SEPTEMBER 1995

CQMMISSION ORPERS
09-05-95
09-11-95
09-l.1-95
09-11-95
09-18-95
09-21-95
02-08-95
03-15-95

L & J Energy Company, Inc.
Opportunity Trucking, Inc.
Opportunity Trucking, Inc.
Phelps Dodge Morenci, Inc.
W-P Coal Company
Coal Preparation Services, Inc.
Buck Creek Coal (not previously published)
Buck Creek Coal (not previously published)

PENN 93-15
WEVA 95-122
WEVA 95-114
WEST 95-509-M
WEVA 92-746
WEVA 95-53
LAKE 94-72
LAKE 94-72

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

1515
1519
1522
1525
1526
1529
1534
1536

KENT 94-972
KENT 94-972
KENT 94-946
KENT 94-996
SE
95-404-R
KENT 95-515-D

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

1539
1547
1548
1551
1561
1571

KENT 94-518-R
WEST 94-373-M
WEVA 95-143-D

Pg. 1573
Pg. 1586
Pg. 1593

PENN 94-548-D
VA
95-17
WEST 95-96-M
CENT 94-104-M
KENT 95-140
WEST 95-308-D

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

KENT 95-303
LAKE 95-15
WEVA 94-357-D

Pg. 1627
Pg. 1638
Pg. 1667

WEST 95-420-M
CENT 95-185

Pg. 1669
Pg. 1671

APMINISTRATIVE LAW JUPGE DECISIONS
09-01-95
09-06-95
09-05-95
09-06-95
09-06-95
09-07-95
09-07-95
09-1.1-95
09-12-95
09-13-95
09-18-95
09-19-95
09-20-95
09-21-95
09-21-95
09-26-95
09-26-95
09-26-95

Broken Hill Mining Company
Broken Hill Mining (correction)
Broken Hill Mining Company
Harlan Cumberland Coal Co.
Jim Walter Resources, Inc.
Sec. for Robert Robinette v.
Rawl Sales and Processing
Whayne Supply Company
Konitz Contracting, Inc.
Sec. for Phillip Dalton, et al . v.
W.R. Mollohan, Inc.
Kenneth F. Cole v. U.S. Steel Mining Co.
Gary Wayne Crabtree, et al.
Stewart Kessen
Sandy Jones Construction
Conakay Resources, Inc.
Sec. for Marty P. Boden v.
Lion Coal Company
Peabody Coal Compa.ny
Little Sandy Coal Company, Inc.
Sec. For Samuel Knott v. Tanglewood
Energy, Inc., and others

1599
1604
1612
1614
1616
1620

ADMINISTRATIVE LAW JUPGE ORDERS
09-11-95
09-20-95

Beco Construction Company
James Lee Hancock

i

SEPTEMBER

1995

Review was granted in the following cases during the month of September:
RNS Services v. Secretary of Labor, MSHA, Docket No. PENN 95 - 382-R, etc .
(Judge Weisberger, July 28, 1995)
Secretary of Labor, MSHA v . Kellys Creek Resources, Docket No. SE 94-639.
(Judge Weisberger, August 1, 1995)
Secretary of Labor, MSHA v. Fort Scott Fertilizer and James Cullar, Docket Nos .
CENT 92-334-M, CENT 93-117-M.
(Judge Feldman, August 3, 1995)
Secretary of Labor, MSHA v. Opportunity Trucking, Inc., Docket Nos.
WEVA 95-114, WEVA 95-122.
(Chief Judge Merlin, unpublished Default order
dated August 2, 1995)
Secretary of Labor, MSHA v. Coal Preparation Services, Docket No. WEVA 95-53 .
(Judge Weisberger, August 4, 1995)
Secretary of .Labor, MSHA v. Wallace Brothers, Inc., Docket No. WEST 94-710-M.
(Judge Amchan, August 9, 1995)

Review was not granted in the following cases during the month of September:

Secretary of Labor, MSHA v. Mechanicsville Concrete, Inc., Docket No.
VA 95-3-M, etc.
(Judge Weisberger, August 15, 1995 - unpublished)

ii

COMMISSION ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMIS·.>ION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

September 5, 1995

SECRETARY OF LABOR,
MINE SAFETY AND HEALIB
ADMINISTRATION (MSHA)
Docket No. PENN 93- 15
v.
L & J ENERGY COMPANY, INC.,

BEFORE: Jordan, Chairman; Doyle, Holen and Marks, Commissioners

ORDER
BY THE COMMISSION:

This civil penalty proceeding, arising under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1988) ( 11Mine Act" or "Act"), involves citations and orders issued
by the Department of Labor's Mine Safety and Health Administration to L & J Energy Company,
Inc. ("L & J"). Following an evidentiary hearing, Administrative Law Judge Avram Weisberger
issued a decision sustaining six of the seven violations charged. L & J Energy Company Inc., 16
FMSHRC 424 (February 1994).
L & J timely filed a petition for discretionary review and/or motion for remand for
correction of the record, arguing, inter alia, that a stipulation recounted in the judge's decision
did not reflect the parties' agreement. In response, the Secretary also moved for remand. The
Commission denied the motions but granted the petition for review. L & J Energy Company,
Inc., 16 FMSHRC 667 (April 1994). Upon consideration, the Commission remanded the matter
to the judge to "determine whether the stipulation in question is complete and correctly
represents the agreement of the parties." The Commission also directed the judge to reconsider
his decision if necessary. 16 FMSHRC at 667-668.
On remand, the judge determined that L & J was correct in its assertion that the
stipulation did not reflect the parties' agreement, which provided that the judge "would utilize
the fact testimony from witnesses, other than [expert witnesses] Wu and Scovazzo, who observed

1515

the condition of the highwall." L & J Energy Company, Inc. , 16 FMSHRC 796 (April 1994).
The judge declined to reconsider his decision because ''the decision takes cognizance of, and
discusses, the testimony of witness (sic) other than Scovazzo and Wu, who had observed the
highwall." Id The Conunission denied L & J's petition for review of the judge's decision on
remand.
Subsequently, L & J filed its appeal in the U.S. Court of Appeals for the District of
Columbia Circuit. On June 6, 1995, the court issued its decision remanding the case to the
Commission "for a new determination based on the full record." L & J Energy Co., v. Secretary
of Labor, No. 94-1454, slip op. at 4. The court determined that the judge's legal conclusion
"disclaim[ing] reliance on anything but expert testimony," rendered "irrelevant" his statement
that he reviewed the testimony of other witnesses. Slip op. at 3., citing 16 FMSHRC at 441. The
court further stated that if, on reman~ the Commission reaches the same conclusion, ''it must
simply explain why the eyewitness [i.e., non-expert] testimony is discredited or discounted in
whole or in part." Id. at 3-4. Finally, the court held that the Commission should address each of
the six statutory criteria for determining civil penalties "before assessing a fine." Id. , citing
Sellersburg Stone Co. , 5 FMSHRC 287, 292-93 (March 1983); 30 U.S.C. § 820(i). On August
8, 1995, the court issued its Mandate and Judgment in this matter, returning the case to the
Commission's jurisdiction.

1516

Pursuant to the court's order, we remand this matter to the judge for a new determination
based on the entire record.

Arlene Holen, Commissioner

"'~.~

I

, · v~t(..~~~~
Marc Lincoln Marks, Commissioner

1517

Distribution
Colleen A. Geraghty, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Henry Chajet, Esq.
Mark Savitt, Esq.
Patton Boggs, L.L.P.
2550 M Street, N.W.
Washington, D.C. 20037
Administrative Law Judge Avram Weisberger
Federal Mine Safety and Health Review Commission
Office of the Administrative Law Judges
5203 Leesburg Pike
2 Skyline, 10th Floor
Falls Church, VA 22041

1518

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

September 11, 1995

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

Docket No. WEVA 95-122

OPPORTUNITY TRUCKING, INC.

BEFORE: Jordan, Chairman; Doyle, Holen and Marks, Commissioners

ORDER

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. (1988) ("Mine Act" or " Act"). On August 2, 1995, Chief
Administrative Law Judge Paul Merlin issued an Order of Default to Opportunity Trucking, Inc.
("Opportunity") for failing to answer the proposal for assessment of penalty filed by the
Secretary of Labor on March 17, 1995, or the judge's Order to Respondent to Show Cause issued
on May 15, 1995. The judge assessed the civil penalties of$800 proposed by the Secretary.
On September l, 1995, the Commission received from Opportunity a Motion to Set
Aside Default. Opportunity's counsel states that Opportunity's owner and president believed he
had filed his answer with counsel for the Secretary. The official file does not contain a copy of
such answer. On September 7, the Commission received the Secretary's opposition to the
motion, in which he asserts that Opportunity failed to set forth grounds justifying relief under
Fed. R. Civ. P. 60(b).
The judge's jurisdiction in this matter terminated when his decision was issued on
August 2, 1995. 29 C.F .R. § 2700.69(b). Under the Mine Act and the Commission's procedural
rules, relief from a judge's decision may be sought by filing a petition for discretionary review
within 30 days of its issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.70(a). If the
Commission does not receive a petition or direct review on.its own motion within the 30-day

1519

period, the judge's decision becomes a final decision of the Commission 40 days after its
issuance. 30 U.S.C. § 823 (d)(l).
The Commission has looked to Fed. R. Civ. P. 60(b) in evaluating whether relief from a
final Commission order is appropriate. See, e.g., Lloyd Logging, Inc., 13 FMSHRC 781, 782
(May 1991 ); 29 C.F.R. § 2700.l (b) (Federal Rules of Civil Procedure apply "so far as
practicable" in the absence of applicable Commission rules). Here, Opportunity's motion was
received within the 30-day time period. We deem Opportunity's motion to be a timely filed
petition for discretionary review, which we grant. See, e.g., Middle States Resources, Inc., 10
FMSHRC 1130 (September 1988). Accordingly, the judge's order has not become a final
Commission decision, and we do not consider whether Opportunity's request justifies relief
under Fed. R. Civ. P. 60(b).
On the basis of the present record, we are unable to evaluate the merits of Opportunity's
position. In the interest of justice, we vacate the judge's default order and remand this matter to
the judge, who shall determine whether relief from default is warranted. See Amber Coal Co.,
11FMSHRC131, 132-33 (February 1989).

Arlene Holen, Commissioner

1520

Distribution:
W. Christian Schumann, Esq.
U.S. Department of Labor
Office of the Solicitor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Charles Stanford West, Esq.
155 E. 2nd Avenue
Williamson, West Virginia 25661
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety and Health Review Commission
1730 K Street, N.W., 6th Floor
Washington, D.C. 20006

1521

FEDERAL MINE SAFETY AND ~ iEALTH REVIEW COMMISSION
1730 K STREET N.W., &TH FLOOR
WASHINGTON, D.C. 20006

September 11, 1995

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

v.

Docket No. WEVA 95-114

OPPORTUNITY TRUCKING, INC.

BEFORE: Jordan, Chairman; Doyle, Holen and Marks, Commissioners

ORDER

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. (1988) ("Mine Act" or "Act"). On August 2, 1995, Chief
Administrative Law Judge Paul Merlin issued an Order of Default to Opportunity Trucking, Inc.
("Opportunity") for failing to answer the proposal for assessment of penalty filed by the
Secretary of Labor on March 17, 1995, o~ the judge' s Order to Respondent to Show Cause issued
on May 15, 1995. The judge assessed the civil penalties of $256 proposed by the Secretary.
On September 1, 1995, the Commission received from Opportunity a Motion to Set
Aside Default. Opportunity's counsel states that Opportunity's owner and president believed he
had filed his answer with counsel for the Secretary. The official file does not contain a copy of
such answer. On September 7, the Commission received the Secretary's opposition to the
motion, in which he asserts that Opportunity failed to set forth grounds justifying relief under
Fed. R. Civ. P. 60(b).
The judge's jurisdiction in this matter terminated when his decision was issued on
August 2, 1995. 29 C.F.R. § 2700.69(b). Under the Mine Act and the Commission's procedural
rules, relief from a judge's decision may be sought by filing a petition for discretionary review
within 30 days of its issuance. 30 U.S.C . § 823(d)(2); 29 C.F.R. § 2700.70(a). If the
Commission does not receive a petition or direct review on its own motion within the 30-day

152 2

period, the judge's decision becomes a final decision of the Co.runission 40 days after its
issuance. 30 U.S.C. § 823(d)(l).
The Commission has looked to Fed. R. Civ. P. 60(b) in evaluating whether relief from a
final Conunission order is appropriate. See, e.g., Lloyd Logging, Inc., 13 FMSHRC 781, 782
(May 1991); 29 C.F.R. § 2700.l(b) (Federal Rules of Civil Procedure apply "so far as
practicable" in the absence of applicable Commission rules). Here, Opportunity's motion was
received within the 30-day time period. We deem Opportunity's motion to be a timely filed
petition for discretionary review, which we grant. See, e.g., Middle States Resources, Inc. , 10
FMSHRC 1130 (September 1988). Accordingly, the judge's order has not become a final
Commission decision, and we do not consider whether Opportunity's request justifies relief
under Fed. R. Civ. P. 60(b).
On the basis of the present record, we are unable to evaluate the merits of Opportunity's
position. In the interest ofjustice, we vacate the judge's default order and remand this matter to
the judge, who shall determine whether relief from default is warranted. See Amber Coal Co.,
11FMSHRC131, 132-33 (February 1989).

Arlene Holen, Conunissioner

Marc Lincoln Marks, Commissioner

1523

Distribution:
W. Christian Schumann, Esq.
U.S. Department of Labor
Office of the Solicitor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Charles Stanford West, Esq.
155 E. 2nd Avenue
Williamson, West Virginia 25661
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety and Health Review Commission
1730 K Street, N.W., 6th Floor
Washington, D.C. 20006

1524

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

September 11, 1995

SECRETARY OF LABOR,
MfNE SAFETY AND HEALTH
AOMINISTRATION (MSHA)

Docket No. WEST 95-509-M
A.C. No. 02-00024-05558

y_

PHELPS DODGE MORENCI fNC.

ORDER
Counsel for Phelps Dodge Morenci Inc. ("Phelps") has filed a motion to withdraw the
Motion for Relief from Final Order it filed on August 21, ·1995. Phelps explains that on August
30, it received a letter from the Department of Labor's Mine Safety and Health Administration
("MSHA") rescinding the proposed penalty assessment from which Phelps sought relief. Phelps
attached a copy of the letter to its motion to withdraw. Upon consideration of the motion, it is
granted and Phelps' Motion for Relief from Final Order is withdrawn pursuant to Commission
Procedural Rule 11 , 29 C.F .R. § 2700.11.
For the Commission:

1525

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

September 18, 1995

W-P COAL COMPANY
v.

Docket No. WEV A 92-746

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

BEFORE: Doyle, Holen and Marks, Commissioners•

ORDER

BY THE COMMISSION:

In this civil penalty proceeding arising under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1988) ("Mine Act"), W-P Coal Company ("W-P") has filed with
the Commission a Motion to Withdraw Appeal. The Secretary of Labor ("Secretary") has not
filed a response.
On January 9, 1995, the Commission granted W-P' s petition for discretionary review of a
decision of Administrative Law Judge Gary Melick in Docket No. WEVA 92-746. In the present
motion, filed June 5, 1995, W-P states that the Secretary and W-P entered into a settlement
agreement as to other related proceedings pending before Judge Melick, which had been stayed
pending final disposition of Docket No. WEVA 92-746, and that, as a part of the settlement
agreement, W-P agreed to withdraw its appeal in the instant proceeding. Mot. at 1-2. W-P
requests that, upon Judge Melick's approval of the settlement of the related proceedings, this
proceeding be dismissed. Id at 2.

1

Chainnan Jordan has recused herself in this matter. Pursuant to section 113(c) of the
Mine Act, 30 U.S.C. § 823(c), we have designated ourselves a panel of three members to
exercise the powers of the Commission.

1526

Judge Melick has approved the settlement and dismissed the proceedings before him.
Upon consideration of the motion, we grant it. Accord~gly, the Commission's direction for
review in this matter is vacated and this proceeding is dismissed.

Arlene Holen, Commissioner

Marc Lincoln Marks, Commissio.n er

1527

Distribution

Kurt A. Miller, Esq.
Thorp, Reed & Thompson
One Riverfron Center
Pittsburgh, PA 15222
Colleen A. Geraghty, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Suite 400
Arlington, VA 22203
Michael Heenan, Esq.
Smith, Heenan & Althen
1110 Vem1ont Avenue, N.W.
Suite 400
Washington, D.C. 20005
Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

1528

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

September 21, 1995

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

Docket No. WEV A 95-53

COAL PREPARATION SERVICES, INC.

ORDER
This civil penalty proceeding arises under the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § .801 et seq. (1988) ("Mine Act" or "Act"). The hearing in this proceeding was
originally set in an April 27 Notice of Hearing by Administrative Law Judge Todd T. Hodgdon for .
July 13. The case was subsequently transferred to Administrative Law Judge Avram Weisberger.
Pursuant to a telephone conference call on June 26, the hearing was rescheduled for July 12. On
June 27, Judge Weisberger issued a Notice of Hearing setting forth the location of the hearing as
well as the date, which was received by Coal Preparation Services, Inc. ("CPS") on July 5. 1 Order
of Dismissal ("Order") at 1. When CPS failed to attend the hearing, Judge Weisberger issued an
Order to Show Cause. CPS's president, Sam Hood, responded by stating "I went to the hearing on
Thursday, 7-13 and nobody was there." Id. at 2. CPS attached a copy of the April 17 Notice of
Hearing to its response to the Show Cause Order. On August 4, Judge Weisberger issued an Order
of Dismissal because ofCPS's failure to show good cause why a default order should not be
entered based on its failure to appear at the hearing. Judge Weisberger's Order instructed CPS to
pay a civil penalty of$162 within 30 days.
On September 5, the Commission received a letter from CPS stating that it wished to
appeal Judge Weisberger's August 4 Order. In its letter, CPS, appearing prose, states that it was
confused as to the date of the hearing and appeare,d at the hearing site on the wrong day. CPS is
appealing the Order "because of an error in procedure."
The judge's jurisdiction in this matter tenninated when his decision was issued on August
4. 29 C.F.R. § 2700.69(b). Under the Mine Act and the Commission's procedural rules, relief
from a judge's decision may be sought by filing a petition for discretionary review within 30 days
ofits issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R. §· 2700.70(a). The Commission deemed CPS's.
1

Judge Weisberger states in his Order of Dismissal that CPS's return receipt for the June 27
Notice of Hearing was postmarked July 12.

1529

Jetter to be a timely filed petition for discretionary review and granted it. See, e.g., Middle States
Resources, Inc., 10 FMSHRC 1130 (September 1988). The Commission also stayed briefing.
We note that 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 respond, the
failure may be excused and appropriate proceedings on the merits permitted. See Amber Coal
Co., 11FMSHRC131, 132-33 (February 1989), citing Kelley Trocking Co., 8 FMSHRC 1867,
1869 (December 1986); M M Sundt Construction Co. , 8 FMSHRC 1269, 1271 (September
1986). It appears from the present record that CPS was confused as to the date of the hearing.
CPS is appearing prose and has been diligent in the pursuit ofits right to a hearing. Accordingly,
in the interest of justice, we vacate the judge's Order and remand this matter to the judge, who
shall set the case for hearing.

J<j.'tio~te, io1:u••io~

~.~
Marc Lincoln Marks, Commissioner

15 30

Chairman Jordan, dissenting:
The record in this case shows that the respondent participated in a telephone conference
call on June 26, 1995, during which he agreed to the rescheduling of the hearing on his contest
from July 13 to July 12. On June 27, the judge issued a notice of hearing setting forth the date
and location of the hearing. No location for the hearing had previously been communicated to the
respondent. A return receipt indicates that the respondent received the notice on July 5, well in
advance of the scheduled hearing. The judge and an attorney from the Solicitor's office traveled
from the Washington, D.C. area to Huntington, West Virginia to attend the hearing. But the
respondent failed to show up.
Commission Procedural Rule 66 states:
(b) Failure to attend hearing. If a party fails to attend a
scheduled hearing, the Judge, where appropriate, may find the party
in default or dismiss the proceeding without issuing an order to
show cause.
29 C.F.R. § 2700.66(b). Notwithstanding Rule 66's contemplation of entry of default without the
necessity of issuing an order to show cause, the judge issued such an order, in effect giving the
respondent an opportunity to explain why he failed to appear at the hearing. The respondent
claimed that he appeared on July 13 and " nobody was there." The judge concluded that the
respondent had not established good cause for failing to attend the hearing, and entered a default
decision. In its request to the Commission for relief from default, the respondent states:
I was given incorrect information and showed up for the
hearing at the right time, but it was wrong I guess because they met
another day. I wasn't able to tell our side. I think their lawyer
intentionally confused me, they'll do that you know.
I agree with my colleagues that defaults are not favored. However, unlike the cases cited
by the majority, which all involve respondents who, following entry of default, offered their
explanations for the first time when they petitioned the Commission for relief, in the present case
the judge issued his default decision only after reviewing the reason proffered by the respondent
for his failure to appear. In reviewing the judge's determination that the respondent's excuse did
not pass muster, we may not substitute our judgment for that of the trial judge. "An application
... to set aside a default .. . is addressed to the s'ound discretion of the [trial] court. The judge's
determination normally will not be disturbed on appeal unless he has abused his discretion or the
appellate court concludes that he was clearly wrong." Wright, Miller & Kane, Federal Practice
and Procedure, Civil 2d § 2693 (footnotes and internal quotation marks omitted).
On this record, I see no basis for concluding that the judge abused his discretion.
Accepting at face value the respondent's claim that he appeared at the appointed place a day late,

1531

he must have consulted the notice of hearing, the only document containing the location of the
hearing. That notice plainJy indicated that the hearing was on July 12, confinning the telephone
conversation in which the respondent agreed to appear on that date. Under these circumstances, I
cannot conclude that the judge abused his discretion in determining that the respondent's
justification did not amount to good cause. On the contrary, in my view the judge's decision is
faithful to the provisions of Rule 66. I fear that, by granting the relief sought here, the
Commission is rewarding behavior which has already caused unwarranted expense to the
Commission and the Secretary.
For the foregoing reasons, I respectfully dissent.

~ b~
~~rdan,
q0rman

1532

Distribution

Sam Hood
Coal Preparation Services
P.O. Box 1237
Huntington, WV 25714
Javier I. Romanach, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 516
Arlington, VA 22203
Administrative Law Judge Avram Weisberger
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

1533

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

February 8 , 1995

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

Docket Nos. LAKE 94-72, etc.

v.

BUCK CREEK COAL INC.

ORDER
On November 23, 1994, Buck Creek Coal Inc. ("Buck Creek") filed with the Commission
a petition for interlocutory review of Administrative Law Judge T. Todd Hodgdon's September 8,
1994, Stay Order (the "Stay Order"). By order dated November 3, 1994, the judge had denied
Buck Creek's Motion for Reconsideration of Stay Order and/or Motion for Certification for
Review of Interlocutory Ruling.
At the time the petition was filed, 384 contests of citations and orders and 37 penalty
proceedings involving Buck Creek were pending; the stay also applied to subsequent Buck Creek
cases. The judge stayed all proceedings for ninety days or until the United States Attorney made
a determination regarding the criminal prosecution of Buck Creek. Stay Order at 4-5. The judge
stated that he would consider lifting the stay on a case-by-case basis and he instructed the parties
to advise him monthly of the status of the criminal proceedings. Id. at 4 & n. 4, 5 .
By its tenns, the stay expired on December 7, 1994, and the Secretary moved for an
extension. On January I 0, 1995, the judge issued an Order Continuing Stay and Notice of
Prehearing Conference, which provides in relevant part:
When the stay was granted in September, I did not anticipate the unbroken wave of cases which have continued to be filed
in this matter. The cases involve citations issued at least as early as
July 1993 and proceed, as of the date of this order, through November 1994. It seems conceivable, as argued by counsel for Buck
Creek, that not all of these cases are connected or related to the
U.S. Attorney's criminal investigation. If that is the case, it may be
possible to dispose·of some cases . ...
Order Continuing Stay at 4.

1534

The judge ordered that a prehearing conference take pJace on February 9, 1995. Order
Continuing Stay at 4. The Notice of Prehearing Conference incorporated in ·the Order Continuing
Stay states:
The purpose of the conference will be to determine whether
the stay should be continued beyond the conference; if so, under
what conditions; whether it will include all cases currently docketed
and future cases that may be docketed; and whether some cases can
be separated from the rest and proceed to disposition without
prejudice to either the government or Buck Creek ....

Id.
The expiration of the Stay Order and the judge's Order Continuing Stay, which provides
for evaluation of whether the stay should be continued or modified, render Buck Creek's instant
petition for interlocutory review moot. Accordingly, we deny the petition, without prejudice to
future requests for interlocutory relief.

1535

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

March 15, 1995

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

Docket Nos.

LAKE 94-72, etc.

VS .

BUCK CREEK COAL INC.

ORDER
On February 17, 1994, Buck Creek Coal Inc. ("Buck Creek") filed with the Commission a
petition for interlocutory review of Administrative Law Judge T. Todd Hodgdon's February 15,
1995, Order Continuing Stay (the "Stay Order"). The judge had previously stayed proceedings
for ninety days or until th~ United States Attorney made a determination regarding the criminal
prosecution of Buck Creek. See Buck Creek Coal Inc., 17 FMSHRC _(February 1995)
(Operator's petition for interlocutory review of the previous stay dismissed as moot). The Stay
Order continues the stay until May 16, 1995, and-directs the parties to attend a status conference
on that date for the purpose of deciding whether and under what conditions the stay should be
continued. Stay Order at 5.
Buck Creek urges the Commission to grant interlocutory review and relief from the Stay
Order so that it can begin to defend itself against the 554 citations and orders in these consolidated dockets. Pet. at 4. T he Secretary responds that Commission Procedural Rule 76(a)(l ),

1536

29 C.F.R. § 2700.76(a)(l), 1 precludes our granting interlocutory review because the judge has not
certified his ruling, nor has he denied Buck Creek's motion for certification. Opp'n at 3-4. In
reply, Buck Creek urges the Commission to construe the Stay Order as an ongoing denial ofBuck
Creek's previously-filed petition for interlocutory review. Reply at 2. Buck Creek asserts in the
alternative that application to the judge for certification would be futile and therefore should not
be required. Buck Creek notes that it has now filed a motion for certification with the judge. Id.
at 2-3 & n.2 .
Rule 76 provides that interlocutory review cannot be granted unless the judge has certified
his interlocutory ruling to the Commission or has denied a party's motion for certification. We
conclude that it would be inappropriate to rule on the Secretary's procedural argument in advance
of the judge's determination of Buck Creek's pending motion.

1

Rule 76 states in part:
(a) Procedure. Interlocutory review by the Commission
shall not be a matter of right but of the sound discretion of the
Commission.
( l) Review cannot be granted unless:
(i) The Judge has certified, upon his own motion or the
motion of a party, that his interlocutory ruling involves a controlling
question of Jaw and that in his opinion immediate review will materially advance the final disposition of the proceeding; or
(ii) The Judge has denied a party's motion for certification
of the interlocutory ruling to the Commission, and the party files
with the Commission a petition for interlocutory review within 30
days of the Judge's denial of such motion for certification.

1537

Accordingly, we hold in abeyance our ruling on Buck Creek's petition pending the judge's
determination of the motion for certification. Cf Emery Mining Corp., 11 FMSHRC 1, 3
(January 1989).

~
QYc;

~
ff~/
~

'L<-7-!_L/
A. Doyle, Commissioner

Arlene Holen, Commissioner

Marc Lincoln Marks, Commissioner

1538

ADMINISTRATIVE LAW JUDGE DECISIONS

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

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

1 \995
CIVIL PENALTY PROCEEDING
Docket No. KENT 94-972
A . C. No. 15-14959-03560
Mine No. 3

BROKEN HILL MINING COMPANY,
INCORPORATED,
Respondent
DECISION
Appearances:

Mary Sue Taylor, Esquire, Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee for
Petitioner;
Hobart W. Anderson, President, Broke n Hill Mining
Co., Inc . , Pike ville, Kentucky, Pro Se, for
Respondent.

Before:

Judge Hodgdon

This case is before me on a petition for assessment of civil
penalty filed by the Secretary of Labor, acting through his Mine
Safety and Health Administration (MSHA), against Broken Hill
Mining Co. pursuant to Section 105 of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 815. The petition alleges three
violations of the Secretary's mandatory health and safety
standards and seeks a pena l ty of $8,000.00.
For the reasons set
forth below, I affirm the citation and the two orders, as
modified, and assess a penalty of $3,700.00.
The case was heard on May 2, 1995, in Pikeville, Kentucky. 1
MSHA Inspector John P. Church and MSHA Ventilation Specialist
Jerry Bellamy testified for the Secretary. No. 3 Mine
Superintendent Freddie G. Carroll and Broken Hill President
Hobart W. Anderson testified for the company. The parties also
submitted briefs which I have considered in my disposition of
this case.

1

The transcript for this case erroneously states on its
cover sheet t h at it is for " Docket No. KENT 94 -920. "
1539

SETTLED ORDERS
At the beginning of the hearing, the parties advised that
they had agreed to settle Order Nos . 4004020 and 4015281, issued
under Section 104(d) (1) of the Act, 30 U.S.C . § 814(d) (1).
Both
involve failure to submit valid respirable dust samples in
violation of Section 70 . 208(a) of the Regulations, 30 C.F . R.
§ 70.208(a), for which the Secretary had proposed civil penalties
of $2,400.00 and $2,600.00, respectively. The agreement provides
for the orders to be modified to Section 104(a) citations,
30 U.S.C. § 814(a), by deleting the "unwarrantable failure"
designations, and for the penalties to be reduced to $325.00
each.
Having considered the representations and documentation
presented, (Tr . 6-9}, I conclude that the proffered settlement is
appropriate under the criteria set forth in Section llO(i) of the
Act, 30 U.S.C. § 820(i). Accordingly, approval of the settlement
agreement is granted and its provisions will be carried out in
the order at the end of this decision.
CONTESTED CITATION
On September 10, 1993, Inspector Church issued Citation No.
4015959, under Section 104(d) (1) of the Act. 2 The citation
alleges a violation of Section 75.333(b) (1) of the Regulations,
30 C.F.R. § 75.333(b) (1), because 11 [t]he basic ventilation plan
was not being complied with in 001-0 section, in that permanent
stoppings were not being maintained up to and including the 3rd

2

Section 104(d)l) provides :

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
heal th hazard, and if he finds such violation to be
caused by an unwarrantable failure of such operator to
comply with such mandatory health or safety standards,
he shall include such finding in any citation given to
the operator under this Act.
1540

connecting crosscut outby the working faces . There were five
open crosscuts on both intake and return sides of the working
section."
(Govt~ Ex. 1.)
Section 75.333(b) (1) requires that:
(b) Permanent stoppings or other permanent
ventilation control devices constructed after
November 15, 1992, shall be built and maintained-(1) Between intake and return air courses, except
temporary controls may by used in rooms that are 600
feet or less from the centerline of the entry from
which the room was developed. Unless otherwise
approved in the ventilation plan, these stoppings or
controls shall be maintained to and including the third
connecting crosscut outby the working face.
The Respondent contends that the area being mined was a
"room" rather than an "entry" and that since it was less than 600
feet, it comes within the exception to the section. Therefore,
the company argues that it did not violate Section 75.333(b) (1).
I conclude otherwise.
The issue in this case is whether a room must be to the left
or right of an entry or whether it can be at the head of an
entry. Relying on the Bureau of Mines, U.S. Department of
Interior, A Dictionary of Mining, Mineral, and Related Terms 941
(1968) definition of 11 room 11 as 11 [a ) place abutting an entry or
air way where coal has been mined and extending from the entry or
airway to a face," Broken Hill argues that it can be at the head
of an entry.
This argument, however, is a misreading of both the
definition and the regulation .
"Abutting" means "to touch along a border, to border on."
New Miriam Webster Dictionary 22 (1989).
(Tr. 169.) A room at
the head of an entry would border on a crosscut, 3 not an entry.
Therefore, a room, by definition,. cannot be at the head of an
entry.

3

A "crosscut" is 11 [a) small passageway driven at right
angles to the main entry to connect it with a parallel entry or
air course. 11 Bureau of Mines, U.S. Department of Interior, A
Dictionary of Mining, Mineral, and Related Terms 280 (1968) .

1541

Furthermore, the regulation is even clearer than the
definition.
It provides an exception for "rooms that are 600
feet or less from the centerline of the entry from which the room
was developed" (emphasis added). Since the centerline goes in
the same direction that the entry goes, a room could only be to
the left or the right of the centerline and, thus, to the left or
right of an entry.
I conclude that the regulation is clear and unambiguous and
that the company violated it. However, even if it were not
unambiguous, whether Broken Hill violated the regulation must be
evaluated ''in light of what a 'reasonably prudent person,
familiar with the mining industry and the protective purpose of
the standard, would have provided in order to meet the protection
intended by the standard.'" Ideal Cement Co . , 12 FMSHRC 2409,
2415 (November 1990) (citations omitted).
Superintendent Carroll stated that "in my opinion rooms are
when you are f in~shing up and you drop down to like a small
center, like forty by forty in this case; you whether it be left,
right or straight ahead, the last six hundred feet is a room."
(Tr. 235 . ) On the other hand, both Inspector Church and Mr.
Bellamy testified that a room has to make ''a turn" to "the left
or right."
(Tr. 78, 155-58.) Mr. Bellamy further testified that
the reason rooms only require temporary stoppings is that "in
rooms you wouldn't want to put all your ventilating current into
it.
You wouldn't have to . So you would regulate some off your
main current to ventilate the room . "
(Tr. 158.)
I conclude that the inspector and the ventilation specialist
presented what a "reasonably prudent person, familiar with the
mining industry" would have provided in this mine to comply with
Section 75.333(b) (1). This testimony is supported by the
regulation and definitions discussed above.
Carroll's · opinion is
not supported by either, and is also not supported by anything he
could provide from his prior experience .
Based on either the plain meaning of the regulation or the
"reasonably prudent person" standard, it is apparent that in this
instance, Broken Hill violated Section 75.333(b) (1) of the
Regulations. Accordingly, I so conclude .

Significant and Substantial
The citation alleges that the violation was "significant and
substantial ." A "significant and substantial" (S&S) violation is
1542

described in Section 104(d) (1) of the Act as a violation "of such
nature as could significantly and substantially contribute to the
cause and effect of a coal or other mine safety or health
hazard ." 4 A violation is properly designated S&S "if, based upon
the particular facts surrounding that violation, there exists a
reasonable likelihood that the hazard contributed to will result
in an injury or illness of a reasonably serious nature . " Cement
Division, National Gypsum Co., 3 FMSHRC 822, 825 (April 1981}.
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission set out four criteria for determining whether a
violation is S&S.
See also Austin Power, Inc. v. Secretary,
861 F.2d 99, 103-04 (5th Cir. 1988), aff'g Austin Power, Inc.,
9 FMSHRC 2015, 2021 {December 1987) (approving Mathies criteria).
This evaluation is made in terms of "continued normal mining
operations." U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574
(July 1984). The question of whether a particular violation is
significant and substantial must be based on the particular facts
surrounding the violation.
Texasgulf, Inc., 10 FMSHRC 498 (April
1988}; Youghiogheny & Ohio Coal Co., 9 FMSHRC 1007 (December
1987}.
As in most S&S cases, whether the violation was "significant
and substantial" depends on whether the Secretary has shown that
the third Mathies element, that there was a reasonable likelihood
that the hazard contributed to by the violation would result in
an injury, was present .
In this connection, the Secretary
presented evidence that there were several cables lying on the
wet mine floor, that the cables were frequently rubbed on the
corners of ribs, that as a result shorts in the cable could
develop causing a small cable fire with resulting smoke and that
the line curtains that had been hung as temporary stoppings in
the area were poorly hung and could easily be dislodged either by
miners or equipment going through them.
In addition, .there was
evidence that methane is always a danger in mines .
Against this, the company contends that the air circulation
at the face was within requirements, that methane had never been
detected in the mine and that no mishaps of the nature suggested
by the Secretary had occurred when the citation was issued .
However, considering this violation, not just at the time i t was
cited, but assuming continued mining operations, I find that the
flimsy nature of the ventilation controls present and the

4

See fn. 2, supra.
1543

constant movement of the cables makes it reasonably likely that a
serious injury would result. Accordingly, I find that the
violation was "significant and substantial."
Unwar rantable Fai lure
The citation also alleges that Broken Hill was highly
negligent in permitting this violation to occur and that the
violation resulted from the company's "unwarrantable failure" to
comply with the regulation . The Commission has held that
"unwarrantable failure" is aggravated conduct constituting more
that ordinary negligence by a mine operator in relation to a
violation of the Act.
Emery Mining Corp . , 9 FMSHRC 1997, 2004
(December 1987); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007,
2010 (December 1987) .
"Unwarrantable failure is characterized by
such conduct as 'reckless disregard,' 'intentional misconduct,'
'indifference' or a 'serious lack of reasonable care.'
[Emery]
at 2003-04; Rochester & Pittsburgh Coal Corp., 13 FMSHRC 189,
193-94 (February 1991) ." Wyoming Fuel Co., 16 FMSHRC 1618, 1627
(August 1994) .
The evidence indicates that on August 17 and September 2,
1993, Inspector Church issued citations for the same violation in
the same entries as the instant citation. After each citation,
and particularly after the second one, Inspector Church stressed
to company officials the importance of complying with Section
75.333(b) (1).
The evidence also shows that when this citation
was issued, the foreman to whom it was issued admitted to the
inspector that he knew permanent stoppings were required.
Although not specifically argued in the Respondent's brief,
implicit in its presentation in this case is the assertion that
the violation was not an "unwarrantable failure" because the
company believed it came within the "room" exception to the
regulation. This contention is rejected for two reasons.
First, to be a defense to "unwarrantable failure" the
company would have had to have had the belief at the time the
violation was committed.
Instead, the evidence is to the
contrary since no mention was made of the exception at the time
the citation was issued or at the time a conference with the
company was held concerning the citation.
In fact , as late as
the filing of its answer to the petition for civil penalty on
August 18, 1994, the company admitted that a violation existed

1544

and made no claim of a 11 room 11 exception. 5 Thus, it appears that
the company's defense to the citation was not arrived at until
sometime later.
Secondly, to be a defense to "unwarrantable failure," Broken
Hill's belief that it was mining a room would have to be in good
faith and reasonable.
Wyoming Fuel at 1628; Cyprus Plateau
Mining Corp., 16 FMSHRC 1610, 1615 (August 1994). As the
evidence in this case amply demonstrates, it was neither.
I find that Broken Hill's failure to establish permanent
stoppings up to and including the third connecting crosscut outby
the working face, after twice being cited for the same violation,
and after admissions by its agents that they were aware of the
requirement constitutes at best indifference or a lack of serious
care. Accordingly, I conclude that by such aggravated conduct,
the Respondent unwarrantably failed to comply with Section
75.333(b) (1) of the Regulations.
CIVIL PENALTY ASSESSMENT
The Secretary has proposed a civil penalty of $3,000.00 for
this violation. However, it is the judge's independent
responsibility to determine the appropriate amount of a penalty,
in accordance with the six criteria set out in Section llO(i) of
the Act.
Sellersburg Stone Co. v. Federal Mine Safety and Health
Review Commission, 736 F.2d 1147, 1151 (7th Cir. 1984).
Considering the six criteria, with particular emphasis on the
degree of negligence, I conclude that a $3,000.00 penalty is
appropriate for this violation.
ORDER
Order Nos. 4004020 and 4015281 are MODIFIED to Section
104(a) citations by deleting the 11 unwarrantable failure"
designations and are AFFIRMED as modified.
Citation No. 4015959

s

Broken Hill stated 11 [a]s to Citation No. 4015959, the
Respondent claims that even though a Citation existed, we cannot
agree that it should be a 104-D-l type, because temporary
brattices were installed in the crosscuts, up to and including
the second crosscut outby the faces on the intake and return side
of the section."

1545

is AFFIRMED . Brok en Hill Min ing Company is ORDERED TO PAY a
civil penalty of $3,700 . 00 within 30 days of the date of this
decision . On receipt of payment, this proceeding i s DISMISSED .

Y.~f1t:.

Administrative Law Judge

Distribut ion:
Mary Sue Taylor, Esq., Office of the Solicitor, U. S . Department
of Labor, 2002 Richard Jones Road, Suit e B-201, Nashville, TN
37215 - 2862 (Certified Mail )
Hobart Anderson, President, Broken Hill Mining Co., Inc.,
P.O. Box 356, Sidney, KY 4 1 564 (Certified Mail )
/lbk

15 46

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

SEP

6 1995

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

CIVIL PENALTY PROCEEDING
Docket No. KENT 94 - 972
A. C. No. 15-14959 - 03560

I

Mine No . 3
BROKEN HILL MINING COMPANY,
INCORPORATED,
Respondent
ORDER CORRECTING DECISION
In the last sentence of the first paragraph and the second
to last sentence in the concluding paragraph of the September 1,
1995, Decision in the captioned case, the amount of penalty
assessed is incorrectly stated as 11 $3,700 . 00. 11 The amount of
penalty should be " $3,650.00 ."
Accordingly, it is ORDERED , pursuant to Commission Rule
69(c), 29 C . F.R. § 2700.69(c), that the last sentence in the
first paragraph of the decision is CORRECTED to read:
"For the
reasons set forth below, I affirm the citation and the two
order s , as modified, and assess a penalty of $3,650.00."
Similarly, it is ORDERED that the second to last sentence in the
fi n al paragraph of the decision is CORRECTED to read:
"Broken
Hill Mining Company is ORDERED TO PAY a civil penalty of
$3,650 . 00 wi thin 30 days of the date of this decision .

~~~

Administrative Law Judge

1547

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

SEP

5 1995

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

CIVIL PENALTY PROCEEDINGS
Docket No. KENT 94-946
A. C. No. 15 - 15637-03557

I

V.

Mine No. 1
BROKEN HILL MINING COMPANY,
INCORPORATED,
Respondent

Docket No. KENT 94-947
A. C. No. 15-14959-03559
Mine No. 3
DECISION

Appearances:

Mary Sue Taylor, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
for Petitioner;
Hobart W. Anderson, President, Broken Hill Mining
Company, Inc . , Pikeville, Kentucky, Pro Se, for
Respondent.

Before:

Judge Hodgdon

These cases are before me on petitions for assessment of
civil penalty filed by the Secretary of Labor, acting through his
Mine Safety and Health Administration (MSHA) , against Broken Hill
Mining Company pursuant to Section 105 of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C . § 815. The petitions allege
several violations of the Secretary's mandatory health and safety
standards and seek penalties of $1,747.00. For the reasons set
forth below, I approve the settlement agreement of the parties
and assess civil penalties of $1,254.00.
The cases were heard on May 2, 1995, in Pikeville, Kentucky.
At the beginning of the hearing, the parties advised that they
had agreed to settle all of the citations in these cases as
follows:

154 8

Violation
o f 30 C. F . R.

Citation No.

Proposed Penalty

Agreeme nt

Docket No. KENT 94-946
4 217421
4 2 1 7422

75.503
§ 75.400
§

$
$

50.00
128.00

$
$

50.00
50.00 1

Docket No. KENT 94-947
4015294
4015295
4015296
4015297
40 1 5298
40 1 5300
4004141
4004143
4004144
4003846
4041466
4004151
4 01 790 4
4017908
4 0 1 7909

§
§
§
§
§
§
§
§
§
§
§
§
§
§
§

75.1103-1
75.809
75. 333 (b) (1)
2 02 (a)
75 .1101-23 (c) (1)
75.1712
75.364(h)
75.503
7·5. 503
77.205(a)
77 .1103 (d)
77.1605(k)
75.370(a) (1)
7 5 . 333(g)
75.400

128.00
119.00
50.00
119.00
50.00
50.00
50.00
119.00
119.00
119.00
119.00
119.00
136.00
136.00
$
132.QQ
$1,747.00

$
$
$
$
$
$
$
$
$
$
$
$
$
$

106.00
50. 00 1
50.00
119.00
50.00
Vacate 2
50.00
$
Vacate 2
$ 119.00
$ 119.00
$ 119.00
50. 00 1
$
$ 136 . 00
$ 136 . 00
$
5Q . QQl
$1,254.00

$
$
$
$
$

Having considered the representations and documentation
presen ted, (Tr . 4-17), I conclude that the proffered settlement
is appropriate under the criteria set forth in Section llO(i) of
t h e Act, 30 U . S.C. § 820(i) .

ORDER
Accordingly, the motion for ,approval of settl ement

1

is

The Secretary moves to modify the citation to d elete the
" significant and substantial" designation.
2

The Secretary moved to vacate this citation.

1549

GRANTED , Citation Nos. 4015300 and 4004143 are VACATED AND
DISMISSED , Citation Nos. 4217422, 4015295, 4004151 and 4017909
are MODIFIED as indicated and Broken Hill Mining Company is
ORDERED TO PAY a penalty of $1,254.00 within 30 days of the date
of this order. On receipt of payment, these cases are DISMISSED.

~~~

Administrative Law Judge

Distribution:
Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215-2862 (Certified Mail)
Hobart W. Anderson, President, Broken Hill Mining Co., Inc . ,
P . O. Box 356, Sidney, KY 41564 (Certified Mail)
/lbk

1550

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5 203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

SEP

6 1995

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

CIVIL PENALTY PROCEEDINGS
Docket No. KENT 94-996
A. C. No. 15-07201 - 03644

CUMBERLAND COAL COMPANY,
Respondent

Docket No. KENT 94-997
A . C . No . 15-07201-03645
Docket No. KENT 94-998
A. C. No . 15-07201-03646
Docket No. KENT 94-1024
A. C . No . 15-07201-03647
C-2 Mine

Docket No. KENT 94-1307
A . C. No . 15 - 08415-03624
D-1 Mine
DECI SION

Appearances:

Brian W. Dougherty, Esq. , Office of the Solicitor,
U. S. Department of Labor, Nashville, Tennessee,
for the Secretary;
H. Kent Hendrickson, Esq., Rice and Hendrickson,
Harlan, Kentucky, for Respondent.

Before:

Judge Maurer

In these consolidated cases, the Secretary of Labor
(Secretary) has filed petitions for assessment of civil
penalties , alleging violations by the Harlan Cumberland Coal
Company (Harlan Cumberland) of various and sundry mandatory
standards set forth in Title 30 of the Code of Federal
Regulations. Pursuant to notice, these cases were heard before
1551

me on May 23, 1995, in London, Kentucky. The parties filed
posthearing briefs and proposed findings of fact and conclusions
of law on August 1, 1995, which I have duly considered in writing
this decision.
During the course of the trial of these cases, and even
afterwards, the parties discussed and negotiated settlements
concerning some of the citations contained in these five dockets.
I will deal with and dispose of these settled citations in this
decision as well as decide the remaining issues concerning the
still contested citations, in order, by docket number.
In addition to the arguments presented on the record in
support of the proposed settlements, the parties also presented
information concerning the six statutory civil penalty criteria
found in section llO(i) of the Act. After careful review and
consideration of the pleadings, arguments, and submissions in
support of the proposed settlements, and pursuant to Commission
Rule 31, 29 C.F.R. § 2700.31, I rendered bench decisions
approving the proposed settlements. Upon further review of the
entire record, I conclude and find that the settlement
dispositions which have been previously approved are reasonable
and in the public interest, and my bench decisions are herein
reaffirmed.
Docket No. KENT 94-996
The parties have agreed to settle 12 of the 14 citations
included in this docket as follows:

3Q C.F.E.
CITATION NO.

~

4487440
4242386
4242389
4242392
4242393
4242396
4242397

03/22/94
04/04/94
04/04/94
04/04/94
04/04/94
04/04/94
04/04/94

SECTION

ASSESSMENT

75.400
75.362(b)
75.503
7$.503
75.1100-2(f)
75.330(b) (2)
75. 330 (b) {2)

$

1552

204
189
189
189
189
189
189

SETTLEMENT

$

153
140
140

140
140
140
140

4242398
4242399
4242400
4487521
4487522

04/04/94
04/04/94
04/04/94
04/04/94
04/04/94

75.1100-2(i)
75.400
75.1107-16(c)
75.601-1
75.904

235
189
189
189
189

176
140
140
140
140

Two substantially identical citations remain to be decided
in this docket which were tried before me and were subsequently
briefed by the parties.
Citation No. 9885355, issued on December 14, 1993, by MSHA
Inspector Calvin E. Riddle, alleges a violation of the standard
found at 30 C.F.R. § 70.208(a) and alleges that respondent failed
to "take a valid respirable dust sample during the Oct.-Nov. 1993
bimonthly sampling cycle for the Designated Area Sampling Point
No. 904-0 . . . . 11 Citation No. 9885356 alleges the same with
regard to Designated Area Sampling Point No. 904-1.
Inspector Riddle testified that on December 9, 1993, his
office received two Advisories of Noncompliance, Failure to
Submit notices as generated by the Respirable Dust Processing
Laboratory of MSHA's Pittsburgh Safety and Health Technology
Center.
The advisories indicated that MSHA had not received
valid respirable dust samples during the October-November 1993
bimonthly sampling cycle from Harlan Cumberland for Designated
Areas 904-0 and 904-1 of the C-2 Mine. After reviewing these
notices, Inspector Riddle issued Citation Nos. 9885355 and
9885356, pursuant to section 104(a) of the Mine Act, for two
violation of 30 C.F.R. § 70.208(a).
Basically, respondent's defense is that the required dust
samples were in fact collected and subsequently placed in the
United States Mail, properly addressed to MSHA's Pittsburgh
laboratory. Respondent is at a loss to explain why they
apparently never reached their destination .

.

Mr. Eddie Sargent, respondent's Safety Director, testified
regarding respondent's dust sampling procedures and sponsored two
dust cassette sampling cards, signed by himself, indicating that
the appropriate samples for the two designated areas were timely
collected during the sampling period.

1553

Mr. Sargent testified that he personally transported the
dust cassettes to respondent's office at Gray's Knob, Kentucky.
Once there, he logs the dust cassette card number from each
sample into the book for that particular mine, and then places
the cassette into the box designated for outgoing mail.
Respondent's general manager, Mr. Clyde Bennett, takes over
from there, as a general rule . Normally (95 percent of the time)
he takes the dust samples from the mail box at the Gray's Knob
Mine office to the post office, 1 mile away.
The crux of the matter here, of course, is that no one can
certify that these particular cassettes were mailed, or not
mailed, for that matter, only that the scheme related by
Sargent/Bennett is the general practice of the respondent.
It
was not their practice to mail these cassettes certified mail or
to keep any formal record of delivery to the post office .
The cited mandatory standard requires the submission of a
valid respirable dust sample from each designated area during
each bimonthly period. The Secretary maintains that a dust
sample is not considered valid unless and until the MSHA
laboratory at Pittsburgh determines that the weight of the sample
complies with the appropriate dust standard. It follows then
that if they do no~ receive a sampling cassette, for whatever
reason, they are unable to make the necessary determination.
I agree with the Secretary of Labor that the operator's act
of placing a bimonthly dust sample in the mail does not satisfy
the regulatory requirement to provide a yalid dust sample to
MSHA.
It must also be received and it must also be in compliance
with the appropriate standard. As a practical matter, the dust
sampling program would be unworkable if it were otherwise.
Accordingly, I find the violations alleged in Citation
Nos. 9885355 and 9885356 to be proven as charged. The citations
will be affirmed herein.

1 55 4

Turning now to the issue of negligence, the record evidence
establishes that the respondent collected the requisite dust
samples for the 904-0 and 904-1 Designated Areas at the C-2 Mine.
However, respondent was unable to establish that the . cassettes
were actually mailed to MSHA, or that the samples were valid,
i.e., complied with the applicable standard when weighed. The
record is clear that MSHA did not receive the subject dust
cassettes, and that, without more, is enough for me to find
ordinary or "moderate" negligence on the part of the respondent
in both of these violations.
After consideration of all the statutory criteria in
section llO(i) of the Mine Act, most particularly the
respondent's propensity to repeatedly violate this same section
of the standards, I find a civil penalty of $1000 per violation
to be appropriate, and it will be assessed herein.
Docket No. KENT 94-997
The parties settled this case on the following terms:

JQ c.r.R.
CITATION NO .
4487531
4487532
4487540
4487806
4487807
4487808
4487809
4487810
4487811
4487813
4487641
4487642
4487814
4487815
4487816

DAl'.E

SECTION

ASSESSMENT

04/06/94
04/06/94
04/06/94
04/12/94
04/12/94
04/12/94
04/12/94
04/12/94
04/12/94
04/13/94
04/18/94
04/18/94
04/18/94
04/18/94
04/18/94

75.400
75.400
75.370(a) (1)
75.809
75.809
75.807
75.400
75.400
75 .1100 (2) (e)
75.51:2
75.512
75.400
75. 370 {a) (1)
75.400
75.400

$

TOTAL

1555

189
189
189
189
189
189
189
189
189
189
189
189
204
189

SETTLEMENT
$

140
140
140
140
140
140
140
140
140
140
140
140
153
140

l...6..2

_liQ

$2850

$2113

Citation No . KENT 94 - 998
The parties settled this case on the following terms:

J Q ~.~.R .
CITATION NO.
4487817
4487818
4487819
4487820
4 487646
4487649
4487652

~

04/18/94
04/18/94
04/18/94
04/18/94
04/20/94
04/20/94
04/25/94

SECTI ON

ASSESSMENT

75 . 370(a) (1)
75 . 503
75 . 400
75.1702(1)
75 . 1710
75.326
75. 4 00

$

TOTAL
DQ~ket ;NQ ,

SETTLEMENT

204
189
189
189
189
204

$

153
140
140
140
140
153

--1..8.it

__.liQ_

$ 1353

$ 1006

KENI ~H-lQ2~

At the hearing, the parties agreed to settle one of the four
citations included in this docket as follows:

CITATI ON NO.
4487643

04/18/94

3Q C 1 F .R .
SECTION

ASSESSMENT

SETTLEMENT

75 202 (a)

$

$

I

189

140

Also, at the hearing, the Secretary vacated the three
section 104(b) orders associated with the other three
section 104(a) citations included in this docket which were tried
before me.
Therefore, Order Nos. 3165086, 3165087, and 3165088
will be vacated herein.
Finally, subsequent to the hearing, the
Secretary decided to vacate section 104(a) Citation Nos. 9885353
a nd 9885354 in view of the uncontradicted testimony of the
r espondent's witnesses that the No. 003 Section of the C- 2 Mine
p r odu ced coal for no more than 6 hours during a single shift of
t h e r elevant bimon thly sampling cycle.
That leaves just a s i ngle c i tation left to be decided in
t h i s d o c ket . Citation No. 9885368, issued on January 14, 1994,
b y I nspector Riddle , alleges a violation of the stan dard found at
30 C.F.R . § 70.207(a) and al l eges that respondent failed to "take

1556

5 valid respirable dust samples during the Nov . -Dec. bimonthly
sampling cycle on Mechanized Mining Unit (M.M . U.) I.D. No . 004 - 0
for the designated occupation code 036. . .
" The c i tation
11
notes that 3 valid respirable dust samples were received and
c redited to this bimonthly sampling cycle . "
Therefore , this citation is about the two missing cassettes.
Once again, as noted earlier in this decision, the respondent
defended by producing some evidence that it collected the subject
dust samples and placed them in the U.S. Mail, postage prepaid,
addressed to the MSHA laboratory in Pittsburgh, Pennsylvania.
And once again, they were not received for whatever reason, at
the laboratory, and their whereabouts remain unknown. No one has
offered any explanation for their seeming disappearance .
I can only reiterate here the same rationale I previously
stated in affirming the two similar citations in Docket No.
KENT 94-996. Respondent has provided no direct evidence to
establish that the dust cassettes were ever actually mailed. The
person who generally takes the company's mail to the post office
has no recollection of placing these particular cassettes in the
mailstream, and respondent maintains no mailing records. Nor
does it use certified mail to mail in its sampling cassettes, as
others do.
In any case, the sample must be received by the laboratory
in order to determine its validity. The regulation requires not
just a sample, but a ya l id dust sample to comply with 30 C.F.R.
§ 70.207.
And a dust sample is not considered valid until the
MSHA laboratory determines that the weight of the sample complies
with the appropriate dust standard.
Therefore, inasmuch as the subject dust sampling cassettes
were not received by the MSHA laboratory, I find the respondent
violated the cited standard, and I will affirm Citation
No . 9885368 herein.
I find this to be a "serious" violation and due to the
r espondent's "moderate" negligence . Accordingly, after
consideration of all the statutory criteria in section llO(i) of

1557

the Mine Act, including respondent's history of violations, I
find a civil penalty of $1000 to be appropriate to the violation,
and it will likewise be assessed herein.
Citation No. KENT 94-1307
The parties settled this case on the following terms:

CITATION NO.

DAU

3Q C.E.E.
SECTION

3165096
3165097
4469844
4469846
4469847
4469849

05/19/94
05/19/94
06/21/94
06/21/94
06/21/94
06/21/94

75.370(a)
$ 235
75.370(a)
235
75.400
168
75.400
178
75.523 (3) (b) (4)
178
75.701
....li..a

$

188
188
140
140
140
-liQ.

$ 1162

$

936

TOTAL

ASSESSMENT

SETTLEMENT

According, I enter the following:
ORDER
Docket No. KENT 94-996
1.
Citation Nos. 4487440, 4242386, 4242389, 4242392,
4242393, 4242396, 4242397, 4242398, 4242399, 4242400, 4487521,
4487522, 9885355* and 9885356* ARE AFFIRMED.

*modified negligence finding from "high" to "moderate."
2.

Respondent IS ORDERED TO PAY the assessed civil penalty

of $3729 to the Secretary of Labor within 30 days of this
decision.

Upon receipt of payment, this case IS DISMISSED.

Docket No. KENT 94-997

1.

Citation Nos. 4487531, 4487532, 4487540, 4487806,
4487807, 4487808, 4487809, 4487810, 4487811, 4487813, 4487641,
4487642, 4487814, 4487815, and 4487816 ARE AFFIRMED.
1558

2. Respondent IS ORDERED TO PAY the assessed c ivil p enalty
of $2113 to the Secretary of Labor within 30 days o f this
d e c i s ion. Upon receipt of payment, this case IS DISMISSED .
Docket No . KENT 94-998
1. Citation Nos. 4487817, 4487818, 4487819, 4487820,
4487646, 4487649, and 4487652 ARE AFFIRMED .
2 . Respondent I S ORDERED TO PAY the assessed civil penalty
of $1006 to the Secretary of Labor within 30 days of this
decision. Upon receipt of payment, this case IS DISMI SSED.
Docket No. KENT 94 - 1024
1.

Citation Nos. 4487643 and 9885368* ARE AFFIRMED .

* modified negligence finding from "high" to "moderate . "
2. Citation Nos. 9885353 and 9885354 and Order
Nos. 3165086, 3165087, and 3165 0 88 ARE VACATED.
3 . Respondent IS ORDERED TO PAY the assessed civil penalty
of $1140 to the Secretary of L~bor within 30 days of this
decision. Upon receipt of payment, this case IS DISMISSED.
Docket No. KENT 94-1307
1. Citation Nos. 3165096 , 3165097, 4469844, 4469846 ,
446984 7 , and 4469849 ARE AFFIRMED .
2. Respondent IS ORDERED TO PAY the assessed c i vil penalty
of $936 to the Secretary of Labo~ within 30 days of this
d ecision . Upon receipt of payment, this case IS DISMISSED .

~,tfV'A ~· ~f3:.

Roy
~aurer
Adrniriistrat i ve Law Judge

vf
I

•

1 5 59

Dist r ibution:
Brian W. Dougherty, Esq., Office of the Solicitor,
U. S . Department of Labor, 2002 Richard Jones Road, Suite B-201,
Nashville , TN 372215-2862 (Certified Mail)
H . Kent Hendrickson, Esq., Rice & Hendrickson, P. 0. Box 980,
Harlan, KY 40831 (Cert i fied Mail)
dcp

1560

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

SEP

6 1995

JIM WALTER RESOURCES, INC.,
Contestant
v.

CONTEST PROCEEDING
Docket No. SE 95-404-R
Citation No. 3198331; 8/2/95

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

No. 4 Mine
Mine I.D. No. 01-01247

UNITED MINE WORKERS
OF AMERICA,
Intervenor
DECISION
Appearances :

R. Stanley Morrow, Esq . , Jim Walter Resources,
Inc., Brookwood , Alabama, for the Contestant;
David M. Smith, Esq, J . Alan Truitt, Esq.,
Maynard, Cooper & Gale, P . C., Birmingham, Alabama,
for the Contestant;
William Lawson, Esq. Office of the Solicitor,
U.S . Department of Labor, Birmingham, Alabama,
for the Respondent;
Patrick K. Nakamura, Esq., Nakamura & Quinn,
Birmingham, Alabama, for the Intervenor.

Before:

Judge Weisberger
Statement of the Case

This case is before me based upon a notice of contest
filed by Jim Walter Resources, Inc. (Contestant) challenging
the issuance by the Secretary of Labor (Respondent) of Order

1561

No. 3198331, pursuant to Section 107(a) of the Federal Mine
Safety and Health Act of 1977 (the Act) . In addition, Contestant
also filed a motion for expedited proceedings, which was received
by the Commission on August 4, 1995. On August 7, 1995, in a
telephone conference call between the undersigned and counsel
for Contestant and Respondent, the motion to expedite was granted
and this case was scheduled for hearing on August 22 and 23. On
August 15, 1995, Contestant filed a motion for partial summary
decision, and Respondent filed his response on August 17, 1995.
On August 17, 1995, in a telephone conference call with counsel
for Contestant and Respondent, the motion was denied. 1
Subsequently, the United Mine Workers of America (UMWA) moved to
intervene.
At the hearing, Johnny Jordan, Hulett Keith Chaney, Terry
Lindley, and Kenneth Wayne Ely testified for Respondent. George
Vass, James Reginald Lamons, and Darrel Leon Loggains testified
for Contestant. The parties each filed a brief, via fax, on
August 25, 1995.
Findings of Fact and Discussion
Jim Walter Resources, Inc. {Jim Walter) operates two
longwall sections at its No. 4 mine. The longwall face on the
section in issue is approximately 900 feet long. Roof support is
provided by five foot wide shields that advance forward as the
face is cut. Approximately 192 shields are placed side-by-side
for the length of the face. The various parts of the shields are
set forth in Respondent•s Exhibit No. 1. In normal operations,
each shield is moved forward, in sequence, by electronic controls
that are located in an adjacent shield. The miner who operates
these controls stands under the canopy of the adjacent shield.
To advance the shield forward, pressure is released from the leg
jacks which causes the canopy to be lowered and the pontoon to be
raised. The entire shield is then advanced forward to the face.
Lastly, the hydraulic leg jacks are pressurized to press the
canopy up against the roof.
If the height of the roof exceeds

The basis for the denial of the motion was set forth in the
conference call, and reiterated on the record at the commencement
of the hearing on August 21.
1

1562

the stroke 2 of the leg jacks, additional gob is placed under and
in front of the advancing shield so as to raise the pottom of the
shield and ensure that the stroke of the jack legs will place the
canopy against the roof.
In this situation, or when the base
jacks, which lift up the pontoon of the shield when the canopy is
depressured allowing for forward movement, are not operating
properly, then the shield can become mired in the gob preventing
forward movement of the shield. Timbers are then placed
vertically between the canopy and the base of the sheild. When
the canopy is lowered to touch the top of the timber and pressure
is applied, the pontoon is raised allowing the shields to be
moved forward.
On August 1, 1995, Kenneth Wayne Ely, an MSHA Supervisory
Mine Safety and Health Specialist, was requested to visit the
No. 2 longwall at Jim Walter's No. 4 Mine, to observe a
demonstration whereby timbers were used to elevate the pontoon
of a shield in order to advance the shield.
In the
demonstration, the timber, placed in a vertical position between
the canopy of the shield and the bottom of the shield, was tied
to the leg jack.
After Ely returned to his office, between 7:00 p.m. and
11:00 p.m., Glenn Tinney, the subdistrict manager, related to him
that he {Tinney) had conversations with miners regarding the use
of timbers on the longwall to help advance the shields.
In a
series of conversations between Tinney and Ely, between 7:00 p.m.
and 11:00 p.m., on August 1, Tinney informed Ely that miners told
him of the following practices and hazards: timber butts are
used to help advance the shields, timbers are placed on top of
butts, rocks have been known to fall off the edge of the top of
the shields, hydraulic hoses have been damaged when timbers were
used, there have been unplanned movement of the shields when
timbers were used, and that numerous base jacks may not be
operating properly.
At approximately 11:00 p.m. on August 1, Ely received a
telephone call from a miner complaining of the existence of

2 Essentially,

the stroke is the maximum distance that the
canopy can be set above the bottom of the shield. The stroke can
be set at different heights.

1563

practices constituting an imminent danger. Ely indicated that
the complaining miner reported that the longwall jack legs may
have serious problems, and may not be properly pressurized.
It
was reported that the leg jacks were in disrepair, and that
numerous base jacks were deficient or missing.
It was also
reported that miners using timbers to advance the longwall were
holding timbers with their hands while advancing the shields,
thereby placing themselves in a hazardous area where rocks might
fall on them.
It was further reported that the practice of using
timbers to advance the shields created unplanned movement of the
shields. Lastly, it was reported that miners were using a
variety of blocks on top of the handrail or the pan line.
Ely left the office at approximately 11:30 or 11:45 p.m.,
and met with another inspector at "an eating place" (Tr. 367) on
the way to the mine to discuss the section 103(g) complaint. He
arrived at the mine at about 1:30 a.m. on August 2. Ely
indicated that it normally takes approximately an hour and ten
minutes to drive from the MSHA office to the mine.
Between 3:00 a.m. and 4:00 a . m., Ely interviewed six miners
on the owl shift of the No. 1 longwall section, and other
inspectors interviewed miners on the owl shift of the No. 2
longwall section. According to Ely, after reports of ten or
twelve interviews were received at 6:55 a.m., an imminent danger
order was issued pursuant to section 107(a) of the Act. 3
Sometime between 3:00 and 4:00 a.m., Ely asked the manager of the
longwall to no longer use timbers to advance the longwall until
the MSHA inspectors completed the investigation. He said that
the basis for this request was the information he had received
from a miner on the telephone at 11:00 p.m. on August 1,
requesting a 103(g) inspection. The imminent danger withdrawal
order at issue alleges the following practice:

3 The

order at issue, No. 3198331, was signed by Kirby Smith,
an MSHA inspector who was not available at the date of the
hearing. At the hearing, it was stipulated that the issuance of
the order was a joint effort involving Smith and Ely, and that
the issue to be decided was the discretion of ~ in issuing the
order.

1 5 C4

An unsafe work practice has been identified

during an investigation for 103(g) investigation
as a result of a miner complaint. Testimony o~
persons working on #1 and #2 longwalls revealed
that workers were being permitted to perform work
while in a hazardous location. Workers were placing
timbers and crib blocks to support longwall shield
canopies while advancing longwall shields. Persons
were holding timbers and/or cribs blocks (sic) in
their hands while moving longwall canopies to come
in contact with these timbers and/or cribs. This
exposed persons to falling rock from the top and
sides of the shield and to unplanned movement of
the shields. Different persons were permitted to
install these timbers and/or cribs blocks (sic) in a
variety of ways with little or no supervision.
The order contains the following language under the heading
Area or Equipment:
"[t]he practice of using timbers and/or crib
block to assist in the advancement of the long wall shields."
The order at issue alleges the existence of an "imminent
danger" as per section 107(a) of the Act. Section(3) {j) of the
Act defines an imminent danger as 11 • • • 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. 11
In Utah Power and Light Co., 13 FMSHRC 1617 (1991), the
Commission reviewed the Legislative History of this decision,
and concluded as follows: "[t)hus the hazard to be protected
against by the withdrawal order must be impending so as to
require the immediate withdrawal of miners. 11 {13 FMSHRC, supra,
at 1621.) (Emphasis added)
The Commission rejected an interpretation of the imminent
danger provision of the Act which includes, " ... any hazard that
has the potential to cause a serious accident at some future time
11
••••
(Utah Power and Light, supra at 1622). The Commission
further explained its holding as follows:
To support a finding of imminent danger, the
inspector must find that the hazardous condition

1565

has a reasonable potential to cause death or
serious injury within a short period of time. An
inspector, albeit acting in good faith, abuses his
discretion in the sense of making a decision that
is not in accordance with law when he orders the
immediate withdrawal of mines under section 107(a)
in the circumstances where there is not an
imminent threat to miners.
Utah Power and Light, supra at 1622.
Company, 15 FMSHRC 339 (March 1993);
14 FMSHRC 1282 (August 1992).

See also, Island Creek Coal
Wyoming Fuel Co.,

For the reasons that follow, I find that the evidence fails
to establish that there was an imminent threat to miners.
Jim Walters does not have any work rules, safety rules,
guidelines, or instructions to govern the use of timbers to
advance a longwall shield. Respondent presented the testimony of
three miner witnesses who work on the longwall and proffered the
testimony of six additional witnesses whose testimony would be
cumulative to the testimony of the miner witnesses regarding the
use of timbers to advance the longwall shields. Respondent's
witnesses, Johnny Jordan, who has been a longwall helper and
shearer operator on the No. 2 longwall since 1983, Hulett Keith
Chaney, who has been a scoop operator and inside laborer on the
No. 2 longwall since 1993, and Terry Lindley, who, as an
electrician and repairman, has worked on the No. 2 longwall since
1978, testified based on their observations and actions. Their
essentially uncontradicted testimony establishes the existence of
the following work practices regarding the use of timbers 4 to
advance the longwall shields: timbers were placed vertically
between the bottom of the canopy and at various locations on the
bottom such as the relay bar, pan line, and handrail of the cable
trough; timbers were stacked atop cribs; timber butts were
stacked atop timbers; timbers were used that had been cut
unevenly, miners had to steady timbers with one hand while

4 Timbers

are oak or pine, six inches by six inches and are
sawed to the appropriate length to be placed between the
underside of the canopy and the bottom of the shield. Timbers
are used for roof support at other locations in the mine.

1566

operating with the other hand the rotary valve located on the
shield in order to advance the shield; miners jammed the rotary
valve controls with pliers, rocks, or other items in order to
keep the valve set firm in a certain setting; miners rode the
shield that was being advanced in situations when the shield was
being moved by the rotary valve; and that in placing the timbers,
miners were located in close proximity to pinch points and to the
pan line, which was in operation most of the time. Jordan,
Chaney, and Lindley testified, in essence, that they considered
the above practices to be unsafe. They testified that the
timbers were reused in advancing the longwall, and some of them
had 11 mushroomed 11 on the top and were split or cracked. Chaney
testified that ·on one occasion, when he was setting a timber
under the canopy, it kicked out from the top and bumped him in
the shoulder, but he did not miss any work. Lindley testified
that on one occasion he was hit on the leg by a timber.
In
addition to the hazards of timbers kicking out and injuring
miners, the miners testified to various other hazards involved in
the above practices, such as miners being subject to the hazard
of rocks falling off the canopies from the tip of the canopies or
between the shields, especially when the shields are lowered
distances more than a few inches to accommodate the length of the
timber. Also, hazards exist when a single miner must balance
himself by having one hand hold on to the timber and another to
operate the valve lowering the canopy. As such, the miner may
not observe rocks being thrown from the adjacent pan line, or he
might get injured by being exposed to various pinch points upon
movement of the shield. Should the shield move forward in an
"unplanned" fashion as a consequence of the practice of the
jamming of the rotary valves, a miner also might be injured.
Ely indicated that he issued the imminent danger order
because information provided to him from the miners he
interviewed on the owl shift confirmed the existence of the
following practices, which had been reported to him over the
telephone by a miner at 11:00 p.~. the previous evening:
(1)
miners were using timbers to advance the longwall and were
holding the timbers with their hands and thus were placing
themselves in a situation where they were exposed to falling rock
(2) the unplanned movement of the shields which resulted from
this practice and (3) the use of blocks and timbers in various
position, such as on top of the rail or on the pan line. He
stated that it, "was just a matter of luck" (Tr. 278) that no

1567

serious injury resulted from the various practices testified to.
He stated that, in his opinion, "if the practice had not been
stopped immediately that there was a very good likelihood of
someone going to get a serious injury, get killed" (sic) {Tr. 278)
He was asked what was imminent about the work practices that
were described to him . His testimony is as follows:
A.

Again, because of the variety of methods and
ways that timber was being used, workers were
placing themselves in an area that I thought
was a high potential for an accident to
occur.

Q.

When?

A.

Immediately.

Q.

Why is that?

A.

Because when we interviewed the miners that
night, they described all these variety of
conditons to us, and if they had continued on
with those type practices, I believe that
there would have been a serious injury going
to occur {Tr . 279).

I find that the evidence is insufficient to establish that
there was any condition or practice which, if not abated, had a
reasonable potential to cause death or serious injury," . ..
within a short period of time" (Emphasis added . ) (Utah Power and
Light, supra, at 1622). Neither Ely nor any other inspector
observed any condition that constituted an imminent danger. As
testified to by Respondent's witnesses, various hazard.s were
attendant upon the various practices of using timbers to advance
the shields . Ely decided that these practices constituted an
imminent danger. However, Ely dia not articulate with
specificity the factual basis for his conclusion that the
hazardous practices created an imminent threat to the safety of
miners.
It might be inferred that due to the variety of
practices involved herein, and the frequency of their use, that
there may have been a reasonable likelihood that the various
hazards created would result in an injury or illness of a
reasonably serious nature. However, a distinction must be made

1 568

between conditions or practices that establish a significant and
substantial violation and those that create an imminent danger
(Utah Power and Light, supra, at 1622). Only the latter may
properly be the subject of a Section 107(a) withdrawal order.
Chaney testified to having been bumped in the shoulder by a
timber that kicked out, and Lindley testified to having been hit
on a leg on one occasion by a timber. However, it is significant
to note that according to the uncontradicted testimony of James
Reginald Lamons, the longwall manager at the No. 4 mine, and
Darel Leon Loggains the longwall manager at the No. 3 mine,
timbers have been used in advancing the longwall since its
inception in 1979. There is no evidence of any serious injuries
resulting from these practices. Respondent offered in evidence
documentation of 14 injuries that had occurred on longwall faces,
11 of which resulted from rocks falling off of top of canopies or
between shields (Respondent's Exhibit No. 6). However, there is
no indication that any of these injuries occurred as the
consequence of the use of timbers in advancing the face.
For all of the above reasons, I conclude that it has not
been established that Contestant's practices had a reasonable
potential to cause death or serious injury within a short period
of time.
I thus find that the inspectors abused their discretion
in issuing the withdrawal order at bar. 5 Hence, the withdrawal
order is to be dismissed.

5

In his brief, Respondent relies on U.S. Steel Corp.,
3 FMSHRC 131 (January 1981) (Judge Broderick) and U.S. Steel
Group, Minesota Ore Operations, 15 FMSHRC 1720 (August 1993)
(Judge Barbour) . To the extent that these cases are not
consistent with my decision in the instant case, I choose not to
follow them.

1569

ORPER
IT IS ORDERED that Order No. 38198331 be DISMISSED.

Administrative Law Judge
Distribution:
R. Stanley Morrow, Esq., Jim Walter Resources, Inc.,
P.O. Box 133, Brookwood, AL 35444 (Certified Mail)
David M. Smith, Esq., J. Alan Truitt, Esq., Maynard, Cooper &
Gale, P.C., 1901 Sixth Avenue North, 2400 AmSouth-Harbert Plaza,
Birmingham, AL
35203-2602
(Certified Mail)
William Lawson, Esq., Office of the Solicitor, U. S . Department
of Labor, Chambers Building, Highpoint Office Center, Suite 150,
100 Centerview Drive, Birmingham, AL 35216
(Certified Mail)
Patrick K. Nakamura, Esq., Nakamura & Quinn, Suite 300,
Landmark Center, 2100 First Avenue North, Birmingham, AL
(Certified Mail)
/ml

1570

35203

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

SEP

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
on behalf of
ROBERT ROBINETTE,
Complainant
v.

7 1995

DISCRIMINATION PROCEEDING
Docket No. KENT 95-515- D
MSHA Case No. PIKE CD 95 - 03
Tall Timber Mine
I.D. No. 15-13720

RAWL SALES AND PROCESSING CO.,
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
on behalf of DANA HAGER,
Complainant
v.

DISCRIMINATION PROCEEDING
Docket No. KENT 95-516 - D
MSHA Case No. PIKE CD 95 - 04
Tall Timber Mine
I.D. No. 15-13720

RAWL SALES AND PROCESSING CO.,
Respondent

DECISION APPROVING SETTLEMENT
Before:

Judge Amchan

These cases are before me pursuant to section 105 of the
Federal Mine Safety and Health Act. As the Complainants have
already been reinstated with full backpay and benefits, the
parties have filed a motion to approve settlement and to dismiss
the cases based on a reduction in the proposed civil penalties
for the alleged discriminatory conduct. The terms of the
settlement are that the total penalties for these matters have
been reduced from $18,000 to $10,000 . I have reviewed the
settlement and conclude that it is consistent with the purposes
of the Act.

1571

ORDER

The parties' motion for approval of settlement is GRANTED.
Respondent shall pay the $10,000 in civil penalties within
30 days of this order. Thereupon, these cases are dismissed .

0/1~~

~;thtr J. Amchan

Administrative Law Judge

Distribution:
Susan E. Foster, Esq., Office of the Solicitor,
U . S. Department of Labor, 2002 Richard Jones Road,
Suite B-201, Nashville, TN 37215-2862
Mark A. ~oor, Esq., for Rawl Sales & Processing Co . ,
A.T. Massey Coal Co., Inc., P.O. Box 26765, Richmond,
VA 23261
Tony Oppegard, Esq., Mine Safety Project of the Appalachian
Research & Defense Fund of Kentucky, 630 Maxwelton Court,
Lexington, KY 40508
/lh

15 72

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

SEP
WHAYNE SUPPLY COMPANY,
Contestant
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION {MSHA)
Respondent

7 \995
CONTEST PROCEEDINGS
Docket No. KENT 94-518-R
Order No. 4011758; 1/25/94
Docket No. KENT 94-519-R
Citation No. 4011760; 1/25/94
Mine: Job No. 17A
ID No. 15-17434-A25

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

CIVIL PENALTY PROCEEDING
Docket No. KENT 95-556
A.C. No. 15-17434-03501 A25
Job No. 17A

WHAYNE SUPPLY COMPANY,
Respondent

DECISION
Appearances:

Joseph A. Worthington, Esq., Smith & Smith,
Louisville, Kentucky, for Contestant;
Brian W. Dougherty, Esq., Office of the Solicitor,
U. S. Department of Labor, Nashville, Tennessee,
for Respondent.

Before:

Judge Amchan
Background and Issues Presented

On January 20, 1994, James Paul Blanton, a field service
technician employed by Whayne Supply Company (Whayne Supply),
was killed when struck by the belly pan of a bulldozer. At
the time of the accident, Blanton was underneath the bulldozer

1573

at a surf ace coal mine operated by Addington Mining Company
(Addington) in Pike County, Kentucky. The Mine Safe~y and
Health Administration (MSHA) conducted an investigation of this
accident and issued the two contested citations at issue in this
matter . 1
Citation No. 4011760 alleges a violation of section
104(d) (1) of the Act and 30 C. F.R.§ 77.405(b}. This regul ation
provides that, "[n)o work shall be performed under machinery or
equipment that has been raised until such machinery or equipment
has been securely blocked in position." Subsequent to the
hearing in this matter a $50,000 civil penalty was proposed for
this alleged violation.
Citation No. 4011758 alleges a violation of 30 C.F.R.
§77 . 1713(a). This regulation requires that at least once each
shift, or more often if necessary, each active working area
or active surface installation be inspected by a certified
person for hazardous conditions. This citation alleges that
Mr. Blanton's foreman, Charles Crisp, did not inspect Blanton's
work area or arrange for Addington to make such an inspection.
A $204 civil penalty has been proposed for this alleged
violation.
For the reasons stated below, I conclude that Whayne Supply
violated §77.405(b) as alleged, but that such violation did not
result from Whayne Supply's "unwarrantable failure 11 to comply
with the standa rd.
I therefore affirm the violation as a
signi f icant and substantial s ec tion 104(a) citation and assess
a $1 , 50 0 civil penalty . Citation No. 4011758 is vacated.
The events leading up to the accident
Several days prior to January 20, 1994, a DlO Caterpillar
bulldozer owned and used by Addington at a surface coal mine in
Pike County , Kentucky, broke down ' (Tr. 19-20). The dozer was
moved out of the way of mining operations into a flat open field
(Tr . 42-43, 84) . Once Addington's mechanics determined that they
could not fix this bulldozer, Addington called Whayne Supply

Identical citations were issued to Addington, which were
contested and then settled prior to a hearing.
1

1574

to send a field service technician to their mine to repair the
bulldozer.
Whayne Supply sells and services Caterpillar machinery
and equipment in Kentucky and Indiana.
It regularly services
such equipment on Addington mine sites. On the afternoon of
January 19, 1994, James Paul Blanton, a field service technician
working out of the Ashland, Kentucky branch office, was called by
his supervisor, Charles Crisp, and assigned to the Addington mine
site the next morning (Tr. 245).
On January 20, Blanton drove his service truck from his home
to Addington's No. 17A Mine in Pike County. Upon his arrival, he
met with Addington's foreman, Ronnie Keaton. Keaton sent Blanton
to repair the disabled DlO bulldozer. Later in the morning
Keaton drove to the bulldozer to oversee the digging of a shallow
trench (Tr. 134). The bulldozer was then pushed over the trench
so that Blanton .could lower the belly pan and gain access to the
vehicle's defective torque converter2 •
Prior to beginning work on the bulldozer, Blanton
repositioned his service truck so that the right rear of the
vehicle was close to the bulldozer (Exhibit G-8, photo 2).
Blanton's truck was equipped with a small crane located on its
right rear. This crane is normally used to support a chain which
is run under the belly pan and attached to the opposite track to
prevent the pan from falling abruptly when the bolts are loosened
(Exh. C-3, Tr. 216, 408-09).
Blanton spoke briefly to Keaton, Addington's superintendent
David Maynard, Addington's maintenance foreman James Cox and the
DlO's operator, Tony Boggs 3 • He was then left alone to repair

2 The

DlO bulldozer has three belly pans, which are removable
sections on the bottom of the vehicle, designed to allow access
to components located directly above (Tr. 152-53). To gain
access to the torque converter, Blanton had to loosen the bolts
of the middle belly pan, allowing it to swing down on hinges on
one side of the pan (Tr . 117-122, Exh. G-8, photo Nos. 10-13).
At the hearing on May 2, 1995, Boggs testified that Blanton
told him that the crane boom would not work when he tried to warm
3

1575

the DlO's torque converter. Shortly before noon he was found
dead or dying, pinned by the belly pan underneath the bulldozer.
He was found in a sitting or kneeling position. The . belly pan,
which weighed approximately 500 pounds, had swung down on its
hinges and was laying against his neck and back. The bolts
holding up the pan had been removed with an air wrench. The
belly pan had not been secured by a chain or other device before
the bolts had been loosened.
Terry Crawford, a Whayne Supply technician who was at the
Addington mine to repair another vehicle, arrived at the accident
site shortly after Blanton was discovered. Crawford climbed on
the back of Blanton's service truck and hit the top button of the
control panel for the crane boom (Tr. 229). The crane boom did
not move. Crawford then told Addington's maintenance supervisor,
James Cox, that the . boom did not work (Tr. 230). On the next day
Crawford told MSHA investigators that he tried to move the boom
and that it did not work {Tr. 231).
I conclude that the Secretary has not established that the
boom did not work on the morning of January 20, 1994. I credit
Crawford's testimony that he was unfamiliar with the controls
on Blanton's truck and hit the wrong button to move the crane
{Tr. 332-36, Exh. C-6). I also credit the testimony of Service
Manager Jeffrey Suttle that since Blanton's air compressor
worked just prior to the accident, the boom would also have
worked (Tr. 379). Finally, the boom did work when Foreman Crisp
activated it on January 25, 1994, albeit at a much higher ambient
temperature (Tr. 128, 154, 239, 363-67).

fn. 3 (continued)
up his truck at 1:00 a.m., on January 20, 1994, and th~t he had
trouble with the air compressor as well {Tr. 58). I am unable to
credit this testimony in view of the fact that when interviewed
by MSHA on January 21, 1994, Boggs did not mention that Blanton
had said the boom was not working (Tr. 90-93). At the earlier
interview Boggs told MSHA that Blanton said he had trouble
starting his truck early in the night but that he was able to
start i t later (Tr. 90). This is consist~nt with foreman Crisp's
account of his conversations with Blanton prior to the accident
{Tr. 245-48).

1576

Moreover, even if the boom had not worked, Blanton had the
means to safely secure the belly pan before loosening its bolts.
His truck was equipped with a cable come-along which he could
have used to do this task safely without the boom (Tr. 368,
Exh. G-4) .
Contestant yiolated 30 C.F.R.

§

77.405(b)

Whayne Supply does not contend that Blanton removed the
belly pan in a safe manner.
It questions the applicability
of the cited standard and the degree to which MSHA holds it
responsible for Blanton's negligence. The Secretary takes the
position that when the bulldozer was pushed over the trench dug
by Addington, it became "raised" within the meaning of section
77.405{b) (Tr. 300).
I concur with this interpretation of the
regulation and find that Whayne Supply violated this standard
as alleged, because Blanton's conduct is imputed to Whayne Supply
for liability purposes, A. H. Smith Stone Co., 5 FMSHRC 13, 15
(January 1983). · The regulation prohibits work under machinery
or equipment that has been raised until it has been nsecurely
blocked. 11
I interpret "securely blocked" to have the same meaning as
the phrase "blocked or mechanically secured to prevent accidental
lowering," in the corresponding metal/non-metal safety standard
at 30 C.F.R. § 56.142ll{b) (see Midwest Material Corporation,
16 FMSHRC 636, 638 n. 1 {ALJ April 1995-review granted June 5,
1995) . Thus, when the bolts were loosened on the belly pan,
working under the belly pan violated the standard unless the pan
was blocked or secured with a device such as a metal chain hooked
to a crane or come-along.

1577

Is Blanton's Negligence Imputed to Respondent for
Purposes of determining whether the violation was due
to an "unwarrantable failure" and assessirig a
penalty4?
The negligence of a rank-and-file miner ordinarily cannot
be imputed to an operator for penalty purposes. However, the
operator's supervision, training and disciplining of its
employees must be examined to determine if the operator has taken
reasonable steps to prevent the rank-and-file miner's violative
conduct, Southern Ohio Coal Co., 4 FMSHRC 1459, 1464-5 {August
1982) .
Although I am unaware that the Commission has so held
directly, it follows that the same rule applies to the imputation
of a rank-and-file miner 1 s conduct for purposes of determining
whether an operator 1 s violation was due to an "unwarrantable
failure 5 • 11 Mr. Blanton was not a supervisory employee. However,
I impute his negligence to Respondent, because the record does
not establish that Whayne Supply took such reasonable steps in

4

Civil penalties were proposed in this matter after the
May 2-3, 1995 hearing. The contest cases were stayed pending
issuance of the proposed penalties from May 18, 1994, to
February 24, 1995, when I set them for hearing.
In my notice of
hearing, I invited the parties to seek consolidation of civil
penalty proceedings or to present evidence regarding the section
llO(i) penalty criteria, depending on whether or not civil
penalties were proposed by MSHA prior to hearing. At the hearing
on May 2, 1995, the Secretary's counsel advised me that the
Assistant Secretary had decided to wait to propose civil
penalties (Tr. 8-9).
In Rochester & Pittsburgh Coal Company, 13 FMSHRC 189,
196-7 (February 1991), the conduct of a rank-and-file miner was
imputed to the operator in finding unwarrantable failure because
the miner was acting as the agent of the operator in conducting
workplace examinations. I do not find that decision applicable
to the instant case. Although there may be situations in which
an employee working alone should be deemed the agent of the
operator for civil penalty/unwarrantable failure purposes, I do
not think that is so in all cases.
5

1578

training and supervising Blanton, that it should be completely
absolved of responsibility for his violative conduct .for negligence and penalty purposes.
There is no indication that Blanton received any formal
training regarding safe procedures for removing a belly pan
in the field (Tr. 216-220, 255-56). Whayne Supply service
technicians are trained to avoid or minimize time spent under
a suspended load (Tr. 255-56, 405).
It is not clear how a
technician would understand the application of this rule to
belly pan removal. There is no evidence that Mr. Blanton was
ever instructed by Whayne Supply that if he had to get under the
belly pan, he had to have it secured before he started loosening
the bolts. There is also no evidence that Blanton had been
instructed or trained to remove the bolts in a manner whereby
only one arm would be under the belly pan, as described by
Mr . Crawford (Tr. 346-7).
Whayne Supply hires experienced mechanics and relies heavily
on on-the-job training for its field technicians (Tr. 208-09,
219, 372). Blanton received no supervision in the performance
of his tasks. His foreman, Charles Crisp, never reviewed his
performance and relied on reports from other Whayne Supply
employees and possibly customers (Tr. 254).
Mr. Blanton's reputation was that . of a very competent and
safe mechanic (Tr. 144-45, 165, 172-73, 244). Indeed, Addington
maintenance supervisor James Cox sometimes specifically asked
Whayne Supply to dispatch Blanton (Tr. 173). By all . accounts,
Blanton's failure to use a cable to support the belly pan was
very unusual (Tr. 159, 229, 368).
Nevertheless, I cannot conclude that in the absence of
specific training as to proper procedures for securing a belly
pan in the field, that Blanton's yiolative act was so unforeseeable that Whayne Supply should 'be totally absolved from any
responsibility for it. The removal of the belly pan is
apparently a common task for Whayne Supply's field technicians.
In 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.

1579

Blanton's negligence and therefore Whayne's negligence was
not sufficiently "inexcusable or aggravated" to constitute
an "unwarrantable failure" to comply with the · Act
In retrospect, Mr. Blanton's conduct on January 20, 1995,
was very unwise.
One nevertheless has to assume that he greatly
underestimated the likelihood that the belly pan could swing down
on him.
Otherwise, he would not have placed himself under the
belly pan after he had loosened the bolts 6 •
Conduct rising to the level of "unwarrantable failure"
has been characterized by the Commission as "inexcusable or
aggravated" as to opposed to "thoughtless" or "inattentive."
Emery Mining Corp., 9 FMSHRC 1991, 2001 (December 1987).
Particularly in light of the fact that Mr. Blanton's actions
did not compromise the safety of others, I would characterize
his behavior as "thoughtless," rather than "inexcusable or
aggravated." I find his negligence to fall short of that needed
to establish an "unwarrantable failure," and therefore affirm the
citation issued to Whayne Supply as a "significant and
substantial" violation of section 104(a) of the Act.
Finally, in assessing 'Whayne Supply's responsibility for the
violation, it is necessary to consider the Secretary's contention
that Contestant's procedure for removing belly pans did not comply with the standard (Secretary's brief at pp. 25-28, Tr. 274,
286-7, 297-8). MSHA argues that even if Blanton had followed
this procedure, there would have been a violation of §77.405(b).
It contends that to comply with the standard either cribbing must
be placed underneath the belly pan before the bolts are loosened
or two chains must be secured under it.
MSHA's concession that two chains would satisfy the standard
(Tr. 286-7) establishes that the Agency does not interpret its
regulation to only allow cribbing as means of "securely blocking"

6 To

some extent Blanton's conduct simply defies explanation.
He apparently was in good spirits on the morning of January 20
(Tr. 90) and was familiar with the proper procedure for removing
belly pans (Tr. 145).

1580

raised equipment. Furthermore, the MSHA program policy manual
states that cribbing is not the only method of compliance with
section 77.405. It provides as follows:
77.405 Performing Work From a Raised Position;
Safeguards. Mechanical means that are manufactured
as an internal part of the machine for the purpose
of securing a portion of the machine in a raised
position are acceptable as meeting the requirements
of this section.
Although this manual does not have the force of law, it may
provide assistance in interpreting an MSHA regulation, King Knob
Coal. Co., 3 FMSHRC 1417, 1420 {June 1981}. Given the Agency's
recognition that means other than cribbing fulfill the requirements of the standard, it must do more than show that cribbing
was not used to establish a violation.
To conclude that use of one chain violates the standard,
the record would have to show that a reasonably prudent employer
familiar with the mining industry and the protective purposes of
the standard would have recognized that relying on one chain was
a violation, Ideal Cement Company, 12 FMSHRC 2409 (November
1990}. This has not been established. To the contrary, the
record indicates that Whayne Supply's procedure is the accepted
practice in its industry {Tr. 160, 182-83, 200-01, 283, 322).
Furthermore, the record does not indicate that this practice
is not a prudent one (Tr. 431-34).
Indeed, the use of cribbing
or a jack in the field when lowering the belly pan may be more
dangerous than securing the belly pan with a single chain
suspended from the boom of the Autocrane (Whayne Supply's brief
at pp. 23-26) 7 .
I regard this as an additional reason to

7

The most convincing argument that Whayne Supply makes in
this regard involves the exposure of the technician when lowering the belly pan and then when bolting it back in place after
repairing the torque converter. It appears to be very difficult
to move the bulldozer once the belly pan is secured with a chain
(Tr. 397-98, 403). Unless the bulldozer is moved, the technician
must get under the raised pan to remove the blocking material in
order to lower the pan sufficiently to get at the torque

1581

interpret the standard in a manner that allows this procedure.
Thus, in assessing Contestant ' s negligence in this matter, I
reject the contention that Whayne Supply's customary procedure
for lowering belly pans violated section 77.40S{b).
Assessment of a Civil Penalty
The Secretary has proposed a $50,000 penalty for
Citation No. 4011760. I conclude a penalty of such magnitude
is not consistent with the criteria set forth in section llO(i)
of the Act. Of these factors, the most important is the degree
of Whayne Supply's negligence. 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.
The gravity of the violation is obviously quite high as
established by Mr . Blanton's tragic death8 • These two factors
lead me to conclude that a $1,500 penalty is appropriate
under section 110 . Such a penalty is also consistent with
Whayne Supply's size, previous violation history and good faith
in abating the violation. Such a penalty clearly would not
jeopardize Whayne Supply's ability to stay in business.
I regard Whayne Supply's responsibility for the violation
herein as comparable to that of the operator in Midwest Material

fn. 7 (continued)
converter. The miner would also ~ave to tighten the pan's bolts
prior to reinstalling the cribbing material, or work under the
unbl ocked belly pan while reinstalling these blocks (or jack) for
longer than it takes to simply tighten the bolts.
I conclude that the violation herein clearly meets the
criteria for "significant and substantial" in Mathies Coal Co ..
6 FMSHRC 1 (January 1984) .
8

1582

Corporation, supra. The only distinctions I see between the
two cases are that one of the employees involved in the fatal
accident in Midwest was a supervisor, while Mr. Blanton was not.
On the other hand, Blanton had worked for Whayne Supply for
considerably longer than those miners had worked for Midwest
Material . On this basis, I would find Whayne Supply somewhat
more responsible than Midwest for not adequately training or
supervising its employees.
Whayne Supply did not violate 30 C.F.R. §77.1713(a) in
failing to perform or arrange for an on-shift examination
of Mr. Blanton's work area.
Section 77.1713(a) requires an examination of each active
working area and each active surface installation by a certified
person at least once each shift. An active working is defined
in section 77.2 as any place in a coal mine where miners are
normally required to work or travel.
The theory of the citation is that Mr. Blanton's foreman,
Charles Crisp, failed to make such an examination or arrange to
have such an examination made by Addington. However, I conclude
that examinations of the active working that satisfy the standard
were made by Addington's foreman, Ronald Keaton, and superintendent David Maynard (Tr. 42-43). Both were certified to make such
inspections (Tr. 42, 147).
After sending Blanton to the open field where the DlO bulldozer was located, Keaton drove to that location . He had his
equipment operators dig a trench for Blanton to accommodate the
belly pan (Tr . 133-35). Keaton asked Blanton if he wanted the
bulldozer moved again and Blanton said no.
I conclude that
Keaton made a sufficient examination of the work area to assure
that the work site presented no hazards to Mr. Blanton. A ·
sufficient examination of an open flat field removed from mining
operations may differ from what satisfies the requirements of
§77.1713(a) in an area in which, for example, blasting is going
to take place .
The fairly cursory look at Blanton's work area by Keaton
and Maynard fulfilled the obligations of Addington and Whayne
Supply under the cited standard (See e.g., testimony of MSHA
Inspector Stewart at Tr. 291). The hazard that killed

1583

Mr. Blanton had nothing to do with the condition of his work
area. The cited standard placed no obligation on Addington to
supervise the manner in which Blanton performed his tasks or
inspect his truck 9 • Similarly, the standard and the Mine Act do
not require Whayne Supply to provide one-on-one supervision of a
miner at all times. Having found that a workplace examination
satisfying the requirements of §77.1713(a} was performed, I
vacate Order No. 4011758.
OEDER

Citation No. 4011760 is affirmed as a significant and
substantial violation of section 104(a) of the Act. A civil
penalty in the amount of $1,500 is assessed.
Citation No. 4011758 is VACATED.
The assessed penalty shall be paid within 30 days of this
decision.

Administrative Law Judge

The Secretary argues that Whayne Supply violated section
77.1713(a) because Addington supervisory personnel did not
inspect Blanton's service truck or the bulldozer for hazards
(Secretary's brief at pp. 30-31). In the instant case, Addington
fulfilled its obligations by merely observing the area in which
Blanton was to perform his work.
9

1584

Distribution:
Joseph A. Worthington, Esq., Smith & Smith,
400 North First Trust Centre, 200 South Fifth St.,
Louisville, KY 40202-3238 (Certified Mail)
Brian W. Dougherty, Esq., Office of the Solicitor,
U.S. Department of Labor, 2002 Richard Jones Rd.,
Suite B-201, Nashville, TN 37215-2862 (Certified Mail)

/lh

15 85

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268

SEP 1 1 1995
CIVIL PENALTY PROCEEDINGS

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

Docket No. WEST 94-373-M
A.C. No. 24-01450-05502 QYQ

v.

Docket No. WEST 95-76-M
A.C. No. 24-00936-05522
Docket No. WEST 95-77-M
A.C. No. 24-01813-05510

KONITZ CONTRACTING, INC.,
Respondent

Zortman Mine; Konitz
Portable Crusher; Portable
crusher No. 2
DECISION

Appearances:

Kristi Floyd, Esq., Office of the Solicitor, U.S.
Department of Labor, Denver, Colorado,
for Petitioner;
William E. Berger, Esq., Wilkins & Berger,
Lewistown, Montana, for Respondent.

Before:

Judge Manning

These cases are before me on petitions for assessment of
civil penalty filed by the Secretary of Labor, acting through the
Mine Safety and Health Administration ("MSHA"), against Konitz
Contracting, Inc. ("Konitz"), pursuant to sections 105 and 110 of
the Federal Mine Safety and Health Act of 1977, 30 u . s . c. §§ 815
and 820. The petitions allege five violations of the Secretary's
safety regulations. For the reasons set forth below, I affirm
the citations and assess penalties in the amount of $175.00 .
A hearing was held on April 20 , 1995 , in Billings, Montana.
The parties presented testimony and documentary evidence, but
waived post-hearing briefs.
I.

DISCUSSION WITH FINDINGS OF FACT AND CONCLUSIONS OF LAW

A.

Docket No. WEST 94-373-M

On November 4, 1993, MSHA Inspector Richard s. Ferreira
inspected Konitz's operation at the Zortman Mine in Phillips

1586

county, Montana. He issued Citation No. 433 1 677 alleging that
Konitz failed to submit to MSHA for approval a training plan for
its miners at the Zortman Mine . The safety regulation cited, 30
C.F.R . § 48 . 23, provides that each mi n e operator must have an
MSHA approved training plan for its employees before mining
commences. The inspector determined that the violation was not
seriou s, was not of a significant and substantial nature ( " S&S " ),
and was caused by Konitz's moderate negligen ce.
At the time the citation was issued, Konitz was an independent contractor at the Zortman Mine, a surface gold mine.
Konitz produced crushed rock with a portable crusher for use at
the mine.
Before Konitz began operating at the mine in early
October 1993, employees of Zortman advised Torn Konitz, the owner,
that MSHA training would be required for Konitz's employees. Mr .
Konitz called the local MSHA field office about the training
requirements and was referred to Mr. Rodric Breland, the MSHA
District Manager, in Denver, Colorado. Mr. Breland referred Mr.
Konitz to Robert Koenig, an MSHA specialist in the Denver office .
Mr. Konitz described the nature of the work that Konitz would be
performing at the Zortman Mine and Mr. Koenig told him what
training that would be required.
(Tr . 135-36). After Mr . Konitz
obtained additional advice from Zortman employees, Konitz trained
the four employees that would be operating the portable crusher
at the mine site. The training lasted about eight hours.
As a result of his conversations with Mr. Breland and
Mr. Koenig, Mr . Konitz received a letter from Mr. Breland setting
forth the train ing that would be required .
(Ex . G-2).
The
letter states, in part : " the following determination was made
regarding training requirements for your employees working at
Zortman :
If your employees are experienced at their particular
jobs ... they can be trained as 'Newly employed experienced
miners' (48.26) ." Id . MSHA officials did not advise Mr. Konitz,
either over the telephone or in the letter, that Konitz was
required to submit a written training plan for MSHA's approval.
Konitz has never operated at a metal mine or a coal mine.
It normally operates its portable crushers at locations that are
separate from other mines. These operations are subject to
MSHA's training regulations at 30 C.F.R. § Part 48, but MSHA is
not permitted to enforce these requirements at Konitz's other
facilities because of a provision ln the Federal budget. 1 As a
Each year the Federal budget contains a provision
prohibiting the enforcement of MSHA's training regulations at
certain types of mines . In fiscal year 1994, which inc l uded
October 1993, the budget contained the following language in the
paragraph setting forth MSHA's appropriations : " Provided, That
none of the funds appropriated under this paragraph shall be
obligated or expended to .. . carry out that portion of section

1587

consequence, Konitz has never been cited for failing to submit
training plans at its other operations.
Konitz abated the violation by conducting an additional
eight hour training class. Both classes were taught by Ken
Bowser, the crusher operator. He testified that the training was
essentially the same in both sessions. The miners involved had
previously operated this portable crusher .
I find that Konitz violated section 48.23 because the
operator did not have an approved training plan in place at the
time o f the inspection . The Commission and courts have held that
the Mine Act is a strict liab i lity statute. Asarco , Inc. v.
FMSHRC , 868 F.2d 1195 {10th Cir. 1989). I further find that the
violation was not serious because the miners had received the
same basic training during its unapproved training session. I
find that Konitz negligence was very low because Konitz relied on
the advice of MSHA officials in setting up its training program.
These officials unintentionally misled Konitz into believing that
the training it provided complied with the requirements of Part
48. No mention was made of the need for a written, pre-approved
training plan.
Section llO(i) of the Mine Act, 30 U.S.C. § 820(i), sets out
six criteria to be considered in determining an appropriate civil
penalty.
Based on this criteria, I assess a nominal penalty of
$5.00 for this violation rather than the $400 penalty proposed by
MSHA. Konitz was issued seven citations in the 24 months preceding the inspection.
(Ex. G-lB). I also find that Konitz is a
small operator with 2,310 hours of production in 1993. (Tr. 9).
I find t hat the civi l penalty assessed would not affect Konitz's
ability to continue in business and that the violation was timely
abated .
5.

WEST 95-7 6-M
1 . Citation No. 4409808

On July 26 , 1994, Inspector Ferreira inspected Konitz's
Portabie crush8r in Fergus County, Montana. He observed a
h au l a ge truck t raveling through an area where he believed a 110
volt power cord was stretched across the dirt. He observed the
a lleged v i olation while sitting in his truck some distance away .
( Ex . G-3) .
He i ssued Citation No. 4409808 alleging that a single

104(g} ( 1} of (the Mine] Act relating to the enforcement of any
t ra i n i ng r equirements , • .. with respect to any sand, gravel,
surface stone, surface clay, colloidal phosphate, or surface
limestone mine." H.R. Doc . No. 3, 103d Cong., 1st Sess., Budget
of the United States Government, Fiscal Year 1994, at Appendix801 (1993).

1588

phase, 110 volt extension cord was not bridged or protected
against mobile equipment. The safety standard, 30 c.F.R.
§ 56.12005, provides that mobile equipment shall not run over
power conductors unless the conductors are properly bridged or
protected.
The inspector determined that the violation was
serious, was not S&S, and was caused by Konitz's low negligence.
Konitz contends that the power cord was not located where
the haulage truck was traveling, but was in a different area.
(Tr . 142-44). The area that the inspector observed was a haulage
road .
Mr. Konitz testified that the cord was not across the
haulage road.
Id.
He testified that the cord went to the test
shack and that the only vehicle that could run over it "would be
a pickup pulling up to the test shack."
(Tr. 144). Konitz
abated the condition by burying the electric cord.
I find that Konitz violated the safety standard because the
electric cord was not protected. Although it may have not been
on the haulage road, it was located in an area where mobile
equipment would run over it. The insulation on the cord could be
damaged by mobile equipment and an employee could receive an
electric shock.
Taking into consideration the civil penalty criteria, I
assess a penalty of $20.00 for this violation.
I find that the
violation was moderately serious and was caused by Konitz's low
negligence.
My findings for the remaining penalty criteria are
the same as discussed in WEST 94-373-M, except that this crusher
has a history of one citation in the 24 months preceding the inspection.
(Ex. G-lA).
2.

Citation No. 4409809

On the same date, Inspector Ferreira issued citation No.
4409809 alleging that a rotating shaft on the Pioneer Crusher was
not protected by a guard to prevent employees from accidentally
contacti n g the shaft. The cited safety standard, 30 C.F.R.
§ 56.14107(a) provides that moving machine parts shall be guarded
to protect persons from contacting shafts and other moving parts
tha t can cause injury . The inspector determined that the viola tion was serious{ was not S&S, and was caused by Konitz's low
negligence.
Konitz contends that the equipment in question was taken out
o f service two years prior to the date of the hearing.
(Tr. 145 ,
156 ).
The citation was issued to Orville Olson, the crusher
operator.
Inspector Ferreira testified that the citation was
abated by installing screening material around the shaft.
(Tr.
39) .
I credit the testimony of the inspector.
The Pioneer
crusher must have been removed from service at a later date.

1589

I find that Konitz violated the cited safety standard
because the rotating shaft was not guarded. An employee could be
injured if he or his clothi ng came in contact with the rotating
shaft.
I agree with the inspector that the violation was not S&S
because there was not a reasonable likelihood that the hazard
contributed to by the violation would result in an injury. I
also find that the violation was moderately serious. I affirm
the inspector's finding that the violation was caused by the
operator's low negligence . Miners were in the area on an infrequent basis. Taking into consideration the civil penalty criteria, I assess a penalty of $30.00 for this violation.
C.

WEST 95-77-M
1. Citation No. 4331679

On November 17, 1993, I nspector Ferreira inspected
Konitz's operation at the Zortman Mine in Phillips County,
Montana. He issued Citation No. 4331679 alleging that Konitz
failed to have circuit breakers or fuses for the electrical
circuits at the crusher. The cited safety standard, 30 C.F . R.
§ 56 . 12001, prov i des that circuits shall be protected against
excessive overload by fuses or circuit breakers of the correct
type or capacity. The inspector determined that the violation
was serious, was S&S, and was caused by Konitz's low negligence.
Konitz does not deny that the electrical equipment was not
protected by circuit breakers or fuses . Mr. Konitz testified
that magnetic starters for the equipment contained "heaters "
(overcurrent devices) that adequately protected the circuits . In
addition, he testified that MSHA has inspected this crusher many
times over the past ten years and never mentioned that fuses or
circuit breakers are required . He stated that he spent about
$10,000 to install new circuits on his two crushers.
(Tr. 14748) .
I find that Konitz violated the safety standard. overcurrent devices in magnetic starters are designed to protect
motors from burning out, not to protect employees from electric
shock, and these devices do not meet the safety standard. The
portable crusher is moved around and also vibrates during operation .
(Tr. 47 - 49). The material . being crushed is very abrasive
and it gets into electrical boxes and other components. The
protective layer around power conductors could wear through,
causing a phase-to-phase fault.
Id. Fuses and circuit breakers
will open the circuit in the event of a fault.
I also find that the violation was serious and S&S. The
evidence establishes that there was a reasonable likelihood that
the hazard contributed to would result in an injury of a reasonably serious nature. Mathies Coal Co., 6 FMSHRC 1, 3-4 (January
1984) .
I recognize that Konitz has never had an electrical

1590

injury at its crushers, but assuming continuing normal mining
operations, i t was likely that an injury or a fatality would
occur .
I affirm the inspector's determination that the violation
was caused by Konitz's low negligence.
Taking into consideration the civil penalty criteria, I
assess a penalty of $60.00 for this violation. My findings for
the remaining penalty criteria are the same as discussed in WEST
94-373-M, above.
2.

Citation No. 4409807

On July 19, 1994, Inspector Ferreira inspected Konitz's
Portable Crusher No. 2 in Fergus County, Montana. He issued
Citation No. 4409807 alleging that an employee was shoveling
spilled material out from under the unguarded self-cleaning tail
pulley on the jaw crusher. The safety standard, 30 C.F.R.
§ 56.14107(a), provides that moving machine parts shall be
guarded to protect persons from contacting tail pulleys and other
moving parts that cause injury. The inspector determined that
the violation was serious, was S&S, and was caused by Konitz's
low negligence.
Konitz does not deny that a guard was not present but argues
that a hazard was not created because the tail pulley was underneath the jaw crusher. The inspector observed a man reaching
with a shovel under the crusher. Mr. Konitz testified that the
most that could happen is that the shovel would be pulled out of
the employee's hand. The pinch point of the tail pulley was
about two and one half feet from the edge of the crusher.
(Tr.
129-30; Ex . J-1). The inspector testified that the hands of the
man who was shoveling were only inches from the tail pulley. All
witnesses agreed that a hazard is presented if an employee's
hands come within inches of the tail pulley. Given that the edge
of the pulley was only a few feet away from the bottom edge of
the crusher and the inspector saw an employee shoveling under the
crusher, I find that the Secretary established a violation of the
safety standard.
I also find that the violation was serious and S&S. The
evidence establishes that there was a reasonable likelihood that
the hazard contributed to would re~ult in an injury of a reasonably serious nature, assuming continuing normal mining operations. Anyone shoveling under the crusher while the conveyor was
operating could be seriously injured.
I affirm the inspector's
determination that the violation was caused by Konitz's low
negligence . Taking into consideration the civil penalty criteria, I assess a penalty of $60.00 for the violation.

1591

II.

CIVIL PENALTY ASSESSMENTS

The citations are affirmed, as set forth above , and the
followi n g penalties are assessed :
Assessed
Cit at i on Nos .
30 C. F . R. §
Penalty
4331677
4409808
4409809
4331679
4409807

48 . 23
56 . 1200 5
56 .14107(a)
56.12001
56.14107(a)

$ 5.00

Tota l Penalty

$175.00

III.

20 . 00
30 . 00
60 . 00
60 . 00

ORDER

Accordingly, the above-listed citations are AFFIRMED and
Konitz Contracting, Inc . is ORDERED TO PAY the Secretary of Labor
the sum of $175.00 within 40 days of the date of this decision .

Richard W. Manning
Administrative Law Judge

Distribution :
Kris t i F l oyd, Esq., Office of the Solicitor, U.S . Department of
Lab o r, 1999 Broadway, Suite 1600, Oenver, co 80202 - 5716
(Certified Mail)
William E. Berger, Esq., WILKINS & BERGER, P.O. Box 506,
Lewistown, MT 59457 {Certified Mail)
RWM

1592

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 2204 1

SEP 1 2 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) I
on behalf of PHILLIP DALTON,

DISCRIMINATION PROCEEDINGS
Docket No. WEVA 95-143-D
MSHA Case No. HOPE CD 94-13

on behalf of DANIEL DAVIS,

Docket No. WEVA 95-144-D
MSHA Case No. HOPE CD-94-14

on behalf of HAROLD MARCUM,

Docket No . WEVA 95-145-D
MSHA Case No. HOPE CD 94-14

on behalf of HENRY SMITH,
Complainants
v.

Docket No. WEVA 95-146-D
MSHA Case No. HOPE CD 94-15

W.R . MOLLOHAN, INC.,
Respondent

Tug Valley Coal Processing Co.
Mine I.D. No. 46-05890

DECISIONS
Appearances :

Elizabeth S. Lopes, Esq., Office of the
Solicitor, U. S. Department of Labor,
Arlington, Virginia, for the Complainants;
Joseph M. Price, Esq . , Sean Harter, Esq.,
Robinson & McElwee, Charleston , West Virginia,
for the Respondent.

Before:

Judge Koutras

These proceedings concern discrimination complaints filed
by MSHA on behalf of the complainants pursuant to s ection lOS(c)
of the Federal Mine Safety and Health Act of 1977. The complainants allege that they were disch arged from their employment
with the respondent for complaining about safety haz ards at the
coal processing plant site where they were working as painters
and sandblasters. The respondent denied any discrimination and

1593

asserted that the complainants were terminated for legitimate
non-discriminatory reasons . MSHA subsequently amended the
complaints seeking civil penalty assessments against the
respondent for the alleged discrimination. A hearing was held
in Charleston, West Virginia, and the parties appeared and
participated fully therein .
Issues
The issues presented include:
(1) whether the respondent
discriminated against the complainants by terminating their
employment for engaging in protected activities, (2) the
appropriate remedies to be applied on behalf of the complainants,
and (3) the imposition of appropriate civil penalty assessments
to be assessed against the respondent for the alleged discriminatory conduct.
Applicable Statutory and Re~ulatory Provisions
1.

The Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 301 ~ ~-

2.

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

3.

Commission Rules, 29 C.F.R.

§

2700.1,

.e..t_ ~-

MSttA's Testimony and Evidence
Complainant Henry Smith testified that he has been employed
as a painter and sandblaster for approximately 25 years. He is
a member of Local Union 813, serves as a job steward, and is
hired for jobs through a union agent out of the union -business
hall. Mr. Smith stated that he was hired by the respondent on
July 27, 1994, and began work th~ next day at the Tug Valley Coal
Processing Company on a painting and sandblasting job that the
respondent was performing under contract with the mine operator.
Mr. Smith stated that he complained about the lack of
safety lines and belts while he was working 60 to 70 feet off
the ground, and the absence of choker connectors for the high
pressure sandblasting hoses that he worked with. He stated that

1594

he communicated his safety concerns daily to respondent's
foreman, Mr. Pauley, but continued working after Mr . Pauley
assured him that he would take corrective action. However, on
July 31, 1994, he informed Mr. Pauley that he would no.longer
perform any work and would "shut the job down" because Mr. Pauley
had not corrected the conditions. Mr . Smith stated that he asked
Mr. Pauley for other work, but was informed that there was none
available. Mr. Smith then left the work site and was next
scheduled to work on August 3, 1994, and he informed Mr. Pauley
that he would return to work if his safety concerns were taken
care of.
Mr . Smith stated that after he was informed by his union
business agent that he had received a letter from the respondent
informing him that the respondent would no longer hire him and
the other complainants (Exhibit C-14), they returned to the mine
site on August 3, 1994, with MSHA inspectors and filed a section
103(g) safety complaint requesting an MSHA investigation of their
safety complaints (Exhibit C-1).
Mr. Smith further testified about additional jobs that he
acquired subsequent to his termination by the respondent and
copies of his earnings are a part of the record (Exhibit C-3).
He also indicated that he was unemployed from approximately
September 20, 1994 to October 28, 1994.
On cross-examination, Mr . Smith stated that he received no
unemployment compensation subsequent to his termination because
his benefits were exhausted. He confirmed that he filed no
safety complaints with MSHA until after he was informed that
he had been terminated by the respondent. He further testified
about certain work that he performed at the plant site on
August 3, 1994, and confirmed that Mr. Pauley provided him with
a hard hat, safety glasses, and a safety belt and lanyard at
that time. However, Mr . Smith claimed that the lanyard was
insufficient because it restricted his movements and he could
not readily attach it to anything that would allow him to do
his job while keeping him secure.
Mr . Smith stated that he discussed his safety requests
further with Mr. Pauley on August 3, 1994, and that complainants
Dalton and Davis were present . He did not believe that

1595

complainant Marcum was present at that time. He further stated
that he again discussed the absence of hose chokers with
Mr . Pauley and believed that 75 to 100 chokers were ·required to
be installed on all of the hoses to prevent them from ~upturing
under high pressure. Mr. Smith reiterated that he informed
Mr. Pauley that he was shutting the job down for safety reasons
and Mr. Pauley informed him that he had no other work available.
Discussion
At the conclusion of Mr. Smith's testimony and during a
recess while awaiting the testimony of MSHA's next witness, the
parties were afforded an opportunity to resume their settlement
discussions which were previously initiated and discontinued
without resolution.
The parties informed the presiding judge
that after further discussions, including consultations with
respondent's management and the complainants, and with their
approval, the parties reached a proposed settlement of all of
the complaints .
The parties presented the proposed settlement on the record.
The respondent agreed to pay the complainants back wages totalling $8,500. Complainants Phillip Dalton, Daniel Davis, and
Henry Smith will be paid $2,275 each, and complainant Harold
Marcum will be paid $1,675.
In addition, the respondent agreed
to pay a total of $800 in civil penalty assessments to MSHA,
prorated at $200 for each of the alleged violations of section
l05(c) of the Act, in settlement of the cases.
In consideration
of all of these settlement payments, the parties agreed that
these matters may be dismissed. Each party will bear its own
litigation costs.
After careful consideration of the pleadings filed in these
proceedings, the arguments presented in support of the proposed
settlement, and pursuant to Commission Rule 31, 29 C.F.R .
§ 2700.31, the settlement was app~oved from the bench.
In
approving the settlement, I took into consideration the fact
that the respondent has paid $8,057 in civil penalty assessments
to MSHA in settlement of citations and orders that were issued
on August 3, 1994, as a result of the section 103(g) complaint,
and the fact that the respondent•s contract to perform further
work at the Tug Valley Processing Plant was terminated by the
mine owner as a result of the safety complaints and citations

1596

that were issued. Under all of these circumstances, I conclude
and find that the settlement of the instant complaints satisfies
the deterrent intent of the Mine Act and is in the public
interest. Accordingly, my bench decision is herein re:affirmed,
and the settlements in question ARE APPROVED .
ORDER
In view of the foregoing, IT IS ORDERED as follows:
1.

The respondent shall pay $2,275 to each of the
complainants, Phillip Dalton, Daniel Davis,
and Henry Smith in satisfaction of their claims
in these proceedings.

2.

The respondent shall pay $1,675 to complainant
Harold Marcum in satisfaction of his claim in
these proceedings.

3.

The respondent shall pay a civil penalty assessment
of $800 to MSHA in satisfaction of the alleged
violations in these proceedings.

4.

The respondent shall comply forthwith with the
terms of the settlement agreement. All of the
aforementioned payments shall be made by the
respondent within thirty (30) days of the date
of these decisions and orders, and upon full
compliance with the agreement, these matters
ARE DISMISSED .

~Ad:i~
Administrative Law Judge

1597

Distribution:
Elizabeth Lopes, Esq., Office of the Solicitor,
U.S. Department of Labor, 4015 Wilson Blvd., Suite 516,
Arlington, VA 22203 (Certified Mail}
Joseph M. Price, Esq., Sean Harter, Esq., Robinson & McElwee,
600 United Center, P . O. Box 1791, Charleston, WV 25326
(Certified Mail}

/lh

1598

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

September 13, 1995

KENNETH F . COLE

DISCRIMINATION PROCEEDING

I

Complainant

v.

Docket No. PENN 94-548-D

U. S. STEEL MINING COMPANY,
Respondent

PITT 94-03
Cumberland Mine

DECIS ION
Appearances:

Mr. Kenneth F . Cole, pro se, Morgantown,
West Virginia, for Complainant;
R . Henry Moore, Esq., Buchanan Ingersoll,
Professional Corporation, Pittsburgh, Pennsylvania,
for Respondez:it.

Before:

Judge Maurer

This proceeding concerns a complaint of discrimination filed
by the complainant (Kenneth F. Cole) against U. S. Steel Mining
Company (U. S. Steel) pursuant to section 105(c} of the Federal
Mine Safety and Health Act of 1977 (the Mine Act) .
On January 9, 1995, U. S. Steel filed a Motion for Summary
Decision (which I am treating as a Motion to Dismiss), alleging,
i nter .al.i.a, that the instant complaint is barred by the statute
of limitations and by laches. Subsequently , on June 29, 1995,
the undersigned held a limited heqring for the complainant to
e xplain why his complaint should not be dismissed because of his
failure to timely file this belated section 105(c) complaint with
the Mine Safety and Health Administration (MSHA) . I also
:cons i dered a related matter. That is, his failure to s eek
Commission review of an earlier identical complaint that h ad been
r ejected by MSHA back in March 1992.

1 599

A chronology of the significant events which gave rise to
the instant complaint is as follows :
January 13. 1992

Complainant is involved in an altercation at
the mine with a fellow rank-and-file employee.
He alleges he was injured during the incident
and requested that the company complete an
accident report that he could take to his
doctor.
They refused.

February 6, 1992 - Complainant filed a section lOS(c)
complaint with MSHA alleging that he had
asked the company to file an accident report
concerning the January 13, 1992, incident,
but they refused. They also allegedly
threatened to suspend him with the intention
to fire him if he filled out a report on the
incident himself.
March 31, 1992 -

After an investigation, MSHA notified the
complainant that they had determined 11 no
violation" of section lOS(c) of the Mine Act
had occurred. They also notified him that he
had the right, within 30 days , to file his
own action with the Commission. He did not
do so, however, until now.

April 14. 1994 -

Complainant refiles his original complaint
with MSHA, which is now before the Commission.

July 11, 1994 -

MSHF_ once again notifies complainant that they
have determined "no violation 11 of
section lOS(c) of the Mine Act has occurred.

August 10, 1994 -

FMSHRC receives the complaint at bar.

The critical two dates for purposes of this motion are
-January 13, 1992, the date of the altercation, and April 14 ,
1994, the date the instant section lOS (c) complaint was filed
with MSHA.

1600

As noted in the above chronology, complainant had earlier
filed a timely complaint with MSHA on February 6, 1992; but when
i t was denied on March 31, 1992, he failed to follow tnrough with
filing his own appeal to the Commission by the end of April 1992.
As the respondent complains of in his motion, the
complainant failed to follow through with his original 1992
complaint and only now has refiled his complaint with MSHA some
2 years and 3 months after the alleged discriminatory activity
occurred.
In accordance with section lOS(c) (2) of the Mine Act any
miner who bel i eves he has been discharged or discriminated
against may, within 60 days of the alleged act of discrimination,
file a complaint with the Secretary of Labor. The Secretary is
then required to conduct an investigation and make a determination as to whether or not a violation of section lOS(c) has
occurred.
If the Secretary determines that the miner's
allegations of discrimination are valid and a violation has
occurred, he is required to file a complaint on the miner's
behalf with the Commission.
Pursuant to section lOS{c) (3} of the Act, if the Secretary
determines that a violation of section lOS(c) has not occurred,
he must so inform the miner, and the miner then has a right to
file a complaint on his own behalf with the Commission within
30 days of notice of the Secretary's determination.
Ordinaril y, when dealing with late-filings of a few days or
even a few months, the Commission has determined that the time
limits in sections lOS(c) (2 ) and (3 ) "are not jurisdictional" and
that the failure to meet them s hould not result in dismissal,
absent a showing of "material legal prejudice." See. e.g.,
Secretary on behalf of Hale v . 4-A Coal Co . , 8 FMSHRC 905, 908
{June 1986). However, in that same decision, the Commission also
stated that 11 [t]he fair hearing process envisioned by the Mine
Act does not allow us to ignore serious delay . . . . 11 Here, we
are dealing with an extraordinarily late filing in excess of
~ years .
At some point there has to be an outer limit, if the
60-day rule contained in the statute has any meaning at all.

1601

In David Hollis v. Consolidation Coal Company, 6 FMSHRC 21
(January 9, 1984), aff'd me.ID..&.., 750 F.2d 1093 {D.C. Cir . 1984)
{table), the Commission affirmed a dismissal of a miner ' s
discrimination complaint filed 6 months after his alleged
discriminatory discharge . The Commission stated that "timeliness
questions must be resolved on a case-by-case basis, taking into
account the unique circumstances of each situation," 6 FMSHRC 24.
Mr. Cole's explanation for his failure to follow-up on the
March 1992 rejection of his original complaint by MSHA was that
he put it into the hands of one Mr. Brunsak, a union official, in
early April of 1992. Both Mr. and Mrs. Cole were left with the
impression that he (Brunsak) would file the appeal with FMSHRC
for him. That appeal would have been timely taken only if filed
on or before April 30, 1992 . In fact, nothing was ever filed
with FMSHRC and Mr. Brunsak denies he ever gave any such
assurances to the Coles.
U. s. Steel's position is that the proper and appropriate
procedural route for the complainant after receiving the
Secretary's March 31, 1992, determination that no violation of
section lOS{c ) occurred would have been the filing of a complaint
with the FMSHRC within the 30 day time limit. Arguably, by
failing to do tha~, complainant has waived his right to file any
subsequent complaints with MSHA concerning the same incident.
This is essentially what Mr. Cole did in this case. Rather than
file an appeal of the Secretary's adverse determination with the
Commission back in April of 1992, he refiled the same complaint
with MSHA 2 years later, in April of 1994. That refiled
complaint is now before me under section lOS{c) {3) of the Act
after a second adverse determination by MSHA .
In Herman y. IMCO Services, 4 FMSHRC 2135, 2138-2139
(December 1982), the Commission observed that the placement of
limitations on the time periods during which a plaintiff may
institute legal proceedings is primarily designed to assure
fairness to the opposing party by:
. .. preventing surprises through the reviva l of claims
that have been allowed to slumber until evidence has
been lost, memories have faded, and witnesses have
disappeared . The theory is that even if one has a just

1602

claim it is unjust not to put the adversary on notice
to defend within the period of limitation and that the
right to be free of stale claims in time comes to··
prevail over the right to prosecute them.
Under the circumstances, I conclude that complainant has not
shown justifiable circumstances to excuse his seriously latefiled complaint. The refiled complaint was filed over 2 years
out of time and alleges nothing that was not already considered
and rejected by MSHA in the original complaint of discrimination
filed shortly after the incident in 1992.
Accordingly, complainant's refiled complaint filed with MSHA
on April 14, 1994, is found to be excessively stale and will be
dismissed herein.
ORDER

In view of the foregoing, the complainant's refiled
complaint is found to have been untimely filed and on that basis,
the respondent's motion to dismiss this case is GRANTED and the
complaint is DISMISSED.

Law Judge
Distribution:
Mr. Kenneth F. Cole, Route 10, Bo x 370, Morgantown, WV 26505
(Certified Mail}

R. Henry Moore, Esq., Buchanan I~gerso l l, Professional
Corporation, 600 Grant Street, 58th Fl oor, Pittsburgh, PA
15219-2887 (Certified Mail)
.::dcp

16 0 3

----

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

SEP 1 8 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. VA 95-17
A. C . No. 44-06240-03590 A

I

Mi ne No . 1
GARY WAYNE CRABTREE,
Emp l oyed
by J&E COAL COM PANY
INCORPORATED ,
Respondent
SECRETARY OF LABOR ,
MINE SAFETY AND HEALTH
ADM I NISTRATION (MSHA )
Petition er
v.

CIVIL PENALTY PROCEEDING
Docket No. VA 95-18
A. C. No. 44-06240-03591 A

I

Mine No. 1
DANNY KEITH CRABTREE, Employed
by J&E Coal Company
INCORPORATED,
Respondent
DE CI SION

Appearances:

Colleen A. Geraghty, Esq., Office of the
Solicitor, U.S . Department of Labor, Arlington,
Virgin i a, for Petitioner;
Gary Wayne Crabtree, Honaker, Virginia , Pro Se;
Danny Keith Crabtree, Honaker, Virgini a, Pro Se .

Before:

Judge Hodgdon

These consolidated cases are before me on petitions for
a s ses s ment of civil pena l ty fi l ed by the Secretary of Labor ,
a c ting through his Mi n e Safety and Hea l th Administ r ation (MSHA),
against Gary Wayne Cra btree and Danny Keith Crabt r ee p ursuant to
Section s 105 and 1 10 of the Federal Mi ne Sa fety and Health Act of
1977, 30 U.S.C . §§ 815 and 820 . The petit i ons al l ege that each
o f the re spondents knowingl y . authori z ed, ordered or carried out ,

1604

as an agent of J&E Coal Company, violations of Sections 75.400
and 75.403 of the Secretary's mandatory health and safety
standards, 30 C.F.R. §§ 75.400 and 75.403, and seek penalties of
$1,400.00 against each Respondent. For the reasons set forth
below, I find that Danny Keith Crabtree knowingly violated the
regulations and assess a penalty of $400.00, and that Gary Wayne
Crabtree knowingly violated Section 75.403, but did not knowingly
violated Section 75 . 400, and assess a penalty of $400.00.
A hearing was held on July 11, 1995, in Abingdon, Virginia.
MSHA Coal Mine Inspector Vearl Hileman, MSHA Supervisor
Larry A. Coeburn, MSHA Special Investigator Michael D. Clements
and miner Roy W. Honaker testified for the Secretary. Respondent
Gary Wayne Crabtree was called as a witness by the Secretary and
testified further at the request of the judge .
DANNY KEITH CRABTREE
At the start of the hearing, counsel for the Secretary
stated that the Secretary and Danny Keith Crabtree had reached a
settlement in his case . The agreement provides for a reduction
in penalty from $1,400.00 to $400 . 00 and payment of the penalty
by Mr . Crabtree in two monthly installments of $200.00 each.
Having considered the representations of the parties,
(Tr. 5-9), I conclude that the settlement is appropriate under
the criteria set forth in Section llO(i) of the Act, 30 U.S . C .
§ 820(i), and approve the settlement .
The agreement's provisions
will be carried out in the order at the end of this decision .
GARY WAYNE CRABTREE
On May 9, 1994, Inspector Hileman issued Citation No.
3770559 and Order No. 3770560 to J&E Coal Company. The citation
alleged a violation of Section 75.400 because an
[a]ccumulation of loose coal and coal dust was allowed
to accumulate in depths of' 1 inch to 18 inches along
the Long John belt on the 001 section, on the mine
floor for a distance of approximately 300 feet, and
into x cuts right and left. Accumulations were on the
mine floor over the entire section in depths of 1 inch
(approximately) . A large quantity was present at
Survey Section No. 2831 and outby in several locations.

1605

(Govt. Ex . 1.) The citation was modified on June 8, 1994, to
include "the area of the conveyor belt drive on the No . 3
conveyor belt and extending inby for a distance of 900 feet.
Accumulations of 1 inch to s inches were present along the off
side of the conveyor belt, on the mine floor."
(Id.)
The order was for a violation of Section 75.403, stating
that "[r]ock dust has not been applied to the mine roof on the
001 section [.) [A] dequate rock dust has not been applied to the
mine floor as indicated by samples collected on this date[.]
[T ] he area affected is aprox. [sic) 300 feet in each of the 5
entrys [sic] . Also bare power wire was found at the battery
charging station (energized) in dry powdery coal dust."
(Govt . Ex . 2 . )
Inspector Hileman testified that Danny Keith Crabtree was
foreman on the day shift and was present on the morning of May 9
when the inspector observed the violations.
The inspector stated
that "there was quite an accumulation of coal along the [No . 3 )
belt line . . . one inch up to maybe 10 . . . [for] approximately
600 feet," (Tr . 20-21.), "there was extreme accumulations of coal
. . . 18 inches of coal" in a large dip in the coal bed in the
conveyor belt entry, (Tr. 22-23), in the No. 2 entry he "found
the same conditions as I found along the belt," (Tr. 24), and
that in all the entries he found "[t]he same conditions that
I had found in the No. 2 entry and the No. 3 entry," (Tr. 25).
It was the inspector's opinion that "it would have taken
several weeksn for the accumulations to have developed.
(Tr . 26.)
He believed that the accumulations had occurred:
By not being properly cleaned up as they mined
daily.
. . There was other factors.
The bridge
system has junctions where the coal dumps from one
bridge to the other, and at the junction points there
is supposed to be adequat·e skirting there to keep the
spillage from spilling.
This skirting had become
deteriorated to quite an extent .
It was causing a lot
of spilling.
(Tr. 26-27 . ) He further related that the accumulations were very
black in appearance, and dry .

1606

With regard to the failure to rock dust, Inspector Hileman
testified that for "300 feet in each of the five ·entriesu the
roof was "[d]ark . Actually it was -- it looked gray because you
don't usually have any coal dust on the mine roof to an extreme,
but still have to rock dust it."
(Tr. 34-35.) He also said that
in the same areas the mine floor and the ribs were "black."
(Tr. 35 . ) To confirm his opinion, he took dust samples in the
No. 3 and No . 4 entries which were determined to be 37 percent
and 28 percent incombustible, respectively.
(Govt. Ex. 4.)
Gary Wayne Crabtree testified that he was the foreman on the
evening shift, 3:00 PM to 11:00 PM. He stated that the duties of
the evening shift were: "Well, we were mostly maintenance, and
then we done what cleanup, if there was some cleanup needed to be
done we done cleanup, and we did mostly -- well, I can't really
say all the rock dusting, but generally most of the rock
dusting."
(Tr. 79.)
He asserted that he saw "nothing unusual" in the way of coal
accumulations while performing his on-shift examination on May 6,
1994, although he did see some accumulations because "there's
coal in the coal mines.
. And you will see coal, you know,
when you're in the coal mines. You'll see some coal . "
(Tr. 81.)
Mr . Crabtree testified that the floor and ribs of the mine were
rock dusted by hand using the following method: "You just open up
a bag, and you just spread it out on the ribs, you know . And on
the bottom, you kind of bust them up and then just kick them
around."
(Tr . 82.)
He agreed that there "most definitely" is a
visual difference between ribs and floor that have been rock
dusted and ones that have not.
(Tr. 85.)
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This case was brought under Section llO{c) of the Act,
30 U.S.C. § 820(c) which provides:
Whenever a corporate operator violates a mandatory
health or safety standard . . . any director, officer,
or agent of such corporation who knowingly authorized,
ordered, or carried out such violation . . . shall be
subject to the same civil penalties . . . that may be
imposed upon a person under subsections {a) and (d) .

160 7

Therefore, in order to find Gary Wayne Crabtree personally liable
for the two violations in this case, the Secretary must prove
that the violations occurred and that Mr. Crabtree knowingly
authorized, ordered, or carried them out.
In this case, there is no doubt that the company violated
Sections 75.400 1 and 75.403 2 of the Secretary's Regulations.
However, while I find that Gary Wayne Crabtree knowingly violated
Section 75.403, I find that the Secretary has not proven that he
knowingly violated Section 75.400.
The Commission set out t h e test for determining whether a
corporate agent has acted "knowingly" in Kenny Richardson,
3 FMSHRC 8, 16 (January 1981 ) , aff'd, 689 F.2d 623 (6th Cir.
1982), cert. denied, 461 U.S. 928 (1983 ) when it stated: "If a
person in a position to protect safety and health fails to act on
the basis of information that gives him knowledge or reason to
know of the existence of a violative condition, he has acted
knowingly and in a manner contrary to the remedial nature of the
statute."
In Roy Glenn, 6 FMSHRC 1583 (July 1984), the Commission
explained that this test also applies to a situation where the
violation does not exist at the time of the agent's failure to
act, but occurs after the failure.
It said:

1

Section 75.400 states: "Coal dust, including float coal
dust on rock-dusted surfaces, loose coal, and other combustible
materials, shall be cleaned up and not be permitted to accumulate
in active workings, or on electric equipment therein."
2

Section 75.403 states:

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 be
not less than 65 per centum, but the incombustible
content in the return aircourses shall be no less than
80 per centum.

1608

Accordingly, we hold that a corporate agent in a
position to protect employee safety and health has
acted 'knowingly', in violation of Section llO(c) when,
based on the facts available to him, he either knew or
had reason to know that a violative condition or
conduct would occur, but he failed to take appropriate
preventive steps.

Id. at 1586. The Commission has further held, however, that to
violate Section llO(c), the corporate agent's conduct must be
"aggravated," i.e. it must involve more than ordinary negligence .
Wyoming Fuel Co., 16 FMSHRC 1618, 1630 (August 1994); BethEnergy
Mines, Inc., 14 FMSHRC 1232, 1245 (August 1992); Emery Mining
Corp., 9 FMSHRC 1997, 2003-04 (December 1987).
In this case, the evidence does not support a finding of
aggravated conduct on the part of Mr. Crabtree with respect to
the accumulations . In the first place, there is no direct
evidence what . accumulations, if any, there were on the second
shift the Frid?-Y before the inspector inspected the mine.
Mr. Crabtree says there was nothing un~sual.
In the second
place, it appears that the worst accumulations were along the
belt lines, which Mr. Crabtree says he did not inspect. Finally,
since the first shift had already been working for about two
hours when Inspector Hileman entered the mine, there is no way
to determine how much of the accumulations had occurred that
morning.
Ultimately, whether Gary Wayne Crabtree knowingly violated
Section 75.400 depends on whether one accepts his opinion or the
inspector's opinion . In view of the factors set out in the
preceding paragraph, I will give Mr. Crabtree the benefit of the
doubt and resolve the issue in his favor . Consequently, I
conclude that he did not knowingly authorize, order or carry out
the violation.
The same cannot be said, h9wever, for the violation of
Section 75 . 403. This violation occurred in the entries, an area
the foreman was supposed to examine, not along the beltlines. As
Mr. Crabtree admitted, one of the main jobs of the second shift
was to rock dust. Furthermore, his testimony was less precise
than about the accumulations in that he talked about rock dusting
in general and not with regard to the specific occurrence.
Finally, his description of how the second shift rock dusted
shows that the job was not taken seriously, but was performed
only half-heartedly .

1609

When this is considered against the description by Inspector
Hileman of the color of the entries that he observed on Monday
morning, as well as against the results of the dust samples,
taken 90 to 100 feet outby the working faces, which showed a
significant deficiency of rock dust in the entries, it is
apparent that little or no rock dusting had been done recently.
As Mr. Crabtree acknowledged, it is easy to tell an area of the
mine that has been rock dusted from one that has not.
All of this establishes that Gary Wayne Crabtree knew or
should have known that proper rock dusting was not being
performed and took no action to correct it.
Since one of his
main functions was to see that this was done, I conclude that he
knowingly authorized the violation of Section 75.403.
CIVIL PENALTY ASSESSMENT
The Secretary has proposed a penalty of $600.00 for the
violation of Section 75.403. However, it is the judge's
independent responsibility to determine the appropriate amount of
a penalty in accordance with the six criteria set out in Section
llO(i) of the Act.
Sellersburg Stone Co. v. Federal Mine Safety
and Health Review Commission, 736 F.2d 1147, 1151 (7th Cir.
1984). While all of the criteria are not directly applicable to
an individual, they can be applied by analogy.
In this case, there is evidence that Gary Wayne Crabtree has
not worked in a coal mine for a year. As of the day of the
hearing, he was self-employed in the logging and sawmill business
and had earned about $6,800.00 for the year. He has three
children to support. Factoring all of this into the six
criteria, I conclude that a penalty of $400.00 is appropriate for
this violation.
OEDER
I conclude that Danny Keith Crabtree, in accordance with the
settlement agreement, knowingly authorized violations of Sections
75.400 and 75.403 at the J&E Coal Company Mine No. 1 on May 9,
1994.
I further conclude that Gary Wayne Crabtree knowingly
authorized a violation of Section 75.403, but did not knowingly
authorize a violation of Section 75.400. Accordingly, Danny
Keith Crabtree is ORDERED TO PAY a civil penalty of $400.00, in

1610

two monthly installments of $200.00, 3 and Gary Wayne Crabtree is
ORDERED TO PAY a civil penalty of $40 0. 00. On receipt of
p a yment, these proceedings are DISMISSED .·

\(~~

Administrative Law Judge

Distribution:
Colleen A. Geraghty, Esq., Office of the Solicitor, U. S .
Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203
(Certified Mail)
Gary Wayne Crabtree, Route 1, Box 89-A, Honaker, VA
(Certified Mail)

24260

Danny Keith Crabtree, Route 1, Box 161, Honaker, VA
(Certified Mail)

24260

/lsb

3

Evidence received since the hearing f r om MSHA's Civil
Penal ty Compliance Off ice indicates that Danny Ke i th Crabtr ee has
already made one $200.00 payment.

1611

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
(303) 844-3993/FAX (303) 844-5268

SfP 1 9 1995
CIVIL PENALTY PROCEEDING

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

Docket No. WEST 95-96-M
A.C. No. 02-02503-05522
Stewart Kessen Crushing

v.
STEWART KESSEN,
Respondent

DECISION APPROVING SETTLEMENT
Before:

Judge Cetti

This case is before me upon a petition for assessment of
civil penalties under section 105(d) of the Federal Mine Safety
and Health Act of 1977 (the Act). The Petitioner filed a motion
to approve a settlement agreement and to dismiss the case. The
citations, initial assessments and the proposed settlement
amounts are as follows:
Health &
Initial
Proposed
Citation
Safety
Proposed
No.
Settlement
Date
Standard
Penalty
4335901
4335902
4335903
4335904
4335905
4335907
4356595
4356597

9/27/94
9/27/94
9/27/94
9/27/94
9/27/94
9/27/94
9/27/94
9/27/94

56.4201(a) (1)
56.9300(a)
56 .14107 (a}
56.14107(a)
56.12008
56.14107(a}
56.9300(a)
56.12004
TOTALS

$

168.00
690.00
288.00
288.00
431. 00
288.00
690.00
431.00

$3,274.00

$

117.60
483.00
201. 60
201. 60
301.70
201. 60
483.00
301.70

$2,291.80

I have considered the representations and documentation submitted and I conclude that the proffered settlement is consistent
with the criteria in § llO(i) of the Act.
ORDER
WHEREFORE the motion for approval of settlement is GRANTED.
RESPONDENT SHALL PAY to the Secretary of Labor the approved
1612

penalties of $2,291.80 within 30 days of this decision. Payment
shall be made to Office of Assessments, Mine Safety and Health
Administration, P.O. Box .360250M , Pittsburgh, Pennsylvania 152516250. Upon such payment this case is dismissed.

v~

Aug
Cetti
Administrative Law Judge

Distribution:
Jeanne M. Colby, Esq., Office of the Solicitor, U. S. Department
of Labor, 71 ~tevenson Street, Suite 1110, San Francisco, CA
94105
W. Scott Donaldson, Esq., 5050 North 19th Avenue, Suite 409,
Phoenix, AZ 85015-3209

\sh

1613

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

SEP 2 0 1995

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

CIVIL PENALTY PROCEEDING
Docket No. CENT 94 - 104-M
A.C. No. 29 - 01380-05501 FRT

I

Sedillo Hill
SANDY JONES CONSTRUCTION,
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Koutras

The petitioner has filed a motion pursuant to Commission
Rule 31, 29 C.F.R. § 2700.31, seeking approval of a proposed
settlement of this matter. The initial proposed civil penalty
assessment for the contested violation is $4,000, and the
respondent has agreed to settle the matter by paying a civil
penalty assessment of $1,500.
In support of the proposed
settlement, the petitioner has submitted information pertaining
to the six statutory civil penalty assessment criteria found
in section llO(i) of the Act, a discussion of the violation in
question, and a reasonable justification for the reduc.tion of
the initial proposed civil penalty assessment.
The petitioner states that the mandatory standard under
which the respondent was cited is subject to varying interpretations and that it cannot establish that the gravity
associated with the violation was extraordinarily high. Under
the circumstances, the petitioner believes that a reduction
of the initially specially assessed penalty is warranted.

1614

Conclusion
After careful review and consideration of the pleadings,
arguments, and submissions in support of the motion to approve
the proposed settlement of this case, I conclude and find that
the proposed settlement disposition is reasonable and in the
public interest. Accordingly, pursuant to 29 C.F.R . § 2700.31,
the motion r s GRANTED, and the settlement IS APPROVED.
ORDER
The respondent IS ORDERED to pay a civil penalty assessment
in the amount of $1,500, in satisfaction of the violation in
question . Payment is to be made to MSHA within thirty (30) days
of the date of this decision and order, and upon receipt of payment, this matter I S DISMISSED.

~~.ii~

Administrative Law Judge

Distribution:
Mary K. Schopmeyer, Esq., Office of the Solicitor,
U.S. Department of Labor, 525 Griffin Street, Suite 501,
Dallas, TX 75202
Ray Carroll Jones, Owner, Sandy Jones Construction,
HCR Box 155, Williamsburg, NM 87942

\lh

1615

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

SEP 2 1 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDINGS

Docket No. KENT 95-140
A.C . No. 15-15746-03596
Docket No. KENT 95-555
A.C. No. 15-15746-03602

CONAK.AY RESOURCES, INC . ,
Respondent

Docket No. KENT 94-1031
A.C. No. 15-15746-03593
No. 3 Mine
DECI SI ON

Appearances:

Joseph B. Luckett, Esq . , U.S. Department of Labor,
Office of the Solicitor, Nashville, Tennessee, for
the Petitioner;
Saul E. Akers, Safety Director, Conakay Resources,
Matewan, West Virginia, for the Respondent.

Before:

Judge Weisberger
Statement of the Case

These consolidated cases are before me based upon petitions
for assessment of penalty filed by the Secretary of Labor
(Petitioner) alleging violations by Conakay Resources, Inc .
(Conakay) of various mandatory r.egulatory safety standards.
Pursuant to notice, a heari ng was held on July 11, 1995,
in Huntington, West Virginia, concerni ng Docket Nos. KENT 94-1031
a nd KENT 95-140. Subsequent to the hearing, Petitioner filed
a motion to consolidate Docket No. KENT 95-555 with Docket
Nos . KENT 94-1031 and KENT 95-140. The motion was not opposed
b y Conakay and it is g ranted . It is ordered that Docket
No. KENT 95 - 555 be c onsolidated with Docket Nos . KENT 94-1031
and KENT 95-140.

1616

Findings of Fact and Discussion
The parties stipulated as to the facts of the violations
cited in the orders and citations at issue.
Conakay does not
contest the findings set forth in the citations and orders at
issue.
The parties also stipulated that Conakay is a small to
medium size operator, and that the violations were corrected in
good faith.
The only issue raised by Conakay is whether the
penalty should be reduced based on the effect of the penalty on
its ability to continue in business.
Saul Akers, Conakay's safety director, testified that as of
May 12, 1995, Conakay " ... no longer exists due to financial
problems ... " {Tr. 13), as the company had only leased one mine,
and that mine had been taken over by the entity from which it had
been leased. Akers indicated that Conakay is not operating any
mines, nor does it have any plans to operate any mines in the
future.
Two financial statements were admitted in evidence on behalf
of Conakay, one dated June 30, 1994, and one dated May 31, 1995.
Each statement indicates that Conakay s assets and liabilities
are equal.
Each statement was prepared by an accountant and
includes the following language.
"[m]anagement had elected to
omit substantially all of the disclosures ordinarily included in
financial statements prepared on the income tax basis of
accounting. If the omitted disclosures were included in the
financial statements, they might influence the users conclusions
about the Companies assets, liabilities, revenues, and expenses."
Akers testified that he did not personally participate in
the drafting of these financial statements. He did not have
anything to do with any of the financial aspects of Conakay.
Conakay did not of fer the testimony of anyone who has
personal knowledge of its financ±al situation . The accountant
who prepared the financial statements did not testify . These
statements were not audits, and contained omissions that might
relate to its assets, liabilities, revenue and expenses. Thus,
not much probative weight was accorded the financial statements.
Also, Conakay did not offer the testimony of any individual
having the authority to make business decisions on its behalf.
Thus, Conakay has failed to adduce sufficient reliable evidence

1617

to establish its present financial situation. Nor has it adduced
sufficient evidence to establish that it has dissolved, and
definitely will never resume business. It is mere speculation to
assume that it will not be able to obtain financing and elect to
continue in business.
For all the above reasons, I find that there is no basis to
mitigate a penalty based on its effect on Conakay's ability to
remain in business. Considering the history of Conakay's
violations (Government Exhibit 4), the degree of its negligence
and gravity of these violations as set forth in the citations and
orders at issue, and the remaining factors set forth in Section
llO(i) of the Act _as stipulated to by the parties, I find that
the following penalties are appropriate for the violations set
forth in the following citations:
KENT 94-1031
Citation No.

Penalty

4005203
4005204
4005205
4005206
4005210
4005211
4005212
4005213
4005214
4005216
4005217
4005218

$362
$362
$ 50
$431
$ 50
$362
$362
$50
$362
$362
$362
$362

KENT 95-140
Order No.

Penalty

4501453
4501454
4501555

$7,500
$6,000
$7,500

1618

KENT 9 5 -555

Order No.

Penalty

4505 5 65
4505566
4505567
4505569
4505570

$267
$ 1 019
$267
$189
$595

ORPER

It is ORDERED that Respondent shall pay a civil
penalty of $26,814 within 30 days of this decision.

LL

Avram Weisberger
Administrative Law Judge
Distribution :
Joseph B. Luckett, Esq . , Office of the Solicitor, U.S. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville,
TN 37215
(Certified Mail)
Saul E. Akers, Safety Director, Conakay Resources, Inc.,
Post office Box 430, Matewan, WV 25678 (Certified Mail)
/ml

1619

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3993/FAX 303-844-5268

September 21, 1995

TEMPORARY REINSTATEMENT
PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of
MARTY P . BODEN,
Complainant

Docket No . WEST 95-308-D
Swanson Mine
I.D. 48-00082

v.
LION COAL COMPANY,
COUGAR COAL COMPANY, successor
to LION COAL CO.,
Respondent
DECISION

Appearances:

Kristi L. Floyd, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Complainant;
Brian w. Steffensen, Salt Lake City, Utah,
for Respondent.

Before:

Judge Cetti

This procee ding is before me upon request for hearing filed
by the operators of the Swanson Mine, I.D. No. 48-00082, under
sect i on 105(c) of the Federal Mine Safety and Health Act of 1977,
30 u . s . c. § 801 et .§filL., the "Act", and under Commission Rule
45(b} , 29 C.F . R. § 2700.45(b), to contest the Secretary of
Labor's Application for Temporary Reinstatement on behalf of
miner Marty P. Boden.
I

It is undisputed that Marty P. Boden was employed as a belt
foreman at the Swanson Mine prior to his discharge on November 9,
1994. Under date of November 14, 1994, Mr. Boden filed with MSHA
a complaint of discrimination which reads in part as follows:
I continued to complain to the Company Off icers, the Board of Directors and to Matt Breneman about the violations in the entire
beltline and about not having enough
1620

employees to correct the violations that I
could.
I also complained about the return ·
entries after walking them to follow the
secondary escapeway out to the surface .
I
complained about the dusty roadways in the
main intakes.
I complained about the build
up of float dust in the mine and the lack of
rock dust in the mine. However, this complaining seemed to fall on deaf ears.
Then on Monday, November 7, 1994, I spoke
with Anita Goodman for advice on the violations at the mine and the unwillingness of
the four individuals who run every aspect of
our company and the mine to correct such
violations. Ms . Goodman advised me to contact the MSHA Headquarters in Arlington,
Virginia .
I immediately contacted the MSHA
Headquarters and registered my complaints.
On Nov.ember 9, 1994, Mr. Steve Teetman, the
MSHA inspector came to the mine with what was
to begin as a Triple A inspection and was
changed to a BAD inspection upon receiving my
"Miner's complaint". At approximately 2:30
p.m . this same afternoon, Brian Steffensen,
James Lipscomb, Hal Rosen and Richard Anderson ordered the mine manager, Mr. Matt Breneman to fire me for "malfeasance". Due to the
fact that the list of complaints is the same
things I have continued to complain about,
these four men apparently knew that I was the
one who called MSHA and they fired me for
exercising my Miner's Rights.
II

Temporary reinstatement proceedings are governed by Commission Rule 45(c), 29 C.F.R. § 2700 . 45(c) which provides as
follows:
The scope of a hearing on an application
for temporary reinstatement is limited to a
determination by the Judge as to whether the
miner's complaint is frivolously brought.
The burden of proof shall be upon the Secretary to establish that the complaint is not
frivolously brought.
In support of his
application for temporary reinstatement, the
Secretary may limit his presentation to the
testimony of the complainant. The respondent
shall have an opportunity to cross-examine
any witnesses called by the Secretary and may

1621

present testimony and documentary evidence in
support of its position that the complaint is
frivolously brought.
III

The secretary filed a timely Application for Temporary
Reinstatement stating that as a result of a formal investigation
the Secretary determined that Mr. Boden's complaint was not frivolously brought. The Secretary specifically requests an Order
requiring the operator o f the Swanson Mine, Lion Coal Company
and, by later amendment its successor Cougar Coal Company, to
temporarily reinstate the miner, Marty P. Boden, to the position
of belt foreman which he held immediately prior to his discharge
on November 9, 1994, or to a similar position at the same rate of
pay and with the same or equivalent duties.
The Secretary's Application for Temporary Reinstatement
alleges that Respondent terminated the employment of the belt
foreman Marty Boden "contrary to section 105(c) of the Act for
exercising his statutory rights under the Act." The Secretary
specifically states Mr. Boden contacted MSHA offices in Delta,
Colorado, and Arlington, Virginia, on November 7, 1994, to
complain about unsafe conditions at Lion Coal Company's Swanson
Mine. As a result of Boden's safety complaints to MSHA, a Codea-Phone spot inspection was initiated by MSHA on November 9,
1994. Mr. Boden, was terminated later that same day, November 9,
1994. The Secretary states his employment was terminated as a
resu l t of his safety complaints to MSHA.
The application's accompanying affidavit required by
Comm i ssion Rule 4 5 (a) was executed by William G. Denning.
affidavit, in relevant part, certifies the following:
a. At all relevant times, Respondent
Swanson Mine, Lion Coal Company, engaged in
the production of coal and is therefore an
operator within the meaning of section 3(d)
of the Mine Act.
b. At all relevant times, Marty Boden
was employed by Respondent as a belt foreman
and is a miner as defined by section 3(g) of
the Mine Act.
c. Swanson Mine, Lion Coal Company, is
a mine as defined by section 3(h) of the Mine
Act, the products of which affect interstate
commerce.
d. The alleged act of discrimination
occurred on November 9, 1994, when Marty

1622

The

Boden was discharged by Matt Breneman, Mine
Manager.
e. Marty Boden engaged in protected
activity when on November 7, 1994, Mr. Boden
contacted the MSHA offices in Delta, Colorado, and Arlington, Virginia, to report unsafe
working conditions at the Swanson Mine.
Specifically, he complained about the belt
rollers, the rock dusting and the returns.
These phone calls caused MSHA to perform a
Code-a-Phone inspection at the Swanson Mine
on November 9, 1994.
f.
During the course of Ms. Lorenzo's
investigation, she conducted interviews with
a number of employees, both hourly and managerial, and also conducted a review of documents provided by the mine. As a result of
Ms. Lorenzo's investigation, I determined
that Mr. Boden was discharged in retaliation
because of his report to MSHA about unsafe
conditions at the Swanson mine which caused a
Code-a-Phone inspection by MSHA. Most of the
miners I interviewed agree with Mr. Boden
that the beltline was not safe.
g. Mr. Boden has always met an acceptable level of performance at the mine, and
was characterized as a good worker by his
supervisors. The mine contends that Mr.
Boden was already designated for termination
before the MSHA Code-a-Phone inspection because of maleficence (sic) and theft. Ms.
Lorenzo's interviews with other employees of
the mine do not give any credence to these
charges.
IV

At the hearing the Secretary presented the testimony of the
mine manager Matt Breneman, the belt foreman and Complainant
Marty Boden, the MSHA special investigator Leslie Y. Lorenzo, the
former company safety manager Anna Marie Boden, Ron Kalvis, a
shop foreman, Greg Brown, who worked under Boden on the belts,
Dennis Keller, who took over Boden's job as belt foreman when
Boden was terminated, Ron Hoffman and Tara Whittaker.
Matt Breneman, the mine manager at Swanson Mine, testified
substantially as follows: The Code-a-Phone message had safety
complaints, the same complaints that Boden had continuously made
to management, and he could tell from the complaints in the Code-

1623

a-Phone message that Boden must have been the one who made the
complaints t o MSHA. Afte r the Code-a- Phone message was received
at the mine, Matt Breneman called management in Salt Lake City
and talked to the Board of Directors. They p u t his call on a
speaker phone, and R. Anderson (Dick), J. Lipscomb and Brian
Steffensen participated in the call. Breneman discussed with
them the Code- a - Phone message and the complaints set forth in the
Code-a-Phone message . Breneman testified that in the course of
that conversation Brian Steffensen told Breneman to fire Marty
Boden . The mine manager replied he had no reason to fire Boden.
Brian Steffensen then told him to fire Boden for "malfeasance''·
Breneman hung up the phone, looked at Boden and said " they want
me to fire you" for " malfeasance." He briefly discussed the
situation with Boden and it was determined that in order not to
jeopardize his own job, Breneman should do what he was told to
do.
He fired Boden. Boden then left the mine immediately .
The Respondent primarily presented the testimony of management witnesses who testified that they were not satisfied with
Mr. Boden's work performance as belt foreman and were concern ed
about his use of a company gas card and his charging mileage.
Their testimony indicated that Lion Coal management was in the
process of investigating Mr. Boden's work performance and were
seriously considering terminating his employment before they were
even aware of Marty Boden's Code-a-Phone message to MSHA.
On review of the entire record I find the testimony of the
witnesses called by the Secretary, taken together , support the
allegations in the Secretary ' s Application for Temporary Reinstatement and the assertions in its accompanying affidavit .
Their testimony and the Secretary's documentary evidence clearly
establish that the miner's complaint was not frivolously brought .

v
COUGAR COAL COMPANY , SUCCESSOR TO LION COAL COMPANY

On June 28, 1995, over the objection of counsel Brian
Steffensen, I granted the Secretary's motion to amend all pleadings to add as a Respondent Cougar Coal Company as successor to
Lion Coal Company. The evidence established that on November 29,
1994, for $10.00 and other consideration, Cougar Coal Company
assumed the right to the title and an interest in all assets
except for claims against the Selengos and their affiliates, cash
on hand, current accounts receivable and inventory .
(Gov't . Ex.
10-B). Evidence was presented that after the November 29, 1994,
transaction , the day- to-day operations at Swanson Mine continued
without a break and the mine continued to produce coal. The mine
and the appurtenances associated with the mining activities remained the same. Th e workforce remained substantially the same.
Both Mine Superintendent Gene Picco and Mine Manager Geor ge Herne
have been employed at this mine for several years and after

1624

November 29, 1994, continued their employment.
In addition, the
corporate officers and directors for Lion Coal Company and Cougar
Coal Company are substantially the same. They are as follows:
JAMES LIPSCOMB - Chairman and President of Lion Coal Company
and President of cougar Coal Company
HAL ROSEN - Treasurer of Lion Coal Company and Treasurer of
Cougar Coal company
RICHARD ANDERSON - Vice-President of Lion Coal Company and
Vice-President of Cougar Coal Company
BRIAN STEFFENSEN - Secretary of Lion Coa l Company and
registered agent for Cougar Coal Company
Mining methods and procedures did not change and the same
jobs were required to be filled.
Cougar Coal Company adopted all
of Lion Coal Company's MSHA approved plans and stated that they
anticipate no change in mining practices.
Cougar Coal Company
used the same machinery, equipment and methods of production.
George Herne, mine manager for Cougar Coal Company in his
letter to the MSHA District Manager, under the letterhead of
Cougar Coal Company dated January 13, 1995 states as follows:
RE:

The Swanson Mine
I.D. # 48-00082

Dear Mr. Kuzar,
Cougar Coal Company has taken over the operations of
the Swanson Mine, ID #48-00082 from Lion Coal Company. At
this time Cougar Coal anticipates no change in the mining
practices employed at the Swanson Mine.
For this reason
Cougar Coal Company will continue to operate under Lion Coal
Company's approved mining plans, and accepts these mining
plans as their own.
Thank you:
/s/
George Herne
Mine Manager

(Gov't. Ex.

ioA pg.

4, Tr. 479)

Under the nine-factor successorship guideline enunciated in
Munsey v. Smitty Baker Coal Company Inc., 2 FMSHRC 3463 (1980) I
find that the Cougar Coal Company is a successor to Lion Coal
Company and, as such, along with Lion Coal Company, is properly
subject to the Order temporarily reinstating Marty Boden.

1625

CONCLUSION
At the conclusion of the hearing in this matter on
August 30, 1995, after evaluating the entire record I ruled from
the bench that the Secretary had sustained his burden of proof in
establishing that the discrimination complaint was "not frivolously brought".
I concluded that the Secretary made a sufficient showing of the elements of a complaint under section 105(c)
of the Act and I orally issued the reinstatement order requested
by the Secretary against the operators of the Swanson Mine, Lion
Coal Company and cougar Coal Company as the successor to Lion
Coal Company .
In this decision I hereby affirm in writing the oral ruling
made from the bench at the conclusion o f the hearing on
August 30, 199 5 .
ORDER
As stated in my ruling from the bench at the conclusion of
the hearing on this matter, the Secretary's Application for the
Order of Temporary Reinstatement of Marty P . Boden is GRANTED.
Respondents Lion Coal Company and Cougar Coal Company as successor to Lion Coal Company, are jointly and severally ORDERED to
temporarily reinstate Marty P. Boden to the position of belt
foreman which he held at the time of his discharge, or to a
similar position, at the same rate of pay and with the same or
equivalent duties.

O
u
,
~~ft
Cft·
Aug~
F. Cetti
Administrative Law Judge

Distribution:
Kristi Floyd, Esq., Office of the Solicitor, U.S. Department of
Labor, 1999 Broadway, Suite 1600, Denver, co 80202-5716
(Certified Mail)
Brian W. Steffensen, LION COAL COMPANY, 675 East 2100 South,
Suite 350, Salt Lake City, UT 8~106 {Certifi ed Mail)
COUGAR COAL COMPANY, 1554 9th Street, Rock Springs, WY 82901
(Certified Mail)
Chris L. Schmutz, Esq., CHRIS L . SCHMUTZ, P.C. , 265 East 100
South #300, Salt Lake city, UT 84111 (Certified Mail)

\sh

1626

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JLl>GES

2 SKYLINE, Suite 1000
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

SEP 2 6 i995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDINGS

.

Docket No. KENT 95-303
A.C. No. 15-14074-03674

0

PEA.BODY COAL COMPANY,
Respondent

Docket No. KENT 95-364
A.C. No. 15-14074-03676
Docket No. KENT 95-423
A. C. No . 15-14074-03678
Martwick UG Mine
Docket No. KENT 95-316
A.C. No. 15-08357-03786
Docket No. · KENT 95-337
A.C. No. 15-08357-03787
Docket No. KENT 95-414
A.C. No. 15-08357-03788
Camp #11 Mine

J)ECISION

Appearances:

Donna E. Sonner, Esq . , Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee and
Arthur J. Parks, Conference and Litigation
Representative, Mine Safety and Health
Administration for Petitioner;
Carl B. Boyd , Jr., Esq., Myer, Hutchinson Hanes
and Boyd, Henderson, Kentucky for Respondent.

Before:

Judge Melick

These consolidated cases are before me upon the petitions
for civil penalty filed by the Secretary of Labor pursuant to
Section 105(d) of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 801, et seq., the "Act," charging the Peabody Coal
Company (Peabody) with multiple violations under the Act and
proposing civil penalties for those violations. Settlement
motions were considered at hearing as to all violations except
those charged in Citation Nos. 3861812 and 3861813. With respect

1627

to the settlement the Secretary has proposed certain
modifications in the citations and a reduction in penalty from
$2,970 to $1,753. I have considered the representation~ and
documentation submitted in these cases and I conclude that the
proffered settlement is acceptable under the criteria set forth
in Section llO(i) of the Act . An order directing payment of the
agreed amount will accordingly be incorporated in this decision.
As noted, two citations remain at issue. They were issued
fifteen minutes apart on November 1, 1994, by Inspector Darrold
Gamblin of the Mine Safety and Health Administration {MSHA).
Citation No . 3861812, issued pursuant to Section 104(d) (1) of the
Act , 1 alleges a violation of the standard at 30 C. F . R. § 75.402
and charges as follows:
Rock dusting on the No. 2 Section MMD 00-5-0 in the 1st East
panel entries was not maintained to within 40 feet of the
working faces , the roof and floors of the No . 7 entry was
[sic] not rock dusted for 69 feet from the face outby, the
roof and floor of the connect crosscut between the Nos. 6
and 7 entries had no rock dust applied to the roof and floor
being 70 feet outby the working faces of Nos. 6 and 7
entries, the No. 6 entry floor and roof had no rock dust
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 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 .

1628

applied for a distance of 71 feet outby the working face,
the No. 5 entry had no rock dust applied to the floor and
roof for a distance of 95 feet. No. 3 entry had no rock
dust applied to the roof and floor for a distance of 134
feet, the connecting crosscuts from No. 1 entry to No. 5
entry had no rock dust applied to the roof or floors for a
distance of 190 feet .
The cited standard, 30 C.F.R. S 75.402, provides as follows:
All underground areas of a coal mine except those areas in
which the dust is too wet or too high in incombustible
content to propagate an explosion shall be rock dusted to
within 40 feet of all working faces, unless such areas are
inaccessible or unsafe to enter or unless the Secretary br
his authorized representative permits an exception upon his
finding that such exception will not pose a hazard to the
miners. All crosscuts that are less than 40 feet from a
work·i ng face shall also be rock dusted.
Citation No. 3861813 alleges a violation of the mandatory
standard at 30 C.F.R . S 75.403 and charges as follows:
A violation observed on the No. 2 Section MMU 005-0 in the
1st East entries where rock dust was required to be applied
to the top, floor and sides was not being maintained in such
quantities that the incombustible content combined with coal
dust is not being maintained to the required minimum. Spot
samples were collected at four (4) locations. No. 1 Sample
No. 7 entry 60 feet outby face, No. 2 sample in the
connecting cross between Nos. 6 and 7 entry 70 feet outby
the working faces, No. 3 sample 60 feet outby No. 6 entry
working face, No. 4 sample collected 100 feet outby No. 3
entry working face.
The cited standard provides as follows:
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 be not 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 dusts shall
be increased 1.0 and 0.4 per centum for each 0.1 per centum
of methane where 65 and 80 per centum, respectively, of
incombustibles are required.
It is, in fact, clear that the areas in which the latter
violation (Citation No. 3861813) was charged were physically

1629

located within the larger area in which the former violation
(Citation No. 3861812} was charged (See Appendix A). It is also
undisputed that the alleged violations coexisted in time. The
latter charges were based upon specific spot band samples taken
at four locations within the area of the former charges and were
purportedly confirmed by laboratory analysis of those samples
showing incombustible content below that required by both
standards .
Respondent argues that the charges in these two citations
are, in fact, therefore duplicative. It maintains that the
lesser included violation charged in Citation No. 3861813 is not
a separate and distinct violation but merges with the greater
violation charged in Citation No. 3861812 and should accordingly
be vacated . The Secretary rejects the contention as uwithout
merit" claiming that the charges involve separate areas of the
mine. The Secretary's claim in this regard is directly
contradicted, however, by the mine map submitted by the Secretary
himself.
(See Appendix A}.
Section llO(a) of the Act provides that Meach occurrence of
However,
where the Secretary elects to charge in one citation a violation
that is located within the same described area and is coextensive
in time and nature with a violation charged in another citation,
the charges are duplicative and the lesser included offense
merges within the greater offense and must be dismissed. This
conclusion is bottomed not on Constitutional double jeopardy
protections which are applicable only to criminal proceedings but
under similar standards of Constitutional due process and under
the Commission's general authority to review actions by the
Secretary that are an abuse of discretion. See W-P Coal Company,
16 FMSHRC 1407 (June 1994}; Bulk Transportation Services, Inc.,
13 FMSHRC, 1354, 1360 (September 1991); and Consolidation Coal
Company, 11 FMSHRC 1439, 1443 (August 1989).
a violation . . • may constitute a separate offense".

Moreover, in finding that the charges merge, it is noted
that the standard at 30 C.F.R. § 75.403 merely sets the specific
standard of incombustible content to be maintained in the areas
required by 30 C.F.R. § 75.402 to be rock dusted. Thus, in order
for there to be a violation of 30 C.F. R. § 75.402 the area cited
must have an incombustible content less than that specified in 30
c.F.R. S 75.403. It is clearly redundant to charge inadequate
rock dusting in one citation and. then charge again in another
citation inadequate rock dusting within the same area based on
specific tests. Essentially the only difference is that in one
case specified tests were performed to verify the same violation.
Moreover the two standards here cited do not impose separate and
distinct duties upon the operator.
This case is therefore clearly distinguishable from Cypress
Tonopah Mining corp., 15 FMSHRC 367, 378 (March 1993). There the

1630

Commission found the two citations at issue were not, in fact,
duplicative even though emanating from the same events because
the two standards (30 C.F.R. SS 56.3200 and 56.3130) imposed
separate and distinct duties upon an operator. See also Peabody
Coal Company, 1 FMSHRC 1494, Dissenting and Concurring Opinions
at 1497-1498 (October 1979).
Under the circumstances of this case I therefore conclude
that the charges in Citation No. 3861813 are indeed duplicative
of charges in Citation No. 3861812 and must therefore be merged
and vacated as a lesser included violation.
Evidence taken at hearing on Citation NO. 3861813 is
accordingly relevant to the violation alleged in Citation
No. 3861812 and will be considered herein. Notice of this was
provided before hearings (Tr. 5). In this regard MSHA Inspector
Darrold Gamblin testified that on November 1, 1994, around 2:00
a.m., he began a wSection 103(i)" spot inspection accompanied by
miners' representative Joe Wiles and Foreman Dorman Ross.
Gamblin observed in the No. 2 section that some locations were
not rock dusted and that other areas were inadequately rock
dusted.
He observed that Fo reman Eldon Stanley was then in the
process of rock· dusting by hand in areas where there was already
some light rock dust. According to Gamblin 80 to 100, 50-poundbags of rock dust would have been necessary to adequately rock
dust the area. He noted that a rock dusting machine is
ordinarily used on the No. 2 unit and the entire area could have
been properly rock dusted within one to one-and-one- half hours
using the machine.
Inspector Gamblin also testified that he took spot band
samples at four locations within the cited area as noted on the
face of Citation No. 3861813 and submitted those to the MSHA
laboratory for analysis. The results of the analysis showed
34.1%, 56.2 %, 52% and, in the No. 7 return entry, 43.8%
incombustible content. This evidence along with the inspector's
credible expert testimony clearly supports the cited violation.
In any event Joe Ed Wiles, a utilityman and union safety
committeeman who accompanied Gamblin on this inspecti~n,
corroborated Gamblin with respect to the inadequate rock dusting,
the fact that trailing cables had been run over and that Foreman
Stanley was observed rock dusting by hand. Wiles further
confirmed that there had been no rock dusting at all in some of
the cited areas and noted an ignition potential from the roof
bolting operations . Wiles also testified that on September 8,
1994, he had received complaints from other employees about the
lack of rock dusting and that he reported these complaints to
management. Wiles denied that the area from which the samples
were taken by Inspector Gamblin were damp.

1631

Gamblin also concluded that the violation was Msignif icant
and substantial" because of the surrounding conditions, including
the fact that energized electrical cables were being run over,
thereby a potential source for the phase wires to connect and
cause an explosion and/or an ignition of coal dust. Gamblin also
observed that there were other ignition sources, including
cutting and welding performed on the maintenance shift and prior
splices on an electrical cable.
More particularly, Gamblin's conclusion that the violation
was Msignif icant and substantial" was based on the following
testimony at hearing:
Q.

And how did you determine that this was a significant
and substantial violation? In other words, what was
the safety hazard involved?

A.

Well, coal dust is combustible. When rock dust is not
applied to it, it is a combustible material.

Q.

Could this contribute to a fire or explosion?

A.

Yes.

Q.

You indicated this was reasonably likely to occur?

A.

Yes.

Q.

If the condition had continued unabated?

A.

Yes.

Q.

What type of injury would result?

A.

Burns or fatal accidents.

Q.

And you indicated that 14 people were potentially
affected?

A.

Yes .

I agree that the violation was Msignif icant and substantial"
and of high gravity based on the credible testimony of Inspector
Gamblin corroborated by the credible testimony of Joe Wiles.

A violation is properly designated as "significant and
substantial" if, based on the particular facts surrounding
that violation, there exists a reasonable likelihood that
the hazard contributed to will result in an injury or
illness of a reasonably serious nature. Cement Division,
National Gypsum co., 3 FMSHRC 822, 825 (1981). In Mathies
Coal Co., 6 FMSHRC 1, 3-4 (1984), the Commission explained:

1632

In order to establish that a violation of a
mandatory standard is significant and substantial
under National Gypsum the Secretary must prove:
(1) the underlying violation of a mandatory safety
standard, (2) a discrete safety hazard -- that is, a
measure of danger to safety -- contributed to by the
violation, (3) a reasonable likelihood that the hazard
contributed to will result in an inJury, and (4) a
reasonable likelihood that the injury in question will
be of a reasonably serious nature.
See also Austin Power Co. v. Secretary, 861 F.2d
99, 103-04 (5th Cir. 1988), aff'g 9 FMSHRC 2015, 2021
(1987) (approving Mathies criteria).
The third element of the Mathies formula requires that
the Secretary establish a reasonable likelihood that the
hazard contributed to will result in an event in which there
is an injury (U.S. Steel Mining Co., 6 FMSHRC 1834, 1836
(1984), and also that the likelihood of injury be evaluated
in terms of continued normal mining operations. U.S. Steel
Mining Co., Inc., FMSHRC 1473, 1574 (1984); see also
Halfway, ". Inc., 8 FMSHRC 8, 12 (1986) and Southern Oil Coal
Co . , 13 FMSHRC 912, 916-17 (1991).
Gamblin also concluded that the violation resulted from
the operator's high negligence and the Secretary argues this also
constituted "unwarrantable failure". His testimony on this issue
is set forth in the following colloquy:

Q.

Under "negligence," you indicated that the level of
negligence was high?

A.

Yes.

Q.

What did you base this determination on?

A.

That the Operator knew the conditions and wasn't
doing any thing to correct it .

Q.

And how did you determine that the Operate~ knew of the
conditions?

A.

By the pres hift examination and by the nature of the
Operator being present in the faces trying to apply
dust .

Q.

Who was that person that you observed trying to apply
dust?

A.

Eldon Stanley .

1 6 33

Q.

And what is his position with the Company?

A.

He's a foreman, a third-shift foreman, who looks
after belt moves and the face work.

As further explained, the Secretary's rationale here is that
since Foreman Stanley had a clearly insufficient supply of rock
dust for the area needing rock dusting, his efforts showed both
knowledge of the violative conditions and a seriously inadequate
effort to abate those conditions. To further aggravate this
negligence Stanley had assigned other miners to extend the
beltline rather than help abate these conditions.
Inspector
Gamblin further credibly opined that these violative conditions
had existed on the two prior production shifts as well as for a
few hours on the third shift.
The Secretary further notes that prior incidents and
warnings at the mine should have placed the operator on
heightened notice of a problem with inadequate rock dusting.
Gamblin had talked to the operator's representatives several
times regarding this same type of violation, and other citations
and orders had been issued for similar violations including
several on the same working section as cited in the instant case.
In addition, Safety Committeeman Wiles testified that he had
received complaints from roof bolters regarding the previous lack
of rock dust and had reported those concerns to management. The
union safety committee issued findings to Peabody officials as a
result of an inspection on September 8, 1994, which included a
finding that rock dusting was inadequate on the same unit cited
herein and that several crosscuts had not been rock dusted or
cleaned. According to Wiles the conditions were corrected for a
while but then recurred. Wiles then complained to MSHA Inspector
Gamblin.
I agree that this evidence supports a finding of a high
degree of negligence and "unwarrantable failure".
"Unwarrantable
failure" has been defined as conduct that is unot justifiable" or
is Ninexcusable." It is aggravated conduct by a mine operator
constituting more than ordinary negligence. Youghiogheny and
Ohio Coal Company, 9 FMSHRC 2007 (1987); Emery Mining Corp., 9
FMSHRC 1997 (1987).
In reaching my conclusion herein I have not disregarded the
testimony of Steven Little, Peabody's Martwick Mine Compliance
Manager.
I find, however, that this testimony only further
corroborates Gamblin's negligence conclusions. Little testified
that i t was the practice at the Martwick Mine, where they have
three shifts, to use the first two shifts for production and the
third shift for maintenance. According to Little, hand dusting
was performed on the first two production shifts and the third

1 6 34

shift was reserved for additional clean-up and machine rock
dusting. Little acknowledged that he was not present on
November l when the citation was issued. He also conceded that
Foreman Stanley told him that, in fact, the mine roof had not
been rock dusted in the cited area. Little also admitted that
cables had been run over in the area of the coal feeder, 200 to
300 feet outby the working face.
Little maintained that Gamblin told him in late 1992 that it
was acceptable not to dust the roof during production shifts so
long as it was done on the maintenance shift. Little failed to
note however that this exception was limited by Inpector Gamblin
to circumstances where the roof consisted of rock and was wet
from natural moisture.
considering the relevant criteria under Section llO(i) of
the Act, I find that a civil penalty of $3,000 is appropriate for
the violation charged in Citation No. 3861812.
ORDER

Citation No. 3861813 is vacated. Citation No. 3861812 is
affirmed and Peabody Coal Company is hereby directed to pay a
civil penalty of $3,000 within 30 days of the date of this
decision for the violation therein. In accordance with the
settlement agreement approved at hearing Peabody Coal Company is
further directed to pay an additional civil penalty of $1,753
within 30 days of the date of this decision.

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Gary Melick
Administr'a'ti ve Law Judge
703-756-6261

1 6 35

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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)
Mr. Arthur J. Parks, Conference and Litigation Representative,
U.S. Dept. of Labor, Mine Safety and Health Administration, 100
YMCA Drive, Madisonville , KY 42431-9019 (Certified Mail)
Carl B. Boyd, Jr., Esq., Peabody Coal Company, 120 North Ingram,
Suite A, Henderson, KY 42420

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1636

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Citation No. 3861812

No Rockdl1st on Roof & Floor
(Shaded Blue)

Randan Band Saipling Points

Citation No. 3861813
\.here Rock.dust Applied
to Ribs CAtly

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

SEP 2 6 t995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDINGS
Docket No. LAKE 95-15
A. C. No. 12 - 01590-03542
Little Sandy Mine

LITTLE SANDY COAL COMPANY
INCORPORATED,
Respondent

Docket No. LAKE 95-16
A. C. No. 12-02160-03502
Brimar Mine

DECISION
Appearances:

Ruben R. Chapa, Esq., Office of the Solicitor,
U.S. Department. of Labor, Chicago , Illinois,
for Petitioner;
Richard A. Wetherill, Esq.,
215 Main Street, Rockport, Indiana,
for Respondent.

Before:

Judge Barbour

These cases, which arise under the Federal Mine Safety and
Health Act of 1977 (the Act) (30 U.S.C. § 801 et seq.}, are before
me upon petitions filed by the Secretary of Labor (Secretary} on
behalf of his Mine Safety and Health Administration (MSHA) . The
petitions seek the assessment of civil penalties for s i x alleged
violations of mandatory safety. standards for surface coal mines .
Pursuant to notice, the c a ses were consolidated a nd heard in
Vincennes, Indiana. At the commencement of the hearin g, counsel
for the Secretary announced that the parties had s ettled t hree of
t he alleged violations. Counsel orally explained the
settl ements, and I tentatively approved them .
I stated that I
would confirm my approval in wr iting (Tr . 10 -13).

1638

The contested issues are whether Little Sandy Coal Co.
(Little Sandy) violated the cited standards at its Little Sandy
Mine and Brimar Mine; if so, the validity of the inspectors'
f indings that the violations were significant and substantial
(S&S) contributions to mine safety hazards; and the amount of the
civil penalties to be assessed. The latter issue requires
consideration of evidence pertaining to the statutory civil
penalty criteria as set forth in section llO(i) of the Act (30
U.S.C. · § 820 (i) ) .
Stipulations
At the hearing the parties stipulated in part as follows:
1.
The Federal Mine Safety and Health
Review Commission has jurisdiction over this
proceeding.
2.

At all times relevant ... Little Sandy
and its mines are subject to the
provisions of the [Act] .
3.
At all times relevant
[Little Sandy]
owned and operated the Little Sandy Mine, a
bituminous coal mine located in Daviess
County, Indiana.
4.
At all times relevant ... [Little Sandy]
owned and operated the Brimar Mine, a
bituminous coal mine located in Clay County,
Indiana .
5.
[Little Sandy's] operations affect
interstate commerce.
6.
The Little Sandy M~ne produced 652,154
tons of bituminous coal from January 1, 1993
through December 31, 1993.
7.
The Brimar Mine produced O tons of coal
from January 1, 1993 to December 31 , 1993 .

1639

8.
[Little Sandy] produced 816,890 tons of
bituminous coal at all of its mines from
January 1, 1993 through December 31, 1993.
9.
The subject citations/orders were
properly served by a duly authorized
representative of the [Secretary) upon an
agent of Little Sandy on the date[s )
indicated thereon.

10 .
On August 1, 1994, [MSHA] Inspector
James Boyd, an authorized representative of
the [Secretary] issued [C]itation No. 4260064
at [Little Sandy's) Brimar Mine .. .
11.
On August 2, 1994, . . . Boyd issued
[O]rder No. 4260072 at the Brimar Mine . . .
12.
On August 1, 1994, ... Boyd issued
[C]itation No. 42360065 at the Brimar Mine
13.
On August 2, 1994, ... Boyd issued (O)rder
No. 4260073 at the Brimar Mine ...
14.
On July 12, 1994, . . . Boyd issued [C]itation
No. 4261891 at the Little Sandy Mine

*

*

*

*

16. Oil, grease, hydraulic oil, and diesel fuel
are combustible materials (Joint Exh. 1; ~ a.l.s.Q
Tr. 16-18) .

The Contested Violations
Docket No . Lake 95-15
Or der/
Citation No.
4261891

D.a..t..e
7/12/94

30 C.F.R.
77.1104

1640

§

Proposed
Penalty
$267

Citation No. 4261891 states in part:
Accumulations of combustible material
oil, grease and diesel fuel [were) allowed to
accumulate on the #412 Light Plant around the
drive engine and exhaust manifold and frame
of [the] equipment measuring up to 1 inch in
depth. This condition creates a fire hazard
(Gov . Exh. 3 ) .
The inspector found that the alleged violation was S&S.
The Secretary's Witness
James Boyd
Inspector James Boyd, who is employed in MSHA'a Vincennes,
Indiana office, has been an inspector for approximately two and
one half years.
In July 1994, he began conducting an inspection
of the Little Sandy Mine. At that time, the mine employed
between 25 and 35 miners {Tr. 30, 33).
In July, Boyd met with Bob Zoglman, who is both a bulldozer
operator at the mine and the mine superintendent. Boyd
explained the inspection process to Zoglrnan.
In addition, Boyd
checked the on-shift book for reported hazardous conditions and
discussed with Zoglman the importance of having a competent
person inspect equipment before putting it into use (Tr. 31).
The Little Sandy Mine consists of two pits. Bob Zoglman is
in charge of one pit and his brother, Randy Zoglman, is in
charge of the other. Each of the brothers traveled with Boyd,
when he was at their respective pits (Tr. 32).
On July 12, 1994, Boyd inspected the light plant at
Bob Zoglman's pit. The plant consists of a small trailer onto
which a light is affixed and a three cylinder diesel engine on
the trailer which powers a generator (Tr . 35). The generator
produces the electricity for the light. The light illuminates
the edge of the pit's embankment, so that equipment operators
are aware of the edge (Tr. 36-37). Also, the light illuminates
the pit in order to assist miners working below (Tr. 36). The
light is used at the night almost exclusively (~.; see also Tr.
59-60).

1641

When Boyd inspected the plant during the day, the light was
not on and the diesel engine was not running (Tr. 59). Boyd and
Zoglman went to the light plant area because rock trucks were
dumping spoil there and Boyd wanted to make certain the trucks
were not getting too close to the embankment's edge (Tr. 39).
The rock trucks were the only equipment that came near the plant
on a regular basis. No other structures were near the plant
(Tr. 65) .
When inspecting the plant, Boyd found oil, grease and
diesel fuel around the diesel engine, on the engine's exhaust
manifold and on the frame of the equipment. The accumulated
material measured up to one inch deep on the frame (Tr. 41).
Boyd speculated that some of the oil and grease was the result
of "a little leakage" of the engine, and that some of the oil
accumulated when a miner failed to clean up after changing the
engine's oil.
In Boyd's opinion, the accumulated diesel fuel
was the result of an overflow when the engine's fuel tank was
filled (Tr. 41 - 42). Boyd did n o t think that the accumulations
were the resu l t of normal use .
Boyd stated that he knew that the accumulations included
grease because o f the accumulations' "colorization" and
thickness (Tr. so, see also Tr. 51). Boyd was asked if he would
change his mind about the presence of grease if he were told the
engine had no grease fittings? He stated that he would not,
because facilities like light plants are used by miners to store
grease (Tr. 50-51). He admitted, however, that he did not know
for certain how the grease accumulated on the plant (Tr. 55).
He also agreed that when the oil was changed, the oil drain was
opened in order to cause any spilled oil to drain down the- frame
and onto the ground (Tr. 61).
Boyd believed that the accumulations created a fire hazard,
and that if the accumulations caught on fire, a miner could have
suffered burns or smoke inhalati,on trying to extinguish the
flames.
In addition, a fire could have spread to any nearby
equipment (Tr. 42).
Boyd found that the condition was S&S because of the
nreasonable likelihood of a fire" (Tr. 43). Possible ignition
sources were the accumulated materials on the exhaust manifold
and the electric wiring saturated with some of the accumulations

1642

{Tr. 43). The engine could overheat the exhaust manifold
leading to a fire and/or a ground could fail and the wiring
could heat.
Cl.d.•J.
Boyd also found that Little Sandy was negligent in allowing
the accumulations to exist. Someone had to start the engine on
each evening shift in order to illuminate the light, someone had
to put fuel into the engine, and someone had to.check the oil.
The person or persons who had to do these things should have
observed and cleaned up the accumulations (Tr. 43-44).
In
addition, although the light plant did not have to be inspected
daily, it's electrical components had to be inspected monthly
(Tr. 69-70). Any violation that was observed during the
inspection should have been corrected (Tr. 70).
Little Sandy's Witness
Bob Zoglman
Zoglman has worked for Little Sandy since 1975 and has been
superintendent at the Little Sandy Mine since 1982. He stated
that the light plant has been at the mine for at least twelve
years.
The plant does not require greasing and it has no grease
fittings (Tr. 75). During his years at the mine, Zoglman never
observed grease on the light plant (.I..d.)
In addition, Zoglman did not believe there was an
accumulation of oil and diesel fuel on the manifold. Had one
been there, it would have melted off. Nevertheless, he agreed
that it is common to see oil or oil mixed with dirt around the
manifold bolts (Tr. 81).
Zoglman acknowledged that there were accumulations of
"something" on the frame of the light plant. Althoug;h it was
possible there was some oil or diesel fuel involved, Zoglman
believed that the "something" was "mostly dirt 11 (Tr. 80, ~
.al.a.Q Tr. 82) .
There was a hole on the frame that allowed oil from the
engine to run onto the ground (Tr. 76-77). Therefore, it was
unthinkable that an inch thick accumulation of oil ever was
present on the frame of the light plant. Zoglman never had seen
an accumulation that thick (Tr. 77).

1643

Zoglman did not think that the cited condition constituted
a safety hazard because the pan that held most of the alleged
combustible material was too far from the engine for an ignition
to occur (Tr. 77). There was a distance of at least two feet
between the engine and the pan. In all of his years with the
company, he never had seen a light plant catch on fire (Tr. 78).
Moreover, the closest structure to the light plant was 700 feet
away and the light plant was SO feet away from trucks that come
to the area to dump spoil (Tr . 78).
Finally, Zoglman stated that when he was told by Boyd that
the accumulations constituted a violation, he immediately tried
to correct the condition.
It is not a practice at the mine to
contest an inspector's finding of a violation (Tr. 86).
The Violation
Section 77.1104 states in pertinent part that
"[c)ornbustible materials ... shall not be allowed to accumulate
where they can create a fire hazard."
I accept Boyd's testimony to the extent of finding that, as
he stated, there was an accumulation of oil and diesel fuel
around the frame of the equipment and on the exhaust manifold of
the engine (Tr. 41}. His testimony was more specific than
Zoglman's regarding the appearance of the accumulation and its
depth . Moreover, even Zoglman agreed that there was an
accumulation of "something" (Tr. 80), and although Zoglman
described that "something" as mostly dirt, he acknowledged that
it was possible the dirt included oil and diesel fuel (Tr. 82).
Zoglman took issue with Boyd's assertion that the
accumulation included grease, and I agree that the evidence does
not support finding that grease was present .
Zoglman's
testimony established that the engine on the light plant did not
have grease fittings, and Boyd's . testimony regarding the
presence of grease tended to be speculative (~ Tr. 50-51).
However, the presence of grease is not essential to the
Secr etary's case. The oil and diesel fuel on the engine and
frame constituted an accumulation of combustible materials
within the meaning of the standard, and this is so even if the

oil and fuel were mixed to some extent with dirt, as undoubtedly
they were.
Further, I conclude the accumulated materials created a
fire hazard. They were in the open, on the engine and in the
vicinity of the engine. A malfunction of the engine could have
ignited the nearby accumulations. Or, had the exhaust manifold
heated sufficiently, the accumulations around the bolts of the
manifold could have ignited. To establish the violation, the
Secretary did not need to prove that an ignition would have
happened but rather that it could have happened, and he met his
burden of proof.
S&S and Gravity
A ''significant and substantial" violation is described in
section 104(d) (1) of the Mine Act as a violation "of such nature
as could significant 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 FMSHCR 822, 825 {April 1981)) .
In Mathies Coal Co. 6 FMSHRC 1, 3-4 {January 1984}, the
Commission set forth its well-known test for determining the S&S
nature of a violation. The Commission also emphasized that the
question of whether a violation is S&S must be based on the
particular facts surrounding the violation, including the nature
of the mine involved (Texas Gulf. Inc., 10 FMSHRC 498 {April
1988) ; Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007 (December
1987)).
Finally, a S&S determination must be made in the
context of continued normal mining operations (National Gypsum,
3 FMSHRC 822, 825 (April 1981); Halfway Incorporated, 8 FMSHRC
8 {January 1986)).
The Secretary has established the first two elements of the
Mathies test in that there - was a violation of section 77.1104,
and the violation presented a discreet safety hazard.
In the
latter regard, I note that if the accumulations had caught on

1645

fire, a miner or miners near the light plant could have been
burned.
However, the Secretary has failed ·to establish the third
element of the test. The evidence does not support finding
there was a reasonable likelihood that the fire hazard would
have resulted in an injury because it does not support finding
there was a reasonable likelihood the accumulations would have
caught on fire.
The evidence presented by the Secretary was
primarily limited to Boyd's conclusionary statement that a fire
was reasonably likely (Tr. 43). Boyd did not explain how an
ignition was reasonably likely to occur . For example, he did
not testify concerning the temperature necessary for the
manifold accumulations to ignite and the likelihood of that
temperature being reached. He did not testify regarding studies
or tests that indicated the likelihood of an ignition. Nor did
he testify that such an ignition ever occurred previously at the
mine, or anywhere else, for that matter.
Further, there was no testimony that the engine suffered
from any mechanical defects that could have served as an
immediate ignition source or that it was prone to such defects
as mining continued. Even if there ·had been such defects, I
agree with Zoglman that the distance of two feet between the pan
where most of the accumulations existed and the engine,
significantly reduced the likelihood that an ignition source on
the engine would have ignited the accumulations below {Tr . 7778) .
Finally, few miners worked or traveled in the immediate
vicinity of the light plant. Dump trucks did not travel within
SO feet of the plant and the nearest structural facility was
700 feet away (Tr. 78). The only miner near the light plant
while the engine was operating was the miner who started the
engine on the evening shift, unless the person who inspected the
light plant monthly did so at night, which seems unlikely
(Tr . 4 3 - 4 4 ) .
In sum, under the circumstances in existence at the light
plant on July 12, 1994, I cannot find that there was a
"confluence of factors" necessary to create a reasonable
likelihood of an ignition {Texasgulf, Inc.,10 FMSHRC 498, 501
(April 1988)) or of an injury. Nor was such a confluence likely

1646

as mining continued.
was not S&S.

I conclude therefore that the violation

The gravity of a violation is gauged by the seriousness of
possible injuries and the likelihood of the injuries occurring.
Obviously, if a miner or miners had been burned, their in juries
could have been serious. However, the likelihood of an ignition
and of a miner or miners being injured by the ignition was so
low, I find that the violation was not serious.
Negligence
Negligence is the failure to exercise the standard of care
required by the circumstances. The light plant was used daily.
There was a possibility that combustible fuel and/or lubricants
could spill or leak and accumulate. Reasonable care required
that the plant, including its engine, be checked periodically
for accumulations and, when they existed, that they be cleaned
up. The presence of the prohibited accumulations establishes
that Little Sandy failed to meet this standard of care, and I
conclude that the company was negligent.
Docket No. Lake 95-16
Order/
Citation No.
4260064

D.fil&

8/1/94

30 C.F.R. §
77.1104

Proposed
Penalty
$ 270

Citation No. 4260064 states in part:
Combustible material[,) hydraulic oil, was
allowed to accumulate on the Hitachi Shovel ....
Numerous oil leaks were observed on the hydraulic
system located under the operator[']s cab and
across from it on the r.ight side, puddles of oil,
[were] located in these areas and on the frame of
the equipment. This condition creates a fire
hazard {Gov. Exh. 4).
The inspector found that the alleged violation was S&S.

1647

The Secretary's Witness
James Boyd
Boyd testified that during June and July 1994, he inspected
the Brimar Mine. During the inspections he was accompanied by
the mine superintendent, Wayne Jeffers (Tr. 89-90). The Brimar
mine is a surface coal mine. Between 10 and 15 persons were then
employed at the mine (Tr. 90).
On August 1, 1994, Boyd inspected a Hitachi shovel that was
used to l oad overburden into haulage trucks (rock trucks) . The
shovel is a large piece of equipment with a long boom. The
shovel is powered by two diesel engines. The mechanical
functions of the shovel are controlled by a hydraulic system
(Tr . 9 6 - 9 7 ) .
Upon inspecting the shovel, Boyd observed numerous leaks in
the hydraulic system. He noted pools of oil under and around the
operator.' s cab as well as oil on the frame of the equipment
(Tr. 94-95, 97). The oil was leaking from the hydraulic valves
and hoses in the area of the valve chest (Tr. 98). The main pool
of oil was eight to ten feet long. The oil had saturated some of
the dust surrounding it and Boyd estimated the oil had been
accumulating for two or three days (Tr. 98-99).
Boyd testified that he was told the shovel operator had not
inspected the shovel before it was put into service . Boyd also
remembered being told by both Jeffers and the shovel operator
that they believed an accumulation of combustible materials was
not a violation until the accumulation was one quarter of an inch
thick (Tr. 99-100) (Boyd recorded this conversation in his notes
(Tr . 104; Gov. Exh. 6) .)
Boyd believed that an injury was reasonably likely to have
resulted from the violation becaus'e of the danger of fire. He
stated, "within the last two or three years ... we've had about
four of these particular machines ... burn in this area"
(Tr. 100) .
If a fire occurred, Boyd expected the shovel operator
to suffer burns, or smoke inhalation, or to be injured trying to
leave the shovel. He stated, "[T]hese machines ... burn so ...
fast they ... put a little axe in the operator's cab so [that] if

1648

[the] machine gets on fire ... [the operator] can burst [the]
front window out . . . and just leap out the window" . Cld.) .
In Boyd's opinion, potential ignition sources for the oil
were provided by the shovel's electric wiring, and by the 24 volt
battery that is used to start the shovel's diesel engines
(Tr. 118).
(However, Jeffers and the shovel operator did not
believe the accumulations presented a fire hazard because the
company never had experienced a fire on a Hitachi shovel
(Tr. 104, Go v. Exh. 6 ).
In addition, the shovel had an
operational automatic fire suppressant system that was supposed
to put out any fire (Tr. 113) . )
Boyd decided to issue a citation for the accumulations
(Citation No. 4260064) at around 10:50 a.m. (Gov. Exh. 4). Boyd
then discussed with Jeffers the time required to clean up the
accumulations. According to Boyd, Jeffers suggested 6:00 p.m .
and Boyd set that as the time for abatement (Tr. 102; .s.e..e Gov.
Exh. 4) .
Boyd returned to the mine around 9:00 a.m . on August 2
(Tr. 107) . The shovel had been operating (Tr. 108, 115). Boyd
found that the conditions on the shovel were almost the same as
they had been at 10:50 a.m., the day before. Boyd stated that
although there had been some effort to clean up around the valve
chests and the two diesel engines, no effort had been made under
and around the operator's cab (Tr. 111-112).
Boyd testified that he was told by the company's master
mechanic that the company's c l ean up efforts included some steam
cleaning and the replacement of some of the hydraulic sys~em's O
rings and hoses (Tr. 108, 110). Boyd saw one hose that was new,
but he did not inspect the machine to determine if the mechanic
was telling the truth about the O rings (Tr. 111).
(He explained
that given the location of the 0 rings, he could not have seen
them, in any event, and thus could not have determined whether
they had been replaced (Tr . 109-110) .) In Boyd's view, whatever
had been done to the O rings had not corrected the problem
because the accumulations were still present (Tr. 102-103).
Jeffers should have realized that more efforts were needed
(Tr. 117) .

1649

Boyd described the accumulations that existed on August 2,
as a mix of oil that was present on August 1, and oil that had
accumulated since he issued the citation, ("[s]ome of it was old
oil, some of it ... [was] new" (Tr. 103)) . Boyd agreed that in
general, as O rings wear, they leak, and that when 0 rings and
hoses are replaced, there also is some leakage (Tr. 117).
Because the accumulations had not been abated within the
time set, Boyd issued an order of withdrawal at 9:30 a . m. on
August 2 (Gov. Exh. 5). Boyd explained:
Jeffers knew he had a given time to correct this
violation . . . I have no knowledge how many hours he
worked on it, but [Jeffers) elected to put the
equipment back into service and ceased working on it
(Tr. 116) .

*

*

*

*

[W]hen I looked and [saw] the accumulation was
still there to the same degree as when I'd issued the
citation, then that's where my determination came from
that an honest effort had not been made . . . to correct
the violation (Tr. 117).
Little Sandy's Witness
Wayne L. Jeffers. Sr.
Wayne Jeffers confirmed that oil was present on the shovel
(Tr. 125). Jeffers had no recollection of telling Boyd that he
did not think there was a violation until there was an
accumulation of one fourth inch, but he recalled telling Boyd
that he did not think the oil that was present was bad enough to
be a fire hazard (Tr. 140).
Once the shovel was cited, Jeffers stated that he directed
that it be taken out of service (Tr. 125-126). ln order to clean
up the accumulations, Jeffers had the master mechanic repair
"some leaks and bad hoses" and do "some .. . steam cleaning 11 (Tr.
126). Jeffers also stated that a lot of the accumulations were
scraped off the shovel (Tr. 128). The mechanic was assisted by
the shovel operator and a truck driver (Tr. 127-128). Jeffers

1650

estimated that they worked on the shovel from the time it was
c i ted until possibly 6:00 p.m. (Tr. 127).
Jeffers left the mine around 6:00 p.m. At that time, the
shove l needed more cleaning, and Jeffers assigned two of the
n i g ht shift truck drivers to the task (Tr. 129 - 130). He
estimated that before the order was issued, a tota l of 20 man
hours was spent cleaning the accumulations (Tr. 133).
Jeffers returned to the mine on August 2 , around 4:30 a.m.
He stated that he believed that the shovel was "real clean" at
that time (Tr. 130) . Therefore, he ordered that the shovel be
put back into service. He explained, "Once you make the repairs
and do cleaning, you have to run the machine a certain amount to
see if ... your repairs are complete" (Id., see also Tr . 131).
Before he could determine if the repairs had been successful in
stopping the oil leaks, Boyd arrived (Tr. 131).
Jeffers did not recall what he said when Boyd told him he
was going to issue a withdrawal order (Tr . 138-139) . However, he
was sure he told Boyd that the shovel had been cleaned and that
some of the leaks had been fixed. He added that Boyd should have
been able to see what had been done (Tr. 139) .
After the order was written, Little Sandy personnel put in
more 0 rings and new hoses. Jeffers maintained the shovel was
not steam cleaned again and that it looked worse when the order
was terminated than it did when it was issued (Tr. 132, 137).
Raymond c . Weber
Raymond c . Weber has worked for Little Sandy for almost ten
years. He is the head mechanic at the Brimar Mine. On August 1,
after the citation was written, Weber was assigned ~o correct the
cited conditions. Weber testified that Boyd told him 'the areas
about which he was concerned were the "swing pump areas and
another valve area" (Tr. 149, lSl). Boyd also wanted the
accumulated grease removed from around the automatic greaser pins
(Tr. 153) .
Weber stated working on the shovel around 11:00 a.m. He
stopped work around 3:30 p.m. because the shovel was going to be
steam cleaned by the shovel operator and another miner (Tr. 142).

1651

In the meantime, the shovel operator helped Weber change hoses
and install 0 rings.
In addition, the shovel operator scraped
accumulated grease from the machine (Tr. 142-143).
Weber stated that between 11:00 a.m. and 3:30 p.m., on
August 1, he replaced at leased four 0 rings, a supply line, and
some hoses (Tr . 143). Weber claimed that his efforts stopped the
main leaks. He added that although there were more "seeps," they
were inevitable on a hydraulic shovel and that such seeps had to
be worked on continuously (Tr. 143; see also Tr . 146). He did
not have time to fix all of the leaks because the machine had to
be steam cleaned (Tr. 144 ) .
After Weber left the mine on August 1, he did not work on
the machine again until the order of withdrawal was issued
(Tr. 144). The shovel was steam cleaned prior to the order being
issued. Weber believed that the night crew finished cleaning the
shovel around 3:00 a.m. on August 2 (Tr. 150). According to
Weber, the house area of the shovel was "pretty clean," although
a little. bit of the accumulation might have remained on the
boom (Tr . 14 6 ) .
Richard Edwards
Richard Edwards is the shovel operator. Edwards understood
the citation required him to replace the 0 rings, change a few
hoses and clean the shovel . The machine was shut down while this
work was on-going (Tr. 155). According to Edwards, work on
cleaning the accumulations started around 11:00 a . m. Edwards
helped with the cleaning (Tr . 155). He also helped Weber replace
the O rings and hoses (l.d.....) • He worked until around 5: 00 .--p. m.,
when the night shift began (Tr. 156}.
When Edwards left at 5:00 pm., there was between a half
gallon and a quart of oil remaining on the machine. · rt was
located in front of the engines. Edwards did not believe the
accumulations would catch on fiFe (Tr. 156-157} . He acknowledged
that there was a battery located about three or four feet from
the accumulations, but it was higher than the oil and the oil
would have to have been blown on the battery for the oil to
ignite. This would only happen if an O ring malfunctioned, but
if that occurred, he would shut off the power on the shovel and
eliminate the ignition source (Tr. 157).

1652

Because the shovel was not steam cleaned before the order of
withdrawal was terminated, Edwards stated that the · condition of
the shovel probably was worse when the order was "lifted" than
when it was imposed (Tr. 158).
Charles Stephens
Stephens was a truck driver at the Little Sandy mine when
the citation and order were issued. He worked from 5:00 p.m . ,
August 1, until 5:00 a.m . , August 2. (Tr. 165-166}.
Stephens was told to steam clean the shovel. He testified
that he and another miner did so from 5:00 p.m. to 9:00 p.m.
(Tr. 167) . Stephens did not feel the shovel needed to be
cleaned . He believed the day shift had cleaned it adequately
(Tr. 168). He stated: "I thought it was really ridiculous, but I
was told to do it" (1..d.....) •
Stephens also stated that grease from the boom pins had
fallen toward the bottom of the operator's house. The grease was
described by Stephens as "nasty" and he agreed that it was not
steam cleaned (Tr. 169). Everything else was steam cleaned and
the miners used two 500-gallon tanks of water to do the cleaning

(l.d. ) .
Joseph L. Hensley
Joseph L . Hensley presently is a safety consultant for
twelve private companies. He is a former MSHA inspector and
former master mechanic for Amax Coal Corporation. He is familiar
with hydraulic shovels (Tr. 172-173).
He testified that all such shovels develop leaks (Tr. 182183). He stated also that he was familiar with four instances in
which hydraulic shovels had ca~ght on fire . The causes ranged
from a broken hydraulic line that sprayed oil onto the shovel's
·extremely hot turbo charger, to men working on the shovel with an
acetylene torch (Tr. 173).
Hensley did not agree with Boyd's testimony that the oil
l eaks on the cited shovel would have ignited. He believed the
chances were "very, very small 11 (Tr. 174} .

1653

According to Hensley, the same day the order was issued, he
went to the Little Sandy Mine and viewed the shovel. Around 3:00
p.m. on August 2, he took pictures of the shovel. {Since the
order was issued at 9:30 a.m., the pictures were taken
approximately five and one half hours after the order was imposed
{Tr. 177, Gov. Exh. 5). Hensley identified the pictures (Tr.
175; Resp. Exh . 2) .) He described the shovel depicted in the
pictures as a 11 very, very nice l ooking machine" (Tr. 179). He
stated that he did not think it possible to get the shovel any
cleaner (Tr. 179) . If he had found a shovel in that condition
when he was an inspector, he would not have written a withdrawal
order (Tr. 180).
The Violation
The company agreed that the violation of section 77.1104
existed as charged (Tr. 92).
S&S and Gravity
The first element of the National Gypsum test has been met.
There was a violation of the cited standard.
I conclude the
second element has been established also.
I accept the testimony
of Boyd that accumulations of combustible oil and grease existed
in the vicinity of potential ignition sources (e.g., the 24 volt
battery and electrical wiring (Tr. 118)). Obviously, had the oil
and grease caught on fire, the shovel operator would have been
endangered. Boyd's testimony that once a fire started it burned
rapidly was not disputed (Tr. 100). The presence of the
prohibited accumulations therefore, subjected the shovel operator
to the hazard of burns and smoke inhalation, or worse .
I also conclude that there was a reasonable likelihood of an
ignition of the accumulated oil and grease. The accumulations
were extensive. Boyd testified without dispute that the main
pool of oil was 8 feet to 10 feet long {Tr. 98). There also were
extensive accumulations of grease. Boyd believed a fire was
reasonably likely because four machines had caught fire within
the last two or three years (Tr. 100}. Although, on its own,
this testimony is insufficient to establish the reasonable
likelihood of an ignition on the cited shovel, there is other
testimony from which that likelihood can be inferred.

1654

All of the witnesses agreed that a major source of the
accumulation was the malfunctioning of the hydraulic system's o
rings, and that problems with the rings were recurring and
frequent.
Edwards, the shovel operator, stated that the shovel's
24 volt battery could serve as an ignition s'Ource if an O ring
malfunctioned (i.e., if "you blow an O ring" (Tr. 157)) and oil
was sprayed on the battery (J.d.). Edwards did not believe this
would happen because the loss of the 0 ring would cause a drop in
oil pressure which, in turn, would cause him to shut down the
machine (Tr. 157) . However, Edwards could have been away from
the controls when the pressure dropped. Or, he could have been
at the controls and been slow in responding.
Or, given the
rapidity with which the combustible materials can ignite, Edwards
could have · been at the controls and simply not have shut down the
shovel rapidly enough to avert an ignition. With the number of
recurrent O ring problems the hydraulic system was experiencing,
I conclude it was reasonably likely an O ring would have "blown"
and sprayed the battery with oil. I further conclude it was
reasonably likely that an ignition would have resulted.
Finally, had an ignition occurred, resulting injuries from
burns or smoke inhalation certainly could have been of a
reasonably serious nature. Therefore, I find that the violation
was S&S.
The violation also was serious. The likelihood of an
ignition combined with the extent of injuries that reasonably
could have been anticipated establishes the violation's grave
nature.
Negligence
I further conclude that Little Sandy was neglig~nt in
allowing the accumulations to exist. Boyd believed the
accumulations had collected over a period of two to three days
(Tr. 98-99) . Given the extensive nature of the oil and grease, I
find that this was in fact the case. The accumulations were
visually obvious and reasonable care required that they be
cleaned up prior to the shovel being put into service . Little
Sandy failed in this regard, and in so doing, negligently allowed
the violation to exist.

1655

Good Faith Abatement
During the course of the hearing it became evident that
Little Sandy wished to raise the issue of the validity of the
section 104(b) order of withdrawal . I explained to counsels that
I did not believe I could rule on the validity of the order
because Little Sandy had not filed a contest of the order within
30 days of its receipt. However, I noted that the evidence the
company intended to present regarding the circumstances
surrounding its efforts to abate the violation and the
reasonableness of the inspector's decision not to further extend
the time for abatement of the citation was relevant with respect
to the civil penalty aspects of the case (Tr. 92-93).
Since the hearing, nothing has been brought to my attention
that causes me to change my view that the reasonableness of the
time for abatement of a citation may not be contested in a civil
penalty proceeding unless the operator has contested the order
pursuant to section lOS(d) of the Act (30 U.S.C. § 815(d)) and
the contest proceeding has been consolidated with the civil
penalty proceeding.
Nonetheless, and as I stated at the hearing, the issue of
Little Sandy's good faith in attempting to achieve rapid
abatement of the violation is before me with respect to the civil
penalty aspects of the case (30 U.S.C. § 820(i)). Good faith
requires an operator to assign sufficient manpower and resources
to accomplish abatement and for the miners assigned to work
diligently within the time given to achieve abatement. After
considering all of the testimony, I conclude that Little Sandy
did not exert good faith efforts to comply.
I accept Boyd's explanation that after consulting with
Jeffers, he set 6:00 p.m. as the time to have the accumulations
cleaned up (Tr. 102). I also accept Jeffers testimony that the
shovel was not cleaned of accumulations when he left the mine
around 6:00 p.m., and that he assigned men to work on it that
night (Tr. 129-130). I do not credit the essence of Little
Sandy's good faith argument -- i.e, that through the diligent
efforts of the men assigned, the shovel was cleaned of
accumulations by 4:30 a.m., August 2, and was put back into
service (Tr. 130).

1656

Boyd testified without dispute that when he viewed the
shovel on the morning of August 2, he could see that some effort
had been made to clean up around the valve chests and the diesel
drive engines, but that no effort had been made around the front
of the shovel and that "even . .. Jeffers ... stated that ..• area
had not been cleaned" {Tr. 111-112). Jeffers did not deny he
made this statement.
It was incumbent upon Jeffers, as the representative of
Little Sandy, to explain the company's abatement efforts to the
inspector -- who was not present when they allegedly took
place -- and to point out why the front of the shovel had not
been cleaned. Jeffers did not satisfactorily fulfill this
obligation, and I infer from his failure to do so that uncleaned
areas observed by Boyd on the morning of August 2, were the
result of the company's lack of good faith efforts and not, as
the company would have it, new accumulations that had come into
being since 4:30 a.m. that morning.
To put it another way, while I believe that Weber, Edwards
and Stephens all worked on cleaning the machine, I conclude their
efforts were inadequate.
(In this regard, I note Stephens
testimony that the grease from the boom pins was not cleaned at
all (Tr. 169) . ) The testimony presented by Little Sandy did not
overcome the inference established by the Secretary that the
company had not made good faith efforts to remove the cited
accumulations from the shovel.
Order/
Citation No.
4260065

~

8/1/95

30 C.F.R. §
77.1607{i)

Proposed
Penalty
$292

Citation No. 4260065 states:
Dust control measures were not taken on
the haulage road from the No. 1 pit area to
the refuse dump area. Dust conditions
created from passing haulage trucks and
equipment, significantly reduced the
visibility of the drivers and the equipment
operators (Gov . Exh. 7).
The inspector found that the alleged violation was S&S.

1657

The Secretary's Witness
James Boyd
Boyd stated that on August 1, 1995, he and Jeffers were in
a vehicle following rock trucks on the haul road that leads from
the No. 1 pit area of the Brimar Mine to the refuse dump. The
dirt-surfaced road is approximately two and one half to three
miles long. During the trip, Boyd observed the dust raised by
the rock trucks (Tr. 185).
In addition to the rock trucks, he
believed he recalled seeing a bulldozer on the roadway . The dust
kicked up by the trucks he was following and by the trucks
passing him obscured Boyd's vision. He believed that the vision
of the truck drivers and the equipment operator was obscured as
well (Tr. 186).
Boyd stated that he discussed the dust condition with
Jeffers, and told Jeffers he was going to issue a citation for a
violation of section 77.1607(i).
{The citation was issued at
10:30 a.m. (Gov. Exh. 7) .)
Boyd asked Jeffers how much time it
would take to correct the condition, and Jeffers stated that it
could be taken care of by 5:00 p.m. (Tr . 186).
Because of the reduced visibility, Boyd believed that an
injury was reasonably likely. Moreover, if the trucks collided
with one another or with other equipment, the injury could be
permanently disabling (Tr. 187). Boyd agreed, however, that he
did not know of any previous accidents on any of the haulage
roads maintained by Little Sandy (Tr. 198). He found the
condition to be S&S because of •the reasonable likelihood and the
visibility of the people ... [that are] operating .. . [th~] large
equipment on the haul[age] roads" (Tr. 188}.
In Boyd's opinion,
Little Sandy could have avoided the problem by using water to wet
the road or by using a grader to scrape off the dust "(Tr. 188).
On the morning of August 2, · Boyd again followed the rock
trucks from the pit to the dump. There was no indication that
the company had tried to control the dust. Therefore, at 9:40
a.m., Boyd issued a section 104(b) withdrawal order for failure
to abate the cited condition (Tr. 189; Gov. Exh. 8).
On cross-examination, Boyd agreed that Jeffers told him the
road had been watered for the entire day after the citation was

1658

issued on August 1 (Tr. 192}. Boyd admitted that he did not know
what the company had done with regard to the condition between
the time he cited it and 5:00 p.m., the time he set for abatement
(Tr. 193}. However, he stated that if the road had been watered
as Jeffers maintained, he should have seen dark areas along the
side of the road, or in the middle of the road on August 2.
When Boyd failed to see any "discolorization" he "knew [the
company]
had not put enough water down to control the dust"
(Tr. 201} .
On August 2, Boyd spoke with Jeffers about the condition of
the road and Jeffers told him that the water truck was broken on
the evening shift and that there was nothing else to use to wet
down the road (Tr. 189-190, 193}. Boyd read from the notes he
made on August 8, regarding the condition:
Wayne Jeffers stated to me that a fitting on the
fuel tank on the water truck was broken . . . [a]nd
they did not have a mechanic on the 2nd shift to repair
the water truck, so they could not have watered the
roadway, unless he took someone off a piece of
equipment to perform the repair work on the water truck
(Gov . Exh . 9 ) .
Boyd explained that he did not believe an "honest effort"
had been made to abate the violation because the company could
have made some arrangement to have the water truck repaired and
then would have used it to control the dust (Tr. 191). Boyd
could not recall whether Jeffers also told him that he had gone
to the Farm Bureau Co-operative to purchase the needed fitting
for the water truck (Tr. 193).
Little Sandy's Witness
Wayne L.

~effers.

Sr.

Jeffers described the road in question as being 80 to 100
feet wide.
Two eighty-five-ton rock trucks used the road. The
trucks traveled one half mile from where they were loaded to
where they dumped (Tr. 202 .} . Jeffers believed it was "almost
impossible" for the trucks to collide because of the dust

1659

(Tr. 203). Nor did Jeffers understand how dust would have
restricted the drivers' vision when the trucks follqwed one
another, or when they met (.I.d.)
Jeffers testified that around the time the citation was
issued on August 1, the company had not yet watered the road and
that the dust was rising. Jeffers said nothing to Boyd about the
citation (Tr. 203).
On August l, the rock trucks used the road from
approximately 6 : 00 a.m. to 5:00 p.m. (Tr. 216).
The trucks also
used the road from the beginning of the day shift on August 2,
{6:00 a.m.), until the order was issued {9:40 a.m.) (Tr. 218219) .
After Boyd told Jeffers he was going to issue a citation,
Jeffers testified he made arrangements to water the road.
Jeffers stayed at the mine until around 6 : 00 p . m or 7:00 p.m., on
August 1.
The road was watered throughout the day shift and until the
end of the shift by Rick Scarbrough {Tr. 206, 211). Jeffers
could not recall whether it was also watered that night
(Tr. 212) .
However, when Jeffers returned to the mine the following day
(August 2), the water truck was not functioning and Jeffers
assigned Weber to repair it. Weber told Jeffers that a part was
needed. Jeffers then left the mine to pick up the part at the
Farm Bureau Co-operative (.ld.). Boyd stated that he arrived at
the Co-operative around 7:00 a.m. (Tr. 207}. Jeffers identified
a copy of a receipt from the Co~operative. The receipt is dated
August 2 {Tr . 207; Def. Exh. 3) .
When Boyd returned on the morning of August 2, Jeffers and
Boyd had a discussion about why the truck was not functioning.
Jeffer s stated that he told Boyd he did not have a mechanic on
the night shift. Boyd said that if Jeffers was making a "true
e f f o r t" to get the water truck f i xed, he would have called in a
mechanic (Tr. 213}.

1660

Raymond Weber
Master mechanic Weber testified that shortly after he
arrived for work on the August 2 day shift, he was advised that
the water truck had broken down. Weber made what repairs he
could and then waited to complete the repairs until the needed
parts from the Co-operative arrived (Tr. 221). He stated that he
finished around 8:00 a.m., and that the truck was then ready to
be put back into service (Tr. 222).
Rick Scarbrough
Rick Scarbrough was a scraper operator in August 1994 . He
testified that on August 1, he was taken off of his normal job
and was asked by Jeffers to run the water truck (Tr. 225) . He
started operating the truck around 10:00 a.m. He believed that
he watered the road unti l his shift ended around 5:00 p . m. {Tr.
226). As best he cou ld recal l , he refilled the truck about six
times during the shift (l..d. ) . He experienced no problems with
the truck (Tr. 227 ) .
He described the condition of the road when he started to
water it as not "that bad" (Tr. 227 ) . Dust was present on the
road but it did not impede his visibility . The dust was normal
for August (Tr . 228).
Robert Hay
Robert Hay, a truck driver, drove a haulage truck over the
road. He did not think the road was dusty on August 1, (Tr.
234). He stated that there were only two trucks hauling on the
road and that you could see a truck coming "a mile away" (Tr.
234-235) . He estimated that the two trucks made about 80 trips
along the road during a shift . The trucks traveled the road
about once every ten minutes (Tr. 238). Besides the trucks,
there are instances when someone worked along the road or when
the foreman's truck traveled the road (Tr . 235).

1661

The Violation
Section 77.1607(i) requires that "[d]ust control measures
shall be taken where dust significantly reduces visibility of
equipment operators." I conclude the testimony supports finding
that the violation occurred.
Boyd's concern about reduced visibility for truck drivers
was based upon his personal observation. On August 1, he
traveled the road behind a truck . He observed the dust as it was
kicked up by the truck ahead of him, as well as the dust that was
created by a passing truck.
In both instances, the dust obscured
his vision {Tr. 186).
It was reasonable for him to infer that a
truck driver who was following a truck or who encountered a
passing truck would have had his or her vision similarly reduced.
Boyd's observation of the extent of the dust was buttressed
by Jeffers testimony, that at the time the citation was issued,
the company had not watered the road and that the dust was
increasing (Tr . 203). Although Jeffers stated he did not
understand how dust would restrict a driver's visibility if
trucks were meeting on the road (l..Q.), Boyd's concern was not for
the moment of meeting but for the moments after the trucks had
passed one another, when drivers had to travel through the dust
each truck raised or when one truck followed another . At these
times, I believe the drivers' vision was significantly reduced.
Scarbrough, who watered the road after the citation was
issued, stated that he did not think the dust was "that bad," but
there is no testimony that he passed or followed any other
vehicles while he was working on the road (Tr. 228).
Simi~arly,
Hay, who drove a truck on the road, testified that truck drivers
could see one another coming, but, like Scarbrough, Hay did not
address what happened immediately after the trucks passed one
another or when one vehicle followed another.
S&S ang Gravity
The Secretary has established the first two elements of the
Mathies test, and his proof also meets the third. There was a
violation of section 77.1607(i). There was a discrete safety
hazard in that the significantly reduced visibility of the
drivers could have caused an accident involving the trucks and/or
other equipment or persons on or along the road. In addition, I
conclude there was a reasonabie likelihood of an accident.

1662

While only a few vehicles used the road and only a few
miners occasionally worked along it (Tr. 185, 203·, 234-235), it
takes but seconds of lost visibility for a driver to lose sight
of a vehicle, or to lose sight of the person he or she is
approaching, or for a driver to fail to see a vehicle that has
stopped suddenly. The trucks made frequent trips over the road - approximately 80 in all. They traveled the road every ten
minutes (Tr. 235, 238). Given the frequency with which the
trucks used the road and the occasional presence of other
vehicles and miners along and on the road, I conclude that in the
context of continuing operations at the mine, a dust-induced
accident was reasonably likely.
If such an accident occurred,
the resulting injury or injuries could have been permanently
disabling or even fatal.
Because, as stated, if an accident occurred due to the
reduced visibility, it could have resulted in a serious injury or
worse and because the likelihood of an accident was more than
remote, this was a serious violation.
Negligence
The violation was visually obvious. Jeffers stated that the
dust was rising (Tr. 203).
It was August, and trucks had been
using the road. Given these factors, mine management did not
exercise the care required by the circumstances when it failed to
have dust control measures implemented. Little Sandy was
negligent in allowing the violation to exist.
Good Faith Abatement
The citation resulted in the issuance of a section 104(b)
order of withdrawal at 9:40 a.m. on August 2, when Boyd
determined that the violation had not been abated within the time
given, and that the time should not be extended (Tr. 189; Gov.
Exh. 8). As stated previously, I do not believe I have the
authority to rule on the validity of the order of withdrawal in
this civil penalty proceeding. However, much of the evidence
presented by Little Sandy is relevant to the issue of the
company's good faith in attempting to achieve rapid compliance,
and on the basis of the evidence, I conclude that the company
exhibited good faith.

166 3

After a discussion with Jeffers, Boyd set 5:00 p.m.,
August 1, as the time within which the violation should be abated
(Tr. 186; Gov. Exh. 7}. However, Boyd did not return at 5 : 00
p.m. or at any other time that day. He came back to the mine on
the morning of September 2. Boyd stated that at that time he did
not see any dark areas along the road which would have indicated
that the road bad been watered. Therefore, he "knew" that no
efforts had been made to abate the violation (Tr. 201).
Little Sandy's witnesses were adamant that the road had been
watered and that the condition had been rectified by 5 : 00 p.m.,or
shortly thereafter, as required. Jeffers stated that the road
was watered by Scarbrough from right after it was cited until the
end of the day shift (Tr. 206, 211) and Scarbrough persuasively
testified that he watered the road from around 10:00 a.m. to 5:00
p.m . on August l, by making approximately six trips over the road
(Tr . 227) .
I have no reason to disbelieve these witnesses. Certainly,
their testimony was not a recent version of events. Boyd stated
on cross-examination that Jeffers told him on the morning of
August 2, that the road had been watered the entire day after the
citation was issued (Tr. 192). Moreover, Boyd admitted that he
did not know what the company had done between the time he cited
the violation and 5:00 p.m. (Tr . 193).
The fact that Boyd detected no dark areas along the road on
August 2, does not necessarily mean that the road had not been
watered on the day shift on August 1, especially since the water
truck broke down during the night shift of August 1-2, and water
that had been applied up until 5:00 p.m., could have evap~rated
by the time Boyd checked.
For these reasons I find that Little Sandy established that
it exhibited good faith in attempting rapidly to abate the
violation of 77.1607(i).

1664

Other Civil Penalty Cri teri a

Boyd testified that the Little Sandy Mine empl oy ed between
25 and 35 miners, and that 10 and 15 miners were employed at the
Brimar Mine (Tr. 33, 90).
In addition, the parties sti pulated
t hat Little Sandy produced 652, 154 tons of coal in 1993 (Stip.
6).
I conclude from this that Little Sandy is a medium size
operator.
History of Previous Violat i ons
Between August 1, 1992 and July 31, 1994, the company had a
total of 64 assessed violations (Gov. Exh. 2). This is a
moderate history of previous v i olations.
Penalty Amounts
Considering the statutory penalty criteria, I assess the
following civil penalties:
Docket No . Lake 95- 1 5
Order/
Citation No.
4261891

~

7/12/94

30 C.F . R.
77.1104

§

Proposed
Penalty
$267

Penalty
$ 50

Docket No. Lake 95-16
Order/
Citation No.
4260064
4260065

~

8/1/94
8/1/95

30 C.F . R. §
77.1104
77.1607(i)

Proposed
Penalty
$270

Penalty

$292

$200

$270

Settlements
I have reconsidered the settlements in light of the
explanations offered by counsel, and I continue to find they are
appropriate (see Tr . 10-13). Therefore, the settlements are
approved.

1665

Docket No. Lake 95-15
Order/
Citation No.
4261886*
4261890**
4261894**

~

7/11/94
7/12/94
7/12/94

30 C.F.R. §
77.1605(d)
77.1605(d)
77.160S(d)

Proposed
Penalty
$50
$50

$50

Settlement
$50

$ 0
$ 0

*Little Sandy agreed to pay the penalty proposed (Tr. 10).
**The Secretary moved to vacate the citat ion due to
difficulties with his proof (Tr. 10-12).
Order and Dismissal
Little Sandy is ORDERED to pay the penalties assessed within
30 days of the date of this decision. The Secretary is ORDERED
to modify Citation No. 4261891 by deleting the S&S finding and to
vacate Citation No. 4261890 and Citation No. 4261894 within the
same 30 days.
Upon payment of the penalties and modification and vacation
of the citations, these proceedings are DISMISSED .

.£), v'; (/ -;: £~ 6tfJ

._,J/1.._

David F. Barbour
Administrative Law Judge
Distribution:
Ruben R. Chapa, Esq., Office of the Solicitor, U.S. Dept. of
Labor, 8th Floor, 230 S. Dearborn St., Chicago, IL 60604
Richard A. Wetherill, Esq., 215 Main St., Rockport, Indiana
47635
Charles R. Bates, Engineer, Little Sandy Coal Company, Inc.,
Lamar, IN 47550-0016
\mca

1666

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

SEP 2 6 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
ON BEHALF OF SAMUEL KNOTTS,
Complainant
v.

DISCRIMINATION PROCEEDING
Docket No. WEVA 94-357 - D

I

MORG CD 94-3
Coalbank Fork No. 12

TANGLEWOOD ENERGY, INC.,
FERN COVE INC.
RANDY BURKE, AND RANDALL KEY,
Respondents
I

I

DECI SION
Appearances:

J ames V. Blair, Esq., Office of the Solicitor,
U . S . Department of Labor, Arlington, Virginia,
for the Secretary;
Paul 0. Clay, Jr., Esq . , Fayetteville,
West Virginia, for Respondents .

Before :

Judge Maurer

On June 20, 1995, I found that the respondents had violated
section lOS(c) of the Act by discharging the complainant
January 28, 1994.
I retained jurisdiction pending a final
decision on damages.

on

After reconsideration of the entire trial record and the
parties' post-trial submissions on the issue of damages, I find
the respondents jointly and severally liable for the payment of
damages in the following particulars:
a . Samuel Knotts is entitled to back pay i n the t otal
a mou nt of $20,760 less $3640 which he received in stat e
unemployment benefi t s, or $17, 1 20 net back pay;
b.

Samuel Knotts is entitled to costs of $508;

166 7

c.
Samuel Knotts is entitled to interest on the above two
awards in the amount of $1,762.80; and
d.
The Secretary of Labor is entitled to a civil penalty in
the amount of $1000 for the violation of the Mine Act.
The Secretary sought a civil penalty of $25,000 in this
case which I find to be clearly unwarranted. This was a
relatively close "mixed-motives" case where the complainant
prevailed by the thinnest of margins. The record also indicates
that the respondents herein are experiencing serious financial
difficulties in the coal mining business including several
hundred thousand dollars in unpaid civil penalties. These
difficulties, combined with the back pay, costs, and interest
being awarded to the complainant herein, lead me to conclude that
$1000 is an appropriate civil penalty pursuant to the criteria
contained in section llO{i) of the Act.
I also believe that the
total monetary award to the complainant in this case is itself a
serious disincentive against future violations of the discrimination provisions of the Mine Act by these respondents.

ORDER
1. Respondents ARE ORDERED TO PAY the complainant the
amounts set forth herein as back pay, costs, and interest awards
within 30 days of this order.
2. Respondents ARE ORDERED TO PAY the Secretary of Labor
the amount set forth above as a civil penalty within 30 days of
the date of this order.
3. This Decision and the Decision of June 20, 1995,
together constitute my final disposition of the issues in this
proceeding. Upon payment of the amounts referred to in Paragraph
Nos. 1 and 2, above, this case IS DISMISSED.

James
V. Blair, Esq., Office 0 f the s o l"ici· tor, U. s. Department
f
o Labor, 4015 Wilson Boulevard, Arlington, VA 22203 {Certified
Mail)
Paul 0. Clay, Jr., Esq., Laurel Creek Road, P.
Fayetteville, WV 25840 (Certified Mail)

dcp
1668

o. Box 746,

ADMINISTRATIVE LAW JUDGE ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOFWASHINGTON, O.C. 20006

September 11. 1995

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

CIVIL PENALTY PROCEEDING
Docket No. WEST 95-420-M
A. C. No. 10-01907-05505

v.
Portable Crusher No . 2
BECO CONSTRUCTION COMPANY,
Respondent
ORDER TO SUBMIT HlFORMATION

This case is before me upon a petition for assessment of a
civil penalty under section 105(d) of the Federal Mine Safety and
Heal th Act of 1977.
The parties have filed a joint motion to
approve settlement for the one violation in this case.
Citation No. 4343823 was issued for a violation of 30 C.F.R .
§ 56.1000 because the operator did not notify MSHA when the crusher
was moved.
The violation was designated non-significant and
substantial but negligence was evaluated as high. The originally
assessed penalty was $1,000. The parties request that the citation
be modified . to reduce negligence from high to moderate and that the
proposed penalty be reduce to $700. According to the parties, the
operator mistakenly believed that notification of the commencement
of operations at the new location was sufficient to comply with the
standard .
I accept the parties representations and agree that negligence
should be characterized as moderate. However, I am concerned
about the size of the proposed settlement amount in light of
the six criteria set forth in section llO(i) of the Act . 30 U.S.C.
§ 820(i) .
MSHA in the narrative findings for special assessment
considered this violation as non-serious.
A $700 penalty for a
non-serious violation with only moderate negligence on the part of
the operato~ appears excessive.

1669

Accordingly, it is ORDERED that within 30 days of the date
of this order the parties again confer and again advise with
respect to a proposed settlement amount.

--

Paul Merlin
Chief Administrative Law Judge
Distribution:

(Certified Mail)

Matthew L. Vadnal, Esq., Office of the Solicitor, U.S. Department
of Labor, 1111 Third Avenue, Suite 945, Seattle, WA
98101
Merrily Munt h er, Esq., Penland, Muntner, Boardman, 350 North 9th,
Suite 500, P . O. Box 199, Boise, ID 83701
/gl

1670

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

September 20, 1995

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

CIVIL PENALTY PROCEEDING
Docket No. CENT 95-185
A . C . No . 29-00224-03667 A
Cj.,nmarron Mine

v.
JAMES LEE HANCOCK, EMPLOYED
BY PITTSBURG & MIDWAY COAL
COMPANY,
Respondent

ORDER DENYING MOT I ON TO DISMISS
ORDER ACCEPTING ~!LING
Before:

Judge Merlin

This case is a petition for the assessment of civil penalties filed by the Secretary of Labor against respondent, James
Lee Hancock, under section llO(c) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C . § 810~c), hereinafter referred to
as the "Act". Respondent seeks to have the petition dismissed on
the ground that the Secretary has failed to act in a timely
manner.
The case involves one citation and three orders issued to
respondent's employer , Pittsburgh and Midway Coal Company, under
section 104(d) of the Act, 30 U.S . C. § 814(d), for alleged
violations of the Act and its mandatory standards. The citation
and first order were issued on July 15, 1993, and the subsequent
two orders were issued on June 16, 1994 .
Petitions for the assessment of civil penalties for the same
conditions also were filed b¥ the Secretary against respondent's
employer, Pittsburg and Midway Mining Company, under section
llO(a) of the Act, 30 U.S.C. § 820(a). The first two items were
the subject of an ALJ decision after hearing which affirmed the
citation and order . Pittsburg and Midway Mining Company, 16
FMSHRC 2260 (Nov. 1994). The latter orders are presently on stay
before an Administrative Law Judge pending possible assignment of
this case (Docket No. CENT 95-13) .
On April 3, 1995, a civil penalty assessment was issued by
the Secretary against respondent under section llO(c), supra.

1671

Thereafter, on April 24, 1995, respondent timely requf ;sted a
hearing. 29 C . F.R. § 2700.26. The Secretary is allowed 45
days after the hearing request to file his penalty' petition.
29 c.F.R. § 2700 . 28. The time for filing or serving any document
may be extended for good cause shown and the request for extension must be filed before the expiration of the time allowed for
filing. 29 C.F.R. § 2700.9. The Solicitor filed a request for
an extension of time within which to file the penalty petition
on June 12, 1995, which was the 45th day.
The request was
served upon respondent, but not upon his counsel . An order dated
June 19, 1995, granted the extension. On July 11, 1995, the
Solicitor filed a second motion for a further extension of time .
This motion was served upon respondent's counsel who on July 21,
1995, filed a memorandum in opposition to the both the first and
second requests for extensions. An order dated August 7, 1995,
directed the Solicitor to respond to the matter:-. raised in
respondent's memorandum. 1
Respondent first seeks dismissal ·0n the ground that the
requests for extensions should not be granted. The Solicitor
explains the basis for his requests as follows : Two petitions
for the assessment of civil penalties were filed against respondent's employer under section llO(a) regarding the same conditions for which respondent has been cited.
The Solicitor consulted with his colleagues who had been assigned the other cases.
As already noted, one of those dockets had been heard and decided
and the Solicitor acquired and read the hearing transcript which
was 449 pages . He represents that he did not want to file the
llO(c) petition unless and until he could reliably determine
respondent was the responsible agent and that bringing suit
was appropriate in accordance with the statute's substantive
requirements.
I accept the Solicitor's explanation.
It was. proper for him
to review the entire record compiled before he was assigned the
case.
Indeed, i t would have been irresponsible for him not to
have done so.
I have previously permitted the late filing of
penalty petitions upon a showing of good cause where there has
been no prejudice shown. And I have noted the large number of
mine safety cases. Here the nature .of the case and the overall
caseload constitute good cause for the two thirty day extensions .
In particular, considering what the Solicitor had to do to

1

The penalty petition was filed on August 7, 1995, and the
answer was filed on August 21, 1995.

167 2

familiarize himself with the case, the requested extensions are
not excessive. Power Operating Company Incorporated, 15 FM'JHRC
931, (May 1993), Wharf Resources USA Incorporated, 14 FMSHRC 1964
(November 1992), Salt Lake County Road Department, 3 EMSHRC 1714
(July 1981). See also the Commission's decision in RhonePoulenc, 15 EMSHRC 2089 (October 1993) aff'd, 57 F.3d 982 (10th
Cir. 1995). In addition, although the operator has alleged
prejudice, i t has not demonstrated any injury resulting from
these extensions. In light of the foregoing, I grant th.e extensions sought by the Solicitor for the filing of the pen<>.l ty
petition. 2
Respondent also seeks dismissal of this case because 17
months elapsed between the first two citations dated J,1ly 15,
1993, and the notice of proposed assessment dated December 22,
1994 . Respondent states that the operator is in the r.t i.dst of
a reduction in force which significantly increases the risk
that critical wi tnesses will no longer be available and that
relevant documents will not b e located. He also advises that
his employment was terminated on July 14, 1995. Based upon these
assertions, respondent alleges prejudice.
In reply, the Solicitor sets forth what transpired during
the time i t took MSHA to complete its investigation. On January 18, 1994, a special investigator was assigned to conduct a
110 (c) investigation. Because of other 110 (c) invest·.gations to
which the investigator was assigned, he did not commence work on
this case until May 9, 1994 .
In the course of his activities the
investigator determined that two additional unwarrantable failure
violations existed and therefore , on June 16, 1994, issued two
additional orders. The subsequent orders were added to the
investigation on June 30, 1994. Two weeks later, on July 13,
1994, the special investigation report and supporting materials
which consisted of more than 400 pages and contained interviews
and signed statements, were sent to MSHA's Office of Technical
Compliance in Arlington, Virginia. That office completed its
review in two weeks, finding agent liability, and forwarded the
files to the MSHA Division of the Solicitor's office, also

2

Since the first request for extension was not served upon
respondent's counsel, both requests are before me and I have
considered both of them. Accordingly, respondent has not been
injured by the lack of service. I have previously declined to
dismiss a penalty petition for lack of service. Power eperatinq,
supra .

1673

located in Arlington. On December 12, 1994, the Solicitor in
Arlington completed review and approved a finding of liability
under section 110(c). The file was returned to Denver and on
December 22, 1994, the District Manager mailed the notice of
proposed assessment to respondent.
Without doubt, seventeen months between the first citations
and the proposed assessment notice constitute a considerable
period of time. This is particularly so when this period is
viewed together with the extensions of time for filing the
penalty petitions. From the information furnished by the Solicitor i t appears that much of the elapsed time was taken up with
delays in handling the case rather than by actual work. The
special investigation took six weeks. But six months passed
before an investigator was assigned to the case and an additional
three months went by because the special investigator was working
on other cases. Also the case was with the Solicitor in
Arlington for five months.
Nevertheless, i t must be borne in mind that both the investigation and the various levels of internal review were necessary
for a proper evaluation of agent liability and a knowing violation. The time used to evaluate the case could reasonably be
viewed as affording some assurance that resources of both the
individual and the government would not be wasted by the bri~ging
of an unworthy case.
Moreover, this case does not exist in a vacuum .
I take note
that data in the Commission's docket office shows the following:
In 1990 there were 147· completed investigations under section
llO(c), 49 of which were contested for a contest rate of 33% . In
1991 there were 256 such investigations, 126 of which were
contested for a contest rate of 49%.
In 1992 there were 308
investigations, 142 of which were contested for a contest rate of
46% . In 1993 there were 293 investigations, of which 128 were
contested for a contest rate of 44% . In 1994 there were 251
investigations, 177 of which were contested for a contest rate of
70%. The number of investigations is rather high and the rate at
which they are contested has risen sharply.
Section 110(a) provides that a citation be issued to an
operator within a reasonable time. The legislative history
speaks in terms of reasonable promptness for the issuance of such
citations. S. Rep. No. 181, 95th Cong., 1st Sess. 30 (1977) ,
reprinted in, Senate Subcommittee on Labor, Committee on Human
Resources, 95th Cong., 2d Sess., Legislative History of the

1 674

Federal Mine Safety and Health Act of 1977, at 618 (1978).
No such requirement specifically applies under section llO(c),
but elemental fairness would seem to require application of this
condition to llO(c) cases. Relevant to the meaning of this
requirement is the legislative history which specifically recognizes that there may be instances where a citation will be
delayed because of the complexity of the issued raised, a protracted accident investigation or other legitimate reason.
S. Rep. No. 181, supra at 30, Legislative History, supra at 618.
In view of the considerations set forth above and after
carefully weighing all the factors, I conclude that good cause
existed for the delays . The Solicitor is, however, cautioned
that the delays in processing which occurred here are troubling.
In addition and most importantly, respondent has not demonstrated that he has been prejudiced by the delays.
He asserts
that he runs the risk of witness and document unavailability.
But he does not show that any such unavailability has occurred.
In this case I will not infer prejudice from the passage of time
alone.
Respondent cites the ALJ decision in Curtis Crick, 15 FMSHRC
735 (April 1993) . In that case the Secretary did not timely
request an extension within which to file the penalty petition.
It is therefore, distinguishable from this matter. To the extent
that Curtis Crick is contrary to anything herein, i t is not
binding upon me and I decline to follow it. 29 C.F.R. § 2700.72 .
More to the point is the recent ALJ Order Denying Motions To
Dismiss dated August 8, 1995, in Cedar Creek Quarries et al, 17
FMSHRC~,
(Docket No. WEST 94-637 et al).
In Cedar Creek the
Administrative Law Judge refused to dismiss a llO(c) case where
the investigation took fifteen months.
In light of the foregoing, I conclude that the time elapsed
between the issuance of the first citations and the Notice of
Proposed Assessment does not constitute a basis for dismissal in
this case. In addition, I conclude that dismissal is not warranted when the 60 day extensions granted the Solicitor is added
to the prior period .
In light of the foregoing i t is ORDERED that the motion to
dismiss be DENIED.

167 5

It is further ORDERED that the filing of the penalty
petition be ACCEPTED.
The case will be assigned by separate order.

=-~\2L
Paul Merlin
Chief Administrative Law Judge
Distribution:

(Certified Mail)

Robert A. Goldberg, Esq., Office of the Solicitor, U. S. Department
of Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202
Laura E. Beverage, Esq., Jackson
Suite 2710, Denver, CO 80264

&

Kelly,

1660 Lincoln Street,

Mr. James Lee Hancock, HCR 63, Box 201, Raton, New Mexico

87741

Douglas White, Esq., Counsel, Trial Litigation, Office of the
Solicitor, U. S. Department of Labor, 4015 Wilson Boulevard, Room
414, Arlington, VA 22203
/gl

1676