while in the Pit area, Skeens observed
a truck mounted drill, drilling into overburden consisting of
rock, shell and dirt. When Skeens was about 1,000 feet away from
the drill, he saw a cloud of dust billowing around the rear of
the drill. He estimated that the cloud of dust was approximately
15 feet by 15 feet. When Skeen approached the drill, he saw that
the operator was sitting on the seat of the drill located on the
cab, but both doors were opened, and the operator was hanging out
the side of the cab. According to Skeens, the helper was
standing within a few feet of the hole that was being drilled.
Skeens said that both the operator and the helper were covered
with yellowish-brown dust. According to Skeens, no dust control
measure was being used.
Skeens issued a Section 104(d) (1) citation alleging a
violation of 30 C. F.R. § 72.620 which provides as pertinent, as
follows: "[h]oles shall be collared and drilled wet, or other
effective dust control measures shall be used when drilling nonwater soluble material." It appears to be S & M's position, as a
defense to this matter, that the testimony did not establish the

572

contents of the dust flowing from the drill hole. S & M also
asserts that the water dust suppression although not being used
was operable . Kepp testified that on the previous day the
operator using the water system * • . . had plugged the hole"
(Tr. 174) .
Kepp who was present during Skeens' inspection, did not
contradict the latter's testimony that, in essence, dust control
measures were not being used. Nor did he contradict Skeens'
testimony that the material being drilled was non-water soluble.
Nor did Kepp did indicate that the holes were in any way collared
or being drilled wet. I thus accept Skeens' testimony, and find
that S & M did violate Section 72.620 supra.
2.

Significant and Substantial

A "significant and substantial" violation is. described in
section 104(d) {1) of the Mine Act as a violation "of such nature
as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard . "
30 C.F.R. § 814(d) (1). A violation is properly designated
significant and substantial "if, based upon the particular facts
surrounding the violation there exists a reasonable likelihood
that the hazard contributed to will result in an injury or
illness of a reasonably serious nature." Cement Division.
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained its interpretation of the term "significant
and substantial" as follows:
In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum the Secretary o f
Labor must proye: (1) the underlying violation of a
mandatory safety standard; (2) a discrete safety
hazard--that is, a measure of danger to safetycontributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will result
in an injury; and (4) a reasonable likelihood that the
injury in question will be of a reasonably serious
nature.
In united States Steel Mining Company. Inc., 7 FMSHRC 1125,
1129, the Commission stated further as follows:
We have explained further that the third element
of the Mathies formula "requires that the Secretary
establish a reasonable likelihood that the hazard
contributed to will result in an event in which there
is an injury." U.S. Steel Mining Co., 6 FMSHRC 1834,
1836 (August 1984). We have emphasized that, in

573

accordance with the language of section 104(d) (1), it
is the contribution of a violation to the cause and
effect of a hazard that must be significant and
substantial. U.S. Steel Mining Company. Inc., 6 FMSHRC
1866, 1868 (August 1984); U. S. Steel Mining Company.
~., 6 FMSHRC 1573, 1574-75 (July 1984).
As discussed above, the evidence establishes that Section
77.620 supra, was violated by S & M. (See, II(B) (1), infra).
Further, S & M di~ not object to the introduction in evidence of
two statements issued by MSHA (Exhibits P-20 and P-21), which
explain that exposure to dust containing silica from drilling can
cause silicosis . Hence, the second element of Mathies has been
met. According to Skeens, as observed by him, the drill operator
and the helper were both exposed to the cloud of dust produced
because drilling took place in the absence of dust control
measures. Kepp testified that the two individuals involved
•don't pay a great amount of attention to personal hygiene,"
(Tr . 173), and accordingly argued that any dust on them did not
necessarily get there on December 5. I find this testimony too
hypothetical and reject it . I also take c ognizance of Kepp•s
testimony as follows reqarding the placement of these
individuals:
The weather conditions that particular day we re a
brisk wind blowing out of the north at 20 to 25 miles
an hour. I remember this very well, because I was
cold. The drill was -- the motor carrier was facing
west.
That means that the drill operator and the helper
would have been north of the bore hole. Therefore, any
dust cloud that would have been generated by the drill
would have blown to the south and away from the two
individuals (Emphasis added.) (Tr. 173-174) .
I find this testimony as to where the location of the two
individuals would have been, and where the location of the cloud
dust would have been, to be hypothetical, and insufficient to
contradict the specific eyewitness testimony of Skeens as to his
observations of the individuals, and their locations relative to
the cloud of dust. Skeens assumed that the miners in question
were exposed to silica dust. However, the record does not
establish this fact. Here is no evidence regarding the
composition of the dust cloud and the specific overburden
material that was being drilled. Keep, in discussing his
allegation that the drill operator had plugged the hole using the
water system the previous day stated that this occurred •because
the drill was working in overburden in a clay material"
(Tr. 174) . Thi• statement alone is insufficient to establish the
composition of the overburden .
Skeens was asked what the
material consisted of, and he stated as follows: •[i]t was a

574

combination of- rock and shale and dirt.
identity of the strata" (Tr. 158).

I don't know the exact

However, it is significant to note the uncontradicted
testimony of Skeens that dust samplers collected at the mine have
been found to contain as high as 12 percent quartz silica. In
addition, I note the following: the testimony of Skeens that
exposure to quartz silica can cause lung disease, the significant
size of the cloud dust at issue, and the proximity of the exposed
miners to the cloup dust as observed by Skeens. Within this
context, I find that the third and fourth elements in Mathies,
supra, have been met. Accordingly, I find that the violation was

s & s.

3.

Unwarrantable Failure

In an earlier inspection on March 19, 1995, ·skeens had
observed an independent contractor drilling blast holes. He said
that dust was being generated, although no miners were exposed.
According to Skeens, in the presence of Kepp he talked to the
miners " . . . about compliance with 72.620" {Tr. 161).
According to Skeens, he spoke to the independent contractor as
follows: "And I told them if they didn't get some dust control on
that drill it was a matter of time until they were going to get
caught, because they were gambling on which direction the wind
blowed" {Tr. 162).
Also, according to Skeens, the dust cloud at issue was seen
by him when he was 1,000 feet away. Hence, it was obvious that
dust control measures were not in use. Skeens indicated that
when he asked one of the miners present how long the drill had
been "belching drill dust", the response was "[a]bout six months"
{Tr. 167). This miner was not called to testify. I thus do not
place much weight upon Skeens' hearsay testimony in this regard.
The Secretary relies on Skeens' testimony that on November 17,
1994, Inspector Doug Liller went to the mine, and distributed
literature concerning the hazards of exposure to silica.
However, Skeens did not have any personal knowledge of these
facts, as Skeens was not present when Liller went to the mine.
The Secretary did not call Liller to testify to establish these
facts. I thus place no weight upon Skeens' hearsay testimony in
these regards.
In contrast, Kepp testified that S & M had owned that drill
for six months; that it is incorrect that it was not operated for
six months with no dust control measures being used; and that
S & M had "to take the drill down because the water pump did
freeze up; it broke. And the drill did not work until the _water
pump was replaced" {Tr. 175). He also indicated that on the
previous day the operator using the water system "had plugged the
hole" {Tr. 174). I observed Kepp's demeanor, and found him
credible. I find that there is insufficient evidence that the

575

violative co~dition had existed for a length . of time as to
establish that S & M's negligence was more than ordinary.
Within the above framework, I find that the level of s & M's
did not reach aggravated conduct. As such, the violation did not
result from its unwarrantable failure (c.f., Emery Mining CokP.,
9 FMSHRC 1997 (1987)).
4. Penalty
I find that the miners in question were working in close
proximity to the dust that contained silica. Hence I find that
the violation was of a high level of gravity.
For the reasons set forth above, II (C) (3), I . find that
S & M was negligent to only a moderate degree in connection with
the violation. I find that a penalty of $2,000 is appropriate
for this violation.
C.

Order 4058624.
1. Violation of 30 C.F.R.

§

77.1605

On December 5, 1995, Skeens observed approximately six
scrapers on the top of a coal highwall. Skeens observed the
scrapers driving perpendicular to the edge of the highwall, and
then making a U-turn. The high wall was 22 feet high, and there
was a "nearly v e rtical" (Tr. 178), drop off at the edge of the
highwall. There was no berm provided on the outer bank of the
highwall.
Skeens issued an order under Section 104 (d) (1 ) alleging a
violation of 30 C. F . R. § 77.1605(k) which provides that "[b]erms
or guards shall be provided on the outer bank of elevated
roadways . " According to Kepp, the scrapers were being operated
on the horizontal surface of a coal seam. They were being used
to remove the final amount of the overburden off the coal so it
could be drilled and shot.
There is no evidence in the record as to whether, as
understood in the mining industry, the term "elevated roadway" ,
encompasses the area in question . It is manifest that the
requirement of a berm in Section 77.1605(k) is to prevent a
vehicle from over traveling the edge of the highwall. Clearly
this hazard arises when vehicles traverse the area in question in
order to remove overburden. The common meaning of the term
•roadway," as set forth in Webster's Third New International
pictionary (1986 Edition), is as follows: "1(b) the part of a
road over which vehicle traffic travels". Clearly vehicles
travel the area in question. I find that it would be con~rary to

576

the regulatory intent of Section 77,1605(k), supra, to carve out
an exception, and not require berms in a situation where trucks
travel in order to remove overburden. Hence, I find that it has
been established that S & M did violate Section 77.1605(k).
2.

Significant and Substantial

In support of its position that the violation was
significant and substantial, the Secretary argues that the
highwall could have failed, and that * • • • any type of steering
or brake problem, ·if it occurred on one of those scrapers making
a turn that close to the edge, could create some big problem for
the operator, and probably result in an accident.~ (Tr. 184) .
According to Skeens, he had observed tracks within 12 feet of the
edge of the coal bench. However, he did not testify as to the
distance that he observed trucks normally operating in relation
to the edge of the highwall. Nor is there any other evidence in
the record as to how close to the edge of the highwall the trucks
traveled in their normal operation. There is no evidence that
the truck's brakes, or any other mechanical part was defective.
Within the framework of this evidence, I find that although the
record establishes that a scraper could have traveled over the
edge of the highwall, it has not been established that the such
an event was reasonably likely to have occurred. I thus find
that it has not been establishes that the violation was
significant and substantial.
3.

Unwarrantable Failure

A Section 104(d) (1) order can be upheld only if there had
previously been issued a valid citation under Section 104(d) (1)
of the Act. As set forth above, II (C) (1) infra, the previously
issued citation under Section 104{d) (1), is not upheld. Hence,
the instant order issued under Section 104(d) shall be reduced to
a Section 104{a) ci~ation.
4.

Penalty

According to Skeens, on December 5, he had spoken to one of
the supervisors who told him t hat he knew that a berm was
required, but that he had removed it earlier that shif_t. Kepp
indicated that a supervisor was in the area, and was guiding and
directing scraper operators as they came into the cut area. It
is not clear from the record whether this statement is based upon
an actual observation of Kepp on December 5, or upon his
description in general of mining practices. In essence, Kepp
argued tha.t s & M was not negligent since when it was cited it
was in the final stage of its operation, i.e., cleaning the top
of coal in preparation for a shot.

577

I find that since the berm was intentionally removed,
S & M's conduct herein constituted a high degree of negligence.
Further, considering the height of the edge of the highwall from
the ground below, and the fact the drop off was steep, I find
that should a vehicle have overtravelled the edge of the
highwall, a serious injury could have resulted. I find that a
penalty of $2,000 is appropriate .
D.

Order No. 4058628
1.

violation of 30 C,F . R § 1606(c)

On December 6, 1995, Skeens observed that a rear tire of a
trailer attached to a truck had an area of missing tread on the
surface of the tire that makes contact with the road . Skeens
indicated that he was able to see the nylon cords and belts that
are normally covered by the tread. Skeens was concerned about
the hazard of a blowout of this tire, and issued a order under
Section 104(d) (1) of the Act, alleging a violation of 30 C.F.R.
§ 1606(c) which provides that "[e]quipment defects affecting
safety shall be corrected before the equipment is used."
Two front tires and four rear tires were located on the
truck . Four rear tires, two on each side, were located on the
trailer . The cited tire was the outside rear tire of the
trailer. The outside diameter of the tire was 100 inches, the
width of the tread of the tire was approximately 27 inches, and
the circumference of the tire was 330 inches. The area of the
tire tread that was missing and that revealed the inner nylon
cords and belts was 13 inches wide, and extended for 72 inches.
The t i re contained approximately 90 pounds of air per square
inch .
Essentially, it appears to be S & M' s position, that if the
area of the tread that was missing was penetrated by some object,
the tire would become flat and would not suffer any explosive
blowout. In support of this position, Kepp testified that since
the tire was on the trailer, it was not subject to the stresses
of steering or acceleration. Accordingly, it is S & M's position
that the tire was safe. In contrast, Skeens cited an instance
where a worn truck tire had blown, and referred to studies
• . . . where tires have thrown pieces of debris 300 yards•
(Tr. 210) .
Considering Skeens' uncontradicted testimony that the air
pressure in the tire was 90 pounds per square inch, and that the
area where the nylon cords were exposed extended for a
considerable portion of the radius of the tire, I find that the
defect to the tire noted by Skeens did affect safety. Since it
was being used and the defect was not corrected, I find that S &
M did violate Section 77.1606(c) supra .

578

2.

Significant and Substantial

According to Kepp, in essence, the likelihood of an J..n)ury
causing event was remote since the cited tire was located on the
trailer, and not subject to the stresses of acceleration and
steering. He also noted that the truck is usually driven at
speeds from only two to three miles an hour, up to 20 miles an
hour. However, he conceded that •rocks and bits of coal• are
-present on the roadway• •on occasion• (Tr. 227). Also, he
conceded that tires with a bulge can blow out. Further, Kepp
indicated that the driver of the truck in question, and the
loader/operator, would be exposed to the tire in question
approximately 20 times a day. Considering also the extent of the
area of the missing tread, and the fact that the inner cords and
belts were visible, I conclude that it has been established that
the violation was significant and substantial.
3.

unwarrantable Failure

According to Skeens, the defect in the tire in question was
obvious. Kepp indicated that it had been torn in an accident two
days prior to the issuance of the citation in question on
December 6. Also, Kepp indicated that he became aware of this
defect on either December 5 or December 6 . Yet no efforts were
made to remove the tire from the surface. Indeed, the truck was
allowed to continue to operate with the defective tire. Within
this context, I find that the level of S & M's negligence to have
been more than ordinary, and to have reached the level aggravated
conduct. Thus I find that it has been established that the
violation was as a result of S & M's unwarrantable failure.
(See, . Emery, supra) . .
4.

Penalty

I find that should the tire had blown, a serious injury
could have resulted if a person would have been in close
proximity to the tire . Also, as discussed above, I find that the
level of S & M's negligence to have been of a relatively high
degree. I thus find that a penalty of $2,000 is proper for this
violation.
D. Citation No. 3588975.
1.

Violation of 30 C.F.R.

§

208Ccl

On January 10, 1996, s & M was notified by MSHA that five
additional dust samples were required for the designated work
position surface area No . 0010, occupation code 375, and that
these samples had to be received no later than February 1, 1996.

579

On February 7, 1996, MSHA supervisory mine inspector Larry Keller
learnt that the five additional samples had not been submitted by
February 1. He issued a Citation to S & M alleging a violation
of 30 C.F.R. § 71.208(c).
Section 71.208(c), provides, as pertinent, that upon a
notification from MSHA that dust samples taken from a designation
work position exceeded regulatory requirements, • . . . the
operator shall ~ five valid respirable dust samples from that
designated work position within 15 calendar days. The operator
shall begin such sampling on the first day on which there is a
normal work shift following the day of receipt of notification.•
According to Kepp, the equipment in question, the 14G
Caterpillar blade, needed a certain part and was not available
for use from on about January 14, 1996, through January 30.
According to Kepp, dust samples were taken on January 30 and
January 31, 1996. Kepp indicated that there was no production on
February 1, and February 2, due to extreme cold weather, and
there was no production on February 3 and 4, as those days
constituted a weekend. Dust samples were taken on February 5,
February 6 and February 7. (Defendant's Exhibit R-4).
I have considered Kepp's testimony. However, since S & M
did not take five samples within 15 calendar days of being
notified of this requirement, ie., January 10, S & M did violate
Section 71.208(c).
2.

Significant and Substantial

The violation at issue contributed to the hazard of
silicosis. Dust samples collected at the mine have been found to
contain as high as 12-percent quartz silica. However, according
to Kepp, whose testimony was not contradicted, S & M did take
five dust samples on five consecutive production shifts in which
the equipment at issue was available. As such, I find that there
was not a reasonable likelihood that an injury producing event
i.e., lung disease, was reasonably likely to have occurred. I
thus find that the violation was not significant and substantial
(See, Mathies, supra) .
3.

Penalty

I accept Kepp's testimony, as it has not been contradicted,
or impeached, that, in essence, five samples were taken, on five
consecutive production shifts in which the equipment in issue was
available. I thus find that there was no negligence on S & M's
part. I find that it has not been established that the gravity
of the violation was more than low. I find that a penalty of $20
is appropriate for this violation.

580

III. Order
It is ORDERED as follows: 1. Citation No. 3588975, and
Order No. 4058624 are reduced to Section l04.(a) citations that
are not S & S; 2. Citation No. 9894926 and Order Nos. 4058625 and
4058628 are affirmed as written; 3. Citation No. 4058552 is
dismissed; 4. Citation No. 4058621 is reduced to a Section 104(a)
S & S violation; and 5. S & M shall 1 within 30 days of this
decision, pay a civil penalty of $7,020 .

~

vram eisberger
Administrative Law Judge
Distribution:
Margaret A. Miller, Esq., Office of the Solicitor,
U.S. Department of Labor, 1999 Broadway, Suite 1600, Denver,
CO 80202-5716 (Certified Mail}
Mr. Stephen Kepp, S & M Construction, Inc., P.O. Box 2606,
Gillete, WY 82717-2606 (Certified Mail}

J. Stan Wolfe, Esq., 222 S. Gillette Avenue, Suite 500,
Gillette, WY 82716
/mh

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

MAR 18 1997.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

.
.

v.

.

BOB BAK CONSTRUCTION,
Respondent

CIVIL PENALTY PROCEEDINGS
Docket No. CENT 96-10-M
A.C. No. 39-01328-05519
Docket No. CENT 96-31-M
A.C. No. 39-01328-05520
Docket No. CENT 96-60-M
A.C. No. 39-01328-05521
Docket No. CENT 96-61-M
A. C. No. 39"-01328-05522

:

Docket No. CENT 96-85-M
A.C. No. 39-01328-05523
Docket No. CENT 96-99-M
A.C. No. 39-01328-05524
Docket No. CENT 96-116-M
A.C. No. 39-01328-05525
Docket No. CENT 96-117-M
A.C. No. 39-01328-05526
Crusher No. 3 Mine

DECXSION

Appearances:

Patrick M. Zohn, Esq., Office of the Solicitor,
U.S. Department of Labor, Mr. E. ~imball Alvery
and Ms. Judy R. Peters, MSHA, for Petitioner;
Mr. Robert Bak, Ms. Elsie Bak, and Ethan W.
Schmidt, Esq., for the Respondent.

Before:

Judge Fauver

582

These are consolidated civil penalty cases under§ 105(d) of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et aeq.

On June 5, 1995, Inspector Roger Nowell, of the Rapid City,
South Dakota, Mine Safety and Health Administration Office,
conducted an inspection at Bob Bak Construction's Crusher No. 3
Mine. Inspector Nowell was accompanied by his supervisor, Tyrone
Goodspeed. The mine operation produces and processes sand and
gravel sold in and substantially affecting interstate commerce.
During the inspection, Inspector Nowell issued nine§ 104(a)
citations, one§ 104(d) (1) unwarrantable failure citation, four
104{d) (1) orders, and one combined imminent danger order and
citation under§§ 107(a) and 104(a) of the Act.
Inspector Guy L. Carsten inspected the mine on September 1112, 1995, to determine, among other things, whether the
conditions cited in the outstanding citations and orders issued
on June 5, 1995, had been abated. During this inspection,
Inspector Carsten issued a§ 104(a) citation for working in the
face of a§ 104 (b) closure order.
On December 21-22, 1995, Inspector Nowell and Electrical
Inspector Lloyd Ferran inspected the mine, issuing two§ 104(a)
citations, one of which was for operating in the face of an
imminent danger order issued on June 5, 1995. They also issued
six§ 104(d) (2) unwarrantable failure orders.
As a resul t of the three i nspections, Respondent was issued
24 citations and orders totaling $23,951 in proposed civil
penalties. The cases were heard in Pierre, South Dakota.
Having considered the hearing evidence and the record as a
whole, I find that a preponderance of the substantial, probative,
and reliable evidence establishes the Findings of Fact and
further findings in the Discussion below.
F:INDINGS OF I'ACT
I

INSPECTION ON JQNE S. 1995
Combined Order/Citation No. 4643116

1. Inspector Nowell issued this combined imminent danger
order/citation under§§ 107(a) and 104(a) of the Act, alleging a
violation of 30 C.F.R. § 56.14101(a) (1), which provides:

58 3

(a) Minimum reguirements: (1) Self-propelled mobile
equipment shall be equipped with a service brake system
capable of stopping and holding the ·equipment with its
typical load on the maximum grade it travels. This standard
does not apply to equipmen~ which is not originally equipped
with brakes unless the manner in which the equipment is
being operated requires the use of brakes for safe
operation. This standard does not apply to rail equipment.
2. Upon his arrival at the Crusher No . 3 mine, Inspector
Nowell observed a Michigan front-end loader (Serial Number 438C452C) backing up. Inspector Nowell approached -the vehicle to
talk to the operator, who lowered the bucket to try to stop the
vehicle. The loader did not stop but gradually coasted to a
halt. Inspector Nowell questioned the operator about the brakes .
The operator, who was also the foreman, informed him that the
brakes were not functioning properly. Inspector Nowell observed
that another employee was on foot nearby (the employee regularly
worked around the crusher), another front-end loader was
operating in the same area and the working conditions were very
noisy.
3. Inspector Nowell performed a brake test on the front-end
loader by asking the foreman to drive forward and apply the
brakes. This was on fairly even ground. The test was done with
the bucket up and empty. The brakes failed to stop the vehicle,
which coasted to a gradual stop. Inspector Nowell further
questioned the foreman about the brakes, and the foreman said
that he had rep orted the condition of the brakes to the owner,
Mr. Bob Bak.
4. The loader routinely traveled up a ramp six to eight feet
high to load the crusher feed. After coming down the ramp the
loader would travel on uneven to rough terrain to return to the
pit for another load.
5. The crusher was very noisy, requiring the employees
nearby to wear hearing protection devices.
6. Inspector Nowell concluded that the loader brakes were
defective and created an imminent danger.
Ord4r No. 4643201

7. Inspector Nowell issued this order under
S 104(d) (l)of the Act, concerning the same Michigan front-end
loader, alleging a violation of 30 C.F.R.
S 56.14132(a), which provides:

584

Manually operated horns or other audible warning devices
provided on self-propelled mobile equipment as a safety
feature shall be maintained in functional condition.

e. Inspector Nowell observed that when the loader operated
in reverse the backup alarm did not work. He found that the
wires to the backup alarm were not connected. Another loader was
operating in the same area, and the crusher operator regularly
worked on foot to clean around the crusher, in the vicinity of
the front-end loaders . As stated, working conditions were very
noisy .
9. Inspector Nowell a~ked the foreman, who operated the
cited loader, how long the alarm had not been functioning, and
the foreman stated, ~at least five months" and that the owner,
Bob Bak, knew of the defect. Bob Bak testified t~at the switch
for the alarm "was on order and it wasn't there and I couldn't
put it in" (Tr . S).
10. Inspector Nowell found that the violation alleged in the
order was significant and substantial and due to an unwarrantable
failure to comply with the safety standard.
Order No. 4643211
11. Inspector Nowell issued this§ l04{d) (l) order
concerning the same front-end loader, alleging a violation of 30
C.F.R. § 56.14100{c ) , which provides:
When defects make continued operation hazardous to persons,
the defective items including self-propelled mobile
equipment shall be taken out of service and placed in a
designated area posted for that purpose, or a tag or other
effective method of marking the defective items shall be
used to prohibit further use until the defects are
corrected.
12. Inspector Nowell asked the foreman, who was operating
the loader, why he was not wearing the seat belt provided in the
vehicle. The foreman stated that he could not wear the seat belt
•due to the poor condition of the seat• (Tr. 49).

13. The seat was worn to the point that very little foam
rubber remained and the metal edges of the seat frame were
visible and protruding . The seat condition made proper wearing
of the seat belt hazardous because of the metal edges.
14. The front-end loader operated on uneven and rough
terrain and traveled a steep ramp to load the crusher trap feed.
Another loader operated in the same area, and an employee
regularly worked on foot near the loaders. Inspector Nowell

585

concluded that if the loader operator was not wearing a seat
belt, he was. more likely to be injured in ·case of an accident.
15. The inspector found that the violation cited in the
order was significant and substantial and was due to an
unwarrantable failure to comply with the cited safety standard.
Order No· 4643214

16. Inspector Nowell issued this§ 104(d) {1) order
concerning the s~me front-end loader, alleging a violation of 30
C.F.R. § 56.14101(a) (2), which provides:
If equipped on self-propelled mobile
eqUipment, parking brakes shall be capable of
holding the equipment with its typical load
on the maximum grade it travels.
17. Inspector Nowell observed that the parking brake on the
front-end loader was inoperable .
18. The loader traveled on uneven to rough terrain and
traveled up a steep ramp to load the crusher feed. Inspector
Nowell asked the foreman-operator of the front-end loader how
long the parking brake had been inoperable, and the foreman said
he had ~reported the defect to the owner" (Tr. 56).
·
19. Inspector Nowell found that the violation cited in the
order was significant and substantial and was due to an
unwarrantable failure to comply with the cited safety standard.
Citation No. 4346204

§

20. This § 104(a) citation alleges a violation of 30 C.F.R.
56.18013, which provides:
A suitable communication system shall be provided at
the mine to obtain assistance in the event of an
emergency.

21. Inspector Nowell found that there was no communication
system at the site for use by the employees in the event of an
emergency. There was no phone line, cellular phone, or business
band radio on the property. Inspector Nowell concluded that in
the event of an accident, somebody would be required to leave the
mine site and go to the nearest phone, wherever that might be, to
care for assistance. The delay in getting assistance, depending
on the type of accident, could contribute to the death or
critical condition of an injured person. If only two employees
were on the site and one had to go for help, there would only be
the injured person left.

586

Citation UQ. 4643207

22 . This§ 104(a) citation alleges a · violation of 30 C.F.R.
§ 56.12032, which provides:
Inspection and cover plates on electrical equipment and
junction boxes shall be kept in place at all times
except during testing or repairs.
23. The citation alleges the following condition or
practice:
Two cover plates were not provided for a 440
V-AC outlet and a breaker box at the main outside
electrical control panel for the conveyor belts.
The uncovered fixtures were exposed to rain, . dust, and dirt
and could inadvertently be contacted by an employee operating
other breakers and switches, exposing the person to a severe
shock hazard.
24. Respondent admits the fact s alleged i n the c i tation .
25 . Inspector Nowell found that it was reasonably likely
that a person would be injured from the hazard he observed .
Without cover plates, the AC outlets and breaker box were exposed
to rain, dirt, and dust and could inadvertently be contacted by
somebody . An electric shock of 440 volts could reasonably be
expected to result in a fatal or very serious injury.
Citation No. 4643216

26 . This § 104 (a ) citation alleges a viola t ion of 30 C.F. R.
§ 56 . 14107 (a ) , whic~ provides:
Moving machine parts shall be guarded to protect
persons from contacting gears, sprockets, chains,
drive , head , tail, and take up pulleys, flywheels,
couplings, shafts, fan blades, and similar moving parts
that can cause injury .
27. A belt and chain drive unit beneath the crusher trap
feed was not guarded .· An old piece of screen was installed at
the entrance to the trap feed, apparently as a barricade.
However, the screen was almost covered with overfill material and
did not prevent access to the belt and chain drive. The
inspector found that the area around the belt and chain drive had
a substantial buildup of overfill material that would require
clean up work.

587

Citation No. 4643210

§

28. This§ 104(a) citation alleges a violation of 30 C.F.R.
56.14100(d), which provides:
Defects on self-propelled mobile equipment affecting
safety, which are not corrected immediately, shall be
reported to, and recorded by, the mine operator. The
records shall be kept at the mine or nearest mine
office from the date the defects are recorded, until
the defects are corrected . Such records shall be made
available for inspection by an authorized
representative of the Secretary.

Inspector Nowell observed that the same front-end
loader involved in the above orders and citations· had an
inoperable windshield wiper and severely cracked windshield that
impaired the visibility of the operator. Also, the wiper blade
had been removed. It was raining on the day of the inspection.
A crusher operator was working on foot in the area of the loader,
and another front-end loader was operating in the same area. The
· defective wiper and missing wiper blade were n·o t recorded by the
company.
29.

30 . Inspector Nowell discussed the condition with the
foreman, Lawrence Roghair, who was also the operator of the
loader. The foreman stated that the loader was bought that way
and they "didn't think anything of the defect" (Tr.74).
Citation No. 4643212

31. This§ 104 (a) citation alleges a violation of 30 C.F. R
§ 56.14107(a), which provides:
Moving machine parts shall be guarded to protect
persons from contacting gears, sprockets, chains,
drive, head, tail, and take up pulleys, flywheels,
couplings, shafts, fan blades, and similar moving parts
that can cause injury .
32. Inspector Nowell found that a shroud originally
provided to guard the Michigan front-end loader radiator fan
blades had been removed. He concluded that this was a violation
of§ 56.14107(a). He found that it was unlikely that an injury
would occur because there would be no reason for anyone to be
around the engine when the loader was running. The engine and
fan blades wer·e about the head level of an average person.

588

Citation No. 4643213

33. This§ 104(a) citation alleges a violation of 30 C.F.R.
30 § 56.14100(b), which provides:
Defects on any equipment, machinery, and tools that
affect safety shall be corrected in a timely manner to
prevent the creation of a hazard to persons.
34. Inspector Nowell found that the lights on the front-end
loader involved in the above orders and citations were broken,
misaligned or otherwise not kept in operational condition .
Citation No. 4643120

35. This§ 104(a) citation alleges a violation of
30 C.F.R. § 56.15003, which ·provides:
All persons shall wear suitable protective footwear
when in or around an area of a mine or plant where a
hazard exists which could cause an injury to the fee.
36. Inspector Nowell found that protective footwear, such
as hard-toed safety boots, were not worn by the crusher operator.
Respondent admits the facts alleged in the citation but claims
financial hardship as to the proposed penalty.
Citation No. 4343203

37. This§ 104(a) citation alleges a violation of 30 C.F.R.
§ 56.20008, which provides:
Toilet facilities shall be provided at locations that
are compatible with the mine operations and that are
readily accessible to the mine personnel.
38. Inspector Nowell found that there were no toilet
facilities at the mine site .
39. Respondent admits the facts alleged, but claims
financial hardship as to the amount of the proposed penalty.
Citation No. 4643205

40. This§ 104(a) citation alleges a violation of .30 C.F.R.
§ 56.12028, which provides:
Continuity and resistance of grounding systems

589

I

shall_be tested immediately after installation,
repair, and modification; and annually thereafter.
A record of the resistance measured 'during the
most recent test shall be made available on
~equest by the Secretary or his duly authorized
representative.
41 . Inspector Nowell found that Respondent had failed .to
test and record continuity and resistance of grounding systems on
the el~ctric motors, portable extension cords, h~nd held tools
and main power tools.
42 . Respondent admits the facts alleged, but challenges the
amount of the proposed penalty.
Citation No. 4643118
43. This§ 104(d ) (1) alleges a violation of C.F.R. §
56 . 14132(a ) , which provides:
Manually operated horns or other audible warning
devices provided on self-propelled mobile equipment as
a safety feature shall be maintained in a functional
conditi on.
44. Inspector Nowell observed a 175B Michigan front end
loader (Serial No. 438-C452C) moving in reverse and the backup
alarm was not working. He asked the loader operator how long the
backup alarm had not been functioning. The operator stated that
the backup alarm had not worked for about three weeks, and that
he had told the owner, Bob Bak, of this defect. Bob Bak
testified that a switch for the alarm "had been on order, it had
just been back ordered .•. and I guess I just kind of lost track
of itn (Tr. 20) .
Order No. 4643208

45. This§ 104(d} (1} order alleges violation of 30 C.F.R. §
56.14103(b}, which provides:
{B) If damaged windows obscure visibility necessary for
safe operation, or create a hazard to the equipment
operator, the windows shall be replaced or removed.
Damaged windows shall be replaced if absence of a
window would expose the equipment operator to hazardous
environmental conditions which would affect the ability
of the equipment operator to safely operate the
equipment .

590

46. Inspector Nowell found that the windshield on a
Michigan 175B front End Loader (Serial No . 438-C202) was badly
damaged with cracks radiating outward and· downward. Another
vehicle operated in the same area and an employee on foot worked
in the same area . It rained on the day of the inspection.
47. The loader was operated by Foreman Lawrence Roghair,
who stated the cracked window condition had existed for five
months and he had told the owner, Bob Bak, about it. The defect
was readily observable.

zz
INSPECTION ON SEPTEHBER 11-12. 1995
Citation No. 4643458

Inspector Guy L. Carsten issued this§ 104(a) citation,
alleging a violation of§ 104(b) the Act, which provides:
48.

(b) If, upon a follow-up inspection of a coal or other
mine, an authorized representative of the. Secretary
finds (1) that a violation described in a citation
issued pursuant to subsection (1) has not been totally
abated within the period of time as originally fixed
therein or as subsequently extended, and (2) that the
period of time for the abatement should not be further
extended, he shall determine the extent of the area
affected by the violation and shall promptly issue an
. order requiring the operator of such mine or his agent
to immediately cause all persons, except those persons
referred to in subsection (c), to be withdrawn from,
and to be prohibited from entering, such area until an
authorized representative of the Secretary determines
that such violation has been abated.
49. Inspector Carsten issued a§ 104(b) non-compliance
closure order (Order No. 4643454) on September 11, 1995 for
failure to abate a violation that was cited on June 5, 1995
(failure t~ provide adequate toilet facilities, Citation No.
4643203) .•
50. On September 12, 1995, Inspector Carsten returned to
the mine site and observed a mine employee operating a bulldozer
on mine property.

591

:INSPECTION ON DECEMBER 21.;.22 ·• 1995

Order No. 4643593

51. On December 21, 1995, Inspector Nowell conducted
another inspection at Bob Bak Crusher No. 3 mine as a result of a
hazard complaint. Inspector Nowell was accompanied by Inspector
Lloyd Ferran, an ·electrical inspector. During the inspection
Inspector Nowell issued the above§ 104(d) (2) order, alleging a
violation of 30 C:F.R. § 56.15002, which provides:
All persons shall wear suitable hard hats
when in or around a mine or plant where
falling objects may create a hazard.
52. Inspector Nowell found that the owner of the company,
Bob Bak, was not wearing a hard hat while at the mine site in
areas where there were hazards of falling objects.
53. Respondent admits the facts alleged in the order, but
challenges the amount of the proposed penalty.
Order No. 4643594

54. Inspector Nowell issued this§ 104(d) (2) order,
alleging a violation of 30 C.F.R. § 56.15003, which provides:
All persons shall wear suitable protective
footwear when in or around an area of a mine or
plant where a hazard exists which could cause an
injury to the feet.
55. Inspector Nowell found that the owner of the company,
Bob Bak, was not wearing hard-toed protective footwear while at
the mine site in areas where there were hazards of foot injuries.
56. Respondent admits the facts alleged in the order, but
challenges the amount of the proposed penalty.
Order No. 4643516

57. Inspector Nowell issued this 5 104(d) (2) order,
alleging a violation of 30 C.F.R. § 56.1410l(a) (1), which
provides:

592

Self-propelled mobile equipment shall be
equipped with a service brake system capable
of stopping and holding the equipment with
its typical load on the maximum grade it
travels. This standard does not apply to
equipment which is not originally equipped
with brakes unless the manner in which the
equipment is being operated requires the use
of brakes for safe operation. This standard
does not . apply to .rail equipment.
58. Inspector Nowell found that a fuel truck did not have
operable service brakes. The inspector performed a test on the
brakes and found that when he pushed in en the brake pedal, it
freely went all the way to the floorboard and he had to reach
down and pull it back up. The truck was transported on a trailer
to the mine site, driven off the truck and parked. When the
company moved to another site, the truck was driven onto the
trailer and trans~orted to the new site.
Order 4643776

59. Inspector Lloyd Ferran issued this§ 104(d) (2) order~
alleging a violation of 30 C.F.R. § 56.12016, which provides:
Electrically powered equipment shall be deenergized before
mechanical work is done on such equipment. Power switches
shall be locked out or other measures taken which shall
prevent the equipment from being energized without the
knowledge of the individuals working on it. Suitable
warning notices shall be posted at the power switch and
signed by the ~ndividuals who are to do the work. Such
locks or preventive devices shall be removed only by the
persons who installed them or by authorized personnel.
60. Inspector Ferran observed an employee working on the
stacker conveyor and found that the conveyor had not been deenergized and the power switch had not been locked out and
tagged.
· Citation No. 4643777

61. Inspector Nowell issued this§ 104(a) citation, alleging
a violation of 30 C. F.R. § 56.12001, which provides:
Circuit breakers shall be protected against excessive
overload by fuses or circuit breakers of the correct type
and capacity.

593

62. A aenerator had an oversized fuse that did not protect
two f8 cables · fr-om excessive overload a.nd thereby becoming
brittle, starting a fire, or causing elec~rical shock to
employees.
63. Respondent a~ts the facts alleged, and does not
challenge the proposed penalty.
Qrder No. 4643778

64. Inspector Lloyd Ferran issued this S 104(d) (2) order,
alleging a violation of 30 C.F.R. S 56.12030, which provides:
When a potentially dangerous condition is found it
shall be corrected before equipment or wiring is
energized.
65. Inspector Ferran observed a deteriorated phase wire on
the main 480-volt power cable that was feeding the portable
distribution boxes. The electrical conductor was brittle and
some of the insulation was falling off. The concentric piece was
broken, allowing the cable to move in and ~ut _with a high risk
-that the phase wire would contact metal parts and cause an
electrical shock.
66. Inspector Ferran found that the hazard was · increased by
the fact that there was snow on the ground .
67. Inspector Ferran talked with the owner, Bob Bak, about
this condition. Mr . Bak told him that he was aware of the cited
condition but he just had not had time to correct it. Mr Bak
told the inspector that it had been this way for a few days.
Or4ar No. 4643771

68. Inspector Lloyd Ferran issued this S 104(d) (2) order,
alleging a violation of 30 C.F.R. 5 56.12008, which provides:
Power wires and cables shall be insulated adequately
where they pass into or out of electrical compartmenta.
Cables shall enter metal frames of mQtors , 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.
69. The bushing on the main 480-volt power cable (which fed
the portable distribution boxes) did not fit properly. Th~s · was

594

the same power cable involved in Order No. 4643778. The
inspector found that the concentric knock-out was broken and not
secured to a point that would prevent movement of the cable and
prevent contact with metal parts of the distribution box. The
inspector talked with the owner, Bob Bak, and was told that Mr.
Bak had seen this problem but had not had t~me to correct it.
Mr. Bak told the inspector that it had been this way for a few
days.
Citation No. 4643592

70. Inspector Nowell issued this§ 104(a) citation, alleging
a violation of§ 107(a) of the Mine Act, which forbids using
equipment that is under an imminent danger withdrawal order.
71. In the December inspection, Inspector ~owell observed a
175B Michigan front-end loader parked with the motor running.
The loader was under an outstanding§ 107(a) imminent danger
withdrawal order issued on June 5, 1995.
72. The owner, Bob Bak, told the inspector that the loader
was used only to move the stacker conveyor and was not being used
to move sand and gravel. Mr. Bak told inspector Nowell that some
abatement work had been done and the brakes still would not stop
the loader. He also said t~at his mechanic quit and he needed
the loader.
DXSCUSSXQN WlTB FQBTBEB
FINPXNGS. CONCLuSIONS

GENERAL PRINCIPLES
Significant and Substantial Violation

The S&S terminology is taken from§ 104(d) of the Act, and
refers to violations that are of "~uch nature as could
significantly and substantially contribute to the cause and
effect of a coal or other mine safety or health hazard •••• " The
Commission has defined an S&S violation as one that presents a
"reasonable -likelihood that the hazard contributed to will result
in an injury or illness of a reasonably serious nature." Cement
Diy., Nat' 1 Gypsum Co .., 3 FMSHRC 822, 825 (1981); and Mathies
Coal Co., 6 FMSHRC 1 (1984).
The Commission has stated that- an evaluation of the

595

reasonable likelihood of injury should be made assuming continued
normal mining operations without abatement of the violation.
U.S. Steel Mining Co .. 7 FMSHRC 1125, 1130 (1985). In Mathies
Coal Co., supra, the Commission outlined four factors that must
be present to establish an S&S violation:
In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum, the Secretary of
Labor must prove: (1) the underlying violation of a
mandatory safety standard; (2} a discrete safety hazard
- that is, a measure of danger to safety - contributed
to by the violation; (3) a reasonable likelihood that
the hazard contributed to will result in ·an injury; and
(4) a reasonable likelihood that the injury in question
will be of a reasonably serious nature.
See also Buck Creek Coal. Inc. v. Secretary of Labor, 861 F.2d
99, 103 (5th Cir. 1988) (approving the Mathies test) .
The Mathies test refers only to a ~safety hazard,n but
Mathies does not purport to eliminate health hazards from S&S
violations. For example, in Buffalo Crushed Stone. Inc., 19
FMSHRC
(February 18, 1997) (slip opinion p. 7), the
Commission repeats its longstanding definition:
A violation is S&S if, based on the particular facts
surroundi~g the violation, there exists a reasonable
likelihood that the hazard contributed to will result
·in an injury or illness of a reasonably serious nature.
In United States Steel Mining Company. Inc .. 18 EMSHRC 862
(1996), the Commission held that ·"The term 'reasonable
likelihood' does not ·mean 'more probable than not.'" Its ruling
is explained as follows:
We agree with the judge that the third
element of the Mathies test does not require
the Secretary to prove it was "more probable
than notn an injury would result. See 16
FMSHRC at 11900-93. The legislative history
of the Mine Act indicates Congress did not
intend that the most serious threat to miner
health and safety, imminent danger, be
defined in terms of "a percentage of
probability.n S.Rep. No. 181, 95~ cong ~ , 1st ·
Sess. 38 (1977), reprinted in Senate
Subcommittee on Labor, Committee on Human

596

Re~ources, 95th Cong., 2d Sess., Legislative
History of the Federal Mine Safety and Health
Act of 1977, at 626 (1978). We do not find
error in the judge's conclusion that, because
an S&S violation under the Mine Act is less
serious than an imrrcinent danger, it is also
not to be defined in terms of percentage of
probability. 16 FMSHRC at 1191.
Furthermore, Commission precedent has not
equated •reasonable likelihood" with
probability greater than 50 percent. A •more
probable than not" standard would require the
Secretary, in order to prove a violation is
S&S, to prove it is likelier that not that
the hazard at issue will result in a
reasonably serious injury. We reject such a
requirement.

The S&S definition is part of a special enforcement chain in
§ 104(d) of the Act, but is not necessary to prove a •serious
violation." See, e.g., Consolidation Coal Company, 18 FMSHRC
1541, 1550 (1996).
Unwarrantable Violation

Li ke an S&S violation, the term "unwarrantable" violation
derives from§ 104(d) (1) of the Act, which refers to "an
unwarrantable failure of [the] operator to comply with .•.
mandatory health or safety standards ..•. " The Comrrcission has
defined "unwarrantable failure to comply" as meaning "aggravated
conduct constituting more than ordinary negligence
••• characterized by such conduct as 'reckless disregard,'
'intentional misconduct,' 'indifference' or a 'serious lack of
reasonable care . '" Emery Mining Corp., 9 FMSHRC 1997, 2004-04
(1987); Rochester & Pittsburgh Coal Corp., 13 FMSHRC 189, 193-94
(1991); Ambrosia Coal & Construction. 18 FMSHRC 1552, 1560
(1996).
.
Imminent Danger

Section 3 (j) of the Mine Act defines ''imminent danger" as
"the existence of any condition or practice in a coal or other
mine which could reasonably be expected to cause death or serious
physical harm before such condition or practice can be
abated •••. "
The Commission and the courts have held that, because an
inspector must act quickly when he or she perceives a condition
to be dangerous, an inspector's findings and decision to issue an

597

imminent danger order1 should be supported unless there was an
abuse of discretion or authority. In Old Ben Coal Corp v.
Interior Board of Mine Operations Appeals, 523 F.2d 25, the Court
of Appeals for the Seventh Circuit stated:
Clearly, the inspector is in a precarious
position. He is entrusted with the safety of miners'
lives, and he must ensure that the statute is enforced
for the protection of these lives. His total concern
is the safety of life and limb. • • • We must support
the findings and the decisions of the inspector unless
there is evidence that he has abused his discretion or
authority.
In Rochester & Pittsburgh Coal Co., 11 FMSHR~ 2159, 2164
(1989), the Commission stated: "Since he must act immediately, an
inspector must have considerable discretion in determining
whether an imminent danger exists.n This principle was reaffirmed by the Commission in Utah Power & Light Co., 13 FMSHRC
1617, 1627 (1991); and Island Creek Coal Company, 15 FMSHRC 339,
345 (1993).
The Commission held in Rochester & Pittsburgh, supra, that:
***[A]n imminent danger is not to be defined "in terms
of a percentage of probability that an accident will
happen.n *** Instead, the focus is on the "potential of
the risk to cause serious physical harm at any time"
1

Section 107(a) of the Act provides for imminent danger
orders, as follows: .
If, upon any inspection or investigation of a coal or
other mine which is subject to this Act, an authorized
representative of the Secretary finds that an imminent
danger exists, such representative shall determine the
extent of the area of such mine throughout which the
danger exists, and issue an order requiring the
operator of such mine to cause all persons, except
those referred to in section 104(c), to be withdrawn
from, and to be prohibited from entering, such area
until an authorized representative of the Secretary
determines that such imminent danger no longer exist.
The issuance of an order under this subsection shall
not preclude the issuance of a citation under section
104 or the proposing of a penalty under section 104 or
the proposing of a penalty under section 110.

598

[quoting the legislative history of the Mine Act]. The
[Senate] Committee stated its intention to give
inspectors ~the necessary authority for ~he taking of
action to remove miners from risk."
In Utah Power & Light, the Commission stated that ~imminent
danger" means the "hazard to be protected against must be
impending so as to require the immediate withdrawal of miners."
13 FMSHRC at 1621. ~where an injury is likely to occur at any
moment, and an abatement period, even of a brief duration, would
expose miners to risk of death or serious injury, the immediate
withdrawal of miners is required." 13 FMSHRC 15 1622.
In Eastern Associated Coal Corp. v. Interior Board of Mine
Operations Appeals, 491 F. 2d 277, 278 (4th cir. 1974), the Court
stated:
***[T]he Secretary determined, and we think
correctly, that "an imminent danger exists when the
condition or practice observed could reasonably be
expected to cause death or serious physical harm to a
miner if normal mining operations were permitted to
proceed in the area before the dangerous condition is
eliminated."
Ciyil Penalti,es

Under§ 110(i) of the Act, the Commission and its judges
assess all civil penalties under the Act . The Commission or
presiding judge is not bound by the penalty proposed by the
Secretary. Penalties are assessed ~ ~ based upon six
criteria provided in§ 110(i): (1) the operator's history of
previous violations; (2) the appropriateness of the penalty to
the size of the business, (3) the operator's negligence, (4) the
effect on the operator's ability to continue in business, (5} the
gravity of the violation, and (6) the operator's good faith in
abatement of the violation. Secretary of Labor v. Sellersburg
Stone Co., 5 FMSHRC 287 (1983), aff'd Sellersburg Stone Co. v.
FMSHRC, 736 f. 2d 114 7 (7th Cir. 1984) •
In evaluating the fourth factor, "in the absence of proof
that the imposition of authorized penalties would adversely
affect [an operator's ability to continue in business], it is
presumed that no such adverse effect would occur." Spurlock
Mining Company. Inc., 16 FMSHRC 697, 700 (1994), quoting
Sellersburg Stone CO., 5 FMSHRC 287 . The burden of proof is on
the operator. If an adverse effect is demonstrated, a reduction
in the penalty may be warranted. However, "the penalties may not

599

be eliminated • • . , because the Mine Act requires that a penalty
be assessed for each violation.u Spurlock Mining, supra, 16
FMSHRC at 699, citing 30 U.S.C. § 820(a); Tazco. Inc., 3 FMSHRC
1895, 1897 (1981).
Tax returns and financial statements showing a loss or
negative .net worth are, by themselves, not sufficient to reduce
penalties because they are not indicative of the ability continue
in business. Spurlock Mining. Inc., 16 FMSHRC at 700, citing
Peggs Run Coal Co., 3 IBMA 404, 413-414 (1974).
The purpose .of civil penalties is to induce the operator and
others similarly situated to comply with the Act and safety and
health regulations. To be successful in the objective of
inducing effective and meaningful compliance, "a penalty should
be of an amount which is sufficie~t to make it more economical
for an operator to comply with the Act's requirem~nts than it is
to pay the penalties assessed and continue to operate while not
in compliance.u S. Rep. No. 181, 95th Cong., pt Sess. 40-41
(1977), reprinted in Senate Subcommittee on Labor. Committee on
Human Resources. 95th Cong .• 2d Sess .. Legistatiye History of the
Federal Mine Safety and Health Act of 1977, at 628-29 (1978).
The ability to continue in business is only one of six
criteria.
Since the other criteria must also be considered, it
would be inappropriate to rule that penalties should be nominal
or reduced by a set percentage whenever an operator establishes
that the proposed penalties would have an adverse effect on its
ability to continue in business. Penalties must still be
assessed for each violation, with a deterrent purpose. For
example, if an operator is financially unsound and cannot pay its
debts and taxes, § llO(i) still does not exempt it from penalties
"sufficient to make it more economical •.. to comply with the
Act's requirements than it is to pay the penalties assessed and
continue to operate while not in compliance." S. Rep. supra.

n
RQLINGS ON CITATIONS AND ORPERS
Combined Order/Citation No. 4643116-Defectiye Brakes on Front-End Load4r

I find an S&S violation of§ 56.1401(a) (1) due to high
negligence. I also find that the facts warranted the inspector's
issuance of an imminent danger order.
Respondent contends that§ 56.14101(b) (2) requires a

600

detailed brake test before a violation may be charged under §
56.14101(a) (1) and that the inspector failed to comply with this
requirement .
I find that Inspector Nowell conducted _a reasonable brake
test before issuing the order/citation. He had the foreman drive
the loader on fairly level ground and apply the brakes. The
brakes did not stop the vehicle, which coasted until it came to a
gradual stop. This test confirmed the inspector's opinion that
the brakes were unsafe. He formed that opinion when he first saw
the loader in operation, because the operator, who was the
foreman, used the bucket to try to stop the vehicle and it still
did not stop but coasted to a gradual stop.
The brake test clearly showed that the brake~ were not
capable of holding the loader on the highest incline traveled
during the normal workday. It was not necessary to make a more
detailed test under § (b) (2) in order to cite a violation of §
(a) (1) of the regulation.
I find that the facts sustain the inspector's issuance of a
107(a) imminent danger order.
Operating the front-end loader
with defective brakes in a high-noise area where an employee
worked on foot and another vehicle operated, and operating it on
a steep ramp, showed a reasonable basis for the inspector's
finding that the hazard "could reasonably be expected to cause
death or serious physical harm before it [could) be abatedu (§
107(a)).
§

Order No. 4643209--Xnqper&ble
Backup Alarm on Front-end Loader

I find an S&S violation of§ 56.14132(a) due to an
unwarrantable failure to comply with the standard.
Bob Bak testified that "we had a problem with the switch and
it was on orderu (Tr. 5). The foreman told the inspector that
the backup alarm had been defective "at least five rnonthsu and
that Bob Bak knew about it. Tr. 46. The extensive period of
this violation -- at least five months - shows a "serious lack of
reasonable careu constituting an unwarrantable failure to comply
with the safety standard. Emery Mining Corporation, 9 FMSHRC
1997, 2003-04 ( 1987) .
Operating a front-end loader without a backup alarm in · a
high-noise area where an employee worked on foot and another
vehicle operated constituted a significant and substantial
violation. The conditions were reasonably likely to cause a
serious injury.

601

Order No. 4643211 -- Failure· to Proyide
Suit&b1e Seat Belt on Front-end Loa4er

I find an S&S violation of§ 56.14100(c) due to an
unwarrantable failure to comply with the standard.
The foreman, who was operating the front-end loader, knew
that the exposed metal edges of the seat frame prevented proper
use of the seat belt. Because of this condition, Respondent
failed to provide a suitable seat belt and was in violation of
the safety standard. The foreman knew about the condition and
stated that the owner, Bob Bak, also knew about it. The
condition developed over a long period. Failure to correct it
showed a serious lack of reasonable care and therefore an
unwarrantable failure to comply with the standard.
The vehicle traveled over uneven to rough terrain, up a
steep ramp, and operated in the same area where an employee
worked on foot and another vehicle operated. In the event of a
collision or an emergency requiring the front-end loader to
swerve or brake suddenly, the failure to provide a suitable seat
belt was reasonably likely to contribute significantly and
substantially to a serious injury. The violation was therefore
S&S.
Order No. 4643214 - Inoper&ble
Parking Brake on Front-end Loa4er

·I find an S&S violation of§ 56.1401(a) (1) due to an
unwarrantable failure to comply with the standard.
The same front-end loader with defective service brakes
(cited in Order/Citation No. 4643116) had an inoperable parking
brake. The same rulings as to the service brake violation,
above, apply here. The parking brake violation was S&S and due
to an unwarrantable failure to comply with the standard. Had the
emergency brake been working properly, it may have prevented an
accident or reduced its impact if the operator needed to stop the
vehicle quickly. The violation was reasonably likely to
contribute significantly and substantially to a serious accident
and injury. The foreman and owner had longstanding knowledge of
this uncorrected violation, which was due to a serious lack of
reasonable care.

602

Citation No. 4643204 - No
Communication System at ~ne

I find a non-S&S but serious violation of § 56.18013 due to
ordinary negligence.
Bob Bak testified that the mine was within "two miles of
town, and I didn't feel there was a problem" (Tr. 7). However,
the safety standard requires a "suitable communication system at
the mine to obtain a.s sistance in the event of an emergency."
There was no phone line, cellular phone, or business band radio
on the property. The citation noted Respondent's contention that
"an employee on site · does have a CB radio," but concluded "this
cannot be relied on" c.nd "there is no base station withing
range." The violation was abated by installation of a cellular
phone in the foreman's car. The phone was found to be
operational.
I find that this was a clear violation that could readily
have been avoided, as shown by the action taken to abate it .
Although the inspector marked this violation as non-S&S on
the citation form, I find this to be a serious violation. Time
is often critical in a medical emergency. Reducing an injured
employee's chance ·o f receiving prompt medical attention is a
serious violation.
Citation No . 4643207 - No Coyer Plates on Electrical
outlet and Breaker Box

I find an S&S violation of § 56.13031 due to ordinary
negligence.
Respondent does not dispute this violation .
Without cover plates on the 440-volt outlet and breaker box,
the wire connections, fixtures, and fuses were exposed to rain,
dirt, and dust and could have been inadvertently contacted by
someone. I find that the violation was reasonably likely to
result in a serious injury. The violation was therefore S&S .
Citation No. 4643216 - No Guard Oyer Moying Machine
Parts

I find an S&S violation of§ 56.14107(a) due to ordinary
negligence.

603

Respondent · contends that a wire screen served as a
barricade to prevent contact· with the belt and chain drive
beneath the trap feed. However, the inspector observed and a.
photograph (Exh G-11) plainly shows that the screen was almost
covered up with overfill material and was not effective as a
barricade. The exposed moving machine parts presented a
reasonable likelihood of resulting in a serious injury. The
violation was S&S, and could have been prevented by the exercise
of reasonable care. It was therefore due to ordinary negligence.
Citation No. 4643210 Ingper&ble Windshield filper and Missing Hlper llad&

I find an S&S violation of § 56.14100{d) due to ordinary
negligence.
At the hearing, Bob Bak stated that he "bought [the loader]
used, the windshield wipers did not work when we got it, we do
not work in the rain, if there is snow, so there was no need for
it [the wiper]" (Tr. 8). The foreman told the inspector that
"the loader was bought that way and they didn't think anything of
the defect" {Tr. 74). The citation additionally alleges, and the
inspector testified, that the loader also had a badly damaged
windshield, which impaired operator visibility and was more
hazardous when it rained. It was raining on the day of the
inspection. An employee was working on foot nearby and another
vehicle was operating in the area. There was a reasonable
likelihood that this violation would result in serious injury.
Citation No. 4643212 -

Failure to Guard Radiator
llac!ea

I find a non-S&S violation§ 56.14107{a) due to ordinary
negligence.
The inspector testified that the front-end loader was
manufactured with a shroud to guard the radiator blades but the
shroud was missing. He found a non-S&S violation, stating that
injury was unlikely because "there would really be no reason for
somebody to work in the area, be around the fan blade when the
loader is running" (Tr. 76). The radiator was elevated, about
the head level of an average person. Injury was not likely, but
a guard was required.
Citation No. 4643213 - Front-End Loader Lights Not
O,per&ble

I find a non-S&S but serious violation of § 56.14100{b) due

604

to ordinary negligence.
Respondent admits the facts alleged.
Bob Bak testified that "the lights were not operable when I
bought [the front-end loader], but we don't work at night, so
there was no need for lights" (Tr. 10).
Th{s is the . same front-end loader that had defective service
brakes, an inoperable parking brake, inoperable windshield
wipers, a cracked windshield, and an inoperable backup alarm.
The inspector testified that it rained on the day of the
inspection.
The inspector found that, assuming the vehicle operated only
during daylight hours, the violation was non-S&S. I find that
this was still a serious violation. There are various conditions
that may render headlights an important safety factor during
"daylight" hours, e.g . , sudden or heavy ra~n, fog or dust. In
such conditions, headlights are an important safety protection to
show the location and movement of vehicles.
Citation No. 4643120 - failure to Wear Suit&ble
Protective Footwear

I find an S&S violation of § 56.15003 due to ordinary
negligence .
Respondent does not dispute this violation, but claims
financial hardship as to the amount of the proposed civil
penalty.
Citation No. 4643203 - Lack of Toilet Facilities

I find a non-S&S but serious violation of § 56 . 13028 due to
ordinary negligence.
Respondent does not dispute this· violation, but challenges
the amount of the proposed civil penalty.
Citation No· 4643205 - lgptpment Grounding
Systems Not Tested and Recorded

I find an non-S&S but serious violation of § 56.13028 due to
ordinary negligence.
Respondent does not dispute this violation, but disputes the
amount of the proposed civil penalty.

605

Citation No. 4643118-Xnoper&ble Baekyp Alarm on Front~end Loader

I find an S&S violation § 56.14132 (a) du·e to an
unwarrantable failure to comply with the standard.
The loader operator told the inspector that the backup alarm
had not worked for about three weeks and that he had told the
owner, Bob Bak, of this defect .
Bob Bak testified that a repiacement backup alarm switch
"had been on order, it had just been back ordered ••• and I guess
I just kind of lost track of it (Tr. 20).
I find that the operation of the loader without an operable
backup alarm, the period of the violation , and the failure to
take the loader out of service rather than operate it in
violation of the standard, showed a serious lack of reasonable
care.
The loader operated in a high-noise area where another
vehicle operated and an employee worked on foot . These
conditions presented a reasonable likelihood of a serious injury.
Order No. 4643208-Craeked Windshield on Front-end Loader

I find an S&S violation of § 56.14103(b) due to an
unwarrantable failure to comply with the standard.
The inspector observed that a front-end loader operated by
the foreman had a badly cracked windshield that obscured the
operator's visibility. He also found that the hazard was
increased when it rained. It rained on the day of the
inspection.
The foreman told the inspector that the window had been
cracked for about five months and he had told the owner, Bob Bak,
about it.
Bob Bak testified that there were cracks in the windshield
but he disagreed that they obscured visibility. I find that the
cracks did obscure visibility and were a hazard .
The long period of the violation shows a serious lack of
reasonable care.
The loader operated in an area. where another vehicle

606

operated and an . employee worked on foot. The violation was
reasonably likely to result in a serious injury.
Citation No. 4643458 Operating Mine in Violation of
S 104fb) Closure Order

I find a non-S&S but very serious violation of§ 104(b) of
the Act due to high negligence.
Respondent was cited on June S, 1995, for failing to provide
toilet facilities at the mine. After a delay of over two months
without abatement, the inspector issued a§ 104(b) closure order
on September 11, 1995. The order prohibited any work at the mine
until the earlier citation was terminated based upon a finding by
MSHA that the violation had been abated.
The next day, he returned to the mine and found that an
employee was operating a bulldozer at the mine, in clear
violation of the closure order. The owner knew the mine was
operating despite the order. He stated that he had ordered a
toilet and it had not arrived. After the inspector issued
Citation No. 4643458, the owner promptly bought a toilet, that
day, and installed it the next morning in order to abate the
violation and have the closure order terminated.
Order No . 4643593 - Bard Bat Not Worn

I find an S&S violation of § 56.15002 due to an
unwarrantable failure to comply with the safety standard.
Respondent does not dispute this violation, but challenges
the amount of the proposed civil penalty. The owner was not
wearing a hard hat in a location where one was required.
Order No. 4643594 - Failure to wear Suit&ble
Protective [ootw.ar

I find an S&S violation of § 56.15003 due to an
unwarrantable failure to comply with the safety standard.
Respondent does not dispute this violation, but challenges
the amount of the proposed civil penalty.
The violation was committed on December 21, 1995, by the
owner, Bob Bak, who had been cited for a violation of the same
safety standard on June 5, 1995. His conduct showed a serious
lack of reasonable care.

607

Qrder Ho. 4643516 l:ncmerable lra.ke• pn hal 'fruc1c

I find an S&S violation of S 56.14101(a) (1) due to an
unwarrantable failure to comply with the standard.
Respondent contends that a violation was not proved because
there was "no testi~ony as to the weight of the fuel truck, its
stopping distance on the day of the inspection, or that anyone
had been injured as a result of the alleged condition of these
brakes." Respondent's Brief, p.l2. I credit the inspector's
testimony that he ~pushed in on the brake pedal, the brake pedal
freely went all the way to the floorboard and as a matter of fact
I had to reach down and pull it back up" (Tr. 90). I find that
the brakes were ~noperable. Where a basic brake test shows the
brakes are inoperable, there is no necessity to perform a more
detailed brake test under§ 56.14101(b) (2) in order to prove a
violation of§ 56.1410l(a) (1).
Bob Bak testified that the fuel truck was transported on a
lowboy trailer to the mine site, driven off the lowboy, parked
for fuel storage, and was not moved until the company moved to a
new site. It was then driven onto the lowboy and transported to
the new site. Inspector Nowell testified that although the truck
was driven a minimal distance, ·t he lack of brakes in driving onto
and off the lowboy trailer was a saf~ty hazard. Driving a truck
without brakes onto and off a trailer could cause the driver to
lose control of the vehicle and have an accident. The lack of
brakes had a reasonable likelihood of contributing significantly
and substantially to a serious injury.
Respondent's conduct in having an employee drive a fuel
truck without operable brakes onto and off a trailer showed a
serious lack of reasonable care and therefore an unwarrantable
failure to co~ply with the standard.
Order No. 4643776 - lailure to Qeenergiae and
Lpgk Out Power Cirguit to Cpnycyqr

I find an S&S violation of § 56.12016 due to an
unwarrantable failure to comply with the standard.
Inspector Ferran observed an employee working on the stacker.
conveyor when the conveyor was not deenergized and the power
switch had not been locked out and tagged.
The owner, Bob Bak, testified that a padlock to lock. out the

608

>wer switch was available ~by the parts trailer" and the crusher
>erator neglected to use it. Tr. 14-15 . . However, the inspector
>und no lock in the area of the power switch and Bob Bak was
3sisting the employee who was working on the conveyor. I find
1is violation was S&S. Working on a conveyor that had not been
~energized, locked out and tagged was a dangerous practice that
resented a reasonable likelihood of serious injury.
I also find that the violation was due to an unwarrantable
iilure to comply with the safety standard. The owner was
resent and assisting the employee who was working on the
>nveyor. The failure to deenergize the conveyor and lock out
1d tag its power switch showed a serious lack of reasonable
ire.
Citation No. 4643777 - Failure to Protect Power
Circuit from Qyerload

i find a non-S&S but serious violation of § 56.12001 due to
cdinary negligence.

Respondent does not dispute this violation.
I find that the violation was serious, although non-S&S.
1e electrical inspector testified that if there were a phase
~ult the No. 8 cables would not be protected by the required
Jse. If the faulted circuit "pulled 190 amps for a long period
it would have deteriorated the cable" and an employee. could
~ve been electrocuted with 480 volts.
Tr. 149-150; Exh. G-25.
Order No. 4643778 -

Inad9qyate Insulation of Power
Circuit

I find an S&S violation of § 56.12030 due to an
nwarrantable failure to comply with the standard.
Inspector Ferrar, an electrical inspector, found that a main
80-volt phase wire feeding the distribution boxes was
eteriorated and the concentric insulation piece was broken,
llowing the deteriorated cable to move in and out with a high
isk of contacting metal parts of the equipment. He pointed out
he hazard to the owner, Bob Bak, who told him that he was aware
f the problem, that it had been that way for a few days but that
e just had not had time to correct it. Tr. 137. Exh G-26. The
wner's knowledge of the violation and failure to correct it
emonstrated a serious lack of reasonable care.

609

Order No. 4643779 - Inadequate Insulation of
Power C&ble

I find an S&S violation of § 56.12008 due to an
unwarrantable failure to comply with the standard.
Respondent does not dispute this charge but challenges the
amount of the proposed civil penalty.
The bushing ·on the main 480-volt power cable did not fit
properly and the concentric knock-out was broken, permitting the
cable to move with a high risk of coming into contact with the
metal part of the· distribution box. Bob Bak told the inspector
that he knew about the condition but just had not had the time to
correct it. The electrical inspector testified that there was a
risk that the power cable would be pulled out and come into
contact with the metal frame of the distribution box and
electrocute anyone touching it. The owner's direct knowledge of
the violative condition and failure to have it corrected shows a
serious lack of reasonable case.
Citation No. 4643592 - Qperating
Front-end Loader in violation of an tmminent Danger
Withdrawal Orcler

I find an S&S and very serious violation of§ 107(a) of the
Act due to high negligence.
On December 21, 1995, Inspector Nowell observed a front-end
loader parked with its motor running . The loader was under an
imminent danger withdrawal issued on June 5, 1995. The owner,
Bob Bak, told the inspector that they only used the loader to
move the stacker conveyor and were not using it to move sand and
gravel. He said the mechanic had quit and the company needed the
loader. The brakes on the loader had not been repaired.
The imminent danger order prohibited use of the loader until
the order was terminated based on a finding by MSHA that the
brakes had been repaired. The order required Respondent to
notify MSHA when the repairs were completed so that an inspector
could test the brakes and determine whether the vehicle was ready
to be returned to service. The company had not contacted MSHA
about this vehicle.
Respondent's violation of the imminent danger order was
deliberate and is a very serious violation. Of approximately 800
federal safety and health inspections that Inspector Carsten had
conducted in his 20 years experience, the two citations against

610

Respondent for disregarding withdrawal orders were his first
encounter of· this type conduct by an operator.
CONCLUSIONS OF LAW

1.

Respondent's mine operations are subject to the Act.

2. Respondent violated the cited sections of the Act and
regulations as found above.
CrylL PINALTIES

Respondent's Cla~ tbat tbe Prqposed
Penalties Will Adversely A£fect Its
Ability to Continue in Business

Respondent submitted a December 31, 1995, balance sheet for
Bob Bak Construction and Federal tax returns of Robert A. Bak and
Elsie J. Bak for tax years 1993, 1994, and 1995, in support of
its contention that the proposed penalties will adversely affect
its ability to continue in business.
These documents indicate that Bob Bak Construction is a sole
proprietorship owned and operated by Robert A. Bak. Bak
Construction's reported income progressed from a loss of $54,999
in 1993, to income of $65,147 in 1994, and income of $83,020 in
1995.
The adjusted gross income in the Baks' joint tax returns
shows a loss of $339,509 in tax year 1993, a loss of $276,664 in
tax year 1994 and a loss $192,059 in tax year 1995. The Baks'
substantial progress in reducing the carryover loss corresponds
with the pattern of increased income of the business for those
years.
The business balance sheet as of December 31, 1995, shows a
minus net worth of $124,127. However, the evidence indicates
that Bak Construction is an ongoing business with increasing net
business income and that the Baks are making substantial progress
in reducing their carryover loss. No net worth statement has
been submitted for the Baks as individuals.
I find that Bak Construction has not proved by a
preponderance of the evidence that the proposed penalties would
have an adverse affect on its ability to continue in business . .

611

However, in light of its financial condition, amortizing the
payment of .penalties "is appropriate .
II

Findings as to tbe Six Statuto~ Criteria
Size of Operator
Responden~

is a small-sized operator.
Sisto~

of Violations

There are three focus points here: The history before the
June 1995 inspection, the history before the September 1995
inspection, and the history before the December 1995 inspection.
The history before the June 1995 inspection is presumed to
be neutral, since there is no evidence as to this · period.
The history before the September 1995 inspection includes
the June 1995 violations. This history is poor. There were 15
citations and orders in June 1995. Of the 15 violations found in
June, six were due to high negligence or an unwarrantable failure
to comply, 10 were S&S violations and 1 contributed to an
imminent danger. This history is a negative factor regarding
penalties for violations after the June inspection.
The history before the December 1995 inspection includes the
June 1995 violations and the violation found in the September
inspection. The September violation · was a deliberate violation
of a mine closure order, which adds to the poor history of the
June violations. This is an increased negative factor regarding
penalties for violations after the September inspection .
Negligence

Of the 24 violations, 14 were due to high negligence or an
unwarrantable failure to comply and 10 were due to ordinary
negligence.
Grayity

Of the 24 violations, 17 were S&S violations and 1
contributed to an imminent danger. Of the 7 non-S&S violations,
6 were serious violations.

612

Efforts to Acbieye Compliance After
·
Notification of a Violation

After notification of the violations, Respondent made a
reasonable effort to achieve compliance with the exception of
three violations. Those were the toilet facilities violation and
the two violations caused by disregarding a closure order.
III

Assessment of Ciyil Penalty for Eagb Violation

I have consid~red the findings as to the six statutory
criteria, above, in relation to each violation and the individual
findings of fact and discussion as to each violation, ·above, ~n
assessing a civil penalty for each violation. The following
penalties are assessed:
Order or
Citation

Civil Penalty

4643116
4 643209
4643211
4643207
4643214
4643204
4643207
4643216
4643210
4643212
4643213
4643120
4643203
4643205
4643118
4643208
4643458
4643593
4'643594
4643596
4643776
4643777
4643778
4643779

$1,000
1,000
500
235
500
50
235
189
189
50
50
412
382
724
1,000
1,000
1,000
800
800
500
1,200
50
1,200
1,200

613

4643592
Total

2. Qpp2
$16,266

Considering Respondent's financial condition, I find that a
schedule of 12 monthly ~ayments to pay the total civil penalties
is appropriate.
OJU)EB

WHEREFORE IT IS ORDERED that:
1 . Respondent shall pay total civil penalties of $16,266
in 12 monthly payments of $1,355 each, due on May 1, 1997, and
the 1st day of each successive month until the total amount is
paid .
·
2. If Res pondent fails to make any monthly payment when
due , the total r emaining civil penalties shall become due the
foll owing day , with i nterest accruing from that date until the
f ull amount i s paid. The applicable interest rates will be those
a nnounced b y t he Executive Secretary of the Commission.

w~~~
William Fauver
Administrative Law Judge

2

In the case of Citation No . 4643592, the penalty has been
raised to $2,000 from the $1,000 proposed by the Secretary. In
increasing the penalty, I considered that this was a second
violation disregarding a closure or withdrawal order and the
order violated was an imminent danger order. The first violation
was on September 12, 1995, when the operator disregarded a §
104(b) closure order. The September citation put the operator on
clear notice that closure orders and withdrawal orders must not
be violated. The second violation occurred in December 1995,
when an imminent danger order was violated. Violations of
withdrawal orders and mine closure orders are very serious and
warrant a strong deterrent penalty.

614

Distribution:
Patrick Zohn, Esq . , Office of the Solicitor, and Mr. E. Kimball
Alvery and Ms. Judy R. Peters; MSHA, U.S. Department of Labor,
4015 Wilson Blvd., Suite 400, Arlington, VA 22203 (Certified
Mail)
·
Ethan W. Schmidt, Esq., Schmidt, Schroyer, Moreno & OuPris, P.O.
Box 1174, Pierre, SO 57501-1174 (Certified Mail)
/lt

615

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 1Oth FLOOR
6203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

MAR 2 0 1997
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Petitioner
v.

.
CIVIL PENALTY PROCEEDING
Docket No . YORK 96-24-M
A.C. No. 06-00636-05518

:

New Milford Plant
ADVANCE STONE INCORPORATED,
Respondent
DECISION APPROVING SETTLEMENT
Before: Judge Bulluck
This case is before me upon petition for assessment of civil
penalty under section 105(d) of the Federal Mine Safety and
Health Act of 1977 c•the Act") . Petitioner has filed a motion to
approve settlement agreement and to dismiss the case. A
reduction in penalty from $554.00 to $229.00 is proposed. The
citations initial assessments, and the proposed settlement
amounts are as follows:
Citation No.

Initial
Assessment

Proposed
Settlement

442654l.
4426542
4426544

$252.00
50.00
252.00

$104.00
2l..OO
104.00

$554.00

$229.00 1

TOTAL

I have considered the representatives and documentation
submitted in this case, and I conclude that the proffered .
settlement is appropriate under the criteria set forth in section
110(i) of the Act.
WHEREFORE, the motion for approval of settlement is GRANTED,
and it is ORDERED that Respondent pay a penalty of $229.00 within
30 days of this order.

c eline R. Bulluck
Administrative Law Judge
1

Motion for Approval of Settlement and Order contains
mathematical error totalling penalty at $225.00, whereas $229.00
is corrected sum .

616

Distribution:
Ralph R. Minichiello, Esq., Office of the Solicitor, u.s.
Department ~f Labor, One Congress Street, 1)th Floor, P.O. Box
8396, Boston, MA 02114 (Certified Mail)
Mr. Paul Kovacs, President, Advanced Stone Inc., 33 Boardman

Road, New Milford, CT 06776 {Certified Mail)
nt

617

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE .
FALLS CHURCH, VIRGINIA 22041

MAR 2 6 1997

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

cnnLPENALTYPROCEEDING
Docket No. SE 94-639
A.C. No. 40-02934-03549
Mine No. 78

K.ELL YS CREEK RESOURCES INC.,
Respondent
DECISION ON REMAND

Before: Judge Weisberger
On March 12, 1997, the Commission issued a decision reversing my determination
(17 FMSHRC 1325 (August 1995)), that the violation conceded by Kellys Creek Resources, Inc.
("Kellys Creek"), was not significant and substantial and was not the result of its unwarrantable
failure, and remanding this matter for penalty reassessment.
Based on the Commission's finding that the violation was as the result of Kellys Creek's
unwarrantable failure, I find that the level ofKellys Creek's negligence to constitute more than
ordinary negligence, and to be aggravated conduct. I previously found that the violation
constituted a very high level of gravity. I reiterate this finding in light of the Commission's
determination that the violation was S & S. On the other hand, the level of the penalty to be
assessed should be reduced taking into account its effect on Kellys Creek's ability to continue in
business for the reasons set forth in Kellys Creek Resources, 17 FMSHRC 1085, 1092,
(June 29, 1995). Taking all the above into account, I find that a penalty of$500 is appropriate.

Avram

eis~

Administrative Law Judge

618

Distribution:
Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department of Labor, Suite B-201,
2002 Richard Jones Road, Nashville, TN 3721~-2862 (Certified Mail)

Mr. Hollis Rogers, Kellys Creek Resources, Inc., Route 4, Box 662, Whitwell, TN 37397
(Certified Mail)
/mh

619

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 1Oth FlOOR
5203 LEESBURG PIKE
~AlLS CHURCH, VIRGINIA 22041

MAR 2 6 1997'
SECRETARY OF LABOR,
MINE SAFETY AND HEALrn
ADMINISTRATION (MSHA),
Petitioner

CnnLPENALTYPROCEEDING
Docket No. YORK 94-51-M
A. C. No. 30-00012-05522

v.
Wehrle Quarry
BUFFALO CRUSHED STONE,
Respondent
DECISION ON REMAND

Before: Judge Weisberger
On February 18, 1997, the Commission issued a decision in this case (19 FMSHR.C _ )
in which it, ~ illil, remanded this matter to me for determination whether the violation of
30 C.F:.R. § 56.14109(a) 1 by Buffalo Crushed Stone, Inc. ("Buffalo"), was S&S, and assessment
of a civil penalty. The Commission further reversed my initial holding (16 FMSHRC 2154,
(October 1994)}, that Buffalo's violation of30 C.F.R. § 56.110Qgl was not S&S, and remanded
the matter for reassessment of the civil penalty.

1

Section 56.141 09 states, in relevant part:

Unguarded conveyors next to the travelways shall
be equipped with · (a) Emergency stop devices which are located so
that a person falling on or against the conveyor can
readily deactivate the conveyor drive motor ....
2

Section 56.1109 states:

Walkways with outboard railings shall be provided
wherever persons are required to walk alongside elevated
conveyor belts. Inclined railed walkways shall be nonskid or provided with cleats.

62 0

I. Violation ofSection 14109Ca).

A. Siwificant and Substantial
A "significant and substantial" violation is described in section 104(dXl) 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(dXl ). 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 Chpsum Co., 3
FMSHRC 822, 825 (April198 I).
In Mathies Coal Co., 6 FMSHRC I, 3-4 (January 1984), the Commission explained its
interpretation of the term "significant and substantial" as follows:
In order to establish that a violation of a mandatory safety standard is
significant and substantial under National Gypsum the Secretary of Labor must
prove: (1) the underlying violation of a mandatory safety standard; (2) a discrete
safety hazard--that is, a measure of danger to safety-contributed to by the
violation; (3) a reasonable likelihood that the hazard contributed to will result in
an injury; and (4) a reasonable likelihood that the injury in question will be of a
reasonably serious nature.
In United States Steel Minim: 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
Minjn~ Co., 6 FMSHRC I834, 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 Mjnin~ Company. Inc., 6 FMSHRC 1866, 1868 (August
1984); U.S. Steel Mjnin~ Company. Inc., 6 FMSHRC 1573, 1574-75 (July 1984).
The record establishes that a portion ofthe stop cord at issue had become slack, and had
fallen two inches below a conveyor belt This condition, found by the Commission to have been
violative of Section 56.14109(a) ~contributed to the hazard of a miner who falls coming in
contact with a moving conveyor belt Thus, the evidence establishes the first two elements of
· S&S set forth in Mathies, m. The next issue for resolution is whether the Secretary
established that the third element set forth in Mathies, m , i.e., the likelihood of an injury
producing event - a miner falling in the area where the stop cord was slack.

621

In general, the evidence adduced at the hearing relating to the issue of S&S, and the
likelihood of an injury consists of the following testimony by the MSHA Inspector:
Q. Now, in terms of your evaluation of this condition, you've indicated that
injury would be reasonably likely. What's the basis for that?
A. Any time the stop cord is not where it's supposed to be, even for a short length
of distance, you've got the possibility of someone slipping and falling or slipping
and falling and not having immediate access to either grab the cord and deactivate
the equipment or to automatically hit the cord during their fall on the way down
and deactivate the equipment. So over time, although this was a short length of
distance, over time, if any stop cord is out of place, I believe there's a reasonable
likelihood that that cculd occur and I marked it as such.

Q. You've also indicated that the type of injury that could reasonably be expected
would be lost work days or restricted duty. What's your basis for that conclusion?
A. An arm, for example, that's caught up between a conveyor belt and the
troughing that the belt rides on could have devastating injury, burn type frictional
type injury to an ann, for example.
Q. You've indicated that the condition was significant and substantial. What's
your basis for that conclusion?
A. In my judgment, a reasonable likelihood existed because the cord was not
intact everywhere along the belt as it should be. With a reasonable likelihood and
with the possibility of a permanent injury, by definition the violation was
significant and substantial.

Q. You' ve indicated that the number of persons affected would be one. What's
that based on?
A. If anyone were injured because ofthe stop cord being out of place, it would be
one person (Tr. 46-48).

In addition, the Inspector testified on cross-examiilation as follows:
Q. Okay. In your opinion, if there was a gentleman on that catwalk., a medium
sized man or average sized, somewhere between me and you I would guess, fell
up against that conveyor, the likelihood of him not being able to pull that cord in
your opinion is - would be what?

622

A. I think there would be a reasonable likelihood of him not being able to pull the
cord before becoming entangled (Tr. 89).
Thus, the Inspector opined as to what could occur should a miner fall, and not to be able
to grab the stop cord. However, n.o evidence was adduced regarding the likelihood of a miner
falling in the area of the cord that was cited. There is no evidence in the record of the conditions
in the area which would have made a fall reasonably likely to have occurred. I find that the
Secretary has failed to establish the third element set forth in Mathies m. Accordingly, I
conclude that it has not been established that the violation of Section 56.14109(a) .slU2Ii was
S&S.
B. Penalty
There is no evidence in the record that the Secretary had, prior to the inspection at issue,
communicated to Buffalo her interpretation that Section 56.14109(a), ~requires that a stop
cord be tight and located "somewhere near the side edge of the belt to as much as four inches
above the side edge of the belt" (Tr. 44, 115). As such, the Secretary had not previously
communicated to Buffalo that a stop cord located below the side edge of the belt, the condition
cited herein, would be considered a violation of Section 56.14109(a), .sl.U2J1l. I note that Section
56.141 09(a), ~. does not require a particular placement for the stop cord. Hence, I find that
Buffalo was not negligent to any degree. As such, the penalty for this violation is to be mitigated
to a high degree.
According to the testimony of the Inspector, the type of injury to be expected as result of
their violation is as follows: "An arm, for example, that's caught up between a conveyor belt and
the troughing that the belt rides on could have devastating injury, burn type frictional type injury
to an arm, for example" (Tr. 47). I accept the Inspector' s testimony in this regard, as it was not
contradicted or impeached. I find that the level of gravity of this violation was moderate. The
condition cited was timely abated. Considering the lack of Buffalo's negligence, I find that a
penalty of $20 is appropriate.
II. Reassessment of a penalty for the Violation of 30 C.F.R. § 56.11 009
I take cognizance of the holding of the Commission that this violation was S&S (Slip op.
P. 7-8, .sl.U2J1l). Further, Buffalo did not impeach the Inspector' s testimony that should one fall
on an inclined walkway that was not provided with cleats, possible head injuries or fractures of
fmgers or wrists can result. Thus, I fmd that the violation was of a moderate level of gravity.
The Inspector could not determine how long the cited conditions had existed. The Secretary did
not contradict or rebut the testimony of Buffalo's witness Rashford that it was intended by
Buffalo to replace the cited catwalk. I fmd that Buffalo's negligence was of a low level. I find
that a penalty of $50 is appropriate.

623

III. .Q.nkr
It is ordered that within 30 days of this decision, Buffalo pay ~·total civil penalty of$20
for the violation of section 56.14109(a), and $50 for the violation of Section 56.11009, S.UW·

.

L.be~----~
Administrative Law Judge

Distribution:
William Q ; Staton, Esq., Office of the Solicitor, U.S. Department of Labor, 201 Varick Street,
Room 707, New York, NY 10014 (Certified Mail)
Salvatore A. Castro, Safety Director, Buffalo Crushed Stone, Inc., 2544 Clinton Street,
P.O. Box 710, Buffalo, NY 14224 (Certified Mail)
/mh

624

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

·MAR 2 8 1997
JAMES C. TYSAR,
Complainant
v.

DISCRIMINATION PROCEEDING
Docket No. LAKE 96·146-DM
NCMD96-04

AKZO NOBEL SALT, INC.,
Respondent

Cleveland Mine
Mine ID No. 33-01994
DECISION

Appearances:

James C. Tysar, Panna, Ohio, J2!.Q ~.Complainant;
Mark N. Savit, Esq., and Ruth L. Ramsey, Esq.,
Patton Boggs, L.L.P., Washington, D.C., for the Respondent.

Before:

Judge Koutras
Statement of the Proceedini

This proceeding concerns a discrimination complaint filed by the complainant against the
respondent pursuant to section 105(c) of the Federal Mine Safety and Health Act of 1977. The
complainant filed an initial complaint with the U.S. Department of Labor, Mine Safety and
Health (MSHA), and after investigating the complaint, MSHA informed the complainant of its
decision not to pursue the matter further. The complainant then filed his complaint~~ with
the Commission.
The complainant has been employed by the respondent for over nine years, and at the
time his complaint was filed he was employed as a laborer. The complainant alleges that he was
discriminated against and suspended from work for three days on October 6, 1995, because of his
refusal to perform a job assignment in a·mine area that he believed was linsafe. The complainant
seeks to recover back pay for the three-day suspension, two days of missed overtime, and
expungement of the suspension action from his personnel records.
The respondent filed a timely answer to the complaint denying any discrimination and
taking the position that the complainant was suspended for insubordination for refusing to carry
out a work assignment and order by his supervisory foreman. A hearing was held in Cleveland,
Ohio, and the parties appeared and participated fully therein. The parties filed post hearing
briefs, and I have considered their arguments in the course of my adjudication of this matter.

625

The issue presented in this case is whether or not the respondent discriminated against the
complainant by suspending him for three days after he refused to cany out a work
assignment and order by his supervisor to perform a job task that the complainant believed was
unsafe.
A~~licable Statutozy and Re~atozy Provisions

1. .

The Fede~ Mine Safety and Health Act of 1977,30 U.S.C. § 301 ~SQ.

2.

Sections 105(c)(1), (2) and (3) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 815(c)(l), and (2) and (3).

3.

Commission Rules, 29 C.F .R. § 2700.1, Stl ~Backwund

The record reflects that on October 6, 1995, Mr. Tysar and co-worker Christopher Brown
were working as laborers on the midnight shift on the second floor of the mine warehouse under
the supervision of Surface Shipping Production Foreman James Mook. Mr. Mook assigned them
the task of cleaning (shoveling) salt off the CFC scalping screen feed conveyor belt located on
the second floor. There is a dispute as to whether they were assigned to clean the entire belt line
or whether their work assignment was confined to only the belt tailpiece area.
The belt in question is an elevated inclined belt approximately 20 feet long and 3 to 4 feet
wide, that passes over and in front of an elevator that opens directly beneath a portion of the belt.
The belt section to the left of the elevator as one is directly facing the elevator is approximately
13 feet above the floor, and the tail piece section to the right of the elevator is approximately 10
feet above the floor, and 6 to 10 feet from the elevator.
The assigned cleaning task called for Mr. Brown, the junior laborer, to shovel the belt
from an elevated "man basket" secured to the end of a forklift, with Mr. Tysar operating the
forklift. The belt was de-energized and locked out, and Mr. Brown would have performed the
cleaning from the man basket which was equipped with hand rails and a locked gate. He was
also provided with a safety belt and lanyard.
After securing the man basket to the forklift, and while preparing to move the forklift into
position to begin cleaning the belt, a maintenance vehicle with two mechanics in it exited the
elevator under the overhead belt line and passed by M!- Tysar and Mr. Brown. Mr. Tysar
contacted Mr. Mook and expressed his concern that he and Mr. Brown might be at risk if they
were cleaning the belt area in front of the elevator doors and a vehicle exited and Struck the
forklift while Mr. Brown was in the raised man basket.

626

Mr. Mook respo~ed to Mr. Tysar's concern, and in the course of their discussion at the
job scene, Mr. Tysar informed Mr. Mook that he wanted the ~levator ~hut down and taped off
while he and Mr. Brown cleaned the belt in order to insure against another vehicle driving out of
the elevator and possibly striking the forklift while Mr. Brown was suspended in the air cleaning
the belt in front of the elevator doors.
Mr. Mook maintained that his belt cleaning assignment was confined to the belt tailpiece
area in order to facilitate the repair and replacement of a belt wiper, and that Mr. Tysar and Mr.
Brown would have no reason to be in front of the elevator doors White cleaning the tailpiece.
Mr. Tysar and Mr. Brown maintained that they were assigned to clean the entire belt line, and
that at some point while doing this job, the forklift would be parked in front of the elevator
doors.

Mr. Tysar estimated that the belt cleaning job would take less th~ an hour, and
Mr. Mook rejected his request that the belt he shut down and taped off while he and Mr. Brown
cleaned the belt. Mr. Mook indicated that the elevator was needed to bring in parts and supplies,
and he maintained that he offered Mr. Tysar two alternatives to shutting down and taping the
elevator, namely, an offer to inform the other employees of the work being done by Mr. Tysar
and Mr. Brown, and a suggestion that Mr. Tysar position himself next to the forklift, with the
brake set, so that he could observe the elevator and warn anyone exiting that he and Mr. Brown
were working in the area. Mr. Tysar denies that these offers were made, and even if they were,
he indicated that he would reject them because he believed that disabling the elevator and taping
off the area was the only acceptable means of insuring his safety. Mr. Mook then gave Mr. Tysar
and Mr. Brown a direct order to proceed with their job assigrunent, and when they refused, Mr.
Mook suspended them. They subsequently filed their complaints, and Mr. Brown withdrew his
complaint shortly before the scheduled hearing. His case was dismissed. .
Complainant's Testimony and Evidence
James C. Tysar, the complainant in this matter, testified that he is employed by the
respondent as a laborer, has been employed by the company for over nine years, and serves as a
safety committeeman. He stated that although he and Mr. Brown refused an order by Mr. Mook
to do the assigned job, his refusal was based on a safety concern and Mr. Mook's refusal to grant
his request to make his work area safe by taking the elevator out of service.

Mr. Tysar stated that he suggested to Mr. Mook that he call the plant safety director, but
instead, Mr. Brian Bonjack, a maintenance foreman, ~ppeared on the scene, and Mr. Tysar
believed that Mr. Bonjack ''was called as a witness because Mr. Mook intended to suspend us"
(Tr. 23). Mr. Tysar stated that Mr. Bonjack had no knowledge of the events leading to his
suspension, and was there to witness his confrontation with Mr. Mook. Mr. Tysar explained his
work assignment and safety concerns as follows at (Tr. 49-51 ):

627

. THE WITNESS: All right. My foreman, Jim Mook, gave myself and
Mr. Chris Brown a job to do on the second floor of the warehouse. Our job was to
--my job was to operate a forklift with Mr. Brown in a cag~d-in platform which
was attached to the forks of the fork lift. I was supposed to raise him up into the
air to the level of the conveyor belt, which we were told to clean the decking on;
Mr. Brown was told to clean the decking.
This particular conveyor belt runs on an angle, about a 45-degree angle
directly above -- well, three feet out and directly above the doors of a freight
elevator.
As we were getting into position to do this job, the doors of the elevator
opened up and a maintenance vehicle pulled out of the elevator doors at a pretty
good rate of speed.
So, I contacted Mr. Mook, and I explained to him the situation as far as
our concern for our safety, being getting bumped into or knocked over while Mr.
Brown was up in the air. And I requested that he tape off the elevator doors-caution tape the elevator doors on the first floor - - so that nobody gets on the
elevator and gets off on the second floor. I also suggested that he might put a "Do
Not Operate" tag on the button of the elevator so that nobody pushes the buttons
to operate the elevator.

Mr. Mook decided that it would be better that I put Mr. Brown up in the
air on a platform, set the emergency brake and go stand by the little window in the
door and look to see if the elevator is coming up.
JUDGE KOUTRAS: The door of the elevator?
THE WllNESS: Yes.
JUDGE KOUTRAS: The window in the door of the elevator is what he
expected you to do?
THE WITNESS: Yes. But that scenario there would have put me directly
under where Mr. Brown was working. If Mr. Brown dropped a shovel, I could get
hit with a shovel.
I just thought that the best course of action to make our work area safe was
to disable the elevator or to prevent people from using the elevator while we were
doing this job.

628

Mr. Tysar further explained his safety concerns as follows at (Tr. 25):
JUDGE KOUTRAS: How would the forklift get bumped?
THE WITNESS: Because our job was to clean belt decking, which the
belt decking ran over the top of the elevator doors.
JUDGE KOUTRAS: You felt that that would be bumped by a piece of
equipment co~g out of the elevator?
THE WI1NESS: I felt that it could be. I'm not saying that it would be.
I'm saying that there was a very good probability. The maintenance people were
using the elevator at the time. The elevator is always in use. Electricians use it,
mechanics use it, people come and go.
Mr. Tysar believed it would have taken Mr. Mook 10 to 15 minutes to tape off the
elevator, and the belt cleaning job would not have taken more than an hour (Tr. 26). He
confirmed that he told Mr. Mook that he refused to do the work out of concern for his personal
safety (Tr. 34). He and Mr. Brown were then escorted off company property, and he was
suspended for three days, and Mr. Brown was suspended for only one day because he had a better
work record (Tr. 35). Mr. Tysar confirmed that he filed a grievance with his union regarding his
suspension, but did not prevail (Tr. 42-44; 303-304).

Mr. Tysar believed that the best course of action to make his work area s~e was to disable
the elevator or prevent people from using it while he and Mr. Brown were working (Tr. 51). He
explained that Mr. Brown was expected to clean hardened salt buildup on the belt decking in
between the rollers and on the belt bottom, and they would be positioned in front of the conveyor
that was ten feet off the floor on a 45-degree angle directly above the elevator door (Tr. 53).
Mr. Tysar stated that in response to his complaint, Mr. Mook suggested that he lift
Mr. Brown up in the air, set the forklift park brake, and then get off the forklift and look through
the window of the elevator door (Tr. 54). Mr. Tysar believed he would be at risk if the forklift
tipped over, depending on the size and weight of the vehicle leaving the elevator, and Mr. Brown
could have dropped a shovel or shoveled salt down on him if he were standing under the belt
looking through the elevator window. He further believed that Mr. Brown would be at risk if he
were knocked out of the forklift basket if the forklift tipped over (Tr. 54).
Mr. Tysar confirmed that his confrontation with Mr. Mook took place while he and
Mr. Brown were preparing to clean the belt. Mr. Brown would have been on the forklift cleaning
the belt decking with a shovel. The platform had rails'around it, with a locked gate, and the salt
would be shoveled into a dumpster below the belt (Tr. 55-56).

629

Mr. Tysar co~ed that that he disagreed with Mr. Mook's suggestion that he look
through the elevator window and leave the forklift in a locked position while Mr. Brown was
cleaning, and there was no overhead protection between the bottom of the belt and the floor level
(Tr. 57). He stated that he had no idea what Mr. Mook expected of him once he looked through
the elevator window (Tr. 58). He believed that Mr. Mook should have responded to his complaint
in a diplomatic manner rather then punishing him for his complaint, and he stated as follows at
(Tr. 59, 61-62):
runGE KOUTRAS: So, that was the dispute?
THE Wl1NESS: Yes, that was the dispute.
nJDGE KOUTRAS: The foreman said, "No, we're going to do it this
way," and you said, ''No, we're going to do it my way." And that was the end of
it.
THE WllNESS: Yes, I saw it as a power struggle .

••••
THE WllNESS: In some cases when some people that are given a
position with power or authority, they handle it well and some people - runGE KOUTRAS: How do you think someone else would have
handled that situation?
THE WllNESS: Well, everybody has their own personalities and
dispositions. What I'm saying is that he may have had a personal problem with
me. I don't know. But I was doing my job as a union safety committeeman, and I
was also taking responsibility for my own .personal safety and Mr. Brown's safety,
even if I wasn't a union safety committeeman.

Mr. Tysar stated that he and Mr. Brown would have been no more than four feet from the
elevator doors. The doors were 10 feet wide, and the belt line was approximately 15 or 20 feet
long. He stated that he and Mr. Brown were to clean the belt, starting at one end and cleaning the
entire decking. At one point in time they would be directly in front of the elevator doors, and at
other times "a little to the right or to the left" (Tr. 64).
Mr. Tysar believed that other pieces of equipment would have been on the elevator on the
midnight.shift, and maintenance personnel were working during that time. He described the area
as the second floor of a warehouse with bins and mixers on that floor, and confirmed that the
elevator was the only means for vehicles to reach the second floor (Tr. 67-68). He believed that

630

Mr. Mook did not want to inconvenience the maintenance department by shutting down the
elevator (fr. 69).
On cross-examination, Mr. Tysar stated that the elevator window is near the left edge of
the door at eye level of a person of average heigh~ and that.he ha~ difficulty seeing through the
window because it is always dirty and there is an inner screen door in addition to the main door
(Tr. 77-78). He further explained the operation of the doors, and stated that the maintenance
vehicle that exited the elevator was backed in so that the front of the vehicle came out first when
the elevator doors opened (fr. 79-82).

Mr. Tysar stated that the belt was not running and it was locked out as required when
idlers and rollers are to be cleaned (fr. 82). He confirmed that the two individuals in the
mabtenance vehicle that came out of the elevator observed him as he was positioning the
forklift, and they would pass him on their way back to the elevator (fr. 85). He stated that there
were "quite a few" vehicles in use on the midshift shift, as well as two mechanics and two
electricians (fr. 86). The incident in question occurred at 3:50a.m., and the shift started at
midnight (fr. 88).

Mr. Tysar could not recall that Mr. Mook offered him any other alternative ways to make
.the belt cleaning job safe other than looking through the elevator window (fr. 93). He could not
remember whether Mr. Mook ever offered to notify all of the other personnel using vehicles that
he was working in the area and stated, "even if he did, that's a moot point because that's still not
good enough," and that "people forget" (fr. 95·96). He believed that "the safest way to do this
would ~ave been to disable and not use the elevator or tape it off' (fr. 96). He further stated as
follows at (Tr. 96-97):
Q. So, it's your testimony that there was no other alternative that would have been
acceptable to you in any case; is that right?
A. I'm willing to talk with people and compromise. That's what this whole thing
is abou~ especially when my own safety is concerned, that particular·- even if he
did or even if he did bring that possible solution up, that would have been
unacceptable, yes.
And, at (Tr. 101·102):

Q. Did you suggest anything other than taping off the elevator of de-energizing it,
Mr. Tysar?
A. Those are the two things that came to mind and that's normally what would be
the best solution to a problem like that.

Q. The question was did you suggest. I take it your answer is "no?"

631

A. No, because Mr. Mook was fighting me that whole time. He was arguing with
me about it.

Mr. Tysar confirmed that the conveyor belt was three and a half to four feet away from the
elevator, and if he were standing next to the window looking into the elevator he would have
possibly been three to four feet in front of the belt area that Mr. Brown was shoveling (Tr. 105).
Mr. Tysar further stated that the belt was three and a half to four feet wide and Mr. Brown was
shoveling on the far side of the belt away from the elevator and Mr. Brown would have been six
to eight feet behind him (fr. 106). Mr. Brown would have been anywhere from eight to fifteen
feet up in the air, depending on the part of the belt he was working on, and 15 to 20 feet where the
window was located.
In response to a question as to whether or not be told Mr. Mook about his concern that Mr.
Brown might drop a shovel on his head, or shoveling material down on him, while he was looking
through the window, Mr.Tysar responded as follows at (Tr. 108-109):
·
THE WilNESS: About overhead? Yes, that was brought up; something
like that, I guess.
JUDGE KOUTRAS: Specifically, did you tell Mr. Mook-THE Wl1NESS: Not about a shovel, no.
JUDGE KOUTRAS: Or material?
THE WI1NESS: Material; things falling from above, yes.
JUDGE KOUTRAS: Could fall on your head?
THE WllNESS: Things falling from above, yes.
JUDGE KOUTRAS: You told Mr. Mook that?
THE WITNESS: I believe-JUDGE KOUTRAS: That you were concerned that material would fall on
your head while you were standing at the elevator looking through the window?
THE WI1NESS: I told Mr. Mook I didn't feel safe doing that; that's what
I told him.
JUDGE KOUTRAS: But you didn't give him any specifics: You just used
the generic word "safe." You didn't feel you were safe, right?

632

TilE WITNESS: Basically, yes.

JUDGE KOUTRAS: But you didn't tell him why?
TilE WI1NESS: I don't believe I did.

Mr. Tysar stated that there is less salt buildup higher up the belt line and the ''worst of it"
was in front of and to the right of the elevator (as one faced it) closer to the belt tail piece which
was six to ten feet away (Tr. 113-114). The forklift was four and a half to five feet wide and he
did not believe he could have positioned the forklift in such a way as to clean the belt at the tail
pulley area without putting it in front of the elevator. He believed that part of the forklift would
still be in front of part of the door (Tr. 119).
Mr. Tysar denied that Mr. Mook worked with him to position the forklift so that it was
out of the way of the elevator. He confirmed that Mr. Mook showed him bow to set the parking
brake, and the forklift was 15 or 20 feet away from the elevator at that time and off to the side for
a distance of four feet (Tr. 120). He confirmed that the tailpiece was on the left as one exited the
elevator, and that the first place a left tum can be made while exiting the elevator was 20 feet
from the elevator door (Tr. 122).
Mr. Tysar confirmed that he has never heard Mr. Mook say ''io hell with safety" (Tr.
122). He stated that he did not know whether Mr. Mook called Mr. Ryon, and he confinned that
in his deposition he stated that Mr. Mook did in fact call Mr. Ryon but explained that he ''was
confused to an extent" (Tr. 128). He the~ confinned that his notes reflect that "after consulting
with Tim Ryon, Mook came back and ordered us to work in this unsafe environment, and we
refused on the groUilds of our safety" (Tr. 129).

Mr. Tysar stated that Mr. Mook showed him where the job was to be done, and he
explained as follows at (Tr. 131 ):
Q. And he pointed out exactly where he wanted you to shovel and where he
wanted you to put the forklift?
A. You use the work "exactly." He basically went up to the second floor with us,
showed us the job to be done, told us how he wanted us to do it, what to use.
As far as exactly goes, those are specifics. We had a good understanding of what
needed to be done and how it had to be done and what we bad to use to get it
done. That was clear.

Mr. Tysar stated that he raised a safety concern with Mr. Mook about securing the work
basket to the forklift, and that Mr. Mook responded to his satisfaction by securing the basket to
the forklift, and providing a safety belt and lanyard for Mr. Brown. Mr. Tysar commented that

633

"ifl was going to be in the basket, I wouldn't have any problem with it" and "I would have felt
safe" (Tr. 133).

Mr. Tysar stated that Mr. Mook responded to his call to come to the work area in a
reasonable amount of time, and "when he got up there, then we had an argument and could not
agree on a compromise" (fr. 137). Mr. Mook then assigned him and Mr. Brown to do some
shoveling while he spoke on the telephone "probably with Mr. Ryon" (Tr. 139). After finishing
that call, Mr. Mook then stated "I'm giving you a direct order. I want you to do
such and such a job," and then "when we refused on the grounds of safety, that's when we were
suspended" (Tr. 140).
Mr. Tysar confinned that he has been warned or written up three times for safety
violations, and he explained the circumstances. He filed grievances for two of the violations, and
the grievances were denied (Tr. 140-143). Mr. Tysar denied that Mr. Mook had ever previously
spoken to him about safety violations or written him up for any violations (fr. 144).
Mr. Tysar confinned that when he and Mr. Brown were preparing to do the work arid the
maintenance vehicle came out of the elevator it was not "a near miss" and they were far enough
away. His concern was that a vehicle exiting the elevator in the course of his assigned work
would come close to where the forklift would be parked (fr. 145). The forklift would be
positioned away from the elevator, and the conveyor belt would have been between the elevator
and the forklift. Assuming that he and Mr. Brown had proceeded to work on the belt, and the
vehicle came out of the elevator, Mr. Tysar believed that it would have hit the forklift. He
further stated at (Tr. 147-148):
THE WTINESS: Your honor, we're really only talking about that area
there, that general area where we were working is only like roughly 20 to 25 feet
and directly in front of the elevator doors. There's some space off to the right and
off to the left that you're not directly in front of the doors, but most of it is.
JUDGE KOUTRAS: Okay.
THE WllNESS: Just about anywhere you park that thing, if we were
positioned directly in front of the elevator door, it would have been a direct hit. If
we were off to the right a little bit, we would still have gotten hit.
JUDGE KOUTRAS: Well, my question is in the course of your cleaning
the belt, would you have been positioned directly in front of the elevator at any
time while you were doing the work?
THE WITNESS: Yes.

634

Christopher Brown, employed by the respondent as a laborer, confirmed that he and Mr.
Tysar were assigned to·do the belt cleaning job by Mr. Mook. He believed that Mr. Tysar had a
legitimate safety reason for asking Mr. Mook to tape off the elevator; and he would have felt
better if the elevator was tagged out (Tr. 154). Mr. Brown could not recall any alternative safety
suggestions by Mr. Mook (Tr. 155).

Mr. Brown believed that his one day suspension was unfair, but confirmed that the
withdrawal of his complaint ''was my own idea," and that mine management never discussed the
matter with him or influenced his decision. He also confirmed that respondent's counsel never
harassed him, and he simply ''couldn't handle" the legal proceeding (Tr. 160· 161 ).
On cross·examination, Mr. Brown confirmed that he felt unsafe with the job assignment
by Mr. Mook, and told Mr. Mook that "I feel unsafe," but said nothing specific as to why he felt
unsafe. Mr. Brown stated that he offered no suggestions or ideas to Mr. Mook to correct the
·situation, and he could not recall any alternatives offered by Mr. Mook other then taping off or
de.energizing the elevator (Tr. 163).

Mr. Brown stated that "I hardly said a word" during the conversation that took place with
Mr. Mook, and he could not recall if both_he and Mr. Tysar tried to reason with Mr. Mook. He
further confinned that he did not participate in the conversation between Mr. Mook and Mr.
Tysar and that "all I said was I thought it was unsafe" (Tr. 166). To the best of his recollection,
the vehicle in question backed out of the elevator (Tr. 167), and when asked if he could be
wrong, he replied "I could be wrong, but I'm pretty sure it came out backwards" (Tr. 169).
Respondent's Testimony and Evidence
James S. Mook, respondent's Surface Shipping Production Foreman, testified that he has
worked for the respondent for 19 years, and he described the second floor area around the freight
elevator, and explained the diagrams (Exhibit R·2, Tr. 180·185).

Mr. Mook stated that he was informed by the maintenance department that the conveyor
belt tailpiece wipers could not be changed out until all of the salt buildup at the tailpiece was
cleared out. He determined that the belt tailpiece needed to be cleaned, and he assigned that job
task to Mr. Tysar and Mr. Brown on the evening of October 6, 1995. The work was to begin
after their lunch hour when he had time to personally take them to the area and show them what
needed to be done (Tr. 186). He confirmed that he personally took them to the job area because
it was a new job assignment and not a repetitious one (Tr. 187).
Mr. Mook explained what occurred at the time he assigned the job task to Mr. Tysar and
Mr. Brown. He stated that he told them that ''we had some belt decking to clean out and we
needed a lock." The belt electrical breaker was locked out, and Mr. Brown was assigned to do
the manual cleaning work from the forklift basket, and Mr. Tysar was assigned to operate the

635

forklift. He then told them, ''we're here, set up and away you go," and since they bad no
questions, be left ·the area (Tr. 187-188).

Mr. Mook confirmed that Mr. Tysar raised a question concerning how the basket would
be attached to the forklift, and he and Mr. Tysar secured it with a heavy rope and Mr. Tysar ''was
quite pleased with that arrangement" (Tr. 189). Mr. Mook further explained his work assignment
as follows at (Tr. 189-190):
Q. So, you locked out the belt and tied the basket there. Did you show
them where you expected them to put the forklift?
A. Yes, I did. It was obvious because I pointed out the tail piece area
where all the salt buHdup was.

Q. Could you describe-- can you point on the diagram to the best of your
recollection where the salt buildup was that they had to knock down?
A. The forklift in the picture is positioned right where the man had to be
to be able to reach right and left of that tail pulley because on a tail piece
you have strip boards that contain the salt as it enters the belt; that's where the
wipers were blown out and that's where the salt was packed up.
As you went uphill, the salt tapered down to nothing. So, the
wipers being blown out caused all this spillage right there at the tail piece area.
Once we set this man up in this location, he could reach in this tail piece area and
uphill and be able to accomplish all the clean up there was.

Q. Did you explain that to Mr. Tysar and Mr. Brown?
A. Not in detail. I told him we were going to clean the tail piece area up,
and this is where I told him to set the machine and there were no questions.

Q. So, you told him the tail piece area. Did you tell him the entire belt
had to be cleaned?

A. No, I didn't.
Mr. Mook stated that he instructed Mr. Tysar to use a scrap-salt dumpster that was nearby
so that most of the salt could be shoveled from the belt decking directly into the dumpster. Mr.
Tysar moved the dumpster into place with the forklift and it was placed to the right of the
elevator in an inset by a walled partition (Tr. 191).

636

Mr. Mook stated that he returned to his office, and five to ten minutes later Mr. Tysar
called on the intercom and informed him that there was "a near miss accident" and that two men
on a maintenance vehicle "came screaming off the elevator" and could have hit him and caused
an accident. Mr. Tysar informed him that no one was hurt "because we weren't set up yet" (fr.
192).
Mr. Mook identified and offered a copy of a letter addressed to Mr. Tysar, dated October
6'- 1995, that he was in the process of writing as a disciplinary action because of Mr. Tysar's
unsatisfactory work performance (Exhibit R-7). Mr. Mook stated that the letter was never given
to Mr. Tysar, or discussed with him because his work suspension that same evening occurred
before he could do so. The· letter was rejected (Tr. 199-202).

Mr. Mook stated that Mr. Tysar had worked for him for seven weeks prior to the
suspension in question, and that he had many discussions and confrontations with him
concerning his lack of work, personal safety, and unsafe work (fr. 203-205).
Mr. Mook stated that after speaking with Mr. Tysar over the intercom, Mr. Tysar and Mr.
Brown came to his office within minutes "screaming that they could not do this job at the freight
elevator because it was an unsafe act and they started demanding that safety men from the
company be brought in" (Tr. 208). Mr. Mook stated that he instructed Mr. Tysar and Mr. Brown
to return to the second floor area and not to resume work on the belt, but to shovel salt from the
floor into two dumpsters in the corner of the warehouse ~'until I can get this sorted out." (Tr.
208).
Mr. Mook stated that he then went to the warehouse after requesting the presence of
maintenance foreman Brian Bonjack for a second opinion as to whether there were any other
safety facets involved with the work assignment that he had made. ~. Mook then called Mr.
Chris Gill, the mine surface superintendent, to make him aware of his problems with Mr. Tysar,
and he and Mr. Gill had an ongoing conversation about Mr. Tysar (fr. 209-211).
Mr. Mook stated that the forklift was parked "off to the side" when he arrived at the job
scene, and "it was all set up but not at the job site yet" (fr. 211). He and Mr. Bonjack discussed
the situation, confirmed with Mr. Tysar that the forklift brake had been tested and was working
fine, and made sure the basket was secured and that the safety belt and lanyard
were in place. The belt line was locked out, and he then ordered Mr. Tysar to move the forklift
and park it to the right of the elevator as shown in the large diagram exhibit R-4.

Mr. Mook was of the opinion that the area where all of the belt work was needed to be
done could have been reached with a shovel by the person in the basket where the forklift would
have been parked to the right of the elevator (fr. 213). However, this opinion was not acceptable
to Mr. Tysar and he was "extremely angry" because he believed that other people could still exit
the elevator and was afraid that he could get hit even with the forklift in that location (fr. 216).
Mr. Mook stated that because of the presence of other equipment on the left side of the elevator

637

as one exits the doors, anyone exiting the elevator on a piece of equipment would have to
proceed straight ahead for a distance of 20 feet, and past the parked forklift, before he could
make a left turn to reach the other warehouse areas (Tr. 215-216).

Mr. Mook stated that he offered Mr. Tysar the following alternatives other than taping off
or locking out the elevator in order to assure him that the job would be safe (Tr. 218-219):
Tiffi WITNESS: I told him to park the machine, set the park brake, take it
out of geilf, get off, stand three feet, an arm's length away from the machine so he
would be at the controls near enough in case Brown needed him, which would put
him in a frontal view of that elevator to see anyone getting off of it.

Mr. Mook further stated that he offered to contact everyone that may have been working
with vehicles that might come into the work area in question, and he denied telling Mr. Tysar to
look through the elevator window (Tr. 217, 225). Mr. Mook pointed out that the dumpster was
placed at the intended work location so that the salt could be shoveled in from the belt (Tr. 219).
He further explained his suggested safety alternatives at (Tr. 223-224):
A. Two fold. He would be there as the safety man for Mr. Brown, if
needed. And he would be needed to move the machine, if nothing else. He was
within hand's reach of the control.
And, secondly, to be able to view the elevator because I stated to
these gentlemen during the course of these discussions that there was a problem in
the block press pump room and I needed to keep the freight elevator running if
possible, so that everyone could safely use the elevator and us still get our job
done at the same time. So, with Jim Tysar standing in that position, this was the
alternative safety suggestion by me, he could be there for Brown as the safety man
and also be able to see anyone coming off the elevator.
At that point, I timed the opening on the freight elevator doors - Brian Bonjack was present during this period, during all of these proceedings-and it took a full six seconds for the doors to open once the open door button was
pushed. So, I explained that to Mr. Tysar that he would have plenty of time to
warn off anybody getting off the elevator.

Mr. Mook stated that there were three potential vehicles that could have used the elevator
and he offered to warn those operators of the work taking place, but this was unacceptable to Mr.
Tysar and "there was only one thought in his mind, and that was the shutting down of the
'
elevator or nothing at all" (229-230).
Mr. Mook denied that there was any "near miss" with respect to the vehicle that drove off
of the elevator, and Mr. Tysar and Mr. Brown had not yet arrived at their work area when the

638

machine drove past them. He stated that he spoke to the vehicle operator who informed him that
there was no "near miss" and that the forklift was in the middJe of the warehouse and had not
moved to the comer by the elevator, and no one was in it (fr. 235-236).
Mr. Mook stated that he and maintenance foreman Bonjack discussed the job "from
beginning to end and made sure that there were no unsafe items left," and concluded that "we
were well off to the side and no one could get hurt exiting the elevator" (fr. 237). He then called
superintendent Gill who informed him that "since there are no more safety items to be addressed,
that this is now an act of in~bordination," and Mr. Brown and Mr. Tysar were suspended and
escorted off the property (fr. 237-238). Mr. Mook stated that during his discussions with Mr.
Brown and Mr.' Tysar, Mr. Brown was ~'very quiet," and simply accompanied Mr. Tysar (fr.
240).

During cross-examination, and in response to a bench question, Mr. Mook agreed that
assuming the forklift moved along the beltline, if it was in front of the elevator doors when they
opened, this would be an unsafe location (fr. 248). However, Mr. Mook believed that the
forklift would never be positioned in front of the elevator doors because the salt buildup was only
at the tail piece, and the main reason for the work was to clean that area so that the wipers could
be repaired (Tr. 248).
Brian I. Bonjack, respondent's Surface Maintenance General Foreman, testified that he
was summoned by Mr. Mook to the scene of the incident on October 6, 1995, involving Mr.
Tysar and Mr. Brown. Mr. Mook requested his presence because he wanted a second opinion
about a safety matter on the second floor of the warehouse. He stated that there were
discussions going on about the relevant safety of the job assignment made by Mr. Mook, and Mr.
Mook wanted his opinion regarding the conditions that Mr. Tysar and Mr. Brown had been asked
to work in (Tr. 256-258).
Mr. Bonjack stated that Mr. Tysar and Mr. Brown were assigned to clean the belt
tailpiece, and he explained further as follows at (Tr. 258-259):
Q. Okay, ifl may, ifyou can look at Exhibit R-4, and if you would, Mr.
Bonjack, show me on Exhibit R-4 what area of the belt Mr. Tysar and Mr. Brown
had been assigned to, please?
A. The tail piece is this area at the end of the conveyor, this being the tail

roller which is shown at this point right here. And the chalking on this is
generally directly going upstream from that, which would be in this particular
area.
Q. If we're facing the elevator, is it your testimony that most of the area
Mr. Tysar and Mr. Brown had been assigned to clean was to the right of the

elevator?

639

A. That's correct

Q. Did they have to clean any of the area over here by the elevator?
A. I didn't observe any significant salt buildup in that area. There was a
large accumulation in the tail piece area because there was a leaky tail piece
wiper, which is what perpetrated this whole cleanup operation.
Based on his understanding that the work that Mr. Tysar and Mr. Brown were assigned to
do was confined to the tailpiece area, Mr. Bonjack was ofthe opinion that they would not be in
the pathway of any vehicles coming out of the elevator, (fr. 259-261). He believed the forklift
would not have been located directly in"front of the elevator door in order to complete the
cleanup job because the cleanup area was significantly offset from the elevator (fr. 259-262).

Mr. Bonjack stated that although the cleaning of the belt was not part of his department,
and he does not assign workers to do the cleaning, he believed that it is a routine assignment and
the tail pieces are routinely the worst areas to clean up. He did not know if the belt in question
had previously been taped off while it was cleaned (fr. 262-263).
Mr. Bonjack stated that Mr. Mook suggested to Mr. Tysar that he position the forklift a
safe distance from the elevator opening and stand next to it to assist Mr. Brown if necessary and
to verbally warn anyone coming off the elevator that they were working in the area. He stated
that the area was quiet and that the elevator doors can be heard when they are opening. He
further stated that Mr. Mook offered to apprise or warn other plant personnel about the cleanup
activity taking place and to use caution if they were in the area. However, Mr. Tysar would only
be satisfied if the elevator was rendered inoperable (fr. 263-266).
Mr. Bonjack was of the opinion that Mr. Tysar and Mr. Brown were not exposed to any
imminent danger from vehicles passing by the area where they were working (fr. 266). He
stated that the mechanical work that was to be done required the elevator to be serviceable in
order to bring in parts. He believed the options given to Mr. Tysar and Mr. Brown were clearly
explained to them and that the response by Mr. Tysar and Mr. Brown "was an overreaction to a
situation that didn't merit that type of reaction" (fr. 268).
On cross-examination, Mr. Bonjack stated that he was not specifically summoned to the
scene by Mr. Mook to be a witness but to ''verify what his findings were and to see if I could see
anything additional·that maybe he had not seen" (fr. 269). He confirmed that for the most part,
he simply observed the verbal exchange between Mr. Mook and Mr. Tysar, and that his
conversation about the safety issues was with Mr. Mook and not with Mr. Tysar and Mr. Brown
(fr. 271-273).

Mr. Bonjack stated that he was not aware that Mr. Mook's work assignment included the
entire belt. He believed that the opening of the elevator doors could be heard above the noise of

640

the forklift motor (fr. 277-278, 280). He agreed that someone up on a forklift cleaning the belt
directly in front of the elevator would be at risk if a piece of equipment came off the elevator (Tr.
283).
.
In response to further questions, Mr. Bonjack stated that he was not present when Mr.
Mook gave Mr. Brown and Mr. Tysar their work assignment. However, in the course of his
conversation with Mr. Mook after arriving at the scene, it was his understanding
that Mr. Brown and Mr. Tysar were to clean the belt tail piece (fr. 285). He stated that the salt
buildup at the belt area closer.to the top "tapers off dramatically once you get away from the tail
piece." In his opinion, it was not necessary to clean the belt area away from the tail piece
because the entire purpose of the cleanup assignment was to ready the area for the mechanics to
change the worn tail piece wipers. He stated "whether he wanted the rest of the belt cleaned or
not, I wasn't a party to that and I certainly didn't see large accumulations of salt elsewhere. The
tail piece was the area of conce~" (Tr. 286). He conceded that assuming Mr. Brown and Mr.
Tysar understood that they were to clean the entire belt, the forklift would at one point during the
cleaning process be directly in front of the elevator (Tr. 288).
Russell I . R,yon, respondent's Human Resources Manager, explained how company
overtime is calculated, and stated that Mr. Tysar would not have been eligible for overtime
because he was suspended, and the suspension was over a weekend. He stated that he would
have to review the personnel records to determine whether Mr. Tysar would have qualified for
overtime had he not been suspended (Tr. 289-293).
Mr. Iysar testified in rebuttal that he and Mr. Brown were ordered to clean the entire belt
line and not just the tail piece, and he stated as follows at (Tr. 306-307):
We were told to shovel the decking on that particular belt, not the tail
piece, the whole belt. We weren't even told where to start. We were just told to
do the decking. That's what we were told.
With respect to any safety alternative offered by Mr. Mook, Mr. Iysar stated as follows at
·
(Tr. 307):
• • • • he told me to go look in the window of the elevator after I hoisted Chris
Brown up in the air and set the parking brake. That's it.
I don't remember anything about him telling me to put my arm out and
stand an arm's length away from a forklift. He stated to me to go up to the door,
and look through the window, and when the elevator comes up, to tell whoever
comes out of the elevator to be careful or to stop or whatever.
Mr. Iysar denied that Mr. Mook told him he was prepared to ask the other employees and
mechanics to be aware when they got off the elevator (Tr. 308).

641

Christopher Brown was recalled by the Court and st:ated that Mr. Mook instructed him
and Mr. Tysar to clean off the decking, and when asked if he mentioned anything about the tail
piece, Mr. Brown responded ''well, that's part of it" and "he didn't 'tell us where to start'' (Tr.
310). He could not recall that Mr. Mook indicated which part of the belt was ''worse" or "best,"
and he believed that he and Mr. Tysar were expected to shovel off the decking of the entire belt.
In response to a question as to where he would have started the belt cleaning, Mr. Brown
responded "I have no idea." When asked where he would have started if the elevator opening
incident had not occurred,.he responded "I don't know'' (Tr. 311 ). When asked if he would have
started at the far end or at ~e worst end, he responded ''wherever, we really weren't in position"
(Tr. 311 ). He explained that the belt decking is the area between the rollers and the belt frame,
and it was his understanding that be and Mr. Tysar were to clean the entire length of the belt and
the tail piece (Tr. 313-314).
FindiniS and Conclusions
Fact of Violation

In order to establish a prima facie case of discrimination under section 105(c) of the Mine
Act, a complaining miner bears the burden of production and proof to establish (1) that he
engaged in protected activity and (2) that the adverse action complained of was motivated in any
part by that activity. Secretazy on behalfofPasula v. Consolidated Coal Company, 2 FMSHRC
2768 (1980), rev'd on other 2f0Unds ~nom. Consolidation Coal Company v. Marshall, 663
F.2d 1211 (3d Cir. 1981); Secretary on behalf of Robinette v. United Castle Coal Company, 3
FMSHRC 803 (1981); Secretazy on behalfofJenkins v. Hecla-Day Mines Corporation, 6
FMSHRC 1842 (1994); Secretazy on behalf of Chacon v. Phelps Dodie Corp., 3 FMSHRC 2508,
2510-2511 (November 1981 ), rev'd on other ~rounds~ IlQDl. Donovan v. Phelps Dodge Corp.,
709 F.2d 86 (D.C. Cir. 1983). The operator may rebut the prima facie case by showing either
that no protected activity occurred or that the adverse action was in no way motivated by
protected activity. If an operator cannot rebut the prima facie case in this manner it may
nevertheless affirmatively defend by proving that (1) it was also motivated by the miner's
unprotected activities alone. The operator bears the burden of proof with regard to the
affinnative defense. Ham v. MaWJa Copper Company, 4 FMSHRC 1935 (1982). The ultimate
burden of persuasion does not shift from the complainant Robinette m. ~also B.Qi&h v.
FMSH&C, 719 F.2d 194 ((ib Cir. 1983); and Donovan v. Stafford Construction Company, 732
F.2d 954 ((ib Cir. 1983) (specifically-approving the Commission's Pasula-&obinette test). See
also NLRB v. Transportation Manaiement Corporation, 462 U.S. 393,76 L.ed.2d 667 (1983),
where the Supreme Court approved the NLRB's virtually identical analysis for discrimination
cases arising under the National Labor Relations Act.

642

Mr. Tysar's Protected Activity

I conclude and find·that Mr. Tysar had a right to complain to Mr. Mook about his concern
that proceeding with the belt cleaning job assignment might place him at risk and expose him to
a possible hazard if he and Mr. Brown were working with the forklift in front of the elevator
doors and another vehicle exited the elevator. His complaint is a protected activity which many
not be the motivation by mine management for any adverse personnel action against him.
Secretazy of Labor ex rei. PMula v. Consolidation Coal Co., 2 FMSHRC 2786 (October 1980),
Rev'd on other wunds. sub. nom. Consolidation Coa} Co. v. Marshall, 663 F.2d 1211 (3d Cir.
1981), and Secretazy of Labor ex rei. Robinette v. United Castle Coal Co., 3 FMSHRC 803
(April 1981 ). Safety complaints to mine management or to a foreman constitutes protected
activity, BaGr v. Interior Board of Mine Oj?erations Appeals, 595 F.2d 746 (D.C. Cir. 1978);
Chacon, m. However, the miner's safety complaint must be made with reasonable
promptness and in good faith, and be communicated to mine management, MSHA ex rei.
Michael J. Dunmire and James Estle v. Northern Coal Company, 4 FMSHRC 126 (February
1982); Miller v. FMSHRC, 687 F.2d 194, 195-96 (Th Cir. 1982); Sammons v. Mine Services
~. 6 FMSHRC 1391 (June 1984).
I further conclude and fmd that Mr. Tysar timely communicated his safety concern to Mr.
Mook about the possibility that another vehicle might exit the elevator and place him at risk
when he contacted him over the intercom and then went to his office with Mr. Brown to further
express their safety concerns about their belt cleaning assignment. The timeliness of the
complaint met the requirements enunciated by the Commission in Secretaty on behalf of
Dunmire and Estle v. Northern Coal Co.. 4 FMSHRC 126 (February 1982); Secretary ex rei.
John Cooley v. Ottowas Silica Company, 6 FMSHRC 516 (March 1984); Gilbert v. Sandy Fork
Minim: Company,.s.upm; Sammons v. Mine Services Co. 6 FMSHRC 1391 (June 1984).
In the course of the bearing, Mr. Tysar, for the first time, alleged that Mr. Brown could
have dropped a shovel on him if he were standing under the belt looking through the elevator
window. I take note of the fact that Mr. Tysar never meQtioned such a concern in his complaint
statement to MSHA's special investigator on December 11, 1995. When asked in the course of
the hearing whether he ever informed Mr. Mook about any safety concern that Mr. Brown might
drop a shovel on him while cleaning the belt, Mr. Tysar "guessed that something like that was
brought up." However, when pressed for more specifics, Mr. Tysar admitted that he did not
mention any shovel to Mr. Mook. During his testimony, Mr. Mook made no mention of any
shovel complaint by Mr. Tysar. Further, I find nothing in Mr. Brown's deposition and hearing
testimony reflecting any safety concern that he could drop a shovel on Mr. Tysar while cleaning
the belt.
I find no credible evidence that Mr. Tysar ever communicated a safety concern to Mr.
Mook concerning the possibility that Mr. Brown might drop a shovel on him if he and Mr.
Brown were positioned in front of the elevator cleaning the belt.

643

In the course of the bearing, Mr. Tysar expressed a further concern about the possibility
of Mr. Brown shoveling salt materials on him if he were to stan:d in front of the elevator looking
through the window. Although Mr. Tysar suggested the possibility of such an event in his prior
statement to the MSHA investigator, his October 6, 1995, company grievance does not include
safety concerns for falling shovels or materials. Further, when asked in the course of the hearing
if he informed Mr. Mook about any concern for falling materials, Mr. Tysar responded "Yes,"
but then explained that he simply told Mr. Mook that he "didn't feel safe" looking in the elevator
window and did not bel.ieve that he gave Mr. Mook any reasons for his concern {Tr. 108-1 09).
I find Mr. Tysar's testimony regarding his concern for falling materials to be
contradictory. However, in the course of the hearing Mr. Mook testified that Mr. Tysar and Mr.
Brown "blew this out of proportion" in referring to "shoveling salt down directly in front of this
elevator where people coming or they themselves would be in danger" (Tr. 227). He then
confirmed that falling salt "was their concern, so I was trying to address W' (Tr. 228). Under the
circumstances, and not withstanding Mr. Tysar's contradictory testimony, I conclude and fmd that
Mr. Mook must have been aware of Mr. Tysar's concern since he acknowledged as much.
Accordingly, I find that Mr. Tysar timely communicated his falling materials concern to Mr.
Mook.
Mr. Tysar's Work Refusal
When a miner has expressed a reasonable, good faith fear of a safety or health hazard, and
has communicated this to mine management, such as a foreman, management has a duty and
obligation to address the perceived hazard or safety concern in a manner sufficient to reasonably
quell his fears, or to correct or eliminate the hazard. SecretaJy v. River Hurrican Coal Co., 5
FMSHRC 1529, 1534 (September 1983); Gilbert v. Sandy Fork Mining Company, 12 FMSHRC
177 (February 1990),.QD remand.frmn Gilbert v. FMSHRC, 866 F.2d 1433 (D.C. Cir. 1989),
~ Gilbert v. Sandy Fork Mjnin~ Co., 9 FMSHRC 1327 (1987).
The focus in work refusal cases is the complainim: miner's belief that a hazard exists, and
the critical issue is whether or not that belief is held in good faith and is a reasonable one.
Secretazy ex rel. Bush v. Union Carbide CoJl>, 5 FMSHRC 993, 997 (June 1983); Miller v.
FMSHRC, 687 F.2d 1984 (Th Cir. 1982). In analyzing whether a miner's belief is reasonable, the
hazardous condition must be viewed from the miner's perspective at the time of the work refusal,
and the miner need not objectively prove that an actual hazard existed. Secreta[)' ex rei. Bush v.
Union Carbide Corp., 5 FMSHRC 993,997-98 (June 1983); Secretazy ex rei. Pratt v. Rim
Hurricane Coal Co., 5 FMSHRC 1529, 1533-34 (September 1983); Ham v. Mama Cooper Co.,
4 FMSHRC 1935, 1944 (November 1982); Robinette, m, 3 FMSHRC at 810. Secretazy on
behalf of Hogan and Ventura v. Emerald Mines Corp., 8 FMSHRC 1066 (July 1986). The
Commission has also explained that "good faith" belief simply means honest belief that a hazard
exists." Robinette, m a t 810,

644

As recently reiterated by the Commission in Billy R. McClanahan v. Wellmore Coal
Cox:poration, 19 FMSHRC 55,67 (January 1997), once it is determined that a miner has
expressed a good faith, reasonable concern about safety, the 3nalysis shifts to an evaluation of
whether the operator addressed the miner's concern "in a way that his fears should have been
reasonably quelled" Gilbert v. FMSHRC, 866 F.2d 1433, 1439 (D.C. Cir. 1989); Thuonan v.
Queen Anne Coal Co., 10 FMSHRC 131-135 (February 1988),.Affd, 866 F.2d 431 (~ Cir.
1989); Secretazy of Labor on behalf of Bush v. Union Carbide Com., 5 FMSHR.C 993, 997 (June
1983). A miner's continuing refusal to work may become unreasonable after an operator has
taken reasonable steps to dissipate his fears or ensure the safety of the challenged task or
condition, BY.sh, at 5 FMSHRC 998-99.

The respondent concedes that Mr. Tysar engaged in a protected activity by raising the
issue of a potential danger to him and Mr. Brown if they were to proceed with their assigned job
task. Indeed, foremen Mook and Bonjack both agreed that assuming the forklift moved along the
beltline, if it was positioned in front of the elevator doors when they opened, it would be in an
unsafe location. However, the respondent believes that the disputed issue is whether, in light of
the circwnstances, Mr. Tysar's belief that a hazard existed was reasonable, whether the hazard
was beyond one inherent in the mining industry, and whether it was adequately addressed by Mr.
Mook.
The critical disputed issue with respect to whether or not Mr. Tysar's work refusal was
made in good faith and based on an bones~ and reasonable concern that he would be exposed to a
potential hazard if he were to commence cleaning the belt while the elevator was still in
operation is whether his assigned work task by foreman Mook included the cleaning of the entire
beltline or was limited to the cleaning of the tailpiece.
The respondent does not dispute the fact that Mr. Tysar would have a legitimate safety
concern if be and Mr. Brown were assigned to clean the entire beitline and needed to position the
forklift in front of the elevator to do the job (Tr. 317-318). Mr. Mook and Mr. Bonjack agreed
that if the forklift were to move along the beltline and was positioned in front of the elevator
doors when the doors opened, Mr. Brown and Mr. Tysar would be in an unsafe location (Tr. 248283).
I conclude and find that if in fact Mr. Tysar and Mr. Brown were assigned and expected
to clean the entire beltline while the elevator remained in operation, they would at some point in
time be positioned with the forklift in front of the elevator doors, and would be at risk if a vehicle
unexpectedly exited the elevator while they were in front of it. Under this scenario, I would
conclude that Mr. Tysar's concern for his safety would not be unreasonable. However, if Mr.
Tysar's work assignment was confined to the belt tail piece area, I would find it reasonable to
conclude that the cleaning of the belt in that location would not present a hazard to Mr. Tysar and
Mr. Brown if the elevator were to continue in operation, and that Mr. Tysar's concern would not
·
be reasonable.

645

Mr. Brown testified at his October 22, 1996, deposition that Mr. Mook assigned him to
clean the belt decking "right above the elevator" for a distan~ of"about 30 feet" (Tr. S-6). He
confirmed that the elevator was 10 feet wide, and when asked about the remaining 20 feet of the
beltline, he stated that "we would doing this one section" directly above the elevator (Tr. 6). He
could not remember how Mr. Tysar described the area where they were supposed to be working
in to Mr. Mook during their discussion (Tr. 19). When asked to describe his understanding of
their exact work area on the evening in question, Mr. Brown stated as follows at (Tr. 20-22).
Q.

Again, can·you describe for me exactly the work area? Was it only the
area immediately over the elevator?

Q.

So you didn't have to clean any of the decking to the right of the elevator?

A.

Yes. We had to do a section.

Q.

I'm still a little confused about the section that you all had to clean off.
Was it actually 30 feet of the belt that you had to clean off?

A.

No. It was right where the tail piece was.

Q.

And you're saying that that is directly over the elevator?

A.

No. That is to the right, but it goes up, that we had to shovel.

.Q.

It's to the right and it goes up, so it's to the right of the elevator and it goes
up?

A.

Right.

Q.

So in addition to the area directly over the elevator, you had to clean to the
right and up?

A.

Right.

••••
Q.

But if it was to the right of the elevator, how was cleaning that section
unsafe?

A.

Well, we had to move up. We'd have to-- he'd have to move his forklift
and then get in position to shovel the - - keep on moving up shoveling.

646

be done until the salt ae:cumulations at the tail piece were cleaned up. Ind~ Mr. Tysar

confirmed that the "worst" salt buildup was at the tail piece, ~d that had the work begun, Mr.
Brown would have cleaned up the salt accumulations and shoveled tliem into the dumpster that
was placed at the tail piece for this purpose (fr. 56). Mr. Mook testified credibly that Mr. Tysar
used the forklift to move the dumpster into place in an in inset next to a wall partition so that the
salt materials shoveled by Mr. Brown could fall directly into the dumpster (fr. 191). All of this
credible and unrebutted testimony by Mr. Mook lends credence to his contention that the belt
cleaning assignment was limited to only the tail piece area and not the entire belt line.
In the course of his deposition, Mr. Brown stated that a foreman whose name he could not
recall told him "a long time ago" that there was a "rule" that required a forklift operator to remain
in the driver's seat if there was someone in the man basket (fr. 25-27). He suggested that this rule
would not allow Mr. Tysar to stand next to the forklift while he was in the basket. Upon review
of the respondent's April1 , 1995, mine safety rules and policies, Mr. Brown could not find any
such rule related to forklifts (Tr. 34-36). Mr. Brown did not pursue this "rule" further at the
hearing, and there is no credible evidence that he or Mr. Tysar ever raised it with Mr. Mook. The
only safety issue Mr. Tysar raised with respect to the forklift was the securing of the man basket,
and Mr. Tysar conceded that Mr. Mook addressed his concern to his satisfaction (fr. 133-134).

Mr. Tysar stated that even if the assigned work area was confined to the belt tail piece,
there was "a very good probability" that the forklift could have been bumped by a vehicle exiting
the elevator because part of the forklift would still be in front of part of the elevator doors (fr.
119). I find this difficult to believe, particularly since Mr. Tysar himself described the width of
the forklift at 4 Y2 to 5 feet, and stated that the belt tail piece was 6 to 10 feet away from the
elevator door (Tr. 113-114). He further stated that had he proceeded with the assigned wor~ "the
forklift would have been positioned away from the elevator. The conveyor belt would have been
in between the elevator and the forklift" (Tr. 145). Under these circumstances, and given the fact
that the dumpster was located directly under the belt so that Mr. Brown could shovel in the salt
materials, I find it highly unlikely that any of the materials would fall on Mr. Tysar.
Mr. Tysar further confirmed that any vehicle exiting the elevator would have to travel
straight out of the elevator for at least 20 feet before it could turn left because of the presence of
other equipment in the tail piece area. Under the circumstances, I fmd it highly unlikely that a
vehicle exiting the elevator would abruptly turn sharply to the left immediately upon exiting the
elevator rather than proceeding straight ahead for 20 feet where it could freely turn left without
encountering any equipment obstacles, including the forklift that I find was positioned in front of
the tail piece and clear of the elevator doors. Further, if the vehicle was backing out of the
elevator, as Mr. Brown testified it did on the day in question, I find it unlikely that it would back
out at a high rate of speed and then turn around and proceed toward the tail piece area.
After careful review and consideration of all of the testimony and evidence .in this case, I
credit the testimony of Mr. Mook and Mr. Bonjack and find that Mr. Mook assigned Mr. Tysar

647

and Mr. Brown to clean the belt tail piece area and not the entire belt. I find the testimony of Mr.
Tysar and Mr. Brown regarding their work assignment to be co.ntra.dictory and less than credible.
In view of my finding that Mr. Tysar's work assignment was confined to the tail piece area,
and based on my foregoing findings and conclusions, I conclude and fmd that Mr. Tysar would
not have been exposed to a hazard had he proceeded to clean the tail piece area, and that even
viewed from his own perspective, I cannot conclude that his work refusal was reasonable and
made in good faith. Further, even ifl were to find that Mr. Tysar's work refusal was reasonable,
in view of my findings and conclusions which follow below, I have concluded that Mr. Mook
timely addressed Mr. Tysar's safety concerns with reasonable offers of safety alternatives, and that
Mr. Tysar's rejections of these offers was unreasonable.
Foreman Mook's Response to Mr. Tnar's Safety Concerns
The evidence establishes that Mr. Tysar's confrontation with Mr. Mook took place while
Mr. Tysar and Mr. Brown were preparing to position the forklift in order to commence the belt
cleaning, and before any cleaning had actually been done. Mr. Tysar candidly admitted that he
viewed his encounter with Mr. Mook as a "power struggle" and he believed that Mr. Mook acted
less than diplomatically in responding to his concern. Having viewed Mr. Tysar in the course of
the hearing, he impressed me as an articulate, but rather argumentative and strong willed
individual, who at times displayed his anger and frustration in a less than diplomatic manner.
Indeed, at one point in the course of the hearing I observed that Mr. Mook was so provoked by
Mr. Tysar's suggestions that he had little or no concern for safety that he needed to be restrained
by his counsel, and the Court ordered a brief"break" to "cool off" the parties and admonish them
to maintain the proper decorum.
I find Mr. Tysar's unsupported assertion that Mr. Mook had little regard for safety to be
less than credible. Mr. Tysar himself confirmed that Mr. Mook responded to his call to come to
the work area in a reasonable amount of time, and assigned him and Mr. Brown to do other work
while he considered the matter further (Tr. 137-138). Mr. Tysar further confirmed that Mr. Mook
locked out the belt, and immediately responded to his safety concern regarding the securing of the
"man basket" to the front of the forklift, and provided a safety belt and lanyard for Mr. Brown's
use while cleaning the belt from inside the basket that was equipped with protective railings and a
locked gate (Tr. 133).
Mr. Mook testified credibly that he thoroughly considered all of the safety aspects of his

belt cleaning assignment in consultation with foreman Bonjack, and rejected as unreasonable Mr.
Tysar's request to take the elevator out of service before he was expected to proceed with the belt
cleaning job. Mr. Mook further testified credibly that he offered two alternative safety
suggestions to Mr. Tysar namely, an offer that he (Mook) inform and alert other employees who
might use the elevator that Mr. Tysar and Mr. Brown were working in the area, or that Mr. Tysar
station himself next to the forklift and near the controls, with the brake engaged, so that he could

648

have a clear view of the elevator in order to readily alert anyone exiting the elevator that he and
Mr. Brown were working in the area.

Mr. Brown testified at his deposition that Mr. Mook did not .suggest any safety alternatives
and never suggested that Mr. Tysar serve as "a lookout" or put the forklift in gear or in park (fr.
9, 11, 12). However, in the course of the hearing that followed a little over a month later,
Mr. Brown was less than certain that Mr. Mook never offered any alternatives to shutting down
the elevator and stated that he had no recollection of any alternatives offered by Mr. Mook (fr.
163). Mr. Brown's conflicting testimony was contradicted by Mr. Tysar who testified that
Mr. Mook told him to set the forklift brake and stand by the elevator door where he could observe
the arrival of the elevator by looking thr<;mgh the window.
Mr. Tysar initially claimed that he had no idea what Mr. Mook expected of him by looking
through the elevator window (fr. 58). However, he later testified that Mr. Mook suggested that
he look through the elevator window in order to warn anyone on the elevator to be careful or to
stop (Tr. 307). I find Mr. Tysar's testimony concerning Mr. Mook's alternative safety suggestion
to be less than credible. Mr. Tysar claimed that he had no idea what Mr. Mook had in mind when
he told him to look through the elevator window, yet he confirmed that Mr. Mook expected him to
warn anyone on the elevator that he and Mr. Brown were working in the area.
I further fmd Mr. Tysar's testimony that he could not remember Mr. Mook offering to
inform other employees that he and Mr. Brown were cleaning the belt (Tr. 95}, to be contrary to
his later denials that any such offer was ever made (Tr. 308).
I have considered the question of why Mr. Mook would fmd it necessary to offer
alternative safety precautions if in fact his work assignment was limited to the tail piece area, and
I fmd his explanation that he did so to assure Mr. Tysar that the cleaning job would be safe to be
credible:
Foreman Bonjack corroborated Mr. Mook's testimony that he offered the two safety
alternatives to Mr. Tysar in response to Mr. Tysar's concern that he and Mr. Brown might be at
risk if a vehicle exited the elevator with the forklift positioned in front of it, but that Mr. Tysar
rejected Mr. Mook's offer and insisted that the elevator be shut down. Having viewed
Mr. Bonjack's demeanor in the course of the hearing, I fmd his testimony to be credible.
Although Mr. Tysar indicated that he was ''willing to talk with people and compromise,"
he confirmed that he made no suggestions to Mr. Mook short of insisting that the elevator be
taken out of service, and he remained steadfast in his insistence that the sm}x safe method of
cleaning the belt that he would accept was to shut down the elevator and tape it off so that it could
not be used while the belt was being cleaned. Indeed, Mr. Tysar admitted that any alternatives
suggested by Mr. Mook, short of taking the elevator out of service, would have been unacceptable
to him and rejected out of hand.

649

I find Mr. Tysar's summary refusal to seriously considet: Mr. Mook's alternative safety
suggestions to be unreasonable and a less than good faith effort to ~ least attempt to resolve the
dispute to their mutual satisfaction. I further discredit Mr. Tysar's assertion that Mr. Monk simply
told him to go look through the elevator window, and credit Mr. Mook's testimony that he did
more than that in suggesting alternative ways to address Mr. Tysar's safety concerns.
I conclude and find that foreman Mook addressed Mr. Tysar's safety concern in a
reasonable way by offering the two alternatives previously discussed, and that Mr. Tysar's
rejection of those suggestions and insistence that the elevator be shut down was unreasonable.
Under the circumstances, I conclude and find that Mr. Tysar's work refusal was unprotected and
that his suspension was not_discriminatory and did not amount to a violation of section lOS(c) of
the Act.
OBDER

In view of the foregoing findings and conclusions, and after careful consideration of all of
the credible evidence and testimony adduced in this case, I conclude and find that the complainant
has failed to establish a violation of section 105(c) of the Act. Accordingly, the complaint IS
DISMISSED, and the complainant's claims for relief ARE DENIED.

~~~
Administrative Law Judge

Distribution:
James C. Tysar, 4823 Russell Avenue, Parma, OH 44134 (Certified Mail)
Mark N. Savit, Esq., Ruth L. Ramsey, Esq., Patton Boggs, L.L.P., 2550 M Street, N.W.,
Washington, D.C. 20037 (Certified Mail)
\mea

650

FEDERAL MINE SAFETY AND HEALTH R.BVXBW COMMISSION
OFFICE ·oF ADMINISTRATIVC LAW .RI)GES
2 SKYLINE, 10th FUXMt
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041 -

MAR 3 1 1997
SECRETARY OF LABOR,
MINE SAFETY AND HEALTii
ADMINISTRATION, (MSHA),
Petitio1;1er

CML PENALTY PROCEEDINGS
Docket No. PENN 96-221
A. C. No. 36-02398-03756

v.
Docket No. PENN 96-248
A. C. No. 36-02398-03759

LION MINING COMPANY,
Respondent

Grove No. 1 Mine
DEOSION

Appearances: Andrea J. Appel, Esq., Office of the Solicitor, U.S. Department of Labor,
Philadelphia, PeimSylvania, for the Petitioner;
Joseph A. Yuhas, Esq., Barnesboro, Pennsylvania, for the Respondent.
Before:

Judge Feldman

These consolidated civil penalty proceedings concern petitions for assessment of civil
penalties filed by the Secretary of Labor against the respondent pursuant to section 11 O(a) of the
Federal Mine Safety and Health Act of 1977 (the Act), 30 U.S.C. § 820(a). These matters were
called for hearing on January IS, 1997, in Somerset, Pennsylvania.
The petition in Docket No. PENN 96-248 sought to impose a total civil penalty of
$1,128.00 for two alleged violations of mandatory safety standards in Part 15 of the regulations.
At the hearing, the parties advised they had reached settlement in PENN 96-248. The record was
left open to enable the parties to file a motion for approval of their agreement. The motion was
filed on January 29, 1997. The respondent has agreed to pay a reduced civil penalty of$733.00
in satisfaction of 104(d) Order No. 43873 78 and 104(a) Citation No. 4387380. The reduction in
penalty is based on reduction in the gravity and degree of the respondent's negligence with
respect to the cited violations, although the 104(d) Order remains unmodified. I have considered
the representations submitted in·support of their agreement, and I conclude the proffered
settlement in Docket No. PENN 96-248 is appropriate under the criteria set forth in
Section 110(i) of the Act, 30 U.S.C. § 820(i). Thus, the motion for approval of settlement in
Docket No. PENN 96-248 shall be granted.

651

The petition in Docket No. PENN 96-221 seeks to impose total civil penalties
of$1,795.00 for five alleged violations of mandatory safety standards in Part 75 of the
regulations, 30 C.F.R Part 75. This docket concerns four 104(a) citations ~d a 104(d) order.
At the hearing, the parties moved to settle the four 104(a) citations. The settlement terms
included reducing the proposed civil penalty for the four 104(a) citations from $595.00 to
$471.00. The reduction in penalty is based on the deletion of the significant and substantial
designation for Citation Nos. 4387717 and 4387660. The parties' settlement with respect to
these four citations shall be approved.
The parties failed to reach an agreement with respect to the remaining $1,200.00 civil
penalty in Docket No. PENN 96-221 proposed by the Secretary for 104(d) Order No. 4387711.
Thus, the evidentiary hearing was limited to the propriety of Order No. 4387711. The parties'
post-hearing Proposed Findings of Fact and Conclusions of Law regarding this Order are of
record.
Order No. 4387711 presents the issue of whether depositing piles of gob, taken by scoop
from the face, in unused crosscuts off a return entry, a common and permissible industry practice,
constitutes a violation of the mandatory safety provisions of section 75.400,30 C.F.R. § 75.400.
This mandatory standard states:
Coal dust, including float coal dust deposited on rock-dusted surfaces, loose coal,
and other combustible materials, shall be cleaned up and not be peanitted to
accumulate in active workings, or on electric equipment therein. (Emphasis
added).
While, as alleged by the Secretary, the cited, stored deposits may not have been
adequately rock-dusted in accordance with the provisions of section 75.403,30 C.F. R. § 75.403,
the issue in this case is whether the cited gob material was a prohibited accumulation under
section 75.400. As discussed below, the respondent' s peonissible sora~e of the cited piles of
gob, euphemistically characterized as by the Secretary as "accumulations," is in glaring
contradiction to the provisions of section 75.400 that prohibit accumulations in active workings.
Consequently, Order No. 4387711 shall be vacated.
Statement of the Case
The pertinent facts in this matter are not in dispute and can be briefly stated. Mine Safety
and Health Administration (MSHA) Inspector Rudy Kotor inspected the respondent's Grove
No. 1 Mine on April 10, 1996. Kotor was accompanied by Mine Superintendent Russell
Lambert and Shift Foreman Kevin Sleasman. The three men traversed the 1st Left (017) Section
Immediate Return in the L2 return entry. The Immediate Return is examined weekly, requiring
an employee to travel the entire length of the return entry. At the time of the inspection, the floor
of the L2 entry was white with rock dust.

652

It was the respondent's practice to deposit fallen rock and other gob material removed
from the face in \mused crosscuts off the return entry, moving in an inby direction as the section
developed. Kotor testified that gob material deposited in crosscuts is a valid procedure that is not
prohibited by MSHA. (fr. 154). Kotor observed a pile of accumulations, consisting of coal dust,
coal dirt and rock in each of nine crosscuts offthe L2 entry. Specifically, Kotor observed piles of
gob in the third, fifth, sixth, seventh, eighth, ninth, tenth, eleventh and thirteenth crosscuts.
There were footprints, presumably left by the weekly mine examiner, and scoop tire tracks on the
rock dusted floor in proximity to the nine gob piles observed by Kotor. Based on his
observations, which included observations of dry gob piles, black in color, Kotor concluded that,
with the exception of a small portion of the gob pile in the thirteenth crosscut, DOD~ ofthe gob
piles had been rock dusted.
The respondent admits that there was some coal dust content in the gob material that was
scooped up with the fallen rock at the face. However, the respondent asserts that Kotor's
observations with respect to the degree of combustible material was misleading because the roof
rock is blackish-grey in color. (fr. 156).
Kotor took spot samples, consisting of several shovels of material from various places
from each of the gob piles in the third, fifth, sixth, eighth, ninth and thirteenth crosscuts. The
samples from each gob pile were sifted through a 20-mesh wire screen. The sifted samples were
then placed in different tagged plastic bags. The plastic bags containing the samples were placed
in the trunk of Kotor' s car on April 10, 1996, where they remained for approximately nine
months until January 6, 1997, when, in preparation for this January 15, 1997, hearing, Kotor sent
them to the Department of Labor's laboratory for combustible content analysis. (See Gov. Ex. 5,
p.2). Kotor testified that he had forgotten that the samples were in his automobile trunk.
Kotorissued 104(d) Order No. 4387711 on April10, 1996, citing a significant and
substantial (S&S) violation of section 75.400. At the hearing, the Secretary moved to modify
Order No. 4387711 by deleting the S&S designation. (fr. 22). Order No. 4387711 was abated
by Kotor on April 12, 1996. In abating the Order, Kotor noted:
A heavy application of rock dust was applied to all (2> &ob piles' to maintain the
accumulations to a (sic) incombustible content along the first left (017) Section
Immediate Return air course. (Emphasis added). (Gov. Ex. 2, p.2).

1 Kotor repeatedly refers to the cited accumulations as "gob piles."

Gov. Ex. 3 pp. 14(a), (b), (c), 15, 18, 19, 20; Tr. 37, 40, 48, 49, ).

653

<S=, "-• Gov. Ex 2,

The belated laboratory results revealed incombustible content in the seven samples
varying from 14.9 per cent to 25.9 per cent. Section 75.403, not cited by Kotor, requires
incombustible content of materials in return aircourses to be no less than 80 per cent2
Findings of Fact and Conclusions
At the outset, it is imponant to focus on the two materials extracted or dislodged in
underground coal mining - coal and everything else (gob). Whether accumulations are
primarily gob, or, prohibited combustible accumulations under Section 75.400, must be decided
on a case-by-case basis. For only combustible accumulations of coal that are by-products of the
coal extraction pro'cess, such as accumulations of coal dust and float coal dust, are prohibited by
section 75.400. These by-products, when "permitted to accumulate" over a period of time, in
mine areas such as the floor and ribs, without ••being cleaned up, constitute a violation of
Section 75.400. Similarly, coal dust accumulatious and loose coal spillage on equipment, such as
a continuous miner, or around beltlines and rollers, that remain unaddressed, constitute section
75.400 violations. Such combustible accumulations of coal dust and loose coal are violative
accumulations under section 75.400 regardless of whether they are permitted to remain at their
original location, or whether they are transported for storage by scoop into crosscuts off of a
return entry.
Gob is defmed as material "store[d] underground, as along one side of a working place,
the rock and refuse encoWltered in mining." Djctionazy of Minin2. Mineral and Related Terms,
U.S. Department of the Interior, 1968, p. 497. Although gob may contain particles of coal,
accumulations of gob material are not prohibited. While the mandatory standard in
section 75.403 may require gob, depending on its combustible content, to be rock dusted,
gob, by its nature, is not amenable to clean-up and removal.
2

Section 75.403 provides:
Maintenance of incombustible content of rock dust

Where rock dust is required to be applied, it shall be distributed upon the top,
floor, and sides of all underground areas of a coal mine and maintained in such
quantities that the incombustible content of the combined coal dust, rock dust, and
other dust shall not be less than 65 per centum, but the incombustible content in
the return aircourses shall be no less than 80 per centum. Where methane is
present in any ventilating current, the per centum of incombustible content of such
combined dust shall be increased 1.0 and 0.4 per centum for each 0.1 per centum
of methane where 65 and 85 per centum, respectively, of incombustibles are
required.
There was no evidence of methane in the cited 1" Left (017) Section Immediate Retmn. (Tr. 124,
198-9; Gov. Ex 3, Kotor's notes at p.4).

654

In the instant case, by his own admission, Kotor observed gob piles that, consistent with
industry practice, were stored in crosscuts. Kotor conceded that the roof, floor and ribs in the
immediate area in the L2 ently were rock dusted. Although Kotor opined that the gob piles

consisted of"over half' combustible coal material, he also stated the piles contained "some
rock," including "large pieces of rock." (fr. 64-67).
I am unpersuaded by the Secretary~s apparent reliance on the inert laboratory analysis to
support her assertion that the cited "extensive accumulations" were coal dust accumulations
contemplated by section 75.400. With regard to extensiveness- there is nothing unusual about
extensive gob piles that contain large pieces of rock. Although I am cognizant of the laboratory
results that suggest an incOmbustible content of approximately 20 per cent, the validity of these
samples in this case must be placed in oontext. This procedure is intended to achieve a
representative sample of the percentage of rock dust in a given accumulation of coal dust and
float coal dust. This procedure is not designed to obtain a representative sample from a gob pile.
For when one sifts coal dust and rock through a 20-mesh screen, a resultant sample containing
primarily coal dust is not surprising. Consequently, these sample results do not establish that the
cited "accumulations" were 80 per cent coal. Thus, I remain unconvinced that Kotor's samples
accurately reflect the percentage of combustible material in these gob piles. In any event, while
these gob piles may have required additional rock dusting, notwithstanding the chain of custody
problem and the validity of the rock pile sampling method, the respondent was not charged with
a rock dusting violation. Finally, in discussing the evidentiary value of these sample results, I
would be remiss ifl did not note that the laboratory analysis, that occurred only one week before
this hearing, was untimely in that it interfered with the respondent's ability to prepare for this
case. ~Cyprus Tonopah Minini Cm:p., 15 FMSHRC 367,379 (March 22, 1993).
At the hearing, the Secretary was requested to cite case law to support her position that
section 75.400 is applicable to gob piles. In her post-hearing brief, the Secretary relies on the
Commission decision in Mid-Continent Resources. Inc., 16 FMSHRC 1226 (June 1994) for the
proposition that section 75.400 applies to "relocated" accumulations. However, the Secretary~s
reliance on Mid-Continent begs the question. "Relocated" accumulations constitute a violation
of section 75.400 only if they are prohibited accumulations. In Mid-Continent, the cited
accumulations had been transported to a crosscut off an intake roadway. The subject of the
section 75.400 violation in Mid-Continent "was mostly full of material consisting of timbers,
lump coal, very dry coal dust, float coal dust and coal fines." ld: at 1228. The accumulations
were extensive and combustible, and they were noted in various pre-shift examination reports.
~at 1229, 1233.
The Secretary also relies on the Commission~s holding in Doss Fork Coal Company,
18 FMSHRC 122 (February 1996). In Doss Fork, the operator had been issued citations on
several previous occasions for storing "dirty coal," consisting of mud, rocks and coal, in
crosscuts. Consequently, in Doss Fork, the Commission concluded the operator was on notice
and affirmed the ALJ decision that the cited "dirty coal" condition constituted a violation of
section 75.400.

6ss

This case concerns gob piles that were stored in crosscuts. Unlike Doss Fork, where the
operator had a history of citations for the same condition, Kotor~s testimony reflects the cited
gob piles were stored in accordance with industry practice. Moreove~, unlike the cited condition
in Mid-Continent that dealt with extensive, combustible accumulations, the 8lleged section
75.400 violation in this case is characterized as non-significant and substantial. Significantly,
both Mid-Continent and Doss Fork dealt with prohibited accumulations that were required to be
removed. In fac~ in Mid-Continent, the operator's defense was that "it was impossible to
remove the [cited] accumulations from the mine via the conveyor belts due to unexpected
mechanical problems . . •." 16 FMSHRC at 1233. In the instant case, the Secretary does argue
that the gob piles should have been removed from the mine.
In sho~ regulations must be interpreted to harmonize with their intended purpose.
Emezy Minina Corp. v. Sec'y of Labor, 744 F.2d 1411, 1414 (10" Cir. 1984). Section 75.400
requires the clean-up of the cited combustible accumulations. The notion that gob in an
underground mine should be cleaned up and not be permitted to accumulate is, indeed, strange.
Rather, the mandatory standard in section 75.403 concerning rock dusting is the appropriate
standard to address the potential hazards associated with combustible material in gob. In this
regard, Kotor admitted that he normally does not take samples to support a section 75.400
violation. (Tr. 156).
The Secretary's interpretation of section 75.400, as it applies to the facts of this case,
is not entitled to deference as the meaning of the "clean-up requirements" is neither doubtful
nor ambiguous. Pfizer Inc. v. Heckler, 735 F.2d 1502, 1509 (D.C. Cir. 1984). Here the cited
accumulations constituted gob that was permissibly stored in crosscuts. Thus, in the final
analysis, the Secretary's interpretation of section 75.400 ''is at odds with the plain meaning
of the standard.'' Sunny Ridae Minina Company et aJ., 18 FMSHRC 254, 258 (February 1997).
Since storage is permitted, clean-up and removal cannot be required under section 75.400.
Accordingly, Order No. 4387711 is'hereby vacated.
ORDER

Accordingly, IT IS ORDERED that, consistent with the parties' settlement agreements,
the respondent shall pay civil penalties of$733.00, in Docket No.' PENN 96-248, and $471.00
in Docket No. PENN 96-221. IT IS FURTHER ORDERED that Order No. 4387711 issued in
Docket No. PENN 96-221 IS VACATED. Consequently, the respondent shall pay a total civil
penalty of $1 ,204.00 in these matters. Payment is due within 30 days of the date of this decision.
Upon timely receipt of paymen~ these proceedings ARE DISMISSED.

Jerold Feldman
Administrative Law Judge

656

Distribution:
Andrea J. Appel, Esq., Office of the Solicitor, U.S..Dep~ of LabOr, Gateway Bldg., Rm. 14480,
3535 Market St., Philadelphia. PA 19104 (Certified Mad)
.
Joseph A. Yuhas, Esq., 1809 Chestnut Ave., P.O. Box 25, Barnesboro, PA 15714
(Certified Mail)
/mea

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRAnYE LAW JUDGES
2 SKYUNE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

April 2, 1997

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. PENN 96-221
A. C. No. 36-02398-03756

V.

LION MINING COMPANY,
Respondent

Docket No. PENN 96-248
A. C. No. 36-02398-03759
Grove No. 1 Mine

ORDER CORRECTING DECISION

Before:

Judge Feldman

The decision in these proceedings was issued on March 31, 1997. The last sentence in
the first paragraph on the last page of the decision omitted the word "not." The sentence is
hereby corrected to read as follows: In the instant case, the Secretary does not argue that the gob
piles should have been removed from the mine.

cftc:»~--Jerold Feldman
Administrative Law Judge

658

ADMINISTRATIVE LAW JUDGE ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, Suite 1000
5203 LEESBURG PIKE .
FALLS CHURCH, VIRGINIA 22041

March 20, 1997
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. WEVA 97-52
A.C . No . 46-06448-03534
Rocklick Preparation Plant

EASTERN ASSOCIATED COAL CORP.,:
Respondent
ORPER DENYING MOTION TO EHFQRCE SETTLEMENT AGREEMENT·
MOTION TO DISMISS AND MQTIQN FOR CONTINUANCE

In its Motion to Enforce Settlement Agreement, Respondent
maintains that, during the course of settlement negotiations,
a Conference and Litigation Representative (CLR) for the
Department of Labor, had agreed at a February 20, 1997, meeting,
to vacate Citation No. 4400179. It is represented by Respondent
that the CLR thereafter advised its representative on
February 26, 1997, that he would, in fact, not vacate the
citation and advised such representative that the Department of
Labor's Mine Safety and Health Administration (MSHA) intended to
litigate the citation before an admihistrative law judge .
Respondent seeks in the instant motion to "enforce" what it
maintains is a "binding agreement" between the parties to vacate
Citation No. 4400179.
The validity of a settlement or release agreement is, in the
first instance, governed by the applicable contract law and that
law is ordinarily the law of the place where it is made--in this
case it is alleged to be the State of West Virginia. Williston
on Contracts, Third Edition § 1792. U. S . v. J.C . Bradford and
Co., 616 F.2d 167, 169 (5th Cir. 1980); Village of Kaktovika v.
Watt, 689 F.2d 222, 230 (D.C. Cir. 1982). In certain cases
involving litigants under a nationwide federal program however,
federal law may control. U.S. v. Kimbell Foods, Inc., 440 U. S.
715, 727 (1979); Mid South Towing v. Harwin, Inc., 733 F.2d 386,
389 {5th Cir . 1984), Fulgance v. J. Ray McDermett & Co., 662 F.2d
1207, 1209 (5tn Cir. 1981), Tarmann v. International Salt Co., 12
FMSHRC 1291 (June 1990) . Since there is no conflict in the basic
principles of contract law here at issue there is no need to
decide in this preliminary analysis which law is applicable.

659

Since the Secretary has the unilateral authority to vacate
citations without any settlement motion or agreement, the
question arises as to whether there was, · in this case, any legal
consideration to support the alleged promise by the CLR to vacate
the instant citation. Consideration has been defined as some
right, interest, profit or benefit occurring to one party, or
some forebearance, detriment, loss or responsibility given,
suffered or undertaken by another. Cook v. Heck's Inc., 176
W.Va. 368, 342 S.E.2d 453 (1986); Adkins v. Inco. Alloys Int'l
Inc., 187 W.Va. 219 , 417 S.E.2d 910 (1992).
Respondent does not allege what, if any, consideration
existed. It is, of course, a fundamental principle of the law of
contracts that .every promise or agreement, in order to be
enforceable, must have a consideration to support it. 4B M.J.,
Contracts, § 31. Hamilton v. Harper, 185 W.Va. 51, 404 S.E.2d
540 (1991). Since a settlement agreement is a contract ,
consideration is a prerequisite to enforceability of such an
agreement. Hamilton v. Harper, supra.
Thus even assuming, arguendo, that Respondent's allegations
herein are true, there is insufficient basis for granting the
motions to enforce settlement agreement and to dismiss. No
binding "settlement agreement" could have existed as alleged by
Respondent and no further legal analysis is necessary to deny its
Motion to Enforce Settlement Agreement and Motion to Dismiss.
The Motions are accordingly denied. The Respondent's Motion for
Postponement is also denied.

Distribution:
Robert W. Simmons, Conference and Litigation Representative , U.S.
Department of Labor, MSHA, 100 Bluestone Road, Mt. Hope, WV
25880 (Certified Mail)
Caroline A. Henrich, Esq., Eastern Associated Coal Corp., P.O.
Box 1233, Charleston, WV 25324 (Certified Mail) /jf

660

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OfFICE Of ADMJNJSTRATIYE LAW MGES

2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

.JJ\R 2 4 1997_
SECRETARY OF LABOR,
MINE SAFETY ANDHEALTII
ADMINISTRATION (MSHA),
on behalf of LONNIE BOWLING,
Complainant

v.

DISCRIMINATION PROCEEDING
Docket No. KENT 95-604-D
MSHA Case No. BARB CD 95-11
MineiDNo. 15-17234-NCX
Huff Creek Mine

MOUNTAIN TOP TRUCKING CO., INC.,
ELMO MAYES; WILLIAM DAVID RILEY;
ANTIIONY CURTIS MAYES; and MAYES
TRUCKING COMPANY, INC.,
Respondents
SECRETARY OF LABOR,
MINE SAFETY AND HEAL11I
ADMINISTRATION (MSHA),
on behalf of
EVERETI DARRELL BALL,
Complainant
v.

DISCRIMINATION PROCEEDING
Docket No. KENT 95-605-D
MSHA Case No. BARB CD 95-11
Mine ID No. 15-17234-NCX
Huff Creek Mine

MOUNTAIN TOP TRUCKING CO., INC.
ELMO MAYES; WILLIAM DAVID RILEY;
ANTHONY CURTIS MAYES; and MAYES
TRUCKING COMPANY, INC.,
Respondents
SECRETARY OF LABOR,
MINE SAFETY AND HEALTil
ADMINISTRATION (MSHA),
on behalf ofWALTER JACKSON
Complainant

v.

DISCRIMINATION PROCEEDING
Docket No. KENT 95-613-D
MSHA Case No. BARB CD 95-13
Huff Creek Mine

MOUNTAIN TOP TRUCKING CO., INC.,
ELMO MAYES; and MAYES TRUCKING
COMPANY, INC.,
Resp(>ndents

661

SECRETARY OF LABOR,
MINE SAFETY AND HEALlH
ADMINISTRATION (MSHA),
on behalf ofDAVID FAGAN,
Complainant

v.

DISCRIMINATION PROCEEDING
Docket No. KENT 95-615-D ·
MSHA Case No. BARB CD 95-14
Huff Creek Mine

MOUNTAIN TOP TRUCKING CO., INC.,
ELMO MAYES; WILLLIAM DAVID RILEY
ANTHONY CURTIS MAYES; and MAYES
TRUCKING COMPANY, INC.,
Respondents
OBDER REQUESTING COMMENTS ON THE
CALCULATION PERIOD FOR DAMAGES.

A related temporary reinstatement hearing in these matters was conducted on August 23
and August 24, 1995. At the reinstatement hearing, counsel for the Secretary moved to withdraw
the temporary reinstatement application filed on behalf of Walter Jackson. Consequently,
Jackson's temporary reinstatement application was dismissed in the temporary reinstatement
decision released on October 5, 1995. 17 FMSHRC 1695. The temporary reinstatement decision
ordered the immediate reinstatement of Lonnie Bowling and David Fagan to their fonner
positions as coal haulage truck drivers. J.d. at 1709.
A decision on liability in theses discrimination cases was released on January 23, 1997.
19 FMSHRC 166. That decision detennined that Jackson's Februa.I)' 17, 1995, discharge
was in violation of the anti-discrimination provisions of section 105(c) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 815(c). Consequently, it was determined that
Jackson was entitled to relief as of February 18, 1995.
The liability decision provided an opportunity for the parties to propose the appropriate
relief to be awarded to Jackson. Jackson was requested to explain why he withdrew his
application for temporary reinstatement in his proposal for relief. ld. at 205.
On March 6, 1997, Jackson replied that he withdrew his request for temporary
reinstatement on August 23, 1995, because he "had obtained full-time employment with
Cumberland Mine Service as of August 1, 1995. Jackson indicated he was employed at
Cumberland Mine Service from August 1, 1995, through October 10, 1995, when be was laidoff. Jackson also worked for Garland Company, Inc. for two weeks in January 1996. Jackson
indicated his total gross wages earned at these two jobs was $3,758.00.

66 2

Jackson asserts the respondents are liable for back pay plus interest, minus Jackson's ·
gross earnings of$3,758.00, for the 70 week period from Februmy 18,1995, until June 21,1996,
when the respondents reportedly stopped hauling coal for Lone Mountain ~sing.
On the other hand, the respondents argue Jackson is only entitled to relief from February
18, 1995, until he withdrew his application for temporary reinstatement on August 23, 1995, less
pertinent wages from other employment
The case law concerning a compl~t's obligation to mitigate back-pay awards by
seeking other employment is clear. Thus, back-pay awards must be reduced in situations "where
a miner fails to mitigate damages, for example, by failing to remain in the labor market or to
search diligently for other work." Metric Constructors. Inc., 6 FMSHRC 226,231-32 (February
29, 1984) (kitini Dunmire and Estle, 4 FMSHRC at 144), afl:d 766 F.2d 469 (ll~t~ Cir. 1985).
Thus, this case involves the frequently raised issue of whether an unemployed
complainant, who is seeking back-pay damages, has actively sought other work. In addition,
however, this case presents the novel question of what obligation, if any, an unemployed
discriminatee has to reapply for temporary reinstatement, after he had previously withdrawn his
initial reinstatement application because he secured other employment.
In view of the above, in order to determine the appropriate period for calculating the relief
that should be awarded, Jackson should provide the following information:
(1) On what date did Jackson first advise counsel for the Secretary that he wished

to withdraw his temporary reinstatement application?1
(2) What was Jackson's reason for withdrawing his temporary reinstatement
application?
(3) Jackson was laid-off from his job at Cumberland Mine Service on October 10,
1995. When did Jackson first advise counsel for the Secretary that he was laid-off
from his job at Cumberland Mine Service?

1

Tony Oppegard filed a Notice of Appearance on behalf of Jackson on December 27,_
1995. Some of the questions posed refer to the Secretary's counsel because the questions involve
events that may have occurred before Mr. Oppegard was retained. Of course, Mr. ·appegard is
also invited to respond to this order on behalf of Jackson.

663

(4) At approximately the same time Jackson was laid-off from Cumberland Mine
Semce, Jackson, through Counsel for the Secretary, was served with the
October S, 1995, temporary reinstatement decision that dismissed his application
for temporary reinstatement, and ordered the reinstatement oftw.o ofJackson's
former colleagues. Did Jackson request the Secretary to reopen his application for
temporary reinstatement? ~f yes, was it reopened? If not, why not?
(5) The respondents have alleged that Jackson may have been a party in a
pertinent disability proceeding. Has Jackson been a party in any legal action or
claim involving allegati~ns of physical or mental impairment? Ifyes, identify and
describe the legal action or claim, provide the dates of such actions or claims, and
provide the status or outcome.
(6) Jackson should state what he did to look for work from October 11, 1995
through June 21, 1996.
(7) Jackson should address whether or not he was required to seek temporary
reinstatement in order to mitigate back-pay damages, citing pertinent statutory
provisions, legislative history, or case law to support his position.
IT IS ORDERED that Jackson's response shall be filed within 21 days of the date of this
Order. IT IS ALSO ORDERED that the respondents shall have ten (1 0) days thereafter to
reply. IT IS FURTHER ORDERED that Jackson shall have ten (10) days to respond to the
respondents' reply.

Jerold Feldman
Administrative Law Judge
Distribution:
Donna E. Sonner, Esq., Office of the Solicitor, U.S. Department of Labor, 2002 Richard Jones
Road, Suite B-201, Nashville, TN 37215-2862 (Certified Mail)
Tony Oppegard, Esq., Mine Safety Projectofthe Appalachian Research&. Defense Fund Of
Kentucky, Inc., 630 Maxwelton Court, Lexington, KY 40508 (Certified Mail)
Edward M. Dooley, Esq., P.O. Box 97, Harrogate, TN 37752
(Regular and Certified Mail)
\mea

"U.S. GOVERNMENT PRINTING OFFICE: 1997-417-508/73378