JULY 1993

COMMISSION DECISIONS
07-27-93

ASARCO Mining Company

WEST 92-624-RM

Pg. 1303

LAKE 92-309
SE
92-332-M
KENT 92-712

Pg. 1311
Pg. 1314
Pg. 1316

WEVA 91-1949-C
KENT 92-574
YORK 92-106-M
KENT 92-290
WEST 92-505-M
WEST 92-100
VA
93-3
LAKE 91-636
WEVA 92-1049
CENT 92-94-M
KENT 92-1073
PENN 93-231-R
WEST 92-111-M

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

WEVA 92-172-D

Pg. 1430

KENT 93-219-D
WEVA 92-1292

Pg. 1438
Pg. 1440

LAKE 93-89-D
WEVA 92-1038

Pg. 1444
Pg. 1446

ADMINISTRATIVE LAW JUDGE DECISIONS
06-07-93
07-06-93
07-07-93
07-07-93
07-08-93
07-08-93
07-13-93
07-13-93
07-19-93
07-20-93
07-22-93
07-22-93
07-27-93
07-27-93
07-27-93
07-27-93
07-27-93
07-28-93
07-29-93
07-29-93
07-29-93

Quarto Mining Company (previously unpubl.)
Willis Dimension Stone, Inc.
Woodland Hills & Broken Hill Mining Cos.
UMWA on behalf of Billy Wilkinson, et al.
v. Valley Camp Coal co., etc.
C G & G Trucking Company
W.J. Bokus Industries, Inc.
Broken Hill Mining company
Bonanza Materials Inc.
Donald L. Giacomo emp. by Wyoming Fuel
Danny Owens emp. by J & T Coal Inc.
Zeigler Coal Company
Consolidation Coal Company
Lyman-Richey Sand & Gravel Co.
Costain Coal Incorporated
Consolidation Coal company
Mountain Cement Company
Sec. Labor on behalf of Richard Glover
v. u.s. Steel Mining Company
Sec. Labor on behalf of Danny Shepherd
v. Adena Fuels, Inc.
Consolidation Coal Company
UMWA on behalf of Charles Rosen, et al.
v. Saginaw Mining Company
Level Land Mining Corporation

1318
1319
1321
1331
1355
1361
1371
1373
1375
1378
1403
1408
1418

ADMINISTRATIVE LAW JUDGE ORDERS
07-06-93
07-20-93
07-20-93

Jim Walter Resources, Inc.
Farco Mining of Texas Inc.
contests of Respirable Dust Samples

SE
93-335-R
Pg. 1447
CENT 93-24
Pg. 1454
Master No. 91-1 Pg. 1456

1993

JULY

Review

CENT

92-276-RM.
of

Secretary
KENT

Mining

Energy

West

WEST

92-216-R,

Review

was

of

Secretary
WEVA

92-1008,
of

Secretary
LAKE

Clifford

Fauver,

(Judge

Labor,

MSHA

of

Meek
June

v.

22,

Essroc

1993)

of

Secretary

Sales

and

Koutras,

June

7,

June

v.

Maurer,

June

Martin

Quarto

The
June

Corporation,

7,

Mining
1993)

month

the

Docket

Company,

Nos.

July:

of
Docket

Processing,
1993 )

Nos.

No.

Docket

Corporation,

Coal

Harriman

16,

Docket

Inc.,

Company,

Docket
MSHA,
21,
1993)

Labor,

Lasher,

durinq

v.

No.

Docket

MSHA,

Labor,

Coal

July:

1993)

3,

cases

v.

MSHA

Labor,

(Judge

92-648.

Sons

and

June

of

month

the

of

followinq

Fauver,

(Judge

92-309.

Secretary
PENN

the

etc.

1993)

(Judge

MSHA

Labor,

Secretary
2,

June

v.

92-421.

in

durinq

Mullins

v.

Company

WEST

denied

v.

Feldman,

(Judge

92-669.

Inc.

Feldman,

MSHA

Labor,

case

followinq

the

Towing,
(Judge

Harless

Ike

Jerry

in

qranted

was

No.

1993)
Docket

No.

LAKE

90-132-DM.

(Judge

No.

COMMISSION

DECISIONS

FEDERAL

AND

SAFETY

MINE

STREET

K

1730

HEALTH

ASARCO

MINING

D.C.

Docket

:

No.

92-624-RM

WEST

LABOR,

SAFETY

AND

HEALTH

(MSHA)

ADMINISTRATION

Chairman;

Holen,

BEFORE:

FLOOR

20006

COMPANY

OF

MINE

COMMISSION

1993

27,

v.

SECRETARY

6TH

NW,

WASHINGTON,

July

REVIEW

Doyle,

Backley,

Nelson,

and

Commissioners

DECISION

BY

THE

COMMISSION:

contest

This
Health

of

Act

involves

a

proceeding,
30

1977,

citation

issued

(hereafter

"Asarco"),

Following

an
expedited
the
citation
upheld
1992)(AIJ).

Morris

(August

decision.

which

raises

30

The

support

experience

mine,

indicate

that

support

is

necessary,

in

any
In

its

to

work

order

in

their
timber
persons
travel

or

granting

for
be

in

the

review,

review,

(3)

whether

the

evidence

conditions,

1303

improperly

control

to

work

in

loosened,

which

replaced

be
the

travel

or

Damaged,

the

ground
shall

system

or

creates

prior

a

to

area.

Commission

expedite.

in
When

necessary.
maintained

the

2

or

conditions

support

affected

the

provides:

use,"

ground
support
or
repaired

J.

the

met

and

persons
tasks.

shall

of

for

judge

and

use

review

the

is

where

John
1468

whether

usedwhereground
ground

assigned

Judge

(2)

similar
it

I

Act;

the

installed,
places

performing
dislodged
hazard

shall

"Act"),

Inc.

FMSHRC

Law

14

proceeding.

support

be

Ground

designed,
ground

2

the

"Ground

mining

C.F.R.

and
or

ASARCO,
§ 57.3360.

to

requestingexpedited
Asarco's
granted
petition
the
citation
(I) whether

Commission

§ 57.3360,

C.F.R.

30

Act"

Administrative

hearing,
dismissed

petition

a

of

Safety

Mine
"Mine

Labor

of

violation

a

Federal

(1988)(the

seq.

issues:
following
of
the
Mine
requirement
burden
of
to
Asarco;
proof

the

i

and

et

Secretary

the

particularity
shifted

alleging
evidentiary

the

under

801

the

by

filed

timely

Asarco

judge's

arising
§

U.S.C.

denied

Asarco's

request

to

established

violation

a

follow,

uphold

we

the

of

the

cited

3

regulation.

judge's

conclusion

Factual

and

that

the

For

Asarco

that

reasons

violated

section

57.3360.

I.

Asarco

The

which

mine,

pillar

The
the

air

feet

materials

drift,

22

July

On

exhaust

feet

high,

1992,

the

death

with

the

Administration
occurred.

Thereafter,
where
drift,

tons

of

the

entry

three

rock
to

feet
he
14

Upon

3

In

address

from

FMSHRC

at

1470.

completion

of

in

his

conditions

its

petition
section

Asarco

did
we

refer

"Room-and-pillar"
A

system

is

the

intersection
bolts

small

loose

the

length

of

returned

rock

that

its

several

the

drift
two

in

other

the

other
Technical

the

judge

andunenforceable."

brief

or

and
to

ribs,

a

sections

with

asserts

in

the

the

to

that

MSHA's

issue

Smith,

where

of

conferred
contacted

"vague

area,

the

protruding
of

applied,

to

area

and

was

part

Health

directed

the

also

as

18

1469.

Smith

Smith
and

Asarco

this

to

address

at

inspections

drift

review,
as
57.3360,

the

of

traveled

roof

at

inspection,

for

not

ribs
noticed

was

production
Seibert
13,

and

investigation

previous

the

July

Safety

ground.

observed

his

in

not

do

also

He

seen

the
Smith

158

UE

FMSHRC

drift

quartzite,

long.

On

inspection
inspectors

to

areas,

upper
functioned

UQ i

feet

Montana.

room-and-

mined.

drift,
The

the

in

accident

2

mine.
900

14

loose

area.

roof.

an

area.

the

down

not

whether

in

other

observed

UQ

operator.
Labor's
Mine

of

left

158

the

Consequently,
4

accident

the

being

formation,

the

occurred

part
the

the

had

geological

Troy,
the

haulage

bodies

ore

in

utilizes

underground

or

with

fall

mine

copper

wide,

the

for

equipment

took

mile

approximately

roof
an

and

had

about

personnel

3-5.

UE

from

condition
mine.

scaled

the

and

a

Smith

the

for

Department

he

be

from

together

Smith
reach

to

and

system

of

("MSHA"),

fatality
UQ i drift

UQ 1

and,

and

II,

in

resulting
an
inspector

named

area

intake

wide,

to

so

haulage

a

and

miles

Asarco

UQ I

as

Background

silver
underground
and
long
1/3
developed
drifts,

an

1½

and

men

served

20

4

method.

transport

of

operates
is

Procedural

at

oral

of

the

MSHA

Support

failed

to

Pet.

argument.

it.
is

mining

described

as

follows:

of
the
mining in which
feature
distinguishing
of
50 percent
winning
or
of
more
the
coal
or
ore
in
the
first
The
coal
or
is
working.
ore
mined
in
rooms
ribs
separated
or
bynarrow
The
coal
pillars.
or
ore
in
the
is
won
pillars
by subsequent
in
which
working
....

the
Bureau
and

of
Related

Mines,
Terms

roof

is

U.S.
941

caved

Department
(1968).

in

successive
of

the

blocks

Interior,

1304

....

Dictionary

of

Mining,

Minera]

Denver

Center

in

Smith

returned

mining

Center,

by a
length

Montana

the

from

the

only

marginally

drift

floor

to

the

Clay

its

planes

Conditions

were

of

his
the

the

July

Denver

Davidson.

Jerry

walked

they
employees,
inspected
light,

Asarco

the

pulled
fingers,
of
length

Hansen

with
and,
similar

in

seams

29,
1992,
Support
Accompanied

On

assistance.

a

roof.

stable.

two

high
intensity
that
They found

with

and,

geological
representatives
and
geologist

and

inspector

stability.

reduced

bedding

two

Hansen

Sid

mine

the

and

with

mine

engineer
state

of

engineering

for
to

the

rock

several

dug

out

the

drift.

rocks
white

the

rock

from

the

weakened

from

clay
14

side

making

of

planes

bedding

off

fractured,

was

the

left

its

it

further

seams.

1470,

at

FMSHRC

1471-73,

1479.

with

The

following

Asarco

and
need

the

and

for

with

disagreed

the

day,
discussed

ground
MSHA's

held

representatives

MSHA

their

about

concern

unit

Asarco's

support.

that

ground

Hansen

and

drift

to

assessment

close-out

a

roof

riband

needed.

was

UQ 1

in

Miller,

Doug

manager,

support

conference

conditions
14

FMSHRC

at

1472.
the

Following
stability

evaluation

memorandum

noted

conference,

that

UQ 1

the

of
the

drift

rock

"an

Davidson
the

driven

was

through
Ex.

Sec.

mass."

submitted

ground
Their

manager.

shear

a

In

7.

their

district

MSHA

zone,

the

addition,

resulting

in

rock

had

intensely
jointed
between
be
white
to
alteration,
deposited
clay
causing
geochemical
undergone
the
for
roof
and
further
rock
I__dd.
Secondary
ground
support
weakening.
pieces
and
Davidson
for
the
ribs.
Hansen
been
had
and
none
was
provided
inadequate
be
reinforcement
installed."
rock
additional
that
l__dd.
recommended
"strongly
1472.
at
14
FMSHRC
in
original);
(emphasis
On
a

filed

Asarco

held

He

found
a

a

based

57.3360
of

notice
and

13

August

on

requested
was

section

of

Smith

Inspector

1992,

6,

August

violation

and

contest

The

14.

The

that

and

violation,

1

UQ
the

dismissed

citation

a

his
14

drift.
which

was

and

briefs

decision

25.

August

on

that

concluded

unstable,

proceeding.

UQ 1

hearing,

expedited
post-hearing

was

alleging

Asarco

the

an

issued

judge
drift

to

in

conditions

waived

parties

decision.
expedited
the
the
in
ground

an

issued

ground
requested

on

mass

FMSHRC

at

1479-81.

that

it

did

there

II.
of

Disposition
A.

of

Asarco

challenges
requirements

particularity
that

the

argues
that
to

the

Pa•tlcularity

that

the

Asarco

abate

failed

judge
was

the

citation
not

violation.

Citation
citation

the
of
to

Issues

the

this

address
was

specific
in

prejudiced
Br.

18,

the

on

Mine

Act.

19.

to

the

1305

the

judge,

of
to

by

the
defend

considering

the

meet

not

further

Asarco

nature

either

ability
The

3.

Inresponse,

issue.
as

its

grounds
Pet.

asserts

Secretary
and

violation
the
the

citation
merits

or

of

the

alleged

violation,

i04(a)

Section

writing
including

shall

and

reference

a

alleged
recognized

has

to

operator
FMSHRC

The

citation

installed

"[a]
I

ground

(5)

feet

and
the

of

the

corrective
action.
officials
following

Asarco

conditions

in

conclude

that

notice

of

that

corrective

the

the

UQ 1

the

citation

conditions
was

the
for

alleged

were

Asarcocounsel's
Finally,
the
concerning

to

demonstrate
the
do

it

back

we

particularity
B.

Burden

this

contest

that

"the

of

Asarco

the

to

be

violation

in

the

burden

adverse

that

burden
the

of

hearing

lack

of

the

to

of

one

of

the

proof
the

judge
judge
5.

burden

and

The

improperly

At

the

Tr.

met.

development
6

Counsel

in

the

fact

with

the

examination

the

in

we

with

of

UQ 1

for

citation

and

Asarco

and
the

at

the

citation.

based

on

of

drift

trial

actions

6

Asarco

a

judge's

Asarco,

that,

burden

responds
and

that

hearing,

opening

it

knew

hearing

Thus,

the

the

record.

forAsarco

judge,s

obvious
of

proof

failed

to

particularity
that

asserting
of

treatment

object

130

the

to

6

a

the

the

issue

judge's

is

in

proof

the

hearing

with

as

is

burden

tothe

argument

of

of

to

respect
of

matter

had
shifting
by acknowledging

that
the

Asarco'sreference

its

burden

Contestant,

this

violation

the

beginning

asserts

that

decision

shifted
at

the

Secretary

establishing

in
8.

with

cross

the

stated

with

rests

Tr.

Asarco.
and

sentence

met

discussed

prepare

Secretary.

5

team

and

in

specificity,

UQ

Accordingly,

and

Asarco's

the
the

for

compliance

roof

and

Thus,

Thus,

provide

into

adequately

to

challenge

The

contest."

to

ribs

that

need

support.

Asarco

fall";

Proof

judgeshlfted

was

the

able

or

15

and

the

and

ground
specific

bring

abate.

to

Asarco's

proceeding.
in

been

ambiguity,

reject
grounds.

argues

issues

the

had

Corp,,

area."
and

examination

of

required

was

substantiate

not

Accordingly,

of

Asarc0

that

condition

the

prepare

throughout
approximately

installed

inspection
inspection

to

extensive
condition

Commission

ground

regulation.

witnesses

in

allows

provided

maintained
be

1992,

need

necessary

not

MSHA

sufficiently

that

action

be

The

TonopahMining

into
the
up
the
violation

and

the

was

to

prevent

and

of

and

and

was

to

shall

Further,
29,
July

the

drift

specificity

drift

support

drift

of

extent

for

support

thenature

asto

standard,
§ 814(a).

installed

"ground

violation,
rule,
regulation,

the

cited.

haulage
be

shall

of

U.S.C.

abatement
require
Se___eeCyprus

"[g]round

shall

"citation

nature

theAct,
30

cases

UQ i

that

floor

of

matter.

that

each

the

requirement

and

the

of

specific

was

the

on

system

drift";
from

citation

this

1993)•

ribs

support

haulage

that

states

the

on

violated."

conditions

hearing
(March

that

particularity

provision

s

argument,

requires

the

what

a

379

Act

Mine

been

to

generally

for

367,

rejectedAsarco,s

with

have

to

ascertain

adequately

the

of

describe

order

or

implicitly

that
from

issue

that

he
the

with

was

law,

effect

an

hears
conduct
the

consisted

requirements

were

not

consistent

with

its

statement.

The

shows

record

described

Secretary
support

of

proceed

first

examined,

with
his

as

evidence.

counsel,

Asarco's

Commission

case

demonstrate

...

standard."

to

of

the

citation.

judge

misstated

The

proof.
Walter

the

Fuel

Co.,

judge's

Inc.,
1282,

14

FMSHRC

conduct

of

the

proper

C.

Evidence

30

the

9

FMSHRC

of

burden

the

the

burden

analysis
of
proof

of

bound

as

an

the

of
the

violation."

Accord:

Wyoming
that

however,

decision

the

consistent

are

proceeding.

Mine

The

the
apply
judge's

to

Act

law

evidence"

"substantial

term

mind

might
•Pittsburgh

Rochester

conclusion."

this

in

burden
before

alleged

administrative

reasonable

a

his

in

the

the

conclude,

We

analytical

proving

action

proving
any
(May 1987).

a

...

same

bore

party

enforcement

an

907
903,
1992).
(August

1294

evidence

judge's]

[the

support

U.S.C.

relevant

"such

means

bears

of

burden

a

to

with
the

to

which

"In

terms
by the
when
test
reviewing
§ 823(d)(2)(A)(ii)(1).

evidence

substantial
decision.

the

cited

burden

MSHA's

adheres

concerning

Secretary's

argument,

inconsistent

are

then

citation.

the

rebut

"it's

carry

held,

long

and

is

Commission

The

to

the

in
to

Secretary
Secretary

issued

closing

tha•
decision

hearing
of

allocation

with

to

his

actions

law

the

Secretary

Resources,

inspector
witnesses

the

the

for
who

statement

Secretary

has

Commission

Commission,
Jim

the

requiring

Counsel

presenting

in

The

in

The

expert

operator's
judge's

364-65.

Tr.

approach
validity

the

his

support
the

that

judge

ii.

5,

Tr.

case.

witness,
primary
by presenting

responded

Asarco

The

offer

would

he

proof
required

the

for

counsel

statement,
the

and

case

9-10.

Tr.

his

opening
his

of

theory

citation.

the

his

in

that,
the

as

adequate

Co,,
NI/IB,

11

accept

Coal

to

FMSHRC

305
U.S.
Edison
Consolidated
Co, v.
1989),
(November
quoting
factual
overturn
a
do
not
findings
While
229
we
judge's
lightly
(1938).
197,
such
determiaffirm
bound
to
neither
we
are
and
resolutions,
credibility
them.
is
to
evidence
See,
dubious
if
or
support
nations
present
slight
only
1293
Cir.
F.2d
732
(6th
1288,
NLRB,
v,
Kreme
Corp,
Doughnut
Krispy
e__•g•,
1263
Cir.
635
F.2d
(7th
1255,
Midwest
NLRB,
Inc,
Stock
v,
Exchange,
1984);
whole
the
in
the
settled
that,
We
reviewing
are
principle
1980).
by
guided
that
the
record
in
also
consider
must
tribunal
an
anything
record,
appellate
that
evidence
a
of
the
from
the
challenged
detracts"
supports
weight
"fairly
488
340
U.S.
Camera
Universal
474,
(1951).
NI/IB,
v,
Corp,
finding.
2163

2159,

the

mine

the

drift

areas

directed

he

is

testimony
investigating
because
had
the

seen

scaling

in

more

than

down

of

i00

of
of

tons

loose

the

mine.

material.

here,

did

in

while

in

conditions
those

from

different

inspections

several

he

that,
about

concerned

conditions

ground

observed

became

he

unsafe

were
as

testified

Smith

Inspector

accident,

he

the

where

reliable.
an

ground conditions
judge determines,

that

inspectors

evidence

substantial
their

that

MSHA

the

Testlmonyby
constitutes

that

At

14

in

other
he

time,

FMSHEC

at

later
Smith
respecialists,
of
because
miners
to
dangerous
inspected
42-43.
Tr.
the
of
condition
fractured
MSHAmining
the
34-36,
ground.
that
he
testified
with
the
in
who
Smith,
investigation
Hansen,
joined
engineer
and
filled
had
that
extensive
horizontally
vertically
saw
joints
deposits
clay
MSHA geologist
140-41.
Tr.
the
weakened
Jerry
and
had
117,123-25,
ground.
1469-70.

With

the

assistance

the

drift

and

of

concluded

two

MSHA
it

that

1307

was

Davidson

testified

further

weakened

the

in

drift.

judge
14

that
Tr.

the

the
the

issue,

to

which

"lack

a

deposits

due

the

in

fault

conditions

he

found

credible,

stability

of

drift

the

the

of

As

the

rock

in

judge

who

"The

stable."

14

credit[ed]

MSHA's

the

better

was

recognized,
is

acknowledged

WilliamHustrulid,

witness

expert

judge
UQ i
"generally

credibility
determinations,
to
adequately
investigate

failed

Asarco's

judge

The

was

judge's

inspectors

that

inspectors.

the

MSHA

and

whether

clay

testimony,

there

that

challenges
the

drift

this

Given

the

fractured

the

ribs."

1481.

at

that

that

already

concluded

Asarco

alia,

found

also

thatwas

333-35.

reasonably

FMSHRC

he

rock

as

an

for

inter
in
the

issue

is

...

resolving

In

MSHA
this

Id.
of

opinions

expert

than

credibility
1480.

at

evidence."

conflicting

testified

qualified

principal
FMSHRC

arguing,
conditions

Hansen

Asarco.

Dr.

and

The

Commission

has

recognized:
Expert

witnesses

opinions

on

If

the

testify

the

proceeding,
based

credit,
the

must

such

factors

scientific

scientific

fact.

conflict

in

which

opinion

determine
the

as

of

trier

witnesses

expert

the

their
the

to

judge
on

and

expert

matters

of

opinions

offer

to

technical

a

to

credentials

bases

for

of

the

expert's

opinion.
Asarco,
the

in

to

of

Hustrulid's
that

pillars

in

off
Hansen's

the

drift
7

drift.

We
the

witnesses

should

generally

the

judge's

Based

1992).

The

other

mines

The

judge

in

the

seams.

Dr.

14FMSHRC

1480.

Further,
popping

the

on

judge's

absence

of

noted
judge
qualified

that

confirmed

the

judge

noises

speak

to

that

recounted

Hustrulid

Hansen's

him

Hansen
the

on
was

presence

discounted

in

the

of

MSHA's

credited

Ranger

Fuel

the

foregoing,

on

findings
section

Asarco

violated

that

Hansen

limited

indicates,

is

determination

be

under

evidence

(June

surveys
UQ i drift.

when
present
be
present

are

support

7

from

949

drift,
reasoning
working
ground
on
exerting
pressure
would
not
small
withproblems
of
involving
rock
pieces
the
rib.
14
FMSHRC•at
1480-81.
the
did
not
Finally,
find
judge
was
diminished
credibility
failure
to
observe
byhis
a
crosscut
or
because
he
had
limited
his
to
side
one
inspection
of
the
find
no
circumstances
in
this
case
the
unusual
of
warranting
step

rejecting
See

the

clay

drift.

noises
but

falling
that

in

reliance

such

941,
rock

ribs
out

scrape
in
the

clay

FMSHRC

performing

stability

able
of

14

Inc.,

experience

that

over

the
12

Corp,,
we

the

testimony

testimony

of

FMSHRC

363,

conclude

conditions
ground
and
we
affirm
57.3360,

section,

i

his

inspection

the

rock

mass

to
was

374

that

that

the

174.

1308

the
the

same

expert

(March

evidence

UQ 1
judge's

side

of

on

both

expert
witness.

1990).

substantial
in

one

Asarco's

drift

the

ground

conclusion

drift
sides

supports

required
that

because,
of

the

drift.

as

the
Tr.

Asarco's
control

required

particular
"designed,
§

means

that

MSHA

required,
the

throughout
violation

or

type
825,

type
Fed.
as

to

of

insist
141.

In

regulation

to

stating

control

the

final

the

regulation

an

acceptable

on

a

any

means

of

abatement.

method

of

abatement

particular
the

event,

"The
held,
previously
of
conditions
particular
White
roof
of
support."
19
835
n.
(May 1983).

cited

the
Pine

area

Copper

standard
that

does

control

asserts

mesh

wire
not

of

abatement

14

FMSHRC

not

the

1481;

at

before

As

us.

is

Commission

the

C.F.R.

it

Asarco

with

for

is

before

question

only

have

"The

only

MSHAdid

system

be

it

30

"
....

that

ground
the

on

that

rather

ground

clear

support

ground

silent

is

states:

is

record

the

However,

of

method

the

on

used,

be

to

part

The

be
to
used,
system
support
ground
36195
1986).
8,
(October
36192,
Reg.
rib
of
the
abatement,
bolting
means

drift.

design

the

and

51

undertake

we

support
maintained

of

specify
ground."

53-54,

the

ground

preamble

the

Tr.

abate

The
the

not

to

in

rests

contrary
violation.

of

installed,

57.3360.

the

to

argument

roof
support,
required
Div.,
Copper
Range Co,,

whether
not

5

which

FMSHRC

III.

Conclusion

For

conclusion
Asarco's

the
that
contest

foregoing
Asarco

we

reasons,

violated

proceeding

the

affirm

was

and

findings

judge's

the

Therefore,

57.3360.

section
proper.

Arlene

Holen,

Richard

V.

Chairman

Commissioner

Backley,

•'
J•yce

L.

Clair

1309

A.

Doyle,

Nelson,

Commissioner

his

dismissal

of

Distribution

Henry

Chajet,
Esq.
& Kelly
Pennsylvania

Jackson
2401
Suite

Ave.,

N.W.

400

Washington,
Tana

20037

D.C.

M.

Adde,

Office

of

U.S.

Department

4015

Wilson

Arlington,

Esq.
Solicitor

the

of

VA

Administrative
Federal
280

Federal

1244

Speer

Denver,

22203

Law
Mine

CO

Labor

Blvd.

Safety
Building

Judge
&

Health

lohn

J.
Review

Morris
Commission

Boulevard
80204

1310

ADMINISTRATIVE

LAW

JUDGE

DECISIONS

OFFICE

LAW JUDGES

ADNINISTRATIVE

OF

lOth
FLOOR
2 SKYLINE,
PIKE
LEESBURG
5203
22041
FALLS CHURCH, VIRGINIA

1993

JUN 7

HEALTH

AND

Docket

(MSHA),

ADMINISTRATION

33-01157-04012

Powhatan

V.

92-309

LAKE

No.
No.

A.C.

Petitioner

No.

4

of

the

Mine

COMPANY,

MINING

QUARTO

PROCEEDING

PENALTY

CIVIL

LABOR,

OF
SECRETARY
SAFETY
MINE

Respondent
pECISION
Walton,

Kenneth

Appearances:

Petitioner;
Daniel

for

OH,

for

PA,

Pittsburgh,

Esq.,

Rogers,

E.

Solicitor,

Cleveland,

Labor,

of

Department

U.S.

Office

Esq.,

Respondent.
Judge

Before:

seeks

Petitioner
under

violation
Act

of

find

I

§

U.S.C.

that

the

801

et

Mine,

affecting
observed
mine.
the
demonstrate

3..

Once

would

the

spin

the

steering

the

the

forcing

Mine
loader

and

was

broken

by
causing

fast,

was

to

operator

hands

very

known
in
or

as

Powhatan

#4

substantially

in

Jeffers

James

Inspector
the

warmed
being
idling,
operator,
equipment

wheel

both

lock

Fact

up
Steve

for

of

yard

supply
use.

Kurko,

to

steering.

When

positlon,
use
forcibly

was

asked

Jeffers
the

Inspector

use

or

front-end

988

machine

The

mine

coal

Federal

1992,

5,

Caterpillar

a

and

of

FACT

OF

sale

a

as

reliable,

commerce.

March

On

Health

substantial,

Findings

the
below:

a

for

coal

interstate

2.

in

operates

Respondent
which
produces

safety

record

the

and

evidence
the
of

hearing

FZNDINGS
1.

a

and

sea.

establishes
Discussion

the

in

findings

of

alleged
Safety

an

Mine

Federal

preponderance

a

evidence

probative

for

penalty

the

considered

Having
and
further

civil

a

105(d)

§
30

1977,

whole,

Fauver

turned
rlse

from

his

turn

the
the
of

his

weight

forceful

turning,
loss
potential

a

1311

to

right,

far

meat
wheel

steering
control

locked
it
and
back.
wheel
the
of

vehicle.

Kurko

intermittent

stated
that

and

to

Jeffers
that
had
reported

he

Adams.
4.

Adams

October,

1991,

leaking

were

that

Adams

did
5.

plant.

been
it
after

and,

discovered

the

had
when
the

not

take

The

loader

machine

after

used
Jeffers'

in
several
issuance

was

tagged

out

repaired.

and

DISCUSSION
The

standard
that:

provides

cited

Equipment

The
was

to

from

the

seat

force
that

he

could

the

heightened
that

the

it

p?tentially

latent,

unknown

Kn_ew•at

r•.e

•u

address

the

rne

steering

negllgence

}ndependent
instead
once
requlred

a

the

traffic
operated.

and

the

of

p,

un

I

une

ro

therefore

sumsrantlally

was

find
contribute

steering.

the

intermittently

rne

s•gnlflcant
that
to

the
the

1312

equipment
In

the

efforts

c?rrect

constltuted
made
no

hazard

a

was

The

operator,

areas

other
vehicle
the
steering
when

a

others,
to

defective.

where

to
the

drlvers

,yst

someone

was

in

the

substantial.

vlolatlon
cause

their

failure
service

was

Loader

and

that

with

was

In

serious

and

More

th? d fe t

a

faced
Adams

operators.

and

alter

position.

apparently

drivers

not
and

malfunction

the

could
fact

The

did

The
of

out

foot

c?n•ro÷

The

operator

standing

steerlng
to

on

center

and

be

the

Once

presented

would

hazard

all

vehicle.
the

a

it

rise

use

toward

It

in

that

the

posltlon

equipment

Ind•vaduals

loader

and

the

uncorrected

the

vehicle

other

•a•ure
uz

wheel

in

would occur.

as

machine

knew

of

__•L•yL

to

fast

Respondent

a

corrected

forced

of

defect.

whether

foreman
presented

be

be

because

unsuccessful.
the
loader

its

upon

to

on

problem

well

degree.

relaed

defect

steerlng

high

lock

injury

an

take

or

77.1606(c),

right,

unexpectedly

were

§

defect
the

to

Respondent,
th.rough
was
and
malfunctionlng

assessment

put

foot
loader

problem
defect

safety

very
control

as

of

defect.

steerlng

of

spin

motion

operator

new

would

safety

in

occurrlng

the

issue,

at

C.F.R.

shall

would
the

in
a
standing
unexplained,

serious

ve.ry

Any

the

an

citation

turned

against

brake

only

corrected.

FINDING8

safety

driver

steering

was

was

throughout

the

30

When

regain

the

it
not

locations
of

obvious

an

occurred
for

potential

as

jacks

used.

the

could

observed
this

that

of

himself

when

was

fact

r•sk

brace
muster
to
the
wheel

anticipate

the

and

operator
the
problem

that

not

had

locking,
to

occurred,

before
fact

loader

back

steering

still

inspector,

malfunctioning.

was

Ron

service.

affecting
is

far

repacked,

FDRT•E•_R

the

equipment

front-end

steering
subject

by

defects

before

the

WITH

Foreman

as

the

was

of

out

was

shop

that

jacks
were
problem

was

Shortly
loader

the

steering

condition
to

problem

discovered

was

the

the

of

aware

the
it

could
and

effect

slgnlflcantly
of

a

mine

and

safety

there

that
and
contribute

hazard
would

find

also
with

I

comply

months

defect

remove

or

lack

serious

loader

care,

more

failure

the

Considering
Act,

I

find

seriousinjury.

was

unwarrantable

an

that

criteria

for

that

OF

in

2.

Respondent

Citation

to

correct

shows

a

is

unwarrantable

an

in

penalty

and

§

110(i)

of

appropriate.

LAW

jurisdiction.

has

judge

The

defect

failed
This
was

$800.00

CONCLUSIONS
I.

there

civil

a

of

penalty

a

to
the

negligence,

ordinary

than

standard.

but

service.

from

the

failure
of

hazard

the

that

knew

Respondent
inspection,

finding

inspector's
with
comply

to

likelihood

reasonable
in
a

the

before
the

the

Justifies

the

there
standard.

due

of

a

result

or

that
cited

the

several

for
the

was

to

violated

30

as

alleged

$800.00

within

77.1606(c)

§

C.F.R.

3332171.

No.

Q_RDER
WHEREFORE

30

IT

i.

Citation

2.

Respondent

days

of

this

IS

ORDERED

that:

No.

3332171

is

shall

pay

a

AFFIRMED.
civil

of

penalty

Decision.

Fauver
William
Administrative

Judge

Law

Distribution:
Walton,

Kenneth

Labor,

881

Cleveland,
Daniel

Washington

Federal
OH

E.

Esq.,

Rogers,
Road,

Office
Office

of

the

Building,
Mail)
(Certified

44199

Esq.,

Pittsburgh,

Consol

Inc.,
PA

Solicitor,
1240

Consol

15241-1421

/fcca

1313

East

U.S.

Ninth

Plaza,

(Certified

Department
Street,

1800

Mail)

of

FEDERAL

MINE

SAFETY
OFFICE

AND

OF

HEALTH

ADMINISTRATIVE
2

SKYLINE,
5203

FALLS

MINE

OF

LAW

10th

FLOOR

LEESBURG

PIKE

CHURCH,

VIRGINIA

JUt 6
SECRETARY

JUDGES

22041

CIVIL

AND

COMMISSION

1993

LABOR,

SAFETY

REVIEW

PENALTY

PROCEEDING

HEALTH

ADMINISTRATION

(MSHA),

Docket

Petitioner

No.

A.C.

SE

No.

92-332-M

09-00889-05513

v.

American

e

WILLIS

DIMENSION

Mine

Blue

STONE,

INCORPORATED,
Respondent
DECISION
Before:

Judge

APPROVING

Barbour

Statement
This

proceeding

penalties
to

filed

Section
30

three
found

alleged

U.S.C.

in

29

filed

§

2700.30,
initial

C.F.R.

citations,

The
amounts

are

30,

Code

3603282
3603283

the

support
the

decided

ability
small

size

the

Commission

seeking

approval

of

the

violations.

matter,
Rule

proposed
proposed

the

and

The

alleged

to

Assessment

Settlement

$119
$157
$157

$60
$79
$78

56.5003

56.12025

proposed

have

submitted

penalty

settlement
criteria

found

continue

in

and

The

parties
good

business

emphasize
negligence

faith

disposition
pertaining

information

regarding

moderate

30,

settlement
settlement

C.F.R.

information

and

for

Regulations.
the

settle

the

of

standards

56.15002

civil

violations.
Respondent,s

safety

pursuant

assessments,

Act

4/2/92
4/2/92
4/2/92

included
to

to

Health
assessments

Section

parties

Act,

Federal

pursuant

Date

of

statutory

and

motion

a

No.

In

of

denying

answer

civil

of

Respondent

Safety
penalty
mandatory

follows:

as

3603281

case,
six

assessment
the

civil

certain

30

Citation

Mine

seeking
of

for

against

Federal

have

now

have

Proceeding

proposals

timely

a

parties

they

the

820(a),
violations
Title
56,

filed

The
and

of

the

Petitioner

the

§

Part

Respondent

of

concerns

by

ll0(a)

1977,

SETTLEMENT

in

Section

history

and

abatement

1314

of

note

the
of

size,
previous

violations

they

to

ll0(i)

Respondent's

the

this

of

were

the

due

Respondent's

to

the

CONCLUSION

review

After

is

in

the

2700.30,

IS

the

and

GRANTED,

C.F.R.

29

to

Pursuant
settlement

interest.

public

the

of

violations
subject
is
disposition

the

for

arguments,
proposed
suggested

the

approve

settlement

proposed

the

to

approval

that

assessed

penalties
that

the
in
motion

and

find

I

case,

the
and

warranted

reasonable

support

this

of

settlement
reductions

§

in

submissions

and

motion

the

of

pleadings,

the

of

consideration

and

is

APPROVED.

ORDER

settlement
in
question.

is

Payment
of

date

the

of

this

proceeding

is

pay
in

above

shown

amounts

days

to

ORDERED

IS

Respondent

to

made

be

to

proceeding

this

in

penalties

civil
satisfaction

of

MSHA

and

upon

F.

Barbour

the

violations

the

thirty

within

of

receipt

(30)

payment,

DISMISSED.

David

Administrative

Law

Judge

(703)756-5232
Distribution:
Robert

L.

Department

U.S.

(Certified

30367

T.
P.O.

Walter,

Willis,

Dale
Box

6404,

of

Esq.,
Labor,

Office

of

Solicitor,

the

NE,

Street,

Peachtree

1371

Atlanta,

Mail)
President,
Elberton,

Willis
GA

30635

Dimension

(Certified

\epy

1315

Stone,

Mail)

Incorporated,

GA

FEDERAL

SAFETY

MINE

HEALTH

AND

COWWrSSION

REVIEW

OFFICEOFADMINISTRATIVELAW
2

5203
FALLS

SECRETARY
MINE

OF

AND

PiKE

LEESBURG

CHURCH,

VIRGINIA

JUL 7

1993

22041

CIVIL

PENALTY

(MSHA),

Docket

Petitioner

No.

A.C.

V.

MINING

KENT

No.

No.

HILLS

PROCEEDING

HEALTH

ADMINISTRATION

WOODLAND

•

FLOOR

LABOR,

SAFETY

JUDGES
•

10th

SKYLINE,

92-712

15-16801-03509

Mine

1

COMPANY,

Respondent
SECRETARY
MINE

OF

LABOR,

SAFETY

CIVIL

AND

ADMINISTRATION

(MSHA),

Docket

Petitioner

KENT

No.

No.

HILL

PROCEEDING

No.

A.C.

Vl

BROKEN

PENALTY

HEALTH
93-170

15-15637-03541

Mine

1

MINING

COMPANY,
Respondent
DECISION

Appearances:

Mary

Sue

Taylor,

Office

of

for

Petitioner;

Mr.

Hobart

W.

Company,
Kentucky
Before:

Judge
These

penalty

Health

Act

hearing
hearing,
settlement
motion
cases.

1977

June
the

to
A

Department

of

Labor,

Nashville,

Tennessee,

Anderson,

Broken
Hill
Hills
Mining,

Ashland,

and

Woodland

for

Respondent.

approve
reduction

petitions

upon

105(d)
Act).

the
matters
settlement
in
penalty

the
and

me

in
1993,
appeared

16,

parties

under

before
Section

(the

covering

have
considered
in
this
case,

appropriate

are

under
of

on

U.S.

Solicitor,

Mining

Weisberger

cases

civil

Esq.,

the

The

I

conclude

criteria

assessment

Federal

Mine

cases

were

scheduled

Huntington,

West

Virginia.

advised

and

that

issue.

at

agreements

and

$486

from

representations
the

for

the

of

and
that

the
set

forth

Act.

1316

to

they

is

Section

the

At

had

reached
made

a

a

these

proposed.
submitted

documentation
proffered
settlement
in

and

for

Petitioner
to
dismiss

$200

of

Safety

ll0(i)

I

is
of

the

and

days

is

it
of

this

motion

the

WHEREFORE,
ORDERED
order.

of

settlement

penalty

of

approval

for

Respondent

that

pay

•

is
GRANTED,
30
within

$486

•//
Weisberger

Avram

Administrative

Judge

Law

Distribution:
Mary
of
37215

Mr.
and
41105

Esq.,

Taylor,

Sue

2002

Labor,

(by
Hobart
Woodland

(by

Richard

Fascimile
W.

office

of

Jones

Road,

and

President,

Anderson,
Hills

Fascimile

Regular

Mining
and

Company

Regular

Solicitor,

the

Suite

U.

S.

Nashville,

B-201,

Department
TN

Mail)

Mail)

nb

1317

Mining

Hill

Broken

Inc.,

P.O.

Box

989,

Company,
Ashland,

KY

FEDERAL

NINE

SAFETY

OFFICE

ANDHEALTHPJEVIEg

ADMINISTRATIVE

OF

2

SKYLINE,
5203

FALLS

MINE

WORKERS

BEHALF
BILLY
L.
ON

AND

ALL

OF

PIKE

AMERICA,
PRICE,

WILKINSON,

COMPENSATION

JR.

SIMILARLY

22041

1993

OF

GARY

JUDGES

FLOOR

VIRGINIA

JUL 7
UNITED

LAW

lOth

LEESBURG

CHURCH,

CONNISSION

Docket

PROCEEDING

No.

WEVA

8

Preparation

91-1949-C

SITUATED

MINERS,

V

C

No.

of

June

Petitioners

Plant

V.

VALLEY

CAMP
COAL
COMPANY,
SHREWBURY
COAL
COMPANY

AND

Respondents
ORDER
Before:

Judge
It

is

The
is

a

OF

Weisberger

ORDERED

that

the

lifted.

find

parties

previously

fair

Petitioner's

disposition
Motion

representations
the

is

to

that

settlement
It

DISMTSSA;.

Stay

Order

filed

a

of

Dismiss
payments

settlement

the
is

issues
granted

have

been

cases

be

1992

23,

is

which

agreement
in

presented
based
made
in

hereby

this

I

case.

on

accordance

with

agreement.
ORDERED

that

these

DISMISSE______D.

Avr•e•er
Administrative

Distribution:
David

Hardy,

553,

Charleston,

Pamela

Esq.,

Jackson
WV

Silverman,
U.
S.
Solicitor,
516,
Arlington,

VA

Mary

Esq.,

20005

Lu

Jordan,
(Certified

&

Kelly,
(Certified

25322

Carl
Esq.,
Department
22203

C.

Labor,
(Certified

UMWA,

900

Laidley
Mail)

1800

Charneski,

of

15th

Mail)

nb

1318

Law

4015

Esq.,
Wilson

Judge

Tower,

P.O.

Office

of

Boulevard,

Mail)
Street,

NW,

Washington,DC

Box

the
Room

SAFETY

MINE

FEDERAL

OF ADMINISTRATIVE

OFFICE

5203
FALLS

FLOOR

LEESBURG

PIKE

VIRGINIA

CHURCH,

JUL 8
OF

SECRETARY

AND

22041

]993

LABOR,

SAFETY

MINE

JUDGES

LAW

10th

2 SKYLINE,

COMMISSION

REVIEW

HEALTH

AND

CIVIL

:

PROCEEDING

PENALTY

HEALTH

(MSHA),

ADMINISTRATION

Petitioner

:

Docket

:

A.C.

:

MINE:

No.
No.

92-574

KENT

EHB

15-16567-03501

v.

C

G

&

G

No.

2

TIPPLE

COMPANY,

TRUCKING

Respondent

This
civil
Health
filed
the

Amchan

Judge

Before:

is

penalty
a
case.

before

me

upon

under

S

105(d)

of

1977,

30

U.S.C.

case

of

Act

motion
The

to

77.

citation
substantial."
I

considered

have

submitted
consistent

also

has

and

been

the

with

parties

The

seq•

agreement
are

and

$100as

representations

and

•

proffered
ll0(i)

have
dismiss

to

Settlement

Penalty

recharacterized

the

a

follows:

as

$400

(a)

in

criteria

the

et

of
and

assessment
Mine
Safety

settlement

that

conclude

I

801

Proposed
(a)

1607

for

Federal

settlement

Standard

3215760

and

the

of

petition
the

S
a

approve

terms

Citation

*The

BETTLEMENT

APPROVING

DECIBION

"non-significant
documentation
is

settlement
of

the

Act.

ORDER

IT

WHEREFORE

is

settlement

penalty
payment

of

this

IS

and

within

30

$I00
case

is

that

ORDERED

GRANTED

Respondent
of
days

the

this

motion
shall
pay
decision.

for

the

approval
approved
Upon

such

Law

Judge

DISMISSED.

Administrative
703-756-4572

1319

of

Distribution:
Darren

L.

Department

Nashville,
Mr.

Curtis

Pine

Top,

Courtney,
of
Labor,
TN

Office

2002

Richard

37215-2862

Gayheart,
KY

Esq.,

41843

the

of

(Certified
C

G

(Certified

&

G

Solicitor,

Trucking
Mail)

ljf

1320

U.S.

Road,

Suite

Company,

HCR

Jones

B-201,

Mail)
60,

Box

1810,

SAFETY

FEDEEALHINE

2

SKYLINE,
5203

FALLS

BEALTIIEEVIEWCOHNISSION

ADMINISTRATIVE

OF

OFFICE

AND

PIKE

AND

1993
CIVIL

Docket

Petitioner

J.

YORK

No.

A.C.

No.

High

Peaks

92-I07-M

30-02790-05513

INC.

INDUSTRIES,

BOKUS

30-02790-05512

No.

Docket

92-I06-M

YORK

No.

A.C.

V.

W.

PROCEEDINGS

PENALTY

HEALTH

(MSHA),

ADMINISTRATION

22041

VIRGINIA

LABOR,

OF
SAFETY

MINE

JUDGES

FLOOR

LEESBURG

CHURCH,

JUI_ 8
SECRETARY

LAW

10th

Respondent

Asphalt

DECISION

William
G.
Staton,
Esq.,
office
of
the
Solicitor,
for
Petitioner;

Appearances:

W.

J.

President,

Bokus,

Incorporated,
for
Respondent.

Department

of

New

New

York,

W.

Greenfield

York,
J.

Center,

Labor,

Industries,

Bokus
New

York,

Weisberger

Judge

Before:

U.S.

of

Statement

the

Case

of
consolidated
the
cases
Labor,
Secretary
civil
assessment
of
filed
for
penalty,
petitions
various
of
violations
Operator
(Respondent),
by the
code
of
in
30
of
the
volume
standards
set
forth
mandatory
the
to
cases
were
Pursuant
Federal
notice,
Regulations.
in
and
16
and
heard
scheduled
on
17,
1993,
February
Randall
the
York.
At
New
hearing,
Gadway
Springs,
Saratoga
Patrick
Laura
E.
Petitioner.
James
testified
for
Durkin,
McGee,
testified
for
Bokus
William
John
and
Thomas
W.
Barss,
Mace,
filed
the
to
the
hearing,
parties
postSubsequent
Respondent.
these

In

(Petitioner)
alleging

briefs

hearing
On

June

with

a

Motion

not

file

any

Secretary's
June

30,

on

16,
for

June

21,

1993.

1993,

the

Leave

to

Secretary
Supplement

to
reply
Supplemental

this

motion

and

Post-Hearing

1993.

1321

filed
and
served
Respondent
Memorandum.
Respondent
it
is
The
granted.
filed
Memorandum
was

did

I.

Backqround

the

subject

In

Facts

J.

Bokus,

William

1983,

property
the

property

asphalt

an

property,
the

on

and
side

east

Respondent's

President,

of

"for

65

plant
a

road

of

the

acres,

there"
connects

river,

purchased
sole

the

(Tr.

130).

A

the

portion

of

with

that

stream
the

located

In

1984,
The

("High
Peaks")
and
High Peaks
Bokus

asphalt
asphalt

an

river.

the

and

is

located
In
a

mine

A

screen

on

asphalt

at

subject

October
the
that

1991,

W.

J.

side

west

stone,

of

is

the

and

"rubble",

asphalt.
subject

Some

in

these
balance

side,

to

returned

by

concrete

stockpiles

are

Also
contains

plant.

(Emphasis
the
repair
used
Stored
owned

as

a

in

by
the

is

as

to

50

is

other

the

on

property.
Also

the

on

sand,

recycled
percent

crushed
the

concrete

mined
at
the
material

of

product,

and

the

site.

stockpiles

of

the
on
east
concrete
and
asphalt
the
other
contains
in
the
latter
two

old
and

items

The

but

subject

the

on

two

material

previously

final

a

gravel.

containing

were

piles
customers,

the
and

of

He

is
property
repair
parts
High
and
Peaks,

by

owned

Supplied)

Respondent.

not

operating

and
sand,
the
property

of

crushed

20

services,

garage

W.J.

mines

mines.

stockpiles
of

sold

side

east

trucks"
for

from
the

in

customers.

the

of
site
the

two

products.
to

side
other

east

materials

are

to
black

of

the

plant

contains

According

used
from

installation,
from

are

of
This

size.

by

on

asphalt

sold

side

east

material

these

there

on
the
electrical
The
garage

Pallette.
the
support

commenced

were

non-permanent

Respondent's

processed

Bokus
Industries,
the
property
mining
the
mine

is

the

which

of

one

separate

Approximately

addition,

In

on

stockpiles

goes

entities
minerals
obtained

raw

by-product

a

of

mine.
two

of

site.

located
from
separates
the
gravel
which
is
by a crusher,
a
dates
in
was
located
issue,
The
crusher
also
crushes
east
side
of
the
property
and

to

corporate
the
1990,
the
plant

are

Until

of
the

on

erected
on
the
east
side
owned
Peaks
by High
Asphalt
Pallette
Stone
("Pallette").

was

is

leased

Pallette

Industries.

production

plant
plant

the

on

side.

west

in

Discussion

and

consisting

having

of

purpose
bisects

Findinqs

the
is
Bokus,
garage
top
(asphalt)
plant"
said

that

(Tr.
196).
of
repair

the
are

Also

some

"its
crusher

Respondent's

garage.

1322

and

asphalt
to

"primarily

for

(Tr.133).
purpose

the
and

that

garage
for
the
is
leased

used

primary

However,

oxygen

a

garage

also

equipment.

screen

acetylene
employees

for

was

is

cylinders
at

times

work

side

east

the

material

the
then

from
and

station,
the

office.

the

subject

October

On

Section

be
located

to

equipment
jurisdiction.
Cylinders

II.

of
1

cited

the

C.F.R.

§

total
in
violation

cylinders

same

a

in

performed
and

screen

the

acetylene

Section

"...lands,

of

lacking

as

and

C.F.R.

3593042)

2

in

§

56.16005.

in

covers

it
and

Petitioner's

3593041

30

a

in

located

stockpiles

the
within

cylinders

seven

concerning

the

that
also

garage
He

violation

to

or

cited

those

as

of

30

other

Respondent's

be
minerals

the

defines

Act

facilities,
used
in,

a

in

as

repairs

to

of

as,

or

of

a
are

store

inter

machines,
equipment,
the
from,
resulting

their

part

gravel,
Pallette

mine

by

garage

employees

in

of

in

used
the

are

used

are

the
Also,
garage.
in
the
preparation
and
Both
Respondent
garage.
in
the
cylinders
garage.

3(h)(1)

in,

cylinders

acetylene

and

used

structures,

...used

Nos.

of

56.16006.

and

oxygen

of

a

In
general,
oxygen
such
welding.
Cylinders
mechanic.
Respondent's
their
also
work
duties,

crusher

position

Garaqe(Order

Act

Essentially,

that
not

are

to

Health

equipment

office.

garage,

and

in

inspected

Gadway
pursuant

conditions

the

in

the

Safety

stockpile,

a

near

cited
Gadway
not
secured,

were

from

walkway
Respondent's

in

Mine
violative

alleging

the

of

number

a

Federal

the

sand

loads
and
a

garage,

issued

He

Randall
orders

Inspector

MSHA

1991,

22,

which

appears

is
also
located
employee
by Respondent's
drivers
Truck
transporting
property.
their
at
site
trucks
a
weighing
weigh
subject
the
results
to
employee
Respondent's
report
the

site.

104(d)(1)
Act",)
("the

1977,
loader
the

staffed
of

office

An
on

alia

tools,
work

of

used
deposits...or
to
be
used
the
the
work
or
materials,
in,
milling
The
of
coal
other
or
legislative
minerals,
preparing
with
in
of
the
summarized
Donovan
v.
as
history
Act,
approval
Carolina
Stalite
Cir.
indicates
734
F.2d
1547
Co.,
(D.C.
1984),
intent
to
be
broad
clear
for
the
Act
a
given
interpretation.
it
is
based
the
clear
of
Nonetheless,
manifest,
language
upon
Section
that
structures,
facilities,
machines,
3(h)(1),
supra,
considered
mine
within
and
the
or
are
a
tools,
equipment
if
used
be
of
are
to
or
Petitioner,
in,
only
they
jurisdiction

extracting
or
in,

such

from

natural
of
such

"

....

1prior
to

Section

104(d)(1)

Respondent

24
contained

the

to

on

or

5

issuance
of

of

the

October

22,

the

cylinders

of

orders,

these

Act,

supra,

had

a

been

citation
issued

prusuant
to

1991.

contain

acetylene.

1323

oxygen,

and

the

rest

a

used
in,
preparation

resulting

or

is

There

either

from,

evidence

no

indicating

that
were
acetylene
cylinders
the
or
manufacture
of
repair
in
the
or
milling
preparation
site.
even
subject
Further,
and
hence
used,
is
insufficient
evidence
vis-a-vis
the
operator

were

so

Section
or

cylinders

the

was

fashion

regard

specific
in

tools
or
equipment
of
the
minerals
if
it
is
inferred
to
that

conclude

and

oxygen

connection

with

specifically
mined
that

at

used

the

the

cylinders

jurisdiction,

MSHA

there

Respondent

must

violative
conditions
be
established

the

cylinders,

allegedly

cited,

it
of

lessee
control

or

owner,
exercised
to
the

the

or

was

an

cited
In
this
cylinders.
connection,
defines
an
as
an
operator
"owner,
who
or
operates,
controls,
supervises
"
in
order
for
Hence,
to
Respondent

....

properly
specific

milling,

used

were

subject

to

of
the
Act,
or
other
person
other
mine
cited
for
the

lessee,

extraction,

that

cited

were

3(c)

coal

the

minerals.

of

them.

over

ownership

of

the

Machines

in

the

in

or

There

is

no

that

a

be

of

the

it

either
other
with

some

evidence

in
cylinders
The
question.
garage
was
used
to
store
that
cylinders
to
either
Pallette
belong
or
To
further
Respondent.
complicate
Pallette's
matters,
employees
were
allowed
to
use
the
owned
cylinders
and
by Respondent,
Respondent's
were
allowed
to
use
the
employees
owned
cylinders
by
Pallette.
Since
worked
Respondent's
at
times
in
employees
the
and
at
times
used
garage,
or
it
acetylene
is
oxygen
cylinders,
that
used
possible
or
would
be
they
these
using
cylinders.
due
to
the
lack
However,
of
I
cannot
evidence,
conclude
that
it
is
more
than
not
that
the
likely
at
issue
cylinders
were
either
used
by Respondent's
or
would
be
used
employees,
in
the
by them
course
of
ordinary
Respondent's
operation.
Order
Nos.
Hence,
3593041
and
3593042
issued
to
Respondent
violative
concerning
are
to
be
cylinders
vacated.

Grinding

III.

Gadway
that

did

In

general,

to

the

There

is

the

grinder
preparation
the

possible

garage,
that

stone.

conclude

of
the

that

of

also

of

a

hood,

in

the

Respondent,

30

to
regard
testified

He

3594752)

located

violation
with

lack

evidence

no

in

question,

or

milling
and

told

in

the

C.F.R.

the

him

that
Bokus

as

to

but

it

due
it

stone.

of

m__i•
that
was

the
more

it

as

Since

employees

have
find

I

to

record

especially

Respondent's

evidence

words,

machine

No.

§

garage

56.14115.

hazards
relating
that
James
E.
he
had
reported
did
not
do

it.

However,

sufficient
other

in

testified
condition.

employee
Bokus
about

grinding

a

hood,

a

Gadway

anything

of

have

violative

an
McGee,
to
William

in

cited

also

not

(Order

Garage

been
that
would
lack
of

support
adequate

likely

than

used

specific

pertains
the
grinder

in

failed

was

such

a

to

not

that

or

I
the

located
it
is

preparing

adduce

conclusion.

evidence,

use

the

to

worked
there,
the
milling

Petitioner

1324

the

In
cannot

grinder

was

of

these

or

preparing

Order

No.

milling

in

used

reasons,

stone

mine

other

or

materials.

For

grinder

regardingthe

3594752

is

to

be

dismissed.
Metal

IV.

Gadway
mounted

in

Stove

side

56.12030.

Gadway

condition,

but
if

manner,

of
testified

of

established

that

regulations

promulgated

No.

is

3594756

to

Section

107(a)

alleged
"feeding"

imminently
in

stove

is

Walkwa7

the

same

fan
30

that

was

C.F.R.

be

reasons,

the

by

Gadway

issued

3594756)

condition

§

the

regarding

the
or

been
Order
for

an

wires

vacated.

(Order

3593043)

No.

Violation

A.

a

of

in
this
inherent
with
to
testimony
regard
any
is
stove
in
used
the
milling
it
I
conclude
that
has
not
to
the
and
subject
Act,
to
the
Act.
Accordingly,

No.

to

to

hazards

For

(Order
dangerous

3594756)

No.

connected
in
violation

the

to

pursuant

stove,
a

wires

metal

dismissed.

be

order

the

Hole

V.

exposed
a

did
adduce
not
this
in
which
minerals.
Thus,
the
stove
was

any,

preparation

(Order

Garage

cited

also

the

on

the

of

30

C.F.R.

§

56.11012

indicated
that
there
hole
was
a
1991,
Gadway
in
in
wooden
located
of
front
by 3 feet
planks
He
indicated
the
scale
entrance.
that
the
hole
(office)
indicated
3
feet
he
that
the
was
hole
was
Essentially,
deep.
within
3
feet
of
the
traversed
when
walking
walkway
by truckers
between
the
scale
where
trucks
office
are
and
the
where
weighed,
is
the
of
the
trucks
recorded.
issued
Section
a
weight
Gadway
violation
order
of
30
a
C.F.R.
§ 56.11012.
alleging
104(d)
(i)
October

On

measuring

22,

feet
house
2

by
the

cited

mining
mine

area

Laura

feet.
4

inches.
the

actual

observations

weight
hole

to
was

Section

travelways
protected

the
removed

an

integral

find

that

this

employee

who

56.11012

through
by railings,

of
it
her

of
that

a

height,
weight
the

hole,
he

had

of

the

Gadway
walkway.

persons

barriers,

works
as

which

that
materials

or

covers.

considered

in

the

office

by

in

1/2

2

removed
from
she
indicated

the
as

5

testimony

inasmuch
taken.

is

inches

6

Gadway's

to

or

1325

area

witnesses,
with
regard

provides,

supra,
which

hole
distance

the

was

more

demeanor
of
testimony
from
the

loaded
are
gravel
I
that
conclude
Thus,
of
part
Respondent's

is

size

measurements
of
the

and

I

Respondent's
the
that
to
at
least
I
accord
dimensions

equal

regarding
upon

question

estimated
estimated

sand
trucks.

customer's

Hence,

Mace,

She

walkway

operation

mining
its

onto
in

operation.
property.

question,
feet

its

of

part
Respondent
As

as

Also,
I

to

it

was
based
based
upon
accord
more
distance
the

"openings
may
Where

fall
it

my
the

near

shall
is

be

nature."
3

National
Division,
(April
1981).
the
(January
1984),

Cement

FMSHRC

822,

FMSHRC

3-4

i,

In

order

establish
standard
mandatory
substantial
under
National
must
Secretary
prove:
violation
of
a
mandatory
of

to

discrete

a

the

by

to

safety

hazard

contributed

that

the

an

injury;

that

the

(4)

injury

in

See

third

(5th
1987)

Secretary

of

is

1834,

1836

FMSHRC
Southern

Ohio,

to

(U.S.

(August

1984)),

at

•

9

Mathies

of

a

"requires

and

also
of

Steel

also

event

an

Co.,

that
continued

the

that

that

Mininq

terms

2021

The

likelihood
in

F.2d

2015,

criteria).

Steel

in

861

FMSHRC

formula

see
(July
1984);
12
(January
1986).

8,

in

result

Secretary,

v.

reasonable
will
result

a

be
evaluated
injury
mining
operations
(U.S.
1574

will
be

aff'•,

Mathies

the

of

1573,

to

will

Co.

1988),

injury"

an

a

likelihood

question

Power

establish
contributed

hazard
there

to

is,

contributed
likelihood

reasonable

(approving

element

--

nature.

Austin
Cir.

also

standard;
that

--

reasonable

a

a

serious

reasonably

103-04
99,
(December

(3)

and

and

the

underlying

safety

danger
violation;
of

measure

violation

a

the

6

Co.,

explained:

significant

(1)
hazard

Coal

Commission

Gypsum

safety

Co.,

Mathies

In

that
is

a

(2)

Gypsum

825

the

in
6

which

FMSHRC

likelihood

the

normal

Mininq
Co.,
Halfway,

Inc.

6

FMSHRC

Inc.,

8

916-917.

Since

that
the
Gadway's
opinion
violation
herein
was
and
was
not
based
substantial,
the
test
upon
proper
as
set
forth
in
and
Mathies,
U.S.
supra,
I
have
not
Steel,
su_•_ra,
it
accorded
The
evidence
weight.
any
before
only
me
this
on
issue
is
that
a
truck
Gadway's
opinion
driver
could
fall
into
the
hole.
this
hazard
did
exist.
Clearly
However,
the
considering
fact
that
the
hole
was
not
in
the
but
was
travelway,

significant

approximately

three

evidence

other

on

established

that

feet
this
the

falling

into

likely

to

have

occurred.

herein

was

not

person

Considering
the

violative

resulted
the
hole

in
had

an

on

it

I

and

substantial.

of

not

any
been

by violation,
i.e.,
was
it,
reasonably

conclude

Hence,

lack
has

that

a

violation

the

Penalty
the

condition,
injury
been

to

tripping

or

the

that

contributed

significant
D.

conclude

I

hazard
the
hole

considering

and

away,

point,

in

obvious

nature

the
such

existence

fact
as

that
broken
a
for
at

1326

of

the
the

hazard

leg

or

least

presented

by

could

have

condition
a

hip,

the

week

prior

fact
to

that
the

time
forth

cited,
ll0(i)

it
was
Section

$450

that
in
is

VI.

Loader

appropriate

of

Loadinq

Act,

the

this

for

the
conclude

considering

and

I

that

a

factors

set

penalty

of

violation.

Stockpiles

from

remaining

(Order

Nos.

and

3594753

3594754)
October

On

employee,
side

of
the

Gadway

asked

functioning,
a

and
to

them

observe

violation

of

provides

property

if
indicated

the

C.F.R.

horns

mobile

§
other

or

it

load

"shall

equipment

Respondent's
the

on

customers'
minerals

other

east

mined

question.
back-up

and

alarm

not.

were

were

did

Gadway

not

alleging

order

an

pertinent,

as

devices
in

maintained

be

by
pile

onto

and

in

horn
that

used
stock

a

they
issued
Gadway
which,
56.14132,
audible
warning

functioning.

be

from

sand

the

Barss
he

30

that

propelled

contained
of

being

was

sand
and

remove

property,

side

west

loader

a

to

Respondent's
The
stockpile

trucks.

from

1991,

22,
Barss,

Tom

self-

on

functional

condition."

Respondent
In
stockpiles.
made
MSHA
by an
at
an
speakers
1992.

after

matters,

stated

that

be

cannot
rather

had

that

not

statement

a

of

I

stocks

find

that

onto

customer's

the

statement
a
individual
13

Co.,
of

use

not

FMSHRC

the

drivers

in

backed
resulted.

up.

when
loader

it
would

loader.

However,

position

of

had

a

rear

the
view

as

could
this

a
person
backed
up.

not

the
loader

mirror,

an

occurred,

could

a

have

Gadway

1327

the

gravel
this

statement
is
but

policy,

888,

(1991).

loader

policy.

within
not

were

56.14132,
this

mined

loading
of
was

alarm

supra.

violation,
since

occurred,
hit
by the
a
fatality

known
that
a
person
record
not
indicate
does
the
on
loader,
operator
the
whether
operator

have

from

with

hit

of

seminar,

electrical

question,
integral
part

been
indicated

the
fall

the

question

involved

of

of

the
at

was

MSHA

hence
the
and
backup
Section

consequence
have
have
been

have

who

over

statement

a

one

in

in

loader

to

was

York,

875,

a

likely

the
area
Should

Certainly,
loader
the

that

reasonably

was

to

regarding
Clearly
of

was

opined

Gadway

who

on

jurisdiction
stockpiles.

an

refers

to

to
be

jurisdiction

have

presentation

trucks,
and
operation,
Respondent's
mining
MSHA
Since
the
horn
jurisdiction.
find
violated
I
working,
Respondent

injury

not

response

his

MSHA

Coal

does

Respondent
Montgomery,
New
Albany,
employee

in

made

extend
to

considered

Lancashire

(See,

seminar

MSHA

he

did

operations

MSHA

connection,
John
engineer,

McGee,
Respondent's
in
Montgomery,

James

testified
audience

that

argues
this

loader

and
that
was

an

truck
it

when

could

have

injured

by

the

the
operator
behind
the

the
specific
whether
the
would
have
had

of

loader

good

Of

visibility
blind

Within

loader,

it

that

According
alarm

question
231).

had
date

testified
Hence,

later
Bokus
since

since

Respondent's

did

nor

and

testified
Gadway
and
"he
loader,

the

knowing
that

been

not

to

have

occurred.
that
the

established
substantial.

to
Barss
indicated
Gadway,
not
and
said
functioning,
been
onto
the
brought
subject
the
Order
was
"in
this
issued,

were

the

has

significant

was

by

likely

reasonably

was

conclude

herein

to

the

been
established
herein
i.e.,

violation

and

behind
the
and
whether
loader,
there
were
the
looked
to
the
operator
rear
of
the
framework
of
this
I
conclude
that
it
record,
that
the
hazard
contributed
to
by the
the
of
a
hit
possibility
person
being

area

when

spots

any
loader.
has
not
the

the

the

on

testify
loader

a

horn

or

that
should
at
the
in
is

hearing,

violation

herein

negligence,

and

constitued

did

rebuttal

that
loader

property

a

the

him

that

(Tr.

231).

horn
in

week

condition".

not
rebut

to
both

operated

employees
backup

the

told
known"

Barss

have

violation

him
the

to

that

thus

I

prior
(Tr.

Bokus

operated
who

Barss,

rebut
this

this

testimony,
testimony.

forward
and
and
reverse,
the
loader
for
a
week
did
not
I
conclude
function,
a
result
of
more
than
ordinary

operated
alarm
was

as

unwarrantable

an

failure.

(See,

Em_mg_e_e_e_e_e_e_e•,
su_•xa)
.

of

Taking

into

account

Act,

and

especially

the

negligence
is
appropriate.

them,
Gadway
30

and

typical

testimony

injury,

as

conclude

significant

in
that

and

Gadway
Gadway

Section

110(i),

Respondent's

penalty

a

on

me,

shall

be

the

maximum

normal
it
has

order

$500

of

I

conclude

by

Gadway.
that

that

there
of

to
loader

operation.
not

was

could

been

the

it

engine

no

violation
said

He

to

specific
would

Within
established

substantial.

1328

the

has

that

on

with
the

and

thus

been

was

the

area

but
that

said

stockpile.
in

stopped,
this

of

Based

terrain

have

working.

equipment

level,
He

test

not

violation

shut-off,
herein,

the

parking

Barss

that

that

completely
(Tr.
240)
roll

a

travels."
standard

this

the

occurred.
is
not
downs".

of

the

were

alleging
pertinent,
holding

as

capable
grade

that
had

brakes

provides,

a

its

informed

104(d)(1)

consequence
to
have
reasonably
likely
the
loader
loads
the
trucks
there
are
"small
and
ups
are
where
the
loader
grades
is
no
evidence
with
regard
immediate
where
area
the

stopped

of

that

working.
the
parking

that

indicated

Gadway
an

not

which

alleged

as

Barss

were

Section

a

load
before

violated

in

degree

conclude

I

1991,

concluded
56.14101
brakes

§

"...parking
its

loader

issued

C.F.R.

above,

22,

the
he

on

factors
the

3594754

October

On

brakes

No.

statutory

noting

discussed

as

Order

VII.

the

the
and

framework,
the

where
that
there
There

violation

remained
I
was

if
alarm
horn
and
the
parking
Gadway
in
that
the
indicated,
essence,
functioning,
in
this
week
the
a
on
been
ago
property
brought
Bokus.
For
had
and
including
it,
operated
everybody
conclude
that
the
I
forth
set
infra,
above,
VI,
and
than
from
more
resulted
herein
ordinary
negligence

When
brake
loader

Barss

were

had

the
reasons
violation
constituted

account

into
and

Taking
Act,

negligence,

find

I

Barss

not
the

be

to

had

that

the
to

been

stockpile,
Gadway,
did

MSHA
11:40

a.m.

had

Bokus'
not

the

22,

the

should
have
been

i04(d)(1)
parts

fuses

for
not

MSHAwas

He

have

that

say

in

it
to
after

the
Bokus

approximately

loaded

explained

11:40

October
three
that

he
the

a.m.,

October

violation

of

spoke

that

104(d)(1),

prohibited
representative

be

Gadway
104(d)(1),

23,

1991,

Section
once

persons
from
of

an

Order

in

the

entering
the

has
affected
such

Secretary

by
the

discussed

Orders

repair

to

loader

same

stone

from

bin.

asphalt
had

Gadway

a.m.,

the
crushed

the

back-up

and

told

According
him

that
and

the

had
three

been

indicated
that
with
Gadway,
with
the
trucks
his
arrival
upon
23

to

she
heard
all
and
that
Bokus
loader.
In
site
at
at
the
informed
him
that
who
Bokus
said
that
this
Gadway
which
is
side
of
the
garage,

with
loader.
loaded
trucks
he
had
at
the
conversation
took
right
place
office
within
line
of
of
the
not
the
sight
this
did
contradict
not
Bokus
testimony.

provides

done

over

office,

the
on

he

Gadway

rebuttal,

On

notified
before

be

9:00

observed

loading

before,

transporting
the
premises
jurisdiction

loader

the

the
horn
informed.

approximately

day

that

MSHA

explained

had

he

1991,

the
ordered

property.

works
who
conversation

Mace,
of
did

subject

left

appropriate.

is

the
asphalt
plant,
returned
at
approximately
Gadway
subsequently
how
trucks
he
asked
Bokus
At
that
time,
many
informed
him
indicated
that
Bokus
that
Gadway
with
the
loader.
been
loaded

not

stockpiles.
loaded.
trucks

he

of
Barss

at

1991,

23,
cited
and

110(i)

it.

use

However,

22.

the

Section

Respondent's

requiring

repairs

issuance

infra,
replaced

and

October
Order
that
and

to

the

to

VII,

October

$500

an

that

allowed

October

On

on

issuing

repaired,
be

and
VI,
brakes,

returned

of

of

3594758

was

Subsequent

on

penalty

(Respondent)

Operator
would
Operator

alarm

degree

in

forth

set

the

that

he
until

used

parking

a

indicated

that

above,

that
No.

Gadway
to

factors

the

considering

Citation

VIII.

failure.

unwarrantable

an

the

by

Barss

condition,

of

asked

was

I

where
Mace
therefore

works.

Citation
issued
a
alleging
Act
the
as
of
which,
pertinent,
section
issued
under
been
shall
be
area
withdrawn,
until
authorized
area
an
violation
determines
that
such

1329

it.

accept
a

and

been

has

abated.

Within

framework
that
the

the

of
loader
Section
and
i04(d)(1)
Orders,
a
determination
that
by Gadway
abated.
I
find
Accordingly,
was
issued
and
is
to
properly

record,

The
loader
and
MSHA

find

I

not

MSHA

was

notified

had

no

jurisdiction

mitigate

its

course

to

was

been
of
that

of

yet
the

that
be

this

conditions
issued

the
the

with
to

made
had

was

it

Respondent's
is
stockpile

with

Orders

at

Orders,

challenge

the
resulted
that
a

herein
I
find

negligence.
for

operated

violative
the
Citation
affirmed.

until

of

to

Respondent

fact.
the

violation

evidence

subject

was

Respondent

over

Contest

the

discussed

issue

operated

non-compliance
have
complied

filed
Notice
a
Orders.
Thus,
of
Respondent's

appropriate

have

above
in

that

indicates

record
should

the

two

it

prior

by

been

Gadway

that

aware

been
belief

the

repaired,
that

insufficient

to

issue.
and
then

The
to

issuance
a

penalty

proper
have

the

of

from

to

had

high
degree
of
is
$i,000

violation.

ORDER

is

It

vacated
3594756;
the
fact

dismissed:
The

following

that

the

violations

substantial:

(3)

Respondent
penalty

Orders
shall
of

The

(i)
Orders

(2)

and

civil

that:

ORDERED

and

to

are

alleged
3593043,
within
30
the

be

days

viol•ons
/

to

and
this
found

decision,

Department
(Certified
Mr.

Road,

W.

Staton,
Esq.,
of
201
Labor,

Office
Varick

of

a

herein.

/

Administrative

G.

and,

3594754;

Law

Judge

Distribution:
William

and

reflect

significant

not

are

of

3594752

amended

3594753,

be

to

are

3593042,

therein

No.

for

Orders

3593041,

Orders

pay,

$2,450

following
No.

the

Street,

Solicitor,
New

York,

U.
NY

S.
10014

Mail)
J.

Bokus,

Greenfield

President,
Center,

W.
NY

J.
12833

nb

1330

Bokus

Industries,
Mail)

(Certified

Inc.,

30

Mill

2

lOth

FLOOR

LEESBURG

PIKE

SKYLINE,
5203

FALLS

22041

VIRGINIA

CHURCH,

JUDGES

LAW

ADMINISTRATIVE

OF

OFFICE

COMMISSION

REVIEW

HEALTH

AND

SAFETY

MINE

FEDERAL

JUL 1 31993
LABOR,

OF

SECRETARY

SAFETY

MINE

PROCEEDING

PENALTY

CIVIL

:

HEALTH

AND

(MSHA),

ADMINISTRATION

Petitioner

92-290

KENT

No.

:

Docket

:

A.C.

No.

15-15637-03537

:

Mine

No.

1

v.

INC.,

CO.,

MINING

HILL

BROKEN

Respondent
DECISION

Luckett,

B.

Joseph

Appearances:

Company,

Tennessee,
Hill

Broken

W.

Hobart

Solicitor,

the

of

Nashville,

Petitioner;
President,
Anderson,
Kentucky,
Ashland,
Inc.,

the

for

office

Esq.,
Labor,

of

Department

U.S.

Mining
the

for

se,

pro

Respondent
Koutras

Judge

Before:

is

This

against

petitioner
the

Mine

Safety
civil

certain

of

respondent

and
filed

violations

and

Parts

the

seeking

Federal

§ 820(a),
violations
in

civil

a

70

the

considered
the

my

adjudication

initiated

held

opportunity

an

brief,
argument
as

of

this

matter.

by

made

s

for

six

filed

brief

the

well

1977,

of

U.S.C.

alleged

(6)

found

standards

health

Regulations.

The

alleged
Kentucky

the

The

briefs

posthearing
did
in

respondent
the
parties

the

the

ll0(a)

30

file

to

but

as

of

contesting
in
Pikeville,

answer
was

of

by
section

to

and
Federal

safety
Code

a

oral

hearing,

of

penalty

timely
hearing

afforded
filed

were
parties
The
petitioner

Act
assessments

Health

and

a

a

Case

proceeding
penalty
pursuant
respondent

mandatory
Title
30,

75,

the

of

Statement

by

the

not.

I

the

course

have

in

petitioner,

Issues

issues

The

presented

conditions

or

practices

violations

of

the

several
substantial"
assessed
civil

Act,

of

the

for

penalty
particularly

in

this

cited

by

(i)

are

case

constitute

inspector

the

the

whether

standards,

(2)

violations
were
"significant
alleged
civil
the
and
appropriate
(3)
(S&S),
into
account
the
taking
violations,

and

cited

assessment
the

safety

mandatory

found

criteria

ability

respondent's

1331

in

whether

penalties
the

section
continue
to

statutory
of
ll0(i)
in

be

to

the

business.
in

Additional
the

of

issues
this

of

course

Applicable
I.

The

Statutory

Federal

95-164,

30

Section

3.

Commission

by

and

Mine

U.S.C.

2.

raised
decision.

ll0(i)

801

parties

Requlatory

Safety

§

the

and

disposed

are

Provision•

Health

of

Act

1977;

Pub.

L.

e__tt s__@_q.

of

Rules,

the

1977

Act,

30

29

C.F.R.

§

2700.1

U.S.C.

§

820(i).

e_•t s_9_q.

Discussion
Section
cites

1991,
30

C.F.R.

as

follows

non-"S&S"
104(a)
violation
alleged
§ 70.207(a),
and
the
(Exhibit
P-l):

The
dust

mine

during

cycle

for

designated

The
to

operator

survey
due

later

conducted
least

an

70.101,
Based
MSHA

on

was

last

which

exceeds

3.5

Management

the
901-0

which

shall

equipment

to

lower

respirable

the

of

August

in

mg/m

the

Citation

No.

July

30,

states

report

and

noise

exposure

as

certify

This

survey

was

reported
intervals

survey
of

was

at

affected

29,

1991,

30

C.F.R.

dust

sample

collected

by

the
1991,
environment

respirable

dust

working

mechanized

mining

the

1.3

mg/m
approved

available

miners,
and
dust,

1332

standard
states

practice

exceeded
make

August

health

or

28,
in

3807424,

mandatory

condition

on

area
3

to

periodic

respirable

inspector

designated

failed

exposed.

cited

concentration

practice

is

"S&S"

valid

a

or

The

violation
the

9876034,

months.

104(a)
and

this

health

6-6-91.

12-6-90,

alleged

the

mandatory

condition

miner

each

six

to

No.

of

the

of

than

every

Section
cites

Citation

mine

results

which

to
no

May

period.

this

of

the

of

respirable

credited

and

an

MSHA

in

valid

No

states

occupation

shown

0001.

non-"S&S"
104(a)
violation
alleged
and
the
cited
70.508,
(Exhibit
P-2):

standard
follows

the

operator,

received

sampling

five

001-0

miner

Section
cites

take

practice

respirable

number

were

or

16,

standard

sampling

advisory
samples

condition

July

valid

continuous

036,

health

bimonthly

of

MMV

9876024,

mandatory

cited

not

June

on

No.

of

the

through

bimonthly

§

did

operator

samples

attached
dust

1991,

Citation

an

take

corrective
each
sample

of
3

the
unit

follows:

as

an

001-0

standard.

respiratory
action

production

to

until

five

and

submitted

Section
cites

70.101,

and

(Exhibit

P-6)

Based
an

violation
cited

the

inspector
in

concentration

occupations

was

073,
(3)
concentration
which

are

each

taken

30

C.F.R.

as

follows

and

(Exhibit

P-8):

30

the

No.

drive

a

at

head
float

an

§

coal

104(a)
alleged

75.400,

(Exhibit
of

locations
No.

2

piece
combustible

of

November

No.

of

states

unmeasurable

a

the

over

No.

belt

1

entry
inby

the
ft.

color.

November

3809258,

mandatory
condition

to

1,800
in

dark

to

15,
standard

safety
practice

extending
approximately

gray

Citation
"S&S"
violation
cited
and
the

in

material
float
in

of

and

15,

safety
practice

or

standard
states

P-9):

Combustible
coat

dust

distance
is
from

shall
dust

samples
Respirable
designated

or

the
and

mmu

valid

accumulated

portal

average

3809256,

form

mgm 3,

Management
respirable

condition

of

the

001-0

mandatory

the

follows

by

3.3

the

five

No.

C.F.R.

as

of

The

Pittsburgh
the
(036)

of

1991,

30

dust

035,

on

the

the

area

2

(2)
mgm 3.
3

29,

collected

3,

until

has

dusted

rock

2

C.F.R.

follows

in

m

mgm
standard.

on

dust

states

samples

lower

Citation
violation
cited
the

coal

float

3

mgm
to

materials

of

Section
cites

1991,

"S&S"

75.400,

starting
The

Dust

standard

health

2.8

Laboratory
001-0).

alleged

previously
No.

are

August

3807425,

practice

mg
5.2

to

Combustible
coat

samples
Respirable

the
respirable
environment

050,
to

submitted

104(a)
an

§

(5)

production
and

Processing
occupation
(mmu

1991,

dust

shift

Dust

Section
cites

respirable
on
8/28/91,
the
working
3.8
(1)036,

the
1.2
action

corrective

sample

or

amounted

exceeded

take

condition

mgm 3,

14.2

No.

mandatory

of

valid

5

on

MSHA

Citation

"S&S"

104(a)
alleged

an

dust

respirable
Pittsburgh

the

to

Laboratory.

Processing

§

valid

shift
taken

coal
the
drive

head
distance
a

material

dust

form

accumulated

belt

entry,
inby

No.

2

and

extending

of

approximately
is

of

the
has

from

1333

gray

a

thin

unmeasurable
at

numerous

starting
the

1,800

ft.

to

dark

the

at

to

No.

2
The

in

color.

tail

as

Petitioner's
Citation

the

No.
MSHA

Inspector
after

P-l),

respirable
He

confirmed

that

violation

the

(Tr.

28-30).

Citation

No.

9876034

MSHA

knowledge

to

"it

a

matter

on

who

MSHA

MSHA

survey

which

prompted

and

the

called
confirmed

respondent
any

order

excessive

were

and

mine

the

the
Mr.

of

about
results

acceptable,
exposure

the

not

shut

could

(Tr.

no

51).

1334

take

due.

the
to

and

not

50).

survey
He

He

survey,
continue

he

so

on

had

no

46-50).

,•hether

time

had

months

was

down

(Tr.

at

on

survey

six

(Tr.

noise

the

the

submitted
terminated
until

was

nor

when

violative

survey
to

19,

order
the

that

violation

and

know

was

was

matter

of

served

production

Stewart

the

he

survey

citation

the

citation

mine
The

abate

to

ample

citation

the

of

and

not

issued

issue
did
not

the
time

citation
did

November
the
noise

to

loss,

had
allow

to

because

noise

of

return

he
on

confirmed
that
that
continuous
when

taken.

be

that

he

who

hearing

the
he

the

results

and

six-months

cross-examination,
that

due,

to

respondent

office
the

confirmed
that
an

stated

period

see

P-3),

the

that

stated

the

not

Osborn

Stewart

could

MSHA's

He

but

testified

Hughes

lead

did

(Exhibit

was

first

aware

and

that

mail,

he

stated

R.B.

the

was

and

Inspector

opportunity

Hughes

had

He

taken
stated

confirmed

received

not

citation

1991,
1992,

the

had

MSHA

prolonged

a

certified

Stewart

the

survey

and

of

Osborn

3809822

had

can

3,
30,

On
Mr.

42-43).

Mr.

that
modified

December
October
earlier

39,

Stewart

taken.

exposure
after

he

that

it

No.

No.

9876034.
Mr.
abatement
of
the
mine
superintendent

lack

a

by

Buster

because

believed

of

received

Order

1991,

elapsed

findings

valid

issued

he

administrative,,.

paper,

five

respondent.

actually

was

he

citation

the

that
because

survey
from
the

valid
1991.

because
of

testified

non-"S&S"

Mr.

Inspector

been

submitted
May-June

not

submission

survey

respondent

(Tr.

104(b)

to

33-38).

have

may

the

survey

because

the

receipt

noise

a

cross-examination,

section

not

of

(Tr.

served

had

noise

a

and

exposure

postal

of

whether

unlikely

was

know

Osborn

results

negligence

On

by

H.

as

was

abated

issued

he

(Attachment

respondent

periodic

was

that

the

the

the

injury

the

for

James

received

noise

that

Inspector

not

low

testified

"Advisory',

an

concerning

no

that
his

C.

was

samples

citation

Smallwood

Evidence

bi-monthly
period
he
made
a
of
non-"S&S"
finding
was
and
he
unlikely,
terminated

injury

an

after

John

receiving

stating
samples

dust

believed

and

9876024

citation

Exhibit

Testimony

recall
he

(Hughes)

Mr.

Stewart

whether

submitted

during
confirmed

had

by

1991

was

that

the

there
the

valid

of

survey
standards

(Tr.

Citation

that

quartz

dust

the

methodology
when

the

sample

exposure
which
on

the

exposure

exceeded

established

Justice
that

Mr.
he

stated

on

the

that
amount
"S&S"

fact

twice
based
with

that

going

to

the

his

and

3807425

bolter
standard

roof

showed
that

violation
level

was

had

definitely,
67).
(Tr.

different

they
compliance

are

his

amount

on
kept
they

at

would

what
have

meter

of

present
during

in

standards
established
mine

except

the

high

the

for

the
the

for

the

for

the

and

strata
bolter

roof
risk

and

and

66).

(Tr.

it
"if
is--and

would

up

1335

the

"It's

He

been
it
has
with
black

believed

kept

on

proven

lung,

been

caused

be

can

have

and

results

test

because

forth,

so

dust"

ended

finding,

negligence
on
finding

exposure

lung,

it

done

was

different

in

gravity

because

cubic

quartz

those

moderate

dust

of

operator,
noncom-

62-65).

(Tr.

likely"
"highly
of
levels
high
black
silicosis,
"S&S"

that

after

miner

scoop

per

indicated

everyone
allowable

level

the

the

sampling

working

citation

reflected

the

from

they're
61).
(Tr.

continuous

of

that

proven

run"

the
the

for

confirmed

excessive

an

were

occupation

miner

his

based

which
proven
with

at

Justice

Mr.
he

cycle,

for

he

that

amount

the

that

and

sample,
the
long
a

operator,
operator
milligrams

1.2
on

been

for

he

that

has

issued

he

car

stated

"it

in

car

based

explained

because

the
established
is
continuous

shuttle
shuttle

He

occupations

tested

he

one

He

on

that
conducted

stated

is

samples.
mining
regular

the

disabled

which

the

the

for

an

59).

(Tr.

and
finding,
finding
gravity
was
exposed
person

negligence
likely"

standard.
that
fact

the

established

the

standard

air

moderate

"reasonably

air

of

indicated
air

of

that

meter

results

meter

took

he

that

indicated

he

cubic

per

He
because

confirmed

test

concentration

side

standard
with

the

his

by

Justice
Inspector
which
dust
the
sampling
offside
the
operator,

pliance

per

cubic

lower

and

he

dust

55-57).

(Tr.
is

He

The

permanently

No.

based,

milligrams

on

dust

up

is

exposure

finding

end

exposure

1.3

his

allowed
of

of

bolter.

dust

the

high

Citation

roof

confirmed
based

he

the

problem

a

citation
the

quartz
acceptable

a

silicosis.

milligrams

3.5

such

level

causes

the

for
of

is

there

the

with

had

computing

for

acceptable

the

mine

the

that

levels

exposure

issued

designated
the
acceptable
and
problem

the

for

noncompliance

reflected

confirmed

He

exposure
stated

he

that

sample

dust

respirable

the

after

operator

bolter
roof
standard.

testified

Justice

I.

Foster

Inspector

explained

noise

3807424

citation

the

MSHA's

52).

No.

MSHA

with

compliance

reflected

samples

the
,

the

that,
silicosis"

dust

Mr.

both

Justice
the
dust

of

that

ventilation
further
exposure,
be
submitted
to
allow

for

67).

Mr.

the

mining

to

issued
that

were

out

of

On

for

the

be

made

to

done,

roof

test

samples

Mr.

generation

attempting
the

is

compliance

standard
the

as

for

the

stated

occupations

policy

is

to

rest

of

the

that

issue

cutting
dust

more

period

the
to

is

most

to

recent

with

the

respondent
come
into

changed
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problems
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for

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61,

could

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an

agreed

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cycle

Mr.

of

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to

counsel

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likelihood

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quartz.

dust

70).

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he
in

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and

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time

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for
fact

citations

inspector

bolter

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samples
analysis
(Tr.

for

MSHA's

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no

lower
the

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Justice

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be

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to

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in

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black

adjustments
sampling

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MSHA's

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abatement
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Justice
explained
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issued
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question
(Tr.

roof

that

confirmed
citations

level,
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lowered

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made

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Justice

further
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explained
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acceptable
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roof
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crew
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He
79-81).
confirmed
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miners
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working
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dusty
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would
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respirators
met
MSHA's
standards,
and
stated
that
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never
seen
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fit
tested
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over
there"
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establishing

(Tr.

82).

Mr.

it

has

Justice
been
out

confirmed
of

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bi-monthly
that
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compliance
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bring

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(Tr.

86-87).

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with

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Inspector
Order
104(b)
respondent's
by Inspector

MSHA

section
the
of
issued

stated
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take

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issued

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failure
Justice.

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and

1992,

17,

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and
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pillars

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91-92).

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confirmed

3809260,

No.

for

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to

mine

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time

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90).
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he

that

and

MSHA

that

respondent
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spoke
Mr.
Hughes
were
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the

because

samples

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that

matter

the

Stewart

Mr.

and

stated

3807424

No.

1991.

laboratory

about

believed

Citation

29,

because

1991,

19,

abate

samples

issued

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that

November

timely
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Stewart

roof

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Stewart
submit

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on

MSHA's

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explained

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white

all

about

scared

Justice

Hughes
taking

with

problems

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Mr.

about

limbo"

3809821,

failure

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superintendent
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visited

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citation.
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not

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1991,

104(b)

section

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19,

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P-7),

Citation

3807425,
respondent's
a
there
was
that
believed
He
Inspector
by
consider
did
not
he
but
hazard,
exposure
quartz
continuing
the
believed
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because
respondent
time
abatement
the
extending
ventilation
to
make
and
submit
and
take
to
samples
time
had
ample
to
allow
order
the
modified
he
that
confirmed
He
adjustments.
he
that
and
be
could
done,
that
so
continue
sampling
to
mining
mine
had
the
after
on
1992,
violation
31,
the
August
terminated
the
after
and
sometime
respondent
for
of
out
been
production
valid
93-95).
five
(Tr.
submitted
samples

cross-examination,
with
dealings
manner.
timely

On

prior
in
a
informed

him

to

detailing
Mr.

stated
take

Stewart

required
the

(Tr.

98).

Citation

3809256

Nos.

The

accumulations
violations

respondent
of

Mr.

that

existed
section

a

log

96).

apprehension
investigation

some

and

3809258.

stipulated
as
charged
75.400

under

was

(Tr.

still

was

maintain

process

publicity

he

that

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that

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Hughes

operators.

Hughes

suggested

centers"

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mine

Mr.

citations

Hughes
superintendent
dust
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citations
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coal

and

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face

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citations

issued

(Tr.

by

Inspector

findings,

and

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and

Stewart
stated

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(Tr.

(Tr.

106-108).

done

to

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Stewart

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if

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the

compliance

accumulations

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also

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areas

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cited

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W.

Anderson,

Hill

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131-138).

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Hobart

in

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know
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area"

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coal

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cross-examination,
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gravity

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Mr.

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Hill

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Hill's
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operation".
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1993,
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1992,
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testimony
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Energy
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Mr.
Anderson
whole
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notes
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(Tr.
140).
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more
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for
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Schedule
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156-157).
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operations,

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Ashley

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firm

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other

142).

of

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cross-examination,

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So

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Hill's
a
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142).

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he

to

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partner,

Inc.

agree

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has

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to

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rates

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142).

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of

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we're

(Tr.

1993,

not

hearing

Hill
indicated

assets,
(Tr.
141).

income

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further

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and

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141).

petitioner

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(Tr.

these

159).

the

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Anderson

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1991

company
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in

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profitable
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operation
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Ashley
time,

1991

(Tr.

at

in

companies

that

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it

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Hill

No.

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was

that
the

than

the

only

those

(Tr.

Company

Energy

Spurlock

ventures
and

were

in

not

were

that

managing
one

only

of

confirmed

other

over

and

Hobart

name

1990,

Anderson

of

$4,650,000,

Hill

mine

income

had
of

Broken

Hobart

mining

the

in

currently
161).

Conclusions

and

dispute

not

dust

samples

cited

certified

respondent

standard

(Tr.

30-31).

asserted

that

because

submit
in

the

fact

not

as

of

the

get

of

ongoing

an

white
"adverse
concerning
dust
sampling
programs

the

the
trouble

samples

his

for

rejected.

(Tr.

to

by

defense

of

is
defense
asserted
respondent's
with
the
to
was
obliged
comply
failure
in
Its
question.
samples

going

required
required
In

though

was

right"
The

to

that
submitted

the

were

even

he

required

it

Energy

explained

Mr.

Mining

respirable
health
mandatory
Anderson
Mr.
the
citation,
investigation
industry-wide
and
respirable
industry-wide

violation

the

9876024

valid

individual
afraid
it
do

lawyer's

Cloud

He

shut

but

owns,

favor

Violation

of

Citation

the

Hobart
had

to

they
161).

its
the

If

White

is

161-162).

activities

no

go

conclude.

that

in

through

and

it
Creek

However,

that

to

year.

Findinqs
Fact

lawsuit.

because

Creek

Island

Sarah

a

that

that

property.

of

but

less

was

the

result

(Tr.

confirmed
in
1990,

Anderson
million
income
its

Island

judgment

anticipates

dollars

for

a

debts

Broken

when

that

has

will

received
that

Cloud

litigation
anticipate

not

of

owners

the

bankruptcy

only

and

company

the

matter
the
Cloud's

and

two-million

the

the

appeal,

he

Mr.

in

dollars

court,
years

settled,
of

White
and

on

be

Companies,
that

mines,

mining

contract

a

Mining

Massey

to

as

so

it

of

one

in

Hobart
confirmed

that
He

that

property

the

Inc.,
is

return,

and

Summit.

from

due

Processing,
tax

Energy's
Hobart,

by

$75,000

does

bankruptcy
have

owned
own

Summit

that

Hobart

on

no

does

mining,

stated

Anderson
listed

Mr.

centers"

mine

"was

he

had

to

The
submit
constitutes

tried

to

31).

cited

and

standard,

1341

the

law

and

to

do

citation

so

IS

AFFIRMED.

the
a

Citation

No.

The

9876034

citation
mail
noise

certified

periodic

issued

was

MSHA

survey

required

standard.

The

respondent

the

survey

was

not

Mr.

Anderson

its

In

of

the
that

In

too

high

and

was

cited

as

terminate
it"
(Tr.

were

this

43).

Mr.

Anderson

did

not

submitted

or

conclude

that

Under

Nos.

With

working
unit

and

of

testimony

and

the

question,
compliance.

as

violations

have
the

In

this

case,

"are

only

violations
written
clear

pursuant

twice".
to

of

me

from

to

the

I

the

and

Cyprus
where

cannot

of

the

Commission

1342

the

standards,

stated

in

been
It

seems

that

the

cited

violations.

rejected

and

Inc.,

Mininq

filed

inspector

the

raised

AFFIRMED.

cited
have

not

out

the

rejected.

distinct

Quarries,

Tonopah

answer

that
should
is

cited

been

the
were

ARE

his

of

and

that

that

citations

in

3

Corp.,
in

the

petitioner

find

the

and

the

the

concerning
mining

occupations,

testimony
has
Rock

(January
1981),
(March
1993),

I

indicated

and

and

issue
Commission.

Paso

by

argument

separate

378

established
the

but

mechanized
the
credible

position

violation

one

Anderson's
credible

E1

samples

violation.

violations

individual

hearing,

requirements
were
occupations
raised
Mr.
Anderson
by
See:

and

43-44).

been

the

samples

conclude
and

and

area

mine,

of

AFFIRMED.

adduced
the

the

as

took

the

to

designated

of

the

Mr.

was

valid

Anderson,

IS

aware

circumstances,

the
has

Mr.

not

considered

defense

the

notice

the

that

have

dust

established,

Anderson

low

a

of

(Tr.

Under

occupations,

Accordingly,

course

by
a

evidence

well

Mr.

fact

I

cited

results

been

to

away

violation

respirable
the

individual

that

with

38007425

the
of

the

citation

the

cited

the

cited

as

and

than

the

evidence.

serve

3807424

unrebutted
establishes
unit
in

put

didn't
was

MSHA.

advanced

to

that

pointed

abatement

right

by

the

may

regard

he

violation,

rather

dispute

the

of

environment

penalty

probably
operation
noncompliance

attention

received

circumstances,

the

Citation

his

that

they

that

asserted

"we

the

office

CPA

not

find

and

that

to

preponderance
circumstances
mitigating

civil

Anderson
and

untimely

because

come

a

the

non-"S&S"

that
my mine

asserted

his

to

the

hearing,

of

overstated",

respondent's

explained

He

mailed
did
not

conclude

by

the

it

probably
that

of

Anderson
time
on

Mr.

the

Mr.

a

of

negligence.

and

defense

violation,

I

"is

by

results

cited
by the
presumption

the

of

amount

violation.

respondent

the

required.

as

course

the

the

gravity

of

the

with

for

violation

the

not

submitted

$195

assessment

degree

in

and

the

on

receive
be
submitted
rebutted

not
to

and

issue

took

served

did
has

taken

answer,

assessment

and

because

FMSHRC
15
FMSHRC
relevant

The

by
35

the
40

367,

part

citations

the

event,

Citation

credible

The

rather

two

3809258

testimony

of

Anderson

and

existed,

accumulations
accumulations
citations

(Tr.

effort

the

existed

or

described

violations,

and

the

citations

Siqnificant

and

Substantial

A

"significant
(i)

104(d)

and

could
effect

30

C.F.R.

of

a

814(d)

significant

and

surrounding

the

that
illness
National

of

Coal

explained
order

to

Labor

(I)

safety

is,
to

likelihood

injury;
in

3-4

i,

cause

particular

facts

likelihood

injury
Division,

or

1981).

1984),

(January

the

"significant

term

the

of

that

by
and

underlying
(2) a discrete
of

(4)
will

question

a

Secretary

of
of

(3)

a

of

be

reasonable
will

result

to

likelihood

reasonable

that

the

serious

reasonably

a

a

safety
safety-

to

danger

a

violation

contributed

hazard

the

of

and

the

Gypsum
the

violation;

the

violation

a

significant

is

measure

a

that

injury

FMSHRC

standard;

hazard--that
contributed
an

6

the

hazard."

designated

(April

825

nature

to

properly

interpretation

prove:

must

mandatory

822,

standard
National

under

substantial

FMSHRC

establish

to

safety

mandatory

in

"if,

in

such

health

or

is

described

follows:

as

In

the

the

of

"of

the
based
upon
reasonable
exists
a
in
an
will
result
Cement
nature."

there

Co.,
its

safety

violation

A

3

as

mine

other

serious

a
reasonably
Co.,
Gypsum

Commission
substantial"
and

Act

substantially

and
or

(i).
substantial

Mathies

In

Mine

violation
contributed

hazard

the

"the

these

is

violation
violation
a
contribute

substantial"

significantly
§

with
with

lies

connection

Violations

the

coal

the

to

his

AFFIRMED.

ARE

and
of

(Tr.

the

that

in

However,
existence

21-23).

defense

a

the

admitted

in

dust

belt
cited
2

No.

inspector
dispute

the

the
float

that

and

by

efforts
as

as

deny

Anderson's
control"
dust

on

serve

section

not

Mr.

101-102).

not

may

the

stipulated

he

as

confusion
abatement

respondent's
matters

in
did

areas

operator".

an

establishes

combustible
1 and
No.

of

same

two

upon

inspector

the

accumulations

Mr.

Indeed,

entries.

duties

the

from
the

because

distinct

and

cited
extensive

the

of

existence

duplicative

and

3809256

Nos.

emanated

have

may

not

are

separate

impose

standards

over

violations

Cyprus'

"although

that

nature.
United

In

1129,

Commission

the

We

of

States

the

have
Mathies

Steel
stated

explained
formula

Mininq

as

further

that

"requires

1343

7

Inc.,

Company,

further

FMSHRC

follows:
third

the
that

the

element

Secretary

1125,

establish

reasonable
will

a

contributed
is

injury."

an

1836

likelihood

to

result

U.S.

(August
with
contribution

effect

of

We

the

1868

Inc.,

6

The

question

significant

and

substantial

surrounding

the

violation,

(August

any

normal

mining

operations.

Citation

Nos.

3807425.

citations

that

stated
the

that

allowable

he

issued

exposure

to

exposure
which
is

quartz

dust
if

it

them

levels

are

reduced

that

kept

on

at

to

have

man

is

that
the

the

sampled

level

(Tr.

60-61).
Inspector

Justice

dust

exposure

affecting

occupations
like"
the

to

coal

it
would

particularly
conditions

a

"cuts

was

highly

likely

unabated

that
miners

exposed

the

hazard.

and

up

five

with

if
that

silicosis

mining

were

(Tr.

such

the

71-74).

1344

to

levels

of

MMU,

the
more

"silicon

than
allowed

conditions

are

the

individuals

exposed
the
road,"
with
the

down
continue

twice
exposure

the

to

out

over

high
disabling

that
forth

"somewhere
allowed

other,

pointed

miner

stated
so

or

designated

designated

and

of

than

excessive
the

on

of

it

levels

a

permanently

He

lungs

your
that

does",

if

be

the

dust
end

would

that

The

more

time

was

58).

presence
believed

the

some

in

particularly

the

He
60).
exposed

He

dust

"would

at

(Tr.

believed

reiterated

samples,
silicosis

dust

quartz

exist,
dust

the

by

that

of

3807425).

(Tr.

to

samples

support
dust

He

exposure
the

at

1985).

in

of

dust.

bolter

roof
he

(March

silicosis

coal

problem"

a

designated
and
standard,
of
time
period

allowable
in
any

reflected

by
rate,

FMSHRC

respirable

because

unabated
this

329

1986).

two

to

than

determined

going

this

which

continued
3

su_•_Ka,

327,

498
2007

significant
of

Nos.
3807424
and
levels
of
respirable
is
cut
is
being

hazardous

as

the

testimony

the

exposes

FMSHRC
FMSHRC

context

credible
to

9
of

the

facts
mine

the
i0

Company,

(January

(Citation
rock

likely

reasonably

respirable
likely

FMSHRC

particular
of

Inc.,

FMSHRC

and

more

nature

in

excessive

quartz

miners

to

the

is

the

Gypsum,

presented
respect

with

of

presence
hazardous

was

Justice

findings

and

determination
made

8,

8

Inspector

on

Coal

7

Incorporate•,

"S&S"

it
and

cause

violation

based

Texasqulf,

Ohio

Company,

Halfway,

his

be

National

3807424,

the

particular

v.

&

must

Mininq

1834,

in
that,
104(d)(1),

6
FMSHRC
Company,
Inc.,
Mininq
ComDany,
(July
1984).

including

be

Steel

there

FMSHRC

Steel

any

of

violation

6

significant

be

must

nature
U.S.

to

U.S.

of
Labor
Secretary
(April
1988);
Youqhioqheny
(December
1987).
Further,

825;

section

1574-75

involved,

a

Cn.,

hazard
which

Mininq

whether

of

in

of

1984);

1573,

the

violation
must

Steel

1866,

FMSHRC

a

that

U.S.

that
event

emphasized

language

hazard

a

have

of

substantial.

an

Mininq

Steel

1984).

accordance
is
the

in

what
to
to

the

as

respondent

The

presented
findings.

"S&S"

inspector's
during
respirable
reasonably

in

dust,

silicosis

hazard
has

out

of

compliance
(Tr.

is

no

evidence

aware

that

not

was

dust

In

Consolidation

nom.

Consolidation

Cir.
violations

1987),

decision

testimony
petitioner

Citation
With
as

fire

grounded

would
out

belt

lines,

falling

from

that

the

Coal

Paul
basis
Commission

Judge
the

recent

Docket

Company,
Co.,

holding.

Coal

and

credible

and

find
and
violations

two

dust

explosion

are,

and

that

the

in

question

findings

the

of

the

placed

ii0).

had

existed

conceded

accumulations

were

(Tr.

present
suspension,
most
the
probably

have

(Tr.

out

for

it

then

one,
He
also

it

believed

at

the

cited

present

over

a

112).

1345

coal

rather

draw

rock

believed

that

extensive

rock

in

result

the

(Tr.
float

coal

a

explosion
affect

days
and

volt

220

"numerous

previously

that
two

least

that

by

could
violent
would

line

belt

the

as

and

also
over

was

a

Inspector

boxes,

Stewart

Mr.

or

the

sources

and

likely

arc

103).

(Tr.

shorted

be

an

along

fall

which

reasonably

of

rock

drives

104).

which
in

"is

should

a

areas

sources

was

creation

ignition

could

(Tr.

ignition
it

stand

potential

that

that

accumulations

by
the

belt

dust

that
the

the

caused

accumulation
cited
the

dust

running,

belt

through

roof

you

coal
float
testified

considering

electrical

were

feet

conclude

are

unrebutted

(S&S),

the

the

float

1,800

(D.C.

dust

the
Coal

the

on

I

against

rubbing

areas

Anderson

and

mile
Twenty
Consolidation
its
based

two

wire

power

dusted

if
mine"

aff'd

1071

3809258

occur

the
coal

Mr.

decision,

and

and

sources"

that

the

1986),

F.2d

limits
Consolidation
decided
by Chief
violation
"S&S"
on

1991),

Stewart

identified

control
electrical

in

the

with

and

present,

the

Anderson

control

also:

dust

in

and

3809256

to
regard
Inspector
travelways

violations,

if

available,
Mr.

AFFIRMED.

Nos.

Stewart

a

mine

the

regulatory

substantial

and

ARE

the

respirable

1986

established

significant

inspector

or

all

See

1993,

22,

has

a

FMSHRC,

that

(July
respirable
June

June

FMSHRC

(June
824

1076

a

890

8
v.

allowable

reaffirming
circumstances,
of
the
inspector,

the

that

to
that

made

are

Co.

91-449,

WEST

were

exposed

keeps

Co.,
held

the

Commission's

served

agent

the

that

conceded

changes
were
respirators
and
being
used,
to
used
was
being

violations.

FMSHRC

of

were

Anderson

excessive

consistently

they

Commission

affirming

Under

be

Mr.

to

that

were

wetting

a

"S&S"
13

the

No.

that

rock,
would

Anderson

ventilation

Although

Coal
Coal

the

presumptively
of

though

77-78).

exceeding

Company,
Merlin

Further,

74).

quartz
miners

Mr.

87).

(Tr.

sub

affected

problem

even

periodically

of

presence

quartz

a

exposure

the

(Tr.

mine

there

the

that

likely

the

Indeed,

term",

"short

a

even

rebut
to
conceded
of
levels
it
made

evidence

credible

no

there

everybody
cited

120).
coal
distance

dust
of

Inspector Stewart testified that the thin unmeasurable float
coal dust that he observed was deposited over previously rock
dusted surfaces and that it was "grey to dark" in color. There
is no evidence or testimony that any of the dust was deposited on
any of the potential ignition sources identified by the
inspector, and his citation simply reflect that the deposits were
at "numerous locations". The inspector conceded that if the
cited areas were wet, a violation would still exist, but that an
accident would have been unlikely (Tr. 117). Although he
confirmed that the respondent's ventilation plan required that
water be maintained on the belt drive units to control excessive
dust, he admitted that he did not inspect the belt drives and did
not know whether there was any water on the belts (Tr. 108). The
citations do not reflect whether or not the cited areas were wet
or dry, and there is no testimony by the inspector in this
regard, or any evidence that he cited the respondent for a
violation of its ventilation plan for the lack of water.
Although Inspector Stewart confirmed the presence of
potential ignition sources in the cited areas, he admitted that
he did not inspect any of the electrical components to determine
whether they were defective or out of compliance (Tr. 119), and
there is no evidence of any defective belt parts or belt
conditions that would have sparked a fire had normal mining
operations continued. Further, although the inspector alluded to
a piece of falling draw rock sparking a fire, there is no
evidence that he inspected the roof areas, nor is there any
evidence of any roof conditions that would have made it likely
that a piece of rock would fall and spark a fire had normal
mining operations continued.
The respondent has admitted that the cited accumulations
violations of the cited section 75.400, and I
conclude and find that the accumulations presented a discrete
fire hazard. I also conclude and find that it was reasonably
likely that a mine fire, if one had occurred, would reasonably
likely result in injuries of a reasonably serious nature.
However, in order for a fire to occur, with resulting injuriesu
there must first be an ignition resulting from the cited
accumulations in question. On the facts of this case, and on the
basis of the aforementioned testimony of the inspector, I cannot
conclude that the petitioner has established that the conditions
at the cited locations presented a reasonable likelihood of an
ignition that would spark or result in a fire had normal mining
operations continued. See: Texasgulf, Inc., 10 FMSHRC 498, 501
(April 1988); Eastern Associated Coal Corporation, 13 FMSHRC 178,
184 (February 1991). Under the circumstances, I conclude and
find that the cited conditions did not constitute significant and
substantial (S&S) violations and the inspector's "S&S" findings
ARE VACATED. The citations ARE MODIFIED to reflect non- 11 S&S 11
violations, and I have taken this into account in the civil
penalty assessments that I have made for the violations.
~onstituted

1346

Size of Business
Inspector Justice testified that the respondent's mine
superintendentQ R.B. Hughes, informed him during a dust survey on
February 24, 1993, that the mine produces 350 tons of coal a
shift during two working shifts (Tr. 68-69). Mr. Anderson
testified that the mine had an annual production rate of 80,000
tons of "clean coal", and that 14 to 15 miners, including a
superintendent, work at the mine site (Tr. 128). The
petitionervs counsel stated that MSHA's inspectors consider the
mine to be a small mining operation (Tr. 127-218). Under all of
these circumstances, I conclude and find for purposes of civil
penalty assessments the respondent is a small mine operator, and
I have taken this into consideration in this case.
History of Prior Violations
An MSHA computer print-out reflects that for a two-year
period beginning August 28, 1989, and ending August 27, 1991, the
respondent was assessed civil penalties totalling $5,024, for
thirty (30) violations, and that it paid $1,045.11, for eight of
the violations and was issued delinquency letters for non-payment
of the remaining violations. The print-out reflects no prior
violations of mandatory standards 30 C.F.R. § 70.207(a), 70.508,
or 70.101, but does show ten (10) prior violations of
section 75.400. Although I cannot conclude that the respondent
has a particularly bad history of prior violations, it would
appear to have a problem with controlling and cleaning up coal
and coal dust accumulations. I also note the number of
6lelinguency letter reflecting non-payment of prior penalty
clSsessment~.
aowever,I consider this a "debt collection" matter
:mcl :~: asst:!:rne
pet:i t.ioner is ·caJdng the necessary steps to
;,:leek J9aVJ,nent. :<:'rom the respondent"
Good Faith Compliance
respirable dust citations issued by
(Nos" 3807424 and 3807425) u and the noise
by Inspector Osborn (No. 9876034)u the record
during a subsequent inspection on November 19,
Stewart issued three section 104(b} orders
because
respondent 0 s failure to timely abate the
previously
citations. Although the validity of the orders
are not
in this civil penalty proceeding, I agree with
the petitioneris assertion that the respondent failed to timely
abate the citations and has not advanced any reasonable evidence
to rebut Inspector Stewart's credible testimony as to why the
orders were issued. Further, I find no justifiable mitigating
circumstances excusing the respondent's failure to timely abate
the citations. Under the circumstances, I conclude and find that
the respondent failed to demonstrate good faith in timely abating
the conditions cited by Inspectors Justice and Osborn. With

1347

regard

remaining

to

the

in

conclude
faith
good

3809258),
abated

I

citations
(Nos.
find
cited
the
the
respondent.

and

by

9876024,

3809256,

conditions

were

timely

Neqliqence
inspectors

The

with

Citation

found

Nos.

negligence

with

3807425,

3809256,

findings

by

the

conclusions

degree

of

and

9876034,

to
respect
3809258).

the

remaining

inspectors

and

this

on

low

a

9876024

I

negligence
and

degree
(3807424,
negligence

citations

agree

with

these

adopt

them

as

associated

moderate

a

findings

my

of

and

issue.

Gravity
Based
Nos.

9876024

violations

were

concerning
find
they

Citation

find

and

Effect

The

of

In

by

followed
be

six

the

penalty

Act,

U.S.C.

developed

in

the

Coal

1

FMSHRC

of

in

section

relevant

hearing.

5

FMSHRC

penalty
on

of

the

thereto
Shamrock

F.2d

652

not

based

ll0(i)

information

aff'd,

the

judge

the

adjudicative

1979);
Company;

Stone

of

is

initial

at

amount

by

(June

469

the

on

arriving

the

in

the

the

I

presiding
judge
and
practices

Assessments

and

course

Sellersburq

the

case

specified

820(i),

§

Assessments

determination

criteria

by

3807425,

Business

Rather,
novo

and
made

serious.

regulations
of

de

a

30

1981);

penalty

assessments.

statutory

Co.,

in

conclude

and

were

Penalty

assessment

Office

is

assessed

Civil
Continue

civil

by MSHA's
penalty

proposed
to

contested
the

findings

citations

Proposed
to

the

3807424

these

conclusions

and
I

Nos.

these

that

3809258),
"S&S"

to

respect

find

and

findings

my

on

Citation

Ability
a

on

and

Based

that

the

Respondent's

bound

Based

regarding

conclude

I

3809256

nonserious.

were

conclude

9876034,

Nos.

with

findings

Non-"S&S"

and

nonserious.

inspectors

the

inspector's

the

on

Citation

(6th
(March

Cir.

evidence

that

the

adversely

affect

287,

59
292

1983).
As

general

a

imposition
mine

operator's

that

no

Company,
1984).
of

a

such
5

adverse
FMSHRC

adversely

In
the

former

Congress

is

impact

several

early
Interior

intended

balancing

of

the

process

1348

presumed
Stone

1147

financial
any
civil

of

ability
to

Operations
in

the

Cir.

penalties
continue

to

1969

Appeals

arriving

(7th
condition

in

payment

pursuant
Mine

is

F.2d

736

operator's

decisions
Board

a

mine

a

aff'd

not

it

Sellersburq

documented
be
considered

to
or

business,

occur.

and

required
on

in

1983),

size

whether

to

of

will

would

(March
the

absence

continue

to

287

the

assessments

affect

Conversely,
mine
operator
as

in

and

penalty

ability

determination
will
business.

rule,
civil

of

at

Coal
held
an

in

Act,
that

civil

appropriate
operator

to

stay

in

Company,

1

IBMA

115,

117-118

of

Coal

Act,

I

line

of

initial

initial

operators

out

the

of

1

Tennessee,
of

Coal
Coal

Company
Company,
2
Company,
Faith
1981);

FMSHRC

FMSHRC

3327

Coal

Davis

also:

reviewed

Commission

approving

proposed

detrimental

effect

penalties
in

would

the

counsel

that

of

the

position
penalty

respondent

Company,

reductio•'•fthe
mine

the

Creek

MSHC

3

Coal

and

Company

Fire

2078;

Creek

Davis

1980);
&

1982);

G

FMSHRC

889

M

Coal

(April

1992).

Se___ee
he

where

decisions

settlement

based

the

on

operators

originally
ability

this

matter,

the

respondent's

assessments

should

that

to

proposed
remain

to

Mining

should

equipment,
whether
instant
continue

the

not

or

will

case

in

business

heard

and

the
brief

testimony

17;

146).

The

petitioner's

(Tr.

the

evidence,

but

Counsel's

request

as

Gary

among
and

funds

to

as

penalties

in

ability

the
to

ALJ-I),
take

4,
1992,
September
Energies
by Hobard
Sarah
Mining
Ashley
I

notice

1349

a

and

copy
it

background"
of

judicial

take

notice

proceedings,

those

offered

civil

consolidated

representing

and
I

that

in

Anderson

information

and

Inc.,

solicitor

(Exhibit

on

controlled

requested

counsel

that

Melick

companies

counsel

cases,

mining

prior

several

Company,

by Mr.
by the

filed

prior

Judge

coal

Mining

Inc.,
(Spurlock
Inc.)
Company,

assets

asserted

respondent's

the

cited

by

other

two

the

17-19).

counsel

cases

concerning

simply

other

of
determination
in
any
civil
the
proposed

affect

on

interrelationships

any

pay
the

based
Counsel

intermingling

of

(Tr.

Petitioner's

penalty

payment
adversely

in

of

considered

be

not

Company.

interests

ownership
the
including
degree
companies,
the
those
including
companies,

petitioner's
to
ability
be

and

Anderson,

Mr.

Hill

Broken

Anderson's

Mr.

in

hearing

the

civil
available

assets
the

that

in

Mine

1977

difficulties,
effectively

the

mine

the

the

Coal

(November
(March
1980),

619

FMSHRC

penalty

of

took

total

the

to

(November

1907

assessment

course

proposed

the

of

1037.

Fire

1980)
FMSHRC

several
reductions

on

MSHC

would

and

affirmed

had

1

(June

and
civil
have

1041

business.
In

of

(November
2

MSHC

the

I

1192-1196

1041;

1

because

3333

mine

a

Newsome

1024;

MSHC

aggregate

FMSHRC

14

Coal

Lawson

See:
1979),

(April

1168,

Lawson

G.

that

the

business.
2

of

financial

in

Company,
Company,

Coal

G.

including

case,
given
ability

pursuant

me

serious

Tennessee,
4

the

justified

were

in

149

FMSHRC

by

and

of

any
and

Robert
concluded

the

su_•p_[a,
assessments

were

the

put

applied

and

and
small
assessments

operators
that

adjudicated

cases

decisions,
penalty

mine

the

Se___ee: Robert
1
1972),
(May
1972),
(September
175
1972),
(August

IBMA

1

several
followed

In

of

190

IBMA

1

Inc.,
Company,

Brothers,

Hall

the

in

assessment

penalty
size
business.

consideration

the

MSHA

of

the

as

in

those

brief

accepted
(Tr.
143-144).
of
transcript

was

well

as
cases

filed
"not

the

as

prior

cases

motion

a

transcript,
in
Mr.

involving
of

counsel

argued
companies

the

Hill

purported

12

that

during
remaining

the

companies"

(Tr.

Mr.

Anderson

brief

in

done

the

not

payment

affect

their

that

the

and

Mr.

of

15

this
I

adverse

affect

Sarah

may

have

15

630-631.

Melick
Judge
evidence
presented
and
Federal
corporate
notices
of
tax
and

litigation
was

Mr.

too

to

stand

under

tax
other

by
Anderson
limited

longer
and

returns,

unaudited
and

scope.

1350

in

the
his
balance

Judge

to

the
and

of

Melick
"the

financial
the

this

is

"Act",

pleadings

court

against

personally),
in

the

Judge
business,

of

support

1993,
arguments

creditors

the

reliability

the

ability

on

their
while

that

other

in

2,

Anderson's

and

Anderson

of

citations

April

on

of

Inc.,

behalf

the

business.

ll0(i)

liens,

Energy,

penalties
no

contended
would

on

Mr.

those

established

was

issued

collection
line
with

creditors

but

Hobart

decisions

in

in

assessments

who

the

respondents

testifying

were

the

filed

the

made
of

incorporating

brief

It

relevant"
of

is

he

to

civil

requests

charged,

rejected

in
Section

questioned
by Mr.

his

transcript

of

of
the
remain

counsel

respect

proposed

business.

his

"would

discovery

the

penalty

witness

he

However,

cases,

inspectors

the

of

not

repeat

as

in

only

reply

has

with

the

subsidiaries

the

his

he

that

that
in

civil

remain

to

of

but

further

the

of

Ashley

Secretary
no
longer

evidence

inactive

very

copy

any

pay

occurred

proposed

a

do

states

Sarah

was

and

adjudicated,

or

(Tr.
166).
arguments

also

were

issue

to

simply

condition

involving
companies

only
prior

operating

were

cases,
stated

notice

proffered

FMSHRC

file

advanced

and

the

the

an

would

the
case

that

actually
cases

dormant

case

violations

was

since

MSHA's

in

testimony

"were

need

take

excuse

that

testified
that

to

to
Ashley
those
companies
is
no
longer
issue
an
"only

held

He

Mining

Melick
issued
Judge
and
(April
1993),

and

this

posthearing
ability

arguments

None

concerning
Spurlock

in
that

respondents

629

to

counsel

Counsel

Anderson

FMSHRC

his
relevant

were

situation"
his

ability

testified.

he

the

financial

the

respondents.

posthearing

not

prior

the

Ashley

felt

Spurlock

that

that

I

and

so,

the

his

advised

that

control

that

financial

respondent's
assessments
penalty
the
during
hearing
prior
proceedings.
the
by reference
cases.
prior
In

he

companies

Petitioner's

the

conceded

coal

companies

and

if

the
done

the

Company.

13

his
time

stated

court

regarding
has

was

consider
filed

147).

149).

the

Mining

the

Spurlock

(Tr.

so

advise

are

or

under

were

when

cases

Broken

the

four

counsel

I

147-148).

position

the

Ashley

Sarah

and
that

brief,
(Tr.

case

took

and

request

the

as

instant

Anderson

Spurlock

and

well

the

advisement,

under

further

or

as

brief

coal

taken

was

file

to

financial
claim

(state

sheets,
apparently

respondent

found
Melick

that
held

this
that

"the

equities
ownership
with

Anderson

Mr.

Melick's
Commission

personally.

On

12,

Sarah

Ashley's

case.

reflected

controller
60.

the

Sarah

Ashley

they

also

mine

other

satisfy

to

IRS

nonpayment

used

lien

the

on

served

Mining
Energies,

its

84-85).

well

as

shut

down

hopefully

it

been

"had

And

money"

(Tr.

companies

were

been

losing

coal

mine

have

to

pay

is

In

the

posthearing

the

insufficiently
assessed

struggle"

condition

probative
penalties

of

without

those

the
the

and
Sarah

of

months
around
stated

and

just

but

to

that

Hill

by

Hobart
of
that

got
date
of

none

that

back

has
his
we

proceedings

prior
position

that

testimony

self-serving"
and

Spurlock
inability

respondents
impacting
adversely

1351

Broken

testified

"anything

Ashley

a

that

stock

the

of
further

that

in

took

unsupported,

"general,
financial

turn

filed

counsel

confirmed

companies

can

held

that

bank

in

who

other

Anderson
six
for

That

Hill

of

100%

was

Company.

held

also
He
106).
and
well
dong
106).
(Tr.

brief

MSHA's

ALJ-I),

about
the

a

Mr.

87-91).

(Tr.

coal

officer

owning

for

the

that

Anderson

Mr.

company

go

78-79).

and

the

to
the

to

Energies

operating

several

as

controller

will

Broken

to

payments

chief

equipment

testified

from

74-75).

(Tr.
the

(Tr.

1992,

he

and

Hobart

Coal

but
he

However,

sites,

and

July,

equipment
make

to

basis,

proceeds

Massey

late

the

confirmed

contract

taxes

at

the

between

lease

him

at

used

operations
may

stake
used

ownership
equipment

a

Anderson

A.T.

and

feet.

Anderson's

in
for

the

Inc.,

business.
mine
the

lease

any

(Tr.

the

(Exhibit

those

president

Company,

Mr.

at

proceeds
equipment

as

Hill

Broken

at

Mr.

belt

some

companies

these

on

the

longer
still

prior

the

$75,000,

a

the

the

of

in

was

on

in

Energies

opened

adjudication

Mr.

against
unemployment

basis

my

before

Anderson

coal

liens
and

the

equipment
interchanged

the
was

that

but

was

purchased

turn

Hobart

reviewed

of

all
of

no

business

have

stock

25%

a

mined
was

the

of

testimony

64-65).

(Tr.

that

contract

a

on

company

he

Mine

Hill

Broken
mined

of

has

some

proceeding,

prior

I

compensation
Hobart
Energies,

equipment

into

operators,
personal
of
payroll

the

In

the

brief

the

and

owned

Energies
operation,

equipment

the

back
go
indicated

to

hoped
He

were

that

Judge

of

before

proceedings
posthearing

prior

the
and
course

he

these
operations
and
inactive

of

both

which

in

notice

unrebutted
from

and
needed

operation,
Spurlock
as
two
operations
that
that
stated

the

only

received

company
Hobart
69).

(Tr

in

that
the

that

pending

take

GRANTED,

IS

Anderson's
his

Mr.

instant

review

for

still

I

that
request
in
held
the
hearing
on
1992,
2,
September

petitioner's

matters

companies
Commission

the

petitions
are

merger

Ashley

1993,

under
of

adjudication.

of
transcript
Melick
Judge
filed
petitioner
by the
brief
the
and
transcript

salary

May

matters

the

and

for

The

Sarah

an

and

Spurlock
decision,

granted

a

was

Spurlock

the

of

veil"

corporate
complete

the

there

because

theory
control

and

piercing

support

case

ego"

"alter

an

this

of

on

was

to

their

pay

ability
during

to

the

remain

in

business.

course

of

the

I

take

note

in

hearing

of

fact

the

that

prior

the

MSHA's
proceedings,
counsel
offered
in
evidence
the
financial
data
supplied
by
Mr.
Anderson
with
to
Sarah
respect
and
and
Ashley
Spurlock,
counsel
with
expressed
the
agreement
information
and
presented,
she
did
not
the
balance
sheets
challenge
prepared
Anderson
by Mr.
his
or
the
accountants,
or
the
authenticity
of
the
accuracy
or
the
information,
affidavits
supporting
the
reflecting
opinions
of
the
CPA's
who
Mr.
Anderson's
prepared
tax
and
returns,
Mr.
who
is
also
Anderson,
a
CPA.
All
of
this
documentary
financial
evidence
was
received
without
objection
(Tr.
21-24).
In

prior

the

Anderson

Mr.

proceedings,

chose

companies

not

his

under

not

dissolved

and

was

reasonable

to

and

that

their

did

Spurlock

Anderson
held

jointly

record

After
in

corporate

and

severally

prior

"alter
as

conclude

and

find

current

nature

decision

on

penalties
penalties

in
the

affirmed,
Mining
Company's

will

been

company
its
mines

adversely
This

is

the

Hill
was

the

to

on

production,

the
Mr.

Broken

Hill

producing
coal,
although
and
that
losing
money

Mr.

it

"was

mine

was

Anderson's
back

"was

a

1352

struggle"

to
of

make

a

the
of

the

which

have
Hill

by Hobart
operations.

although

nonetheless
its

one

of

impacted
producing
in
the
prior

coal.

feet"
the

to

the

which

rock,

on

Inc.,

Insofar

that

that

the

Company,
Energy

testified

claimed

reflects

case

testimony

Anderson

more

Broken

this

and

with

problems

with

proceedings

1992,

I
a

me

Mining

Anderson

July,

enable

in
Hill

mining

Mr.

in

of

to

business.

controlled

concerned,

MSHA.

respondent

in

productive

and

experiencing

consistent
that

the

Broken

ventures

by

by

payment
the
payment
violations

testimony
the

made

the

or

be

aforementioned
I
decline

cases,

to

the

affect
continue

should

evidence

for

Hobart

Mr.

the

advanced

petitioner,

adversely

penalties
the

penalties.

conclusions

not

Under

that

of

or

the

and

of

managed

Spurlock

proceeding

of
a

assessed
all
and

sufficient

assessed

resurrected
was

and

costs

Ashley

of
he

coal

lenders.

the

these

and

whether

ability

viable
is

that
for

is

instant

have

of

arguments

there

mining

longer

Broken

as

Anderson's
unrebutted
the
of
exception

corporate

as

well

by
I

Sarah

consideration

ego"

of

business

that

ability
business,

in

and

Ashley
findings

the

proposed

the

Sarah

issue

his

payment

entities
liable

that

which

no

maintain

concluded

review

careful

Melick,

are

the

to

relationship

the

the

the

other

pay

not

and

with

to
and

an

Energies

Mr.

somewhere

it

that

producing

Anderson
with

counsel

were

argued

still

were

other

corporations

counsel

Mr.

establish
that
adverse
affect
on
subsidiaries
to
remain

have

that

they

ten

for

from

by

continuing
banking
circumstances,

adopt
Judge

that

coming

the

would

liquidated,

conclude

that

noted

data
these

since

and

assets

controlled

counsel

financial

management,

was

money

corporations

MSHA's

submit

to

pay

and

company

bills.

again

was
was

He

also

coal
no

and
evidence

be

that

Company.
that

basis,

regular

a

and

company,
month
month
In

IRS

view

of

for

of

payments
Hill

Broken

Anderson
Broken

and

liens

I

penalties

the

Mining

Company

business.

I

pay

MSHA

to

parent
$250

a

$5,000

paying

is

year,

a

the
testimony
the
to
respect
Hill
Mining
Company,
which
debts,
outstanding

with

other

convinced

not

am

in

assessed
will

Hill's

notwithstanding

and

consideration,

into

taken

have

Mr.

respondent

several

reflects

which

by
the

of

state

financial

liens.

a

Broken
and

tax

foregoing,

the

consented

has

proceeding

$75,000,

of

Inc.,

to

Hill

Broken

by
instant

salary

a

Energy

the

find

not

do

I

the

is

although

and

assessments,

penalty
past

presented

evidence

and

Broken
civil

the

to

Hobart
Hill

from

that

past

for

receives

Anderson

Mr.

is
in

evidence

the

Mine,

There

135-136).
which
owned

lien,

bank

a

equipment

the

unusual,
Further,

particularly

reflects

operation"
is
operations
by

due

producing

still

is

1992,
(Tr.
troubled,

good

"a

secured

is

Mining
on

is
this

it

to

Hill's
Broken
in
November,

production

equipment

mine

subsidies

that

coal
that

started

rejection

coal

paid

Massey
testified

A.T.

that
testified
further
1
No.
Hill
Broken
the
at
Hill
as
compensation.
Broken
which
3 mine,
No.
new

Anderson

Mr.

case,

of

rate
has

high

the

to

instant

the

In

find

and

against
to
ability
respondent
$5,000
MSHA,

its

affect

adversely

conclude

the

that

proceeding

this

if

that

I

the

in
to
month
a
$250
can
pay
Hill
Company
Broken
Mining
at
coal
mine
to
continue
time
the
same
at
and
the
to
month
IRS,
Broken
for
Hill,
revenue
3 mine,
No.
producing
its
opened
newly
in
turn
which
as
pays
Inc.
well,
Hobart
I
assume
Energy
and
the
to
afford
it
can
pay
annual
salary,
a
Anderson
$75,000
Mr.
this
case.
given
Further,
in
assessed
civil
penalties
I
am
his
CPA
and
background,
financial
acumen,
Anderson's
Mr.
the
to
funds
the
find
will
pay
the
that
respondent
confident
advanced
the
by the
arguments
Accordingly,
assessments.

continue

penalty
respondent
and

conclude

I

it

cannot

and

find

that
that
affect

establish

adversely

pay
that
the

payment

of

its

ability

On

into

taking
in

the

section

following

appropriate

basis
account
civil

the

I

violations

are

that

9876024
9876034
3807424

No.

have

I

30

citation

business.

and

found

that

the

and

affirmed:

C.F.R.

Date

Section

7/16/91
7/30/91
8/29/91

70.207(a)

1353

and

conclusions,
criteria

find
and
reasonable

conclude

assessments

penalty
for

Act,

will

Assessments

findings
foregoing
assessment
penalty

the

of

in

to

assessed

have

civil

the

i10(i)

continue

Penalty

the

of

penalties

I

REJECTED,

ARE

failed

has

respondent
that

to

Civil

penalties

civil

any
the

Assessment

$20

70.508

$150

70.101

$200

a

3807425

8/29/91
11/15/91
11/15/91

3809256

3809258

70.i01

$350
$65
$65

75.400
75.400
ORDER

The

in
been

the

respondent

IS

shown

amounts

affirmed

petitioner
decision
dismissed.

and

in

(MSHA)
order,

ORDERED

above

this

within

thirty
upon

civil

pay
six

the

penalty

(30)

receipt

assessments

violations

(6)
shall

Payment

case.

and

to

for

be

days

of

of

payment,

Administrative

which
to

made

the

date
this

Law

have

the
of

this

matter

is

Judge

Distribution:
B.
Joseph
Luckett,
Esq.,
of
2002
Richard
Labor,
37215
(Certified
Mail)
Mr.

Inc.,

Hobart
P.O.

W.

Anderson,

Box

989,

Office
Jones

of

Road,

President,
KY
Ashland,

/ml

1354

the

Solicitor,

Suite

B-201,

Broken

Hill

41105-0989

U.S.

Nashville,

Mining
(Certified

Department
TN

Company,
Mail)

80204-3582

CO

DENVER,

844-5268

(303)

844-5266/FAX

(303)

COMMISSION

#280

BOULEVARD

SPEER

1244

REVIEW

HEALTH

AND

SAFETY

MINE

FEDERAL

JUL ] 3 ]993
HEALTH

AND

SAFETY

MINE

(MSHA)

ADMINISTRATION

Docket

,

26-01488-05532

39-01488-05534

No.

A.C.

39-01488-05535

No.

A.C.

INC.

92-576-M

WEST

No.

Docket
MATERIALS

92-532-M

WEST

No.

Docket
V.

92-505-M

WEST

No.
No.

A.C.

Petitioner

BONANZA

PROCEEDINGS

PENALTY

CIVIL

LABOR,

OF

SECRETARY

,

Respondent
39-01488-05536

No.

A.C.

92-602-M

WEST

No.

Docket

Materials

Bonanza

DECISION

Before:

Judge

Lasher

four

penalty
penalty

These

itioner

four

of

tions
Federal

Mine

(herein

"the

be

dated

Order

my

the

inter

As

forth

set

herein,

Respondent
alleged

violations
said
the

over

located

and

15,

1993,

the

defends

being

in

the

Joint

by

solely

factual

the

concedes
and
that
asserts

Respondent

physical

penalties

the

area

in

on

that

which

the

for

bases

of

substance

the

has

MSHA

juris-

no

violations

these

filed

Order

Preheating

To

Response
contest

not

Petitioner

de-

was

assessed.

be

does

lie

to

and

facts
it

jurisdiction,

jurisdiction

would

deemed

was

stipulated

of
of

one

820

§

matter

the

of

ll0(a)
U.S.C.

Pet-

by
cita-

i0

of

total
30

the

basis

the

should

that

violations.

diction

January
on

byPetitioner

proposed

of

issue

sole
alia

a

Section

1977,

Act

decision

for

and,

covering
proposals
to
pursuant

filing

the

upon

arose

Health

and

Safety
Act").

submitted

briefs
termined

Orders

Withdrawal

and

By

proceedings

were

basis.

FINDINGS

The

their

Joint

parties
Response

having
to

to

stipulated
Prehearing

all

Order,

1355

relevant

the
I

find

as

facts
follows:

in

The

i.
the

instant

Proposals

shop

at

Bonanza

2.

The

ent

Bonanza

said

Review

the

Commission
Section

Regulations,

in

Rules

Exhibits

the

published
and

gravel
plant,

operation

the

RespondMine

Federal
Title

in

1700.27.2,

to

Nevada.

against

of

A

mechanic's

the

Henderson,

filed

duly

were

with

in
in

forth
located

("Bonanza")

Proposals

Health

Federal

all

were

Inc.

accordance

set

as

herein,

Materials

in

and

Safety
of

violations,
file

on

29,

duly

Code

contested

by

Respondent.
3.
of

pit,

open

batch

plant,

a

sand

a

and

activities
and

is

Bonanza

an

4.
the

fences

or

mechanic

mechanic

and

to

is

is

There

from

used

the

these

to

6.

is

The

shop
employees

operated

by

Bonanza

7.

The

mechanic

of

equipment

units,

services
shop
belonging

between

or

3

(generators
mining

by

the

also

in

units

4

mining

percent

mining

vehicles

in

mine

used

approximately

two

to

dust.

in

the

shop

the

reduce
are

not

by

pit.

in

used

8.

Work

9.

least
I0.

is
shop
equipment
significant

The

maintains

located

The

occurring

to

MSHA

in

Respondent
mechanic
shop.

the

not

any

mining

equipment
mechanic

the

is

its

are

of

is

the

activity
not

performed

shop.
of

arm

of

in

which

balance

of

plant

mining

trucks
The

mining

equipment-leasing
a
variety

for
which

of

the

said
did

area

previously

has
the

the

on

batch

cement

adjacent
Ii.

the

performed
distinct

physically

any

of

units

approximately
said
mining

The

water

be

are

Bonanza

include

include

to

total,

directly

used

which

approximately
12
Approximately

this

of

loaders

operations

serviced

Bonanza.

whatsoever.

the

the

access

company

maintains

and
to

are

These

front-end

used

and

which

operations.

vehicles

that

materials
to

employees,

considered

not

are

units

these

in

no

areas.

used

miners.

six

are

transport

road

same

directly

property,

plant.

shop.

particular

295

hot

extraction

mine

on

gravel
shop

which

plant

traditional

located
and
the

road

the

plant,
mining

The

minerals.

is

the

separating

access

pit

the

include

gravel

shop

pit

open
barriers
The

5.

from

and

consists

batch

operations.

Bonanza

sand

which

cement

construction

by
of

The

between

and

gravel

general

conducted

processing

sand
and

the

Bonanza's

company

operations,

mining.
and

the

hot

batch

plant

both

are

operations.
cited

mechanic

shop.

contest

MSHA's

1356

the
In

operator
these

jurisdiction

violations

for

previous

instances,
to

cite

in

the

basis

the

and

shop
office

The

issued

case,

mechanic
valid.

shop

mechanic

not

its

that

effect.

jurisdiction

case

and

that

the

issued

citations

no

is

Inc.,
into

a

affect

or

me-

the

of

the

over

Citations

were

subject

the

over

Labor

of
facts

the

of

have

jurisdiction

enter

products

that

did

Materials,

Bonanza

14.

the

Secretary

review

a

asserting

has

and

and

to

the

of

on

over

MSHA

instant

the

is

OSHA

13.

in

in

opinion

MSHA

that

opinion

an

shop

jurisdiction

legal
behalf

on

with

consultation

after

and

the

of

formal

violations

instant

the

of

lack

alleged
a
sought
Solicitor,

MSHA's

of

chanic

contested

has

Respondent

The

12.

regarding

same.

mine
subject
interstate

to

Act

the

commerce.

DISCUSSION

consideration

Upon
Petitioner's

position

is

Broad

Statutory

The

.

tionally

Related

Mechanic

Shop

The
the

meaning

Health

of

in

"used

is
therefore
Section

3(h)

cluding

not

legislation,
broadly

read
aration

Co.,
S.

1981),
(January
hicles

2

functional
tional

the

Act's

already

and

inclusively.

602

F.2d

1982).

M.

as

integral

part
integration

scope

subject

of

Section

Safety

Act,

because

it

Respondent's
the
brings
3(h)

(i).

1357

pit

shop

734

(9th

Cir.

5,

operations.
the

F.2d
6

mining
trucks,

haulage

Prep1015,

Co.,
FMSHRC

services

broad

be

must

U.S.

444

4

as

Ferry

Co.,

within

to

remedial

"mine"

Stalite

mining

also

well
as

of

shop

and

in-

as

but

as

Co.,

Jr.,

Elam,

(C)].

integrated

denied,

mechanic

is
and

minerals,"

Stoudt's

v.

cert.

loaders
of

Mine

Further,

Carolina
Minerals

v.

Oliver

front-end

within
and

definition

(1979),

Donovan

Cyprus
The

"structure"

operations,

wide

Industrial

1554;

or

...

therein.
Marshall

589

(1980);

(1984);

such
an

used

MSHC

Func-

Subject

The

of
minerals,
functionally

are

that

Includes

As

the

argu-

adopted.

here

Federal

the

milling

and

structures

665

1554

1547,

are

Ct.

Mine

of
820(a)
of
extracting

which

mining

the

and

of

"facility"

extraction

actual

the

activities

to

degree
facilities

any

i00

defines

peripheral

other

is

(I)
3(h)
[Section
jurisdiction.
MSHA's
expansively,
jurisdiction

MSHA

(i)
only

§

it

Such

of

(i)
work

the

...

under

a

U.S.C.

30

and

Structures,

is

is

it

Definition

shop
3(h)

1977,

of

Act

directly

mechanic
Section

the
and
concluded

presented

parties,

by the
meritorious

submitted

briefs

and

ments

evidence

the

of

ve-

which

This
defini-

2.

Jurisdiction

MSHA's

Facilities

is

MSHA's

ities

has

Central
the

Division,

2

case,

the

latter
in

property,
is

Saunders

&

operations

1

parts,

it,
may
Secretary's

3.

some

of
used

point
specific
Interaqency
Occupational
44,

broad

agency
doubts

1980),
in

were

under

the

Confirms

parts

used

and

to

OSHA

Safety

Health

expressly
facilities
reiterates

regarding

jurisdiction
For

does
Agreement
by Respondent,

not
so

in

Federal
to

exclude

equipment

limit

majority
Finally,

decided

Respondent's
Case

Position

that

shop."
anic
tional

and

consistently
as

befits

language,
mechanic

Act

Petitioner
is
(i)
shop

that

argues
does

not

issue

the

expressly

submits

that

sufficiently
in

any

favor

of

MSHA

Interagency
the

immune

Inconsistent

serv-

Inter-

Act,
from

with

as
argued
prosecution

the

Act

and

Law

Respondent
the

is

the
the

said
of

scope

Respondent

servic-

of

in

the

the

MSHA

mandate

be

carves

Register,
juris-

exceptions

reasons,

render

then

MSHA,

Administration,

the

to

MSHA

start-

jurisdiction.

operations.
congressional

these
to

to

Health

which

are

serve
as

and

impliedly

nor

of

given

between
its

as

thereunder.

3(h)

under

Jurisdictior

takes
of

is

these

the

all

rely,

Administration,

non-mining

to

Agreement

in

most

even

or

been

MSHA's

jurisdiction

which
Mine

nor

jurisdiction.

"mine"

on

is

"(i)t

have

Agreement

seeks

Significantly,

directed

4.

store-

a

Act:

not

may

W.R.

non-mining

machinery,

and

shop

of

case

Feb.

which

Interagency

statutory

75.

neither
is

the

used

that

Aqreement

over

Aqreement,
Safety

icing

of

mine

a

areas

Respondent

areas

facilities,

were

equipment
in

administrative
which

the

ing

the

Interaqency

No.

diction

Melick,

mechanic

jurisdiction.,,

out

Vol.

(ALJ

be

the

in

mining

the

on

where

case

which

facil-

Aqgreqates
In
1980).

Sept.
located

even

portion
to

been

on

ing

of

held

maintenance
Marietta

Similarly,

2130

small

a

was

Maintenanc.

Koutras,

not

instant

the

most

that

The

OSHA,

(ALJ

property.

have

The
and

mechanical
in
Martin

was

FMSHRC

only

vehicles,

immaterial
the

Sons,
and

mining

to

held

over

2163

facility

mining

which

room

Mechanical

confirmed

FMSHRC

contrast

Bonanza's

on

of

jurisdiction
expressly

been

Over
Clear

the

inclusive
here.

section
scope
mandated
the
remedial
also

as

noted

shop

such

as

The
of

that

on

Act,
section

the

nature

above,
Respondent's.

has

1358

of

term

"mechanic
Section

be
1977

been

of

the

cover

this

discussed

as

the

of

definition

interpreting

law

case

the

statutory
mention
the
broad
wording
its
face
to

above,

has

broad

reading

given

a

Act.

Moreover,

interpreted

mech-

defini-

to

this
cover

a

further

Respondent
vehicles

the

of

age
the

mining

MSHA

has

operations
for

such

or

Respondent
shop

vicinity
For

diction

is
be

under

the

garding

is

Act

MSHA's

mechanic's
Citations
The

observes

that

the

here.

classification
in

the

ac-

activity

mining

that

where

views

miners

by

jurisdicof

as

a

material

the

in

inspected
MSHA

argues,

the
com-

operations

been

the

the

or

gravel

unknown

are

in

working

not

as

any

site.

and

Similarly,
vicinity

irrelevant

that

themselves

However,

no

dis-

as

even

mechanics

either

by

the

mining

in

avoided

determination

the

from

operators

other

the

offers

contrary,

jurisdiction

MSHA

whether

Act

held

with

in

assessing

the

has

percentused

are

the

To

integrated
of

own

in

However,

argument.

miners

their

to

shop.

small

a

shop

ignored

be

sand
nearby
have
mechanic
that
shops
the
Respondent
reasons,

these

as

mechanic

jurisprudence

practice

the

should

chanics

only

because
the

removed

considered

while

MSHA.

of

also

not

are

pany,
the

the

imposition

minor

is

should

over

governing

the

activity

they

functionally

is

which

necessitates

in

on

minimus

de

a

the

above,

tivity

worked

jurisdiction

support
cussed

that

argues

the

me-

term

of

facts
not

and

art
re-

part

here.

jurisdiction

to

vehicles
mining
assessments
proposed

where

shop,
and

The

following

i.

Docket

penalties
WEST

No.

Citation

are

AFFIRMED.

ASSESSED:

are

92-505-M

Penalty

No.

$903

3922399

Docket

are

occurring
serviced,

violations

cite

WEST

No.

Citation

92-532-M

Penalty

No.

$903
$9o3
$9o3

3922392
3922393
3922395

5o

3922397

$
$

3922398

$

5o

3922401

$

5o

3922396

Docket

Citation

WEST

No.

50

92-576-M

penalty

No.

$1,298

3922407

1359

in
is

the
AFFIRMED.

Docket

WEST

No.

92-602-M

Citation/
Order

No.

Penalty

3922406

$7,500

ORDER

Respondent

days
of

from

SHALL

date

the

$12,610.00

as

PAY

of

for

and

to

the

issuance
the

Secretary
of

civil

this

of

Labor

decision

within
total

the

penalties

herein

40
sum

assessed

Michael
A.
Administrative

Lasher,

Solicitor,

U.S.

Jr.
Law

Judge

Distribution:
Jan

M.

Labor,
2999

Mr.

Coplick,
71

(Certified
John

(Certified

Office

Esq.,

Stevenson

A.

Street,

of

the

Suite

iii0,

San

Mail)
Brown,

4613

Alta

Drive,

Mail)

ek

1360

Las

Vegas,

Department

Francisco,
NV

89103

CA

of
94105-

9 ]993

JUL

HEALTH

AND

SAFETY

MINE

ADMINISTRATION

Docket

(MSHA),

by

Mine

Eagle

employed

GIACOMO,

L.
WYOMING

A

05-02820-03605

Golden

Vl

92-100

WEST

No.
No.

A.C.

Petitioner

DONALD

PROCEEDING

PENALTY

CIVIL

LABOR,

OF

844-5268

(303}

844-5266/FAX

(303)

SECRETARY

80204-3582

CO

DENVER,

COMMISSION

#280

BOULEVARD

SPEER

1244

REVIEW

HEALTH

AND

SAFETY

MINE

FEDERAL

COMPANY,

FUEL

Respondent
MINE

UNITED

OF

WORKERS

AMERICA,

LOCAL

DISTRICT

15,

9856,
Intervenor

DECISION

Floyd,
Department
Petitioner;

Kristi

Appearances:

U.S.
for

William

C.

Raton,

New

Mike

J.

Local

ployee
(the

"Act").
No.

Order

(d)(1)

ivities
continued

of
that

Fuel

3240616

was

the

Act.

15,

of

charges
("WFC"),

Donald
with

Act

The

place
morning

taken
the

Workers

America,

of

Colorado,

Trinidad,

behalf

on

Company
Health

had

into

Labor,

and

Safety

Mine

United
Romero,
District
9856,

(MSHA),

Wyoming

of

Mine

104

of

Secretary
Administration

eral

P.C.,

DAVIDSON,

&

ERWIN

Esq.,

Colorado,

Morris

Judge

Health

Denver,

Intervenor.

for

The

of

Labor,

Respondent;

for

Before:

office

of

Erwin,
Mexico,

Solicitor,

the

Esq.,

issued

on

order
the
hours

30

1977,

of

issued

was

evening
of

1361

14,

May

May

L.

ii,

Safety
Giacomo,

violating
U.S.C.

May
1990.

801

under
a

I0,

em-

an

Fed-

the

S

1990,
as

of

and

Mine

the

result

1990,

et

seci=

Section
act-

of
and

Order

The

states:

Persons

required

were

ment

that

tion,

in

labor

and

010-0

Headgate
by the

shift
The

was

that

to

on

to

sides

of

Also

the

complete
and
safety
to

crew

continuous

operated

would

not

the

function
A

control.

in

NW

05-11-90

to
man

a.m.

raise

while

the

miner

This

practice
being

on

to

operating

machine

and

accidental

that

neither

due

to
at

the

fact

times.

Both

were

present

and

this

method.

all

manager

by

the

placed

was

subject

proceed

both

miner

on

coal.

function

control

condifrom

persons

dangerous

equip-

received

Joy

mining

remote
two

operate

operation

methods[:]

this

by
due

safe

statements

following

operate

in

being

was

to

management

the

while

operated
ous

based

control

head

cab

maintained

management,

remote

miner

by

not

in

the

being
was
dangeropposite
was

error.

had

person

the

shift

had

foreman

instructed

This

is

the

unwarranted

action.

The

regulation

75.1725

5

violated

allegedly

Machinery

and

provides

as

operation

and

equipment;

follows:

maintenance.
Mobile

(a)
shall

be

machinery
from

The

cited
and

conditions.

regulation
equipment
The

is

the

On
the

1990)

that
noid.

Joy
The

operator
mine

foreman

tions

not

6676,

of

operate

with

and

recognized

standard,

the

citing

Quinland

1987),

a

industry

have

of

the
be

with

would

equipped

the

cutter

problem
miner

1362

this

mining

the

standard

the

Joy

in

presented

solenoid

the

the

ap-

whether

as

mining

would
of

and

test

the

standard

evidence
familiar

person

recognized

interpreting

9anon

Coal,

Inc.,

case,

a

1987).

the

purposes
miner
should

in

appropriate

requirement
668
(April

(September

non-functioning
from
operating
to

the

all
requires
operating
Ii
FMSHRC
Company,
safe

a

Cement

the

of
or

Ideal

familiar

person

prudent

the

is

it

in

that

standards,

basis

protective

be

75.1725(a)

worded;

maintained
in

FMSHRC

1617-1618

reasonably

shall

contends

broadly
be

stated

protective
purposes
specific
prohibition
1614,

and

condition

Respondent

to

the

7

equipment

condition

immediately.

Commission

(November
broad-worded
plying
reasonably
prudent

Co.,

unsafe

and

vague.

2409.2416

Coal

machinery
operating

safe
in

matter

unconstitutionally
machinery

in

service

threshold

a

stationary

equipment

or

removed

As

and

maintained

with

have
a

and

with

the

(Tr.
he
a

man

in

sole-

remote

46).
specific

gave

and

recognized

functioning

prevented
heads.

industry

the

control
The

cab

general
instruc"due

to

reasons."
service

safety
in

a

stated

as

issued

bulletin

recognized

also

the

fact

(September

(Ex.

G-8).

The

after

hazard

the

here.

the

of

manufacturer

The

113).

(Tr.

form).

While

it

tinuous

miner

which

possible

be

may

has

plat-

operator's
operate

to

board

on

and

control

remote
the

inside

(i.e.,

controls

both

have

miners

continuous

on-board

MACHINE

THE

WITHIN

FROM

OPERATION

Many

con-

a

inside

from

controls

Joy

the
remote
station,
using
platform
operator's
this
Instead,
recommends
practice.
against
strongly
the
inside
from
to
be
is
machine
if
the
operated
be
should
control
remote
the
platform,
operator's
controls
on-board
and
the
or
continued
de-energized,

the

Of

utilized.

applicable
must

to

view,

Respondent's

Garcia,
jobs

operators.
their

of

loss

mine

claim
is

There

of

deadman

a

when

to

a

Steve

Salazar,
inside

from

cab.

was

fore-

of

the

shift

(Tr.

46,

73,

beginning
the

and

knowledge
miner
general

the

12

Joy

solenoid

WFC's

of

the

at

the

knew

WFC,

malfunctioning

Proof

instructions
Miner

DENIED.

switch.
Mr.

a

operator,

due

unsafe

was

non-functioning
indicated
clearly
explicit
man,
gave
the
to
Joy
operate

the

with

conference

director.

safety

the

is

evidence

ample

miner

continuous

Giacomo,

threatened

were

for

Conactual

the

of

statements

the

settled

vagueness

the

procedure.

safe

a

Wakefield

and

Shannon,
and
they

Mr.

and

foreman

Respondent's

testified

was

credit

I

operator

witnesses

expert
operations

utiwith

the

e.g.,

two

dis-

are

consistent

manner

a

regulations,
government
roof.
a
supported

contends
Respondent
of
on-board/remote

with
the

under

be

in

used

be

controls

on-board

when

course,

must

they

lized

trary
Joy

1991),

manufacturer

follows:

D.

method

miner

Joy
24,

not

103,

113).

bility
of

but
the

the

rather

relevant

The

Act.

(c)

Whenever

datory

health

or

fails

under
decision

issued

porated

in

section
such

I05(c),
corporation

carried

out

subject
imprisonment

be

subsections

to

refuses
Act

a

or

any
under

decision

comply
order
this
issued

Act

provides

violates

a

the

standard

any

incorporated
Act,
except
under

order

an

subsection

as

man-

issued
in

a

final

order

incor-

(a)

of
or
officer,
agent
ordered,
authorized,
shall
refusal
or
such
failure,
and
civil
to
the
same
fines,
penalties,
under
be
a
that
imposed
upon
person
may
and
(d).
(a)

director,
any
who
knowingly
violation,

1363

lia-

ll0(c)

violates

knowingly

or

with

Section

under

operator

corporate
safety

a

of

and

knowledge

WFC's

not

liability

employee's
portion

or

or

this

is

issue

pivotal

the

However,

or

or

follows:

The

Commission

ll0(c)

interpreted

"Knowingly,"
of
meaning

bad

tent.

meaning

where

tion

as

to

acquire

fer

its

it

If

a

92

in

to

to

or

violative

condition,
contrary

of
of

a

and

in

the

statute.

act

manner

a

Richardson,

3

denied,

cert.

(1984);

the

on

Warren

that

the

For

safety

considered
find

hearing

On

On

Garcia

the

a

46,

689

Roy
et

the

to

F.2d

632

Glenn,

6

al.,

14

(6th

FMSHRC

to

the

record

as

to

be

of

gave
from

of

the

a

direct

shift,
order

inside

with

run

shift,

Wakefield
to
be

Jim

Messrs.

directed
to

was

the

the

and

the

raise

malfunctioning
heads

from

cab.

remote

operate
cab,

in

the

to

handle

Sterns
John

miners
the

was

trailing

the

in

12

Joy

Shannon

(face

boss)

Garcia,

Eddie

three-way

a

the

on

remote

cable.

(Tr.

102).
Shannon,

fact

below:

beginning

operated

a

reliable,

Discussion

foreman,

be

the

113).

following

Wakefield

FACT

had

(maintenance)
was

and

the

OF

mine

miner

73,

David

and

cutter

remedial

substantial,
following
findings

in

fact

not

was

the

Shipe

effort.

3.

the

the

the

the
of

1990,
prior
general

Miner

reasons,

and

lower

i0,
the

12

Shannon,

both
to

May

Joy

Wayne

72,

acted

16

of

establishes

findings

Salazar,

2.

58,

of

has

he

evidence

preponderance

a

evidence

(Tr.

control

know

928

Steen

the

that

additional

control.

and

information

of

to

Act.

safety

(1981),
(1983);
Construction,

U.S.

statu-

Coal

employee
to

8,

the
the

1992).

i.

Steve

both

basis

in-

believe

We

of

reason

FMSHRC
461

care

to

or

780.

protect

knowledge

know.

informa-

reasonable

nature

position

a

to

such

with

remedial

in-

contract

question

at

consistent

is
the

has

in

Supp.

FINDINGS

Mr.

Section

any

reason

he

fact

F.

have

in

exercising

person
of
the

fails

Having

the

in

criminal

used

having

him

1583

probative

or

when

know

gives

(July

and

knowing

not
or

purpose
that

to
a

does

Act,

and

v.

and

evil

that

1982),

I

the

person
health

nature

whole,

lead

existence.

knowingly

1125

"knowingly"

term

rather

knowledge

existence

FMSHRC

means
reason

would

in
or

is

interpretation
and
language

this

tory

Secretary

faith

has

person

used

as

Its

law,
A

Cir.

the

follows:

as

remote
the

solenoid.
inside

cutter

control
heads
As
the

1364

a

cab.

operator,
with

result,
(Tr.

was

the

Garcia

46).

unable

remote

to

control
was

25,

to

due

raise

4.

ing
ty

properly

5.

Garcia,

Miner

was

never

mined

to

training

coal
the

machine.

(Tr.

the

continuous

miner

the

cutter

to

Garcia,
protest."

"under
talk

to

shift)

and

the

further

They
Pagnotta

Mr.

had
task

no

placed
raising

was

(except

this

felt

loss

their

of

outthe

did

they

it

permitted
they
producgraveyard
8768-79,
(Tr.
be

the

on

unsafe.

was

jobs,

that

requested
manager).

(safety

had

27).

24,

(superintendent

Giacomo

Mr.

he

miner
operator,
functions

Wakefield

and

with

Joy
Garcia

29).

(Tr.

Shannon,

the

of

heads.

addition,

25,

other

control.

threatened

when

However,

tion

operate

cab

cutter

In

24,

all

remote

by

head)
7.

shift.

this

before

safe-

a

miner

continuous

the

the

of

is

46).

45,

inside

when

operat-

been

deadman

the

(Tr.

mechanic,
the
raising

a

Shannon,

6.

depressed,

forward.

operate

on

side

continue

and

is

not

had
The

weeks.

two

pedal

the

When

tram

function

deadman

the

approximately

for

feature.

will

to

addition,

In

88).
Discussion

Mr.
Order

cited

the

I

tion
has

been

evidence
amount

The
of

committed

established.

In

related

to

this

evidence

Giacomo

Mr.

Golden

agent

in

to

term

the

The

violation
of

the

and
cutter

heads.

action

an

that

violation

a

must
of

the

instant

prove

that

Act.

This

the

only

the

case,

authorized
has

seven

Secretary

must

action.

the

minimal

a

was

agent

an

as

the

for

findings
he

of

not

fact

should
the

have

of

transcript

reads:

1365

establish

known
control

Mr.

cor-

given

operator's

the

imputed
establishes

remote

meaning

above.

necessarily

testimony

the

prove

The

described

been

because

The

manager

the

facts
are
Giacomo's

unsafe

factor
of

Giacomo.

safety

WFC

the

much

case,

Giacomo
inasmuch

that
prove
established

Sec-

of

183).

ll0(c)

a

Mr.

was
was

Specifically,

ll0(c).

defective

he

such

However,

como.

fact,

facet

knowingly
"knowingly"

but

prove

violation
in
the

a

(Tr.

previous

to

Secretary

the

further

This

Finally,
porate

out

was

indicated
Mine.

Eagle

with

charged

personally
carrying

but
operator
corporate
to
Respondent
imputed

the

must

Secretary

that

Act,

1977

the

operator.

the

or

Giacomo

Mr.

operator

of

is

he

in

to

referred

manager

violation.

of

ll0(c)

corporate

safety

ordering,

with

agree

Findinqs

Further

the

Further,

3240616.

authorizing,

knowingly
caused

is

Giacomo

Donald

No.

and

Giacomo's

to
a

the

would

Gia-

Mr.

violation

miner

was

not

testimony

raise

Did

Q.

[to

I

the

northwest

with

the

miner,
I

asked

head

cab

solely

him

way

said,

the

"What
not

was

to

what

the
section

that?"

He

was

instructed

head

back

said

words

out

of

And
the

cab."
that

was

simply

I

then

"The
to

get

the

operate
for

purpose

once

he

said

drive?

function

the

on

mechanic

in

signaled

was

the

the

miner.

the

"Well,

of

some

with

the

run

placed

the

the

by

them

W

are
things
problem,

the
told

were

the

not

to

not

to

And
machine

say,

"Dave,
me.

reason

for

you
work

miners

when

being

told

it

The

operate

this

he

"Well,
inside

understand

to

operate
train--to

from

first

said,
from

to

in."

come

He

Dave?"

should

you

told
being
together

they
operate

to

to

this

acknowledge

to

going?"

problem?"

operate

didn't

everybody

new

W

"How

"We

proceeded
He

said,

problem

said,
they

*

what's

told

were

was."
I

to

"Well,

We

W

was,
cab."

the

said,

I

why

mouth

inside

it.

He

a

to

up

Wakefield],
"What's
said,

I

his

from

that's

David

[to

right."

machine

that

during

190).
*

"All

was.

had

whereas,

the

(Tr.

I

problem

headgate
were
they

working;

lift

operator."

said,

Pagnotta

did.

Well,
at

David

with

section]

I

Yes,

discussion

any

working

A.

men

have

you

the

that

way
know

That

was

the

remote

the

how

main
control

position.
Q.

Did

have

you

A.

As

steps

behind

me.

As

noticed

that

Ed

Shannon

disarray

of

complete
was
ing

talking

was

supposed

I
the

I

said

[to

would

not

sheer

instructed

each

you
other?"

Q.

You

said,

A.

Well,

he

had

they

said,

the

"Well,

what's

the

Wakefield?

Pagnotta

was

noticed

side

few

a

that--he
of

the

what

me

miner,
position-

his

the

and

real

in

problem

The

function

how

to

communicate

down,
signals

but

control.

where

And

in
I

with

the

said,

head

"Well,
with

was."
is

that--

operator

raise

this?

remote

down,"

remote

told

Mr.

192).

someone

"I

first

doing

with

"Sheer

the

I

Garcia],

by

to

Mr.
Dave
Wakefield,
approached
side,
my
was
the
on
opposite

(Tr.

are

down
He

with

be.

John

Why

were

to
he

conversation

what

to

machine?"

instruction

further

any

sheered

was

head

back

up

with

by

it

his

was

the

operator.
Q.

Okay.

Go

ahead.

What

conversation

did

have

then

working.
I
said,
we
"Well,

He

you

with

Garcia?
A.
it

said,

Well,
was

the

"Well,

I

asked

him

raising

back

what's

the

what
of

function
the

problem?"

1366

wasn't

head.

And
He

said,

then

told

"Well,"--I
were

me

instructed

this

operate

to

not

cab."

the

in

sitting

by

not

way,

195).

(Tr.

But

Q.

being

the

by

run

raised

by

Q.

Okay.

the

miner

was

raise

the

cutter

man

head

head

being

was

was

being

was

do.

to

what

cutter

the

only

So

and

machine

The

Giacomo].
the
only

Mr.

to

[according
remote
position
instructed
being

not

it's

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to

work

wouldn't

remote

the

because

correct?

that

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heads;

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and

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'90,

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on

remote

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both

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by

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man.

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Right.

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But

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Q.

you
instructed

did

told

you

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Yes,

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And

cutter

head?

A.

Correct.

I

I

not

it
told

in

Giacomo

Mr.

words

such

[while]

as

being
However,

S 75.1725.
service

terms

"safety,"
inside
there

If
equipment
immediately."

direct

to

operate

couple

and

told

did

control

remote

up

that

he

that

you

cab.

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inside

from

miner

times,

told

Garcia

Mr.

the

205).

(Tr.

me.

like.

was.

that

you

the

raise

wouldn't

remote

the

conversations

the

and

Wakefield,

Shannon,

the

206-207).

(Tr.

in

me

on

a

believe

that

agree

that

also

he

picked

state

that

heads?

cutter

Pagnotta

But

llth

May

on

the

raise

Mr.

Yes.

aware

were

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machine?

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on

201).

to

been

had

cab

the

inside

was

malfunctioning

was

(Tr.

you

he

reason

that

function

not

to

the

Pagnotta,
of
safety.
"safety

his
did

expressed
Further,
they
or
feeling
complaint,"
one

concerns

not

use

"unsafe

cab."

the

are

Garcia,

Messrs.

between
no

no

is

magic
unsafe,

1567

words
it

to

"shall

require
be

action
removed

under
from

Given

circumstances

the

an

unsafe

condition

was

not

responding

to

the

from

operating
operator
of

head

Garcia

and

short,

existed.

two

men

In

to

regulation

his

In

and
Shannon,
Secretary's

remote

control

lights.

miner

with

with
two
of

he

has

admits

the

and

the

Mr.

find

I

herein

here

violation

based

be

there
to
will
nature."

AND

in

result

1981).

In

Commission

injury
Division,
an

Mathies

further

In

order

standard

to

to

establish

is

significant
Secretary
of

I

the

deadman's

a

Coal

6

must

likelihood

that

reasonably

serious

was

no
was

of

a

violation,
contributed
serious

reasonably
3
FMSHRC
Co.,

(January

1

safety
is,
to

by

injury;
the
injury

evidence

a

the

the
and
in

of

a

mandatory

under

National

the

a
(4)
question

822,

825

1984),

underlying
(2}

a

of

measure

violation;
hazard

nature

S&S

an

hazard

FMSHRC

(1)
standard;

prove:

that

Giacomo

and

the

violation
substantial

a

and

hazard--that

likelihood
in
an

result

switch

that

Co.,

that

time.

Mr.

"Significant

as

Gypsum

safety--contributed

There

service,

Joy

SUBSTANTI•r.

likelihood
or
illness
National

mandatory

safety

reasonable
will

a
same

explained:

the

Gypsum
violation
discrete

seen

the

as
designated
of
being
facts
that
surrounding

properly
particular

reasonable

a

9ement

(April
the

is

exists

a

affirmed.

designated

was

the

on

as

attacks
the
extensively
particularly
Garcia,
witnesses
basically
support

Substantial.,,
A

well

Giacomo
these

should

at

from

witnesses,

SIGNIFICANT

"if,

sets

as

never

I

Act.

position.

order

In

different

mining

manually

equipment

and

Wakefield.

petition

The

The
other

remote

brief,
Secretary's

the

the

The

the

remove

post-trial
of

Giacomo,
by

the

credibility

was

each

method

known
head

Garcia

Mr.

so

have

cutting

the

cab.

dangerous

a

Mr.

failing

violated

controls
the

should

knew

regulation.

addition,
being
operated
300).

(Tr.

remote

inside

was

the

In

miner

Giacomo

signaling
the
operating

This
of

Mr.

Mr.

were

were

controls.

violation

the

Giacomo

here,

danger
(3}

a

contributed

to

reasonable

will

be

of

a

nature.

that

Giacomo

Mr.

malfunctioning

on

1368

the

knew
continuous

or

should

miner.

have

known

that

6

F.2d

3-4.

at

FMSHRC

See

also,

(5th

Cir.

Austin
1988),

(approving

Mathies

104-105

99,

1987)

(December
this

In

the

Phelps.
Miner

by

remote

being

in

full

control.

(Tr.

iii,

112).

apparent

there

killed.
is

It

S

danger
reasonably

that

injury

against

G-7,

a

a

continuous

by

Section

in

was

withdrawal

and

Mininq
Emery
Youqhioqheny

FAILURE

mine

operator

examined
in
such

the

a

of

terms

Peabody
In

Coal

Co.,

the

instant

designated
as
having
como

high

section.
miner
In

he

favor

involved

in

of

Giacomo
arrived

Mr.

of

in

Mr.

in

practice.

advised
section.
is

Giacomo

the

of

Shannon

Mr.

Phelps

given

when
of

fact

he

the

that
and

lack

2003;

at

FMSHRC

it

to

was

(Tr.

Order

Emery

properly
the
regarded

Order

had

Salazar

the

the

9

Phelps

Mr.

also

was

positioning

the

the

Salazar's

Mr.

and

intent,"
violation,"
1992).
(August

by

negligence
Act."
referred
"serious

the

of

Inspector

engage

(December
as

"willful

conclude

I

1987),

ordinary

than

failure

1261

FMSHRC

case,

to

advised

when

14

negligence.

not
was

a

unwarrantable.

as

structions

relation

In
and

failure

violation

be

may

104.

2010

2007,

FMSHRC

more

to

unwarrantable
of
meaning
as
"indifference,"
and
"knowing
care,"

reasonable

9

unwarrantable

constituting
in

(December

2004

1997,
Company,

Section

to

pursuant

defined

conduct

"aggravated

814(d),
in
issuing

§

forth

set

as

representatives

FMSHRC

Coal

mission

Com-

the

1987)

9

Ohio

&

failure,
U.S.C.

30

Act,

orders

Corp.,

of

it
is
addition,
in
will
result
an
Finally,
injury.
123serious
or
a
(Tr.
injury.
crushed
miner
a
being
involving
Golden
the
miner
at
Mine).
Eagle

Secretarial

authorized

citations

30

measure

In

unwarrantable

of

or

of

strong

a

Joy
man

injured

violation

underlying

the

neither

in

seriously

violation.

the

Mine

the

of

104(d)

by

made

finding

special

operating

results

be

UNWARR/%NTABLE

The

Roland

witness

of

This

an

fatality
fatality

Ex.

a

2021

2015,

miners

two

could

hazard

the
be

rib

a

as

there

to

could

(See

testimony

Further,

contributed

likely

137).

the

was

861

Secretary,

v.

FMSHRC

criteria).

Someone

75.1725(a).

C.F.R.

the

manual

and

9

hazard
controls.

credit

I

case,

identified

He

Co.

power
aff'a

specific

Gia-

127).

Mr.

arrived

in

the

of

the

condition

he

Order

in-

was

primarily
in

Wakefield

the

section.

However,
as

I

agree

with

unwarrantable.

1369

designation

of

this

order

CIVIL

At

the

amend

the

same

amount

commencement
amount

Section
criteria

in

the

effect

are

not

relevant

ll0(i)
assessing

of

is

However,
facts

were

high

since

such

Act

consideration

mandates

to
the

certain

of

penalties.
size

the

ability

of

business,

the

continue

to

Giacomo

was

negligent
The
gravity

inasmuch

Wakefield

could

Mr.

was

him.

Shannon

and

in

business

cited

for

any

the

as

this

of

relevant

violation

easily

is

have

been

position.
condition

The

Secretary
is
penalty

appropriate.

the

moved

$700,

Pagnotta.

that

violative

For

to

case.

The

a

$900

and

to

hazardous

a

Secretary

from

individual
operator's

this

known

miners

the

penalty

civil

Giacomo

Mr.

hearing,

appropriate

evidence

made

in

placed

an

in

Mr.

the

the

on

the

assessed

against

is
no
violations.

There

previous

the

charged

Giacomo

Mr.
and

of

of

PENALTY

this

reduced

above

abated.

was

penalty

I

reasons,

enter

$700

to

the

and

I

that

concur

following:

ORDER
Order

No.

is

3240616

AFFIRMED

and

a

civil

penalty

is

$700

of

ASSESSED.

•./ITorris
//•ohn
Admin•Mtrative

6//

Judge

Law

Distribution:
Kristi

Floyd,

Labor,

1585

Colorado

Mr.
81082

C.

Office
Mike

Office

of

Office

Building,

(Certified

80294

William
Post

Esq.,
Federal

Erwin,
Drawer

Romero,

(Certified

Esq.,
B,
Local

Solicitor,

the

U.S.

Department

1961

Stout

Street,

DAVIDSON,

P.C.,

243

of

Denver,

Mail)
ERWIN

Raton,

&
NM

President,

87740-0707

UMWA,

Mail)

ek

1370

1804

Cook

Avenue,

(Certified

Mail)

Linden,

Trinidad,

CO

MINE

FEDERAL

SAFETY

AND

OFFICE

OF

ADMINISTRATIVE

LAW
FLOOR

OF

22041

1993
CIVIL

LABOR,

SAFETY

JUDGES

PIKE

CHURCH, VIRGINIA

JUL Z
MINE

COMMISSION

REVIEW

2 SKYLINE, lOth
5203
LEESBURG
FALLS

SECRETARY

HEALTH

PENALTY

PROCEEDING

HEALTH

AND

Docket

(MSHA),

ADMINISTRATION

Petitioner

No.

A.C.

No.

VA

93-3

44-05668-03608-A

v.

No.
DANNY
J

&

COAL

T

Mine

1

BY

EMPLOYED

OWENS,

INCORPORATED,

Respondent
DECISION

Office
of
Esq.,
Labor,
Arlington,

Caryl

L.
Casden,
Department
Petitioner;
Louis
Lee,
Esq.,
Norton,
Virginia,

Appearances:

of

U.S.

Jerold

Before:

of

This
civil

and

Health

is

charged,

McAfee,
for

is

before

Act

of

1977

(the

as

an

agent

of

matter

and
agreed
settlement

to

pay

The

Act).
the

after

twelve

become
that
and,
reduction

respondent's
family.

the

months

respondent's

At

motion
to

employed
must

in

the
current

a

income

of

fact

in

of

mandatory
the

in

penalty

that

wife

6).

1371

The

shall

Owens

which

settlement

In

support

of

that

the

respondent

that
and

is
his

he

this
has

predicated
ability

no

upon
to

support

the

month
the

recently

has

liquid

children.

several

issue
of

$600
each
$50
settlement,

and

a

the

in
terms

pay

of

penalty
and

violations

the

$1,200.

of

salary,
a

with
actions

in
hearing
Big Stone
Gap,
the
counsel
for
hearing,
for
the
of
settlement
approval

the

modest

support
proposed

out"

violations

of

the

operator,

detailed
civil

Safety
Owens,

Danny

mine

are

indicated
at

he

Lee,

assessment

Mine

respondent,

alleged

penalty

provide
approval

for

Federal

carrying

or

thereafter.

counsel

(Tr.

for

a

the

corporate

1993.

total

a

agreement

immediately

&

Lovell

petition

a

of

ll0(c)

called

15,

presented
Owens
stipulated

wherein

for

was

June

on

upon

me

Section

authorizing,
ordering,
"knowingly
in
six
which
resulted
allegedly
violations
These
standards.
safety
for
assessment
petition
Secretary's
is
of
$2,400
proposed.
penalty
This

Bledsoe,
Respondent.

for

Feldman

proceeding
under
penalty

Virginia,
respondent

Solicitor,
Virginia,

the

assets,
the
Thus,

the

his

view

In

of
of

occurrence

in

provided
matter,

I

the

of

support
concluded

in
the

and

issue

the

the

the

fact

in

assessed

settlement

in

was

motion

settlement

of

information

the

penalty

proposed

granted

to

and

civil

reduced

that

interest

public
(Tr.

stipulation

respondent's
violations

the

from

this

the
the

bench.

7).
ORDER

Accordingly,
in
the
violations

for

the

the

sum

fails

Owens

will

abide

to

reopened,

be

is

September

this

made

in

installments.

days

of

the

1993,

be

is
be

decision,
subject

to

pay

paid.

will

matter

first

shall

penalty

the

The

dismissed.
this
full

this

of

date

the

on

Owens

penalty
six

the

30

settlement

will

he

civil

a

pay

be

I,

$1,200

the

to

for

months,

of

and

to

within

due

$1,200,
by this

of

ORDERED

satisfaction

consecutive

$600

total

is
on

twelve

outstanding

IS

full

Payment

$600

of

Beginning

month,
of

issue.

payment

decision.

in

$1,200

of

in

first

Owens

Danny

amount

of

each

until

$50
Upon

payment
If

proceeding
$2,400

penalty.

•dma•

•"

Administrative

Judge

Law

Distribution:

Caryl
of

L.

Casden,

(Certified
Louis

Lee,

(Certified
Danny

(Certified

Office

of

Boulevard,

the

Solicitor,

Room

516,

U.S.

Arlington,

Department
VA

22203

Mail)

Avenue,

Mr.

Esq.,
Wilson

4015

Labor,

P.O.

Esq.,
Box

McAfee,

Bledsoe,

656,

Norton,

P.O.

BOX

Lovell
VA

&

Lee,

1033

24273-0656

Mail)
Owens,

75,

Mail)

vmy

1372

Pennington

Gap,

VA

24277

Virginia

OFFICE

OF

ADMINISTRATIVE

2

SKYLINE,
5203

JUDGES

LAW

lOth

FLOOR

LEESBURG

PIKE,

VIRGINIA

CHURCH,

FALLS

COMMISSION

REVIEW

HEALTH

AND

SAFETY

MINE

FEDERAL

22041

JUL z 2 1993
LABOR,

OF

SECRETARY

CIVIL

:

PROCEEDING

PENALTY

HEALTH

AND

SAFETY

MINE

(MSHA),

ADMINISTRATION

Petitioner

:

Docket

:

A.C.

No.

:

Murdock

No.

91-636

LAKE
11-00586-03654

v.

Mine

COMPANY,

COAL

ZEIGLER

Respondent

of

Statement

On

affirming
§

75.507,

304

significant
(February

decision,

and

on

a

I

of

mandatory

decision

affirming

However,
violation

the

findings

and

June

my

S&S

was

finding

in

(S&S)

respondent

the

Commission

a

violation

C.F.R.

my

issued
section

its
75.507.

that

the

of

matter

the

case

30

violation,
appealed

mydetermination

consistent

this

standard

The
of

remanded

and

decision

substantial

and

vacated

analysis

a

Case

safety

1992).
22,
1993,

Commission

the

issued

1992,

violation

as

FMSHRC

14

12,

February
a

SETTLEMENT

Koutras

Judge

Before:

APPROVING

DECISION

REMAND

to

me

for

further

opinion.

with

its

this

the
case,
settlement

Discussion

Subsequent
a

motion

The

for

my

trial
the

penalty

of

$275

have
as

in

of

proposed

a

states

counsel

parties

affirmed

be

should

of

approval

petitioner's

discussion

remand

the

to

section

a

that
that

agreed

"S&S"

104(a)
with

accordance

my

of

after
the

February

filed

petitioner

matter.

the

further

citation
violation

in

12,

1992,

question
with

a

decision.
Conclusion
After

Commission
and

the

due

Rule

proposed

consideration

31,

29

settlement

the

of
C.F.R.

§

disposition

APPROVED.

1373

motion,
the

2700.31,
of

and
pursuant
motion
IS
this
matter

to

GRANTED,
IS

ORDER

The
of

$275,

to

be

of

this

matter

respondent
for

IS

the
the

ORDERED

violation

made
to
decision
is
dismissed.

petitioner
and

to

pay

a

civil

penalty

which
within

has

been

affirmed.

(30)

and

upon

thirty
receipt

order,

Payment

days

of

Administrative

assessment
of

payment,

Law

the

is
date

this

Judge

Distribution:
Susan

Long,

E.
4015

Rafael

Alvarez,

Labor,
(Certified

230

Thomas

Clark,

Fairview

Office

Esq.,

Wilson

Labor,
(Certified

Blvd.,

of
Rm.

the

Solicitor,

U.S.

400,

Arlington,

VA

Department

of

22203

Mail)
S.

Esq.,

Office

of

Dearborn

St.,

8th

the

Floor,

Solicitor,
Chicago,

U.S.
IL

Department
60604

Mail)
Zeigler

Esq.,

Heights,

IL

62208

Coal

Company,

(Certified

/ml

1374

50

Mail)

Jerome

Lane,

of

SAFETY

MINE

FEDERAL

OFFICE

OF

ADMINISTRATIVE

2

SKYLINE,
5203

OF

SECRETARY
MINE

FLOOR

LEESBURG

PIKE

AND

JUDGES

22041

VIRGINIA

LABOR,

SAFETY

LAW

lOth

CHURCH,

FALLS

CIVIL

:

COMMISSION

REVIEW

HEALTH

AND

PENALTY

PROCEEDINGS

HEALTH

(MSHA),

ADMINISTRATION

Petitioner

:

Docket

:

A.C.

No.

:

Blacksville

No.

WEVA

92-1049

46-01867-03929

v.

No.

1

COAL

COMPANY,
Respondent

CONSOLIDATION

DECISION

Office
of
the
Johnson,
Esq.,
of
Labor,
Department
Arlington,
the
Petitioner;
Daniel
E.
Consolidation
Esq.,
Rogers,
Pittsburgh,
Pennsylvania,
Company,

Solicitor,
Virginia,

Wanda

Appearances:

U.S.

for

Coal
for

the

Respondent.
Judge

Before:

This

is

against
Mine
civil

respondent

Safety

and

were

and

matter

1977,

30

three

(3)

for

to

and

U.S.C.

settlement

the

me

contested

Accordingly,
involving

cases

in

Morgantown,

the
these

West

1993.

15,

Discussion
This

case

citations

(Nos.
Joseph

Inspector
respondent

with

injuries,
The

and

citations

records

issued

by

conducted

investigation

concerning

three
1

and

3718404,

lost

19,

1989,

in

the

of

the

and

30

course

when

prepared
accidents

September

1375

by

MSHA

charging
accident,

the

C.F.R.

50.ii(b)(8).

§

audit

of

an

he

found

that

by

the

respondent

that

21,

non-"S&S"

issued

mandatory

standard

inspector

reports
workday

104(a)

3718405),
12,
May
1992,

on
Migaiolo
violations
alleged
illness
reporting

A.

were

accident

January

3718403,

section

(3)

three

concerns

three

occurred

1989,

mine

of

did

the

contest,

informed
of

other
held

was

of
C.F.R.
and

answer

parties

required.

be

several

Federal

seeking

violations
in
30

timely

a

the

820(a),

§
found

the

to

of

alleged

a

petitioner

the

by
ll0(a)

order,
would

hearing

a

filed

section

filed

with

June

on

Case

requirements

agree

hearing

a

the

to

of

unable
that

parties,

Virginia,

Act

consolidated

was

same

proceeding

to

The

response

citations

penalty
pursuant

reporting
respondent
a
prehearing

(8).

they

that

of

Health

accident

in

Statement

assessments

penalty

mandatory
§ 50.11(b)
and

civil

a

the

Koutras

on

not

include

"a
the

description
future",
In

the

after

further

settle

the

•the

of
as

of

course

taken

In

support

of

by

the

proposed

reference

the

testimony
stipulations,

by

with

parties
further

In

agreed

discovered

in

that

Respondent's
reports
the

to

repetitive
repetitive

been

concerning
I

take

pointed

and

note

of

reportable
respondent

occupational

concerning

item
of

parties,

I

violations
information

The
assessments

to

applicable

injury,

and

$50

$20

for

the

time

the

agreed

to

pay

the

modified

to

the

careful
in

requirements

part

and

citations
initial
in

the
of

required

the
respondent's
circumstances

advanced

the

by

should

be

affirmed

criteria

with
and

penalty
should

be

the

procedures
respondent

issued.

as

in

The

assessments.

of
of

Upon

by
the

compliance

were

and

consideration

support

steps

the

civil
proposed
non-"S&S"
citations

the

citations

of

reasonable.

the
of

here
presented
information

although

of

the

Findinqs
After

the

each

submissions

and

assessment

at

requires

characterization

citation

penalty

effect

submissions

pretrial

as

each

each

have

occurrences.

mitigating

that
that

for

similar

the

submitted
find
the

facts

include

description

a

petitioner's
in
nature",

the

the
to

prevent

plausible

of

due

would

concerning

on

requires
to

agreed
agreed

MSHA

and

failing

for

which

both

and

modified

information

I

parties
they

issued,

section

of

not

was

that

it

50.11(b),

that

"technical

accident
reports,
the
respondent

position

recommendations

(9)

citations,

as

the

only
the
inspector.
accident

by

make

fact

with

petitioner's

injuries,

items

respondent
agree

took

the

(8)

taken

measures.

cited

was

the

to

position

"technical
butwere

ago,

reported

unnecessary

nine

the

by

the

preventive

of

the

of

the

conducted
the
required

he

but

Act,

witnesses,

were

that

out

statutory

the

settlement,

years
audit

the

prepared,

submission

taken
review

several

six

of

violations.

alleged

conditions

of

nature

future

prehearing
the

of

proposed

cited

course

counsel
in
fact

were

the

of

occurred

the

the

to

the

summaries

on

parties

the

submitted

concerning
in
section
ll0(i)
their
respective

and

to

14-16).

settlements,

respect

that

(Tr.

that

me

proposed
arguments

presented

previously

of

support

counsel
violations"

they

proposals

found

jurisdictional

the

informed

they

information

criteria

of

and

in

occurrence

50.11(b)(8).

parties

the

their

included

penalty

summaries

of

similar

a

section

negotiations,

citations,

which

the

hearing

the

support

incorporated

prevent
cited

the

and

disputed
in

to

by

discussions

record

responses
civil

steps
required

Conclusion•
the

of

the

Commission

proposed
Rule

1376

pleadings,
settlement,
31,

29

arguments,
pursuant
§ 2700.31,

and
C.F.R.

and

the
proposed
is
decision

settlement

approved

was

herein

reaffirmed

from

and

bench,

the

my

16).

(Tr.
ORDER

respondent

The

•in
the
satisfaction

amount

made
decision

the

IS

of

to

the

pay

civil

assessments

citation),
($60),
($20
is
to
be
question.
Payment
this
of
thirty
(MSHA)
(30)
days
this
matter
of
receipt
payment,
upon

and

order,

penalty
for

in

each

in
within

violations

petitioner

and

to

ORDERED

sixty-dollars

of

is

dismissed.

Administrative

Law

Judge

Distribution:
Wanda

Johnson,

Labor,

4015

(Certified
Daniel
1800

Office

Esq.,
Wilson

Blvd.,

the

Solicitor,

U.S.

516,

Arlington,

VA

of
Rm.

Department

of

22203

Mail)
E.

Rogers,

Washington

Esq.,
Road,

Consolidation

Coal

Pittsburgh,

PA

Mail)
/ml

1377

15241-1421

Company,

Consol

(Certified

Plaza,

FEDERAL

MINE

SAFETY
OFFICE

AND

HEALTH

ADMINISTRATIVE

OF
2

SKYLINE,
5203

FALLS

REVIEW

FLOOR

LEESBURG

PIKE

CHURCH,

JUDGES

LAW

lOth

COMMISSION

22041

VIRGINIA

°JUL g 71993
SECRETARY

OF

MINE

LABOR,

SAFETY

AND

CIVIL

PENALTY

ADMINISTRATION

(MSHA),

Docket

Petitioner

No.

A.C.

V.

SAND

&

CENT

No.

Plant

LYMAN-RICHEY

PROCEEDING

HEALTH
92-94-M

25-00282-05503

No.

Ii

the

GRAVEL

COMPANY,
Respondent
DECZBZON

Kristi

Appearances:

Floyd,

Esq.,

Office

of

U.S.

Department

of

Labor,

Denver,

for

Petitioner;

Steven

Before:

D.

Johnson,
Omaha,

Svoboda

of

Judge

Barbour

Esq.,

this

In

behalf

of

the

charges

("Lyman-Richey")
promulgated
30

with

under

section

U.S.C.

is

citation

that
in

Part

sets

56
and

of

was

also

the

the

Secretary's

into

mines.

Section

Labor

2652922,
30

U.S.C.

of

one

a

§

violation
miner

lines
clearance
shall
measures

when

high-voltage

safety
56.12071

deenergized
shall

be

or

other

precautionary

taken.

1378

30

the

and

C.F.R.

miners

boom

power

states:

must
be
moved
equipment
or
energized
high-voltage
power
than
(other
and
the
trolley
lines}
is
less
than
i0
the
lines
feet,

issued
The

company's

inspector's

MSHA

near

be

citation

814(a).
of

the

of

When

operated

&

DeLacy

CRS•
of

another

raised
forth

contains

nonmetal

Act,
death

the

injury

severe

Respondent.

Administration

Lyman-Richey's

resulted

citation

metal

THE

No.

the

of

crane

!

Citation

104(a)

rubber-tired

surface

in

asserts

56.12071
and
in
the
§

The

§801
cited

Holland,

for

on
("Secretary")
("MSHA"),
Sand
& Gravel
Company
a
violating
standard
mandatory
safety
to
the
Federal
Mine
and
Health
Act
Safety
et
Act"
or
("Mine
seq.,
The
"Act").

pursuant

1977,
violation

OF

the
proceeding
Secretary
Mine
and
Health
Safety
Respondent,
Lyman-Richey

the

Kennedy,

Nebraska,

BTATEHENT

Solicitor,
Colorado,

of

finding

health

a
l

wires,

standards

that

for

of

the

violation

alleged

contribution

to

The

found
thousand

at

was

mine

a

C.F.R.

Richey

answered

violation

of

that
section

conducted
counsels

in

Omaha,

At

accurately

30

5,

1991,

in

one

injured,

and

serious

positions.
C.F.R.

•

of

roadway

The

crane,
due

engine
the

problem

upper

main

tramming

MSHA

elect

may

formula($
($ i00.4)
surrounding

the

if

the

and

it

that

penalty

appropriate
Accordingly,
individually

the

(a)

may
is

the
of

provision
conditions

can

assessment
some

nature

a

to

of

determine

provisions.
will
categories

an

these

following
to

such

assessment

penalty
regular
provision,

possible

not

under

reviewed
is

assessment

be

located

special

a

effective
assessment

single

the

seriousness

that

using

gain

to
The

regular

determines
warrant

by

violations

the

assessment

an

area

two

part:

single

violation

been

tramming

the

waive

Agency

derived

be
of

The

to

Although

assessment.
formula

stripping

pertinent

the

and

100.3)

generally

the

in

top

tramming

the

pond.

from
contacted
while

states

i00.5

had

HC-98A,
in

plant

crane

the

at
the

attempting
the
engine
compartment.
was
engine
compartment

the
to

section

plant.

Link-Belt

employees

access

main

a

moving

of

frame

leading

a

while

injured

types

to

result
crane

voltage
occurred
from

the

to

area

high

bare
accident

The

disabled

accident

mobile

tired

rubber

a

into

raised

conductors.
inclined
of

stripping

plant

the
The

being
fatally
employee
receiving
employee
the
were
The
injuries

burns.

being

at

hours.

another

boom

the

occurred
1410

at

determine

whether

be
a

special

and

serious

appropriate:

Violations

fatalities

involving

injuries[.]

1379

a

was

hearing,

their

3/7/91,

2652922,

Lyman-

merits
the

of
of

procedures
eight

reflect

the

on

close

the

accident

electrical

March
resulted

to

did

states:

on

of

violation.

not

of
2

alleged

summations

oral
No.

penalty

hearing

A

helpful

citation
An

Nebraska.

Citation

104(a)
The

citation

the

assessment

civil

a

the

for

56.12071.

presented

special

proposed

($8,000)

violation).

"S&S"

(a

his

100.5,

§

dollars

Section

safety

substantial

and

hazard

instituting

Secretary,
30

significant

a

56.12071

directly
tramming.
boom

under

to

compartment.
phases
kilowatt

boom
to

access

of
to

boom

an

energized

become

raised

tramming
the

contacted

crane

three-phase
caused

13.8

the

frame

safety

company
and

Exh.

of

The

procedure

in

was

effect

procedure

to

(policy)

safeguards

that

cranes

had

prior

must

be

over-head

near

taken
power

lines.
G.

the

engine

energized.

been

established
the
accident.
addressed
the
when
operating

while

crane

had

of

which

Awritten

the

the

The

circuit,

crane

of

operator

crane

allow

two

the

the

The

7.

STIPULATIONS

SEQUESTRATION
At

the

commencement

Secretary,
stated

that

of

behalf

on

the
i.

and
its

OF

hearing

the

herself

of

parties

and

agreed

for

in

engaged
in

for

counsel

counsel
follows:

as

is
Lyman-Richey
of
sand
selling
mining
operations

WITNESSRn

the

the

Lyman-Richey,

mining

United
States,
interstate

the

affect

and

commerce;
2.

Lyman-Richey

is

Pit

No.

I.D.

3.

Lyman-Richey

ii,

MSHA

jurisdiction
4.

The

the

is

Mine

this

Citation

No.

2652922

by a duly
Secretary

authorized

5.

the

upon

date

properly

was

agent

an

of

into

establishing

evidence
its
issuance

truthfulness

or

6.

has

served

representative

place

asserted

Judge

matter;

and

admitted

the

to

Law

over

of

Act;

Administrative

jurisdiction

operator

25-00282;

subject

the

of

and

owner

No.

stated
for

of

the

Lyman-Richey
therein
the
but

and

purposes
for

not

relevancy

of

be

offered

by

Secretary

are

on

be

may
of
the

statements

any

therein;
The

exhibits

Lyman-Richey

to
and

the

1380

authentic;

civil

proposed

The

7.

Lyman-Richey's

affect

will

penalty
ability

not

in

continue

to

business;

abating

violation;

alleged

the

is

Lyman-Richey

9.

with

215,416

i0.

The

in

of

MSHA

copy

violations

previous

violations

at

prior

years

date

265292.

Following
of
agreement

the

recitation

of

counsels

the

witnesses

1991;
assessed

history

of
two

the

for

6-7.

Se___ee Tr.

citation,

prior

the

Skinner,

becoming
and
mining
to
relating
jobs

to

assigned
testified

worked
and
company

a

power

electrician
journeyman
in
MSHA
1974,
joining

electricity
MSHA,

has

Skinner

addition,

operation

located

inspected

out

March

5,

Utah,

was

Topeka,

Skinner

stated

river

bottom

by

Lyman-Richey.

an

that

the

dredging.

Tr.

in
work

District.

gravel

3

is
to

20.

1381

The

a

member

sand

he

and

on

city,

at

the

of

the
been

had

gravel
is
gravel

and

sand

produces

mine

be

although

usually

Lake

Salt
in
occurred

had

that

In

investigates

that

office.

was

for

17-19.

Tr.

and

he

After

17-18.

classes
his
In

is
ii)
However,

office

man

a

sand

stated

Tr.

line
as

team

was

he

No.

electrocution
that

he

(Plant

home

and
Skinner

electrical

that

years

Lyman-Richey
Kansas

whose

an

Mountain

Nebraska

Valley,

that

operation

the

that

addition,

MSHA

Rocky

agency's

MSHA's

team.

3

processed

the

notified

investigation

of

the

Skinner,

1991,

Lyman-Richey

result

of

annual

member

years

In

company.

is

a

thirteen

specialized

specialized

at
of

years
took

had

for

stated

experience

chemical

a

the

those

as

retraining.
electricity.

explained

Skinner

three

for
Skinner
has

in

accidents

fatal

had

of

in

he

and

Skinner

for

for
eight
electricity.
1
1/2 years

to

subject

issued
Skinner

worked

had

he

that

had

he

who
witness.

sole

an

rock

hard

15-16.

Tr.

EVIDENCE

inspector

MSHA

the

upon

SKINNER

Secretary's
inspector

the

was

and

were

JAMES

James

stipulations
sequestered.

the

SECRETARY'S

THE

for

the

relevant
mine
this
CiZation
of

the

No.

in

operator

production

certified
reflects
the

size

medium

a

of

tons

to

in

faith

good

demonstrated

Lyman-Richey

8.

as

also

the

MSHA

of

part

teams

MSHA

fatalities,
overhead

Skinner
in
the

Topeka

testified
company

office.

Walter

L.

Jr.,

the
Dryden,
safety

95.

that

he

of

Eldon

at

the

in

accident."

site,

from

the

office.

Tr.

diesel

involved

powered.
and

crane

addition

to

went

facts

the

accidentwas

"large

mobile

The

on

Skinner

was

that

Tr.

25,

sets

G.

Exh.

i.

rough

draft

of

the

report

was

then
the

crane

for

manager
Tr.

24-25.

crane,

was

as

as

the

result

Skinner
the

of

cause

"direct
crane

The
about

accident.

Tr.

27.

the

ground

above

carried

factors
and

was

satisfied

Skinner
of

included
ground

did

the

lines

that

a

he

and

Tr.

27-28,

29.

not

by
distance

make
a

a

"shadow
of

direct
cast

28

feet

1382

a

that

and

was

Ramage

the

district
issued.

based

had
he

the

upon
had

gathered

of

reached

regarding

believed

the

boom

the

overhead
volts

of

According
with
the

measured

Skinner

measurement,
factor."
accurate.

the

stated

that

99.

Id___•.

frame

the

distance
to

but

or

crane.

lines

Tr.

power

Skinner,

to

contact
around
the

the
lines.

of

power

13,800

found

was

accident

25.

area

4

MSHA

MSHA

it

he

Skinner

scene

lines

power."

prepared

the

and

39.
26-27,
the
victims'

power

the

Ramage

was

that

the

had

before

contact

in

24.

the

some

the

and

high-voltage
approximately
Tr.

accident
the

ground.

4

height

the
to

the

damp

the

he

report

stated

get
of

from

conclusions

physical

of

singly.

At

the

the

phases

volts

crane

that

Tr.

He

together

7,900
the

about

be

to
two

contributing
of

asked

Tr.
to

investigation.

help
supervisor

that

interviewed

he

of

copy

of
In

officials.

the

the

front
Id.

rear.

supplier

District

was

the

electricity

some

that

large
and

at

"to

a

of

investigation.

the

the

site.

the
a

that

a

explained

with
by his
Mountain

was

cause"

with
lines

identified

findings

at

tied

company

as

and

the

of

from

hundred

the

at

officials

the

explained
and
photographs

interviews

notes,

E.
Benke,
synopsis

several

with

supplying

company
company
substation

Skinner
report

also

the

with

spoke

proceeded

rubber
located

was

well

as

shown

Rocky

He

6,

from

"a

still

located
Smith
stated

was

forth

reviewed

obtain

they

Id.

report

Ramage
Stanley

crane

engine

house

power
power
their

interviewed

and

pertinent

in
23.

the

and

located

a

tramming

boom

Then,
was

March

22-23.

Tr.

the
viewing
Lyman-Richey,

of

also

as

22.

inspector

and

12
and

on

MSHA

to

to

cranes

mine

the

order

which

The

the

to

employees

Tr.

it

at

superintendent,

accident

crane

arrived

mine

i0

involved

an
Ramage,
Skinner
mine,

assistant,

the

described
boom".

approximately
accidents

Tr.

the

The

mine

prior

of

Skinner
extended
the

investigated

to

office
feet

Once

mine

the

He

lines.

power

1991,

that
these

of

none

rather

be

from
28

feet

when

the

determined

Nonetheless,

he

and

down

boom

was

feet

between

Appendix
to
purporting
Using
Appendix
believed

I

Johnson

standing

the

Johnson,
Harold
accident.

McGhee,

the

miner

Tr.

31;

G.

Jirovsky,

told
times

several

Skinner
without

whether
filter.

required

to

the

of

cause

the

sits
to

to

directly

the

lines.

were

four

and

5

.

"there

I
were

whole

Id.

water."

precipitation
the

accident

used

to

the

crane

carried

dire,
around
.

.

scale

Frank

engine

extinguish
Tr.

engine.

trying

to

it

these
was

crane.

stated

that

rather

the

fire

that

72.

1383

the

the

and
the

two

line,

34-35,

se__ee

depicted

areas

he

to

symbolize

.

.

.

there
and
know
when

pronounced
had

been

observation

his

on

that

"[T]he

amplified,

more

of

there

neutral

wet

not

high
two

poles

Skinner

resulted

with

be
for

the

meant

some

did

miners

the

Tr.

whether
he

from
not

was

touched

accident

the

of

contacted

boom

44.

just
certain

addition,

accessible

and

were

Tr.

In

was

on
strung
a
grounded

The

of

malfunction

toward

rose

the

not

it

it

was

were

a

boom
the
compartment,
boom]
it,
"[the
put
75.
Tr.
Jirovsky
would
be
enough
high
to
the
engine

engine
Skinner

were

occurrence

48.

the

line

but

were

to

not
problem
looking

continue

area."

the

Skinner
Tr.

to

the

the

Jirvosky

to

above

to

and

.

the

between

attempt
ignited.

in

operator,

provide

the

boom

Skinner
to

drawn

However,
scene.

was

crane,

restart

and

power.

closest

voir

spots
damp

wet

(The

the
crossed
lines
One

lines

was

area

to

Next

filter

compartment."
where
point
access
to
gain

122.

all.

three

not

a

102,

that

in

were

to

McGhee

34.

Under

Appendix

about

shocked

due

to

As

engine

activated

carrying

power

McGhee

crane's

the

lines

other

and

crane

have

raised.

be

33,

Tr.

to

should

inspecting

boom

Tr.

lines

the

would

and

power

the

cab)

crane

tried

fuel

the

of

However,

the

Jirovsky

As

voltage

The

standing

were

access

the

compartment.

severely

I.

to

hand

the

be

stalled

The

part

to

Johnson

allow

32-33.

over

raise

to

Tr.

by

had

crane

began

had

stall

order

In
of

Johnson

crane

any
filter.
miners
the

filter,

the

that

move

the

to

access

had

he

the

McGhee

and

Johnson

where

App.

of

tramming
crane.

faced

the

area

stalled.
side
of

right

•he

that

had

crane

the

of

he

how

success.

believed

Skinner
determine
fuel
the

was

the

5

scene.

stripping
be
fatally
preparing

operator's

would

i,

that

would

back

who

Exh.

who

Johnson

as

Skinner

by

explained

lower

i0
29.

Tr.

accident
described

the

on

than

more

the

why

crane

and

power

lines.

drawn

of

Johnson,

ground

right

Johnson's

on

was

Skinner

out

the

front

the

between

way

on

opposite

side

there

sketch

a

N.

find

to

the

view
Skinner

Earl

is

that

(the

half

accident,

the

is

reference,

stalled

had

and

occurred.
had
from
trammed
miner
the
and

being

was

traveling

crane

report

a

as

was

overhead

an

accident

was

crane

the

the

of

depict

which

mine,
in
injured
"troubleshoot,"

crane

of

top
I

the

crane,
the

the

the

if

water

the

rubber

of
had
tires

been
of

G.

Exh.

I,

of

the

boom.

App.

I.)

Contact

Tr.

Skinner

testified

lines,

a

lines

had

phase-to-phase
fuses
providing

As

the

the

and

the

for

one

of

39.

In
from
was

cab

of

made

to

"911"

power,

Skinner
direct

victims
and

it

to

check

As
No.
result

of

crane

had
and

the

energized

believed

standard

the

high-voltage
deenergized
Here,

the

less
lines.

than

i0

been

vicinity

of

moved

violation

section
that

or

distance

less,

the

precautions
between

feet.

Indeed,

it

was

issued
was

zero

as

apparent

.

cited

using

equipment

be

the

and

the

when

the

any

line

the

voltage
with
position

Skinner

had
taken.

a

that

high

.

between

to

Citation

citation

because

equipment

policies

104-106.

56.12071

lines

had

the

power

contact

when

the

lines

written

20-21.

the

and

the

the

.

into
Tr.

of

malfunctioning

Tr.

because

he

actually
lines."
voltage

feet

of

as

the

were

energized,

Skinner
issued
"it

and

required
if
lines,

the

lines

power

fuse

done.

that
the

was

off

factors

clear

investigation,
in

the

Lyman-Richey's

have

was

other

to

he
around

equipment
be

Tr.

48-49.

lines

power
boom

was

touched

the

52.

According

to

of

6

information

though

stated

i0

was
or

volts

throughout

was

distance
Tr.

•"

650

boom

power
lines

the

the

the

should

shut

of

whether
even

call

a

company

Contributing
the

a

jumped

power

touching

remain

high
for

had
Jirovsky
immediately,

65.

to

boom

the

part

burned,

the

crane,

operated

Lyman-Richey
and

of

the

the
a

was

representatives

Tr.

investigation

been

and

boom's
accident.

Skinner

the

lines

aid

the

of

6

Because

for

McGhee

Almost

lines

this

result

a

54.

power

that

2652922.

conductors

the

lifted,

37.

operation,
seeking

crane

it

as

failed.

fuse
Tr.

and

company

area

functioned

in

became

recalled,

Tr.

late.

the

the

30-41.

Skinner

the

of

was

indicated

McGhee

two
of

other

the

electrocuted

emergency

of

in

causing
it

of

as

described

one

before

frame

Power

cause

being

failure

metal
and

too

was

fuses

the

Tr.

for

the

remained

crane.

well.

as

but

end

protection.

lines

feet.

the

of

one

was

meantime,

the

the

contacted

the

his

on

the

the
Each

power

Johnson

especially

from

contacted

the

Johnson

current.

feet

resulted.
short-circuit

with

them

through

Tr.

the

boom

the
power.
However,
line
remained
energized.

open

ground.
of

the

short-circuit

lines,

not

flowed

2

lost

the

current

about

the

and

circuit

when

that

touched
line

boom

should
did
It

made

was

77.

Skinner
the
and

Skinner,

current

course

Skinner

MSHA

as

stated
of

a

that
the
could

regarded

"high-voltage

Lyman-Richey

investigation.
not

think

power

personnel
Tr.

of

Id.

1384

anything

line"

were

98.
he

were
They
requested

carrying
and

"very

over

thus

cooperative"

forthcoming
that

the

was

with
denied.

contacted

lines

"moved

being
being

in

within

of

feet

i0

58.12071

taken.

Skinner

had

been

the

relationship

precautionary
as
opinion

to

called

measure?"
the

difficult

judge
opinion,

to

his

in

not,

measure.

Tr.

ii0-iii.

the

of

safety

types

that

the

power

should

have

been

and

distance
been

have

Skinner

observed

that

perspective

observer's
verticle

his

asked

could

company
should

company

power

acceptable

an

was

the

procedures

He

observe
would

indicated

He

was

measures

to

"spotter")

(a

it

have

person

a

wires

the

not

would

using

overhead,

were

would

and

if

to

boom

50.

Tr.

where

precautionary

other

"precautionary

a

wires
it

undertaken?

been

power
asked

was

line

was

crane

point

a

is

that

raised.
to

boom

provided

the

of

constituted
have
the
when
power
made
have
would
this
therefore

deenergized

in

have

lines.

the

66.

Tr.

stated

Skinner
Walter

Dryden,

Dryden

said

accident

prior
requested

to

S&S,

the

the

Skinner
accident

asked
Skinner

With

regard
had

believed
noted

that

power

lines

electrical
also

that

disabled

prior
Tr.

moving

to

56,

the

arrived

on

Skinner

understood
116-117.

the

victims

for

operating

manual

the

that
Skinner
the

of
a

crane

as
no

also

accident
under

his

finding

Tr.

52-53.

violation
the
Skinner

the

unless
58-60.

the

that
been

energized

1385

or

he

level.
who

Dryden,

of

to

about

not

trained

in

power

lines.

occur,

present.

were

did

possibly

and

upper

was

he

owner

became

personnel

supervisory

overhead

However,

crane

the

exception
accident

he

all

management

had

to

or

he

and

Specifically,

Tr.

lower

the
the

moving

for

that

have

to

the

that

lines,

that.

for

upon

due

was

stated

power

to

56.12071

based

was

troubleshooting

the

stated
had

and

truck

procedures

after

With

just

scene

the

immediately

that

section

of

otherwise.
should

from

crane

him

Dryden's

instructed

undergoing

was

recalled,
before

accident

the

energized

company
situation

114-115.

64-65,

Tr.

it

while

and

credit

safety

the

crew

violation

the

considered

evaluating

personnel

another

103.

deserved

the

Skinner

to

responded
injury.

indicated

utility
believed

telling

come

that
finding
negligence,"
written
safety
around
high-voltage

the
company
be
shall

as

when

his

to

equipment
Lyman-Richey

operating

found

serious

"moderate
established

Lyman-Richey's

Dryden

101-102,

why he
essentially
the

on

superintendent,

the

and

check
returned
had

Johnson
Tr.

and

to

gone
had
just
remembered

wrench.

fatality

company

he

that

with

spoken

investigation

the
had

he

and

a

When

during

had

he

that

that

occurred.

be

a

section

violated

have

raising
high-voltage

the

being

was

the

that

stated

also

Skinner

boom

the

that

category.

that

equipment

to

believed

Skinner

and

operated"

or

"operated"

within

definitely
applies

were

specifically

standard

The

49.

Tr.

boom

the

by

know

whether

procedures

proper
Tr.

132.

LYMP•-RZCHEYI8
•I%MEB

Holmes,
after

who

retired

accident,

the

Lyman-Richey.

He

dispatcher.
superintendent

He

retired.

As

concrete

plantS

similar

in

dredged,

pumped,

aggregate

was

Exh.

effect

at

noted

the

66.

the

preventive
employee

signed
it

a

Holmes

plant

and

the

at

crew

several

connected
with
the

with

intermittent

observance

case

and

monitoring

well.

Tr.

of

Holmes
stated

also
that

procedures

comply
Exh.

a

to

be

manuals

were

received
the
tasks

and

and

the

(Holmes

those

of

of

many

of

Exh.

2.

According
conducting

the

members

were

the

of

events

Compliance

described

the

Dryden,

operator;

R.

possibly,

manual

a

149.

who

Holmes

persons

Dryden,

"task

The
all

training,,

particular
job
to
going
perform

were

a

The
"lead

as

to

Holmes,

such

in

observance

deceased

"receipt"
Lyman-Richey

victim

as

regulations

Tr.

a

set

forth

2.

1386

solemnly
Manual

in

manual."

we

that

state
.

.

Tr.

I
.

plant

or
manager
"whenever
don't
want

stated

because

Safety

reviewed

the

plant

Holmes

the

the
and

by

the

meeting,

hereby

"I

lead

were

153-154.

Corporation
as

the

mine.

the

undertaken
task
met

usually

always

states:

at
was

meetings

person,"

superintendent.
there's
task,

the
with

especially
Tr.

--

to

R.

in

job,

Frye,

187,

146,

were

crane

150-151,
what

monitoring.

described
before
a

or

•ssistant

understand

Tr.

the

required.

superintendent

7

were

and

were

who

is

Richard
witnesses

by

accident,

the

Tr.

Tr.

the

the

178.

individuals

R.

who

enforced

was

receipts

and

accident.

the

manual

the

there

and

such

Jirovsky,

of

of

138-141.

particular
effect.

was

7)

identified

pit

her

or

that

were

accident
all,

manual.

otherwise.
of
the

nine

pits

Tr.

are

he

for

gravel

lines

to

which

not

power
says
all

statement
Id.

the

if

He

manual
for
his

Schmitz

and

Lyman-Richey
employee
to
pertaining

a

Rex

sand

Much,
plants.

148.

that

plant
from

the

Tr.

the

"receipt."

of

where

accident.
someone

superintendent;

victims,

the

a

pit

manual

all

and

the'gravel

the

testified

of
part
maintenance

of

company
safety
65-69
of
pages
that

when

driver

responsibility

the
where

ii,

month

one

with

foreman,
position

All

concrete

unless

that

and

called

the

of

Holmes

numbered
and
read

He

the

provided

manual

at

the

that

energized

1

the

to

time

pits.

and

identified
the

had

places
shipped.

were

noted

the

No.

screened

He

considered
Exh.

all

truck

a

plant

Holmes

Plant

shipped

i.

as

to

gravel

at

that

Holmes
R.

director,

pit

occurred,

career

than

involvement

of

director,

ten

less

company

history

promoted

safety

and

the

to

his

was

safety

HOLMRR

the

long

a

began

then
and

WENDELL

from
had

WZTNESSES

and

152,

have
that

read

and
I

will

any
different

.

that
moving
Id.
"task."
of
movement
that
stated
of
movement

the

afternoon

Holmes

did

not

know

he

would

the

crane

when

beside
with

the

of

responsible

procedures
Exh.

set

by

The
hand

person

and

spotter

signals.

job

the

assigned

been
have
could
been
have
would
if
know
did
not
to
went
Johnson

However,

Holmes

checking

for

Jirovsky

Tr.

had

they

where

boom

not

know

if

to

if

Holmes

the

spotter

as

Id.

crane.

have

to

was

someone

operated

was

other

the

so,
180.

place

policy

else

someone

If

of

had

Johnson

that

Tr.

and
the

the

was
sure

the

or

would

Holmes

was

they

were

going

in

lines

the

worked

had

employees
high-voltage

that

sure

to

to

order

repair

the

dredge

the

pit

for

at

he

that,

know

under

under

told

had

Johnson

Jirovsky

go

were

involved

and
a

long

187.

against

operating
crane

the

that

they

184-185,

assumed,

time

Only

aware

those

of

of

Johnson's
filter

Nonetheless,

operator's
Holmes
the
on

did
boom.

addition,
signs
compartment

In

195,

Tr.

181-182.

were

place
all

time.

operator

orally
accident,

the

not

fuel
normal

the

that

the

because

the

because

clearance

manual.

spotter

was

took

the

on

Holmes

crane

lines

power
reach

work

Tr.

182.

Tr.
the

day
and

else

someone

every

raise

to

stated.
around

pit

the

at

These

believed
He
as
spotter.
the
job as well.
assigned
by Johnson.
assigned

agreed

addition,

In

a

walked
crane

communicated

the

On

person
Holmes

158.

clearance

moved.

was

crane

the

safety

company

operator

lead

Tr.

also

when

crane

the

155-156.

been

person
also

the

both

as

Johnson.

deceased,

in

Tr.

acted

who

forth

such

Id.

employed
A spotter
including

procedures

safety

in
been

happened."

have

He

had

had

there

the
when

175.

breakdown

a

if

and
crane

Tr.

a
was

that

the

66.

at

1

was

on

lines.
under
power
observed
clearances,
In
lines.
addition,
power
line
clearance.
for
watch
power

to
were

R.

this

the

to

not,

conversation

moved
and

cane

respect

was

there

stated
wouldn't

He

described

was

crane

a

such

whether

know

"Maybe
also

he

because

Jirovsky

lines.

power

"assume[d]

Id.

Holmes

the
but

had
lines

Dryden,
working

to

the

of

not
he

communications."

conversation,

prior

occurred

did

it

if
power

between

vicinity

that

in

accident,

the

a

was

196.

have

but

agreed

He

accident

training

task

"a

as

Id__•.

before

conversation

the
he

that

stated
occurred

under

that

should
in

deceased
stalled
it

if

"task"

a

the

surprised"
high-voltage

"very

be

174,

agreed

of

occurred

had

crane

Tr.

He

normal

your

on

the

"dynamite."

than

crane

the

described
routine."

He

154.

Tr.

ups."
slip
assignment

.

.

the
but

involved

usually
and

on

crane

did

not
in

the

know

of

outside

the
within

I0

for

accident.

1387

the

the

of

feet

that

sure,
Tr.

inside

both

posted

were

162.

crane

the
to

crane

warning

line.
power
such
signs

were

Holmes
received.
outside

described
The

companies
safety

included

training

such

for

the

R.

Exh.

addition
incentive
the

Holmes

had

maintenance

training

program,

further
miner

safety

its
to

if

a

her

monthly

($20)
Tr.

the

of

one

was

188-192.

know

subject

testified

that

had

been

Larry

S.

Richey

and

crane,

Campbell

noted

that
Tr.

around

through

the

According
where
plant
equipment
from

the

employ

to

the

areas

located

high

they

least

30

would
feet

employees
located

at
and

In

committee

in
and

be.
above
the

addition,
at

the

is

an

159.

was

found

resigned

two

shortly

prior

years

three

to

the

violations
at

at

twenty

previous

violations

dollars

to

to

the

volts

stepped
Tr.

down
204.

highest.
buried

in

of

was

the

where

where
hot."

on

the

1388

it

run

he

by

located

company
because

chose
it

how

wanted

Lyman-Richey
he

to

lines

power

determining

Id.

and

the
away

them
to
All
hired
newly
lines
were
power

the

power

usable

are

the
of

209.

are

accident

that

205.

charge
that

Tr.

shown

Campbell

Tr.

deciding
stated

"they

make
lines

a

present
lines

power
the

run

202.

its

The
lines

safer.

ground.
were

to
The

is

was

to

the
dredge,
on
the
The
property.
Lyman-Richey
operation.
come
into
the
preparation

than

of

that

had

electricity

Lyman-

trained
Tr.

has

Jirovsky

for

first

was

facilities

also

when

1975,

superintendent

The

charge

plant

around

plant

1956.

were

he

Cia•PBELL

superintendent.

rather
lines

the

time

he

the

a

Tr.

the

since

Campbell

advised

miner

any

assessed

Jirovsky

facility.
where
activity

was

be

with

denied.

for

that

13,800

overhead

Campbell

in

of

a

devoted

lines

would

had

installations.

chargeable
was

Lyman-Richey
Ii

Campbell,
voltage

overhead
the

believed

that
No.

the
at

its

($85).

general

exclusively

are

Lyman-Richey

dollars

S.

property
provide
the
preparation

and

pumps,
lines

cranes.

eighty-five
none

when

the

stated
Plant

at

of
of

192.

1978,
was

Campbell
facilities

records

motorized

at

were

at

testified
Campbell
was
Campbell

hired,

of

assessed

violations

assessed

injuries.

first

kept

159.

•Y

was

training

certificate

whether
because

accident

Tr.

these

He

involved

of

the

and

company

found
bonus

was

not

occurred.

Two
and

assistance

Jirovsky's

cash

did

he

Holmes
Finally,
Lyman-Richey

accident
the
pit.

The

and

that
with

it

163.

operation

to

program,
his
or

chargeable

equipment,

identified

operators

crane

the

large

Holmes

program

stated

after

Tr.

company
with

3.

In

accident,

operated

training.
and

training

cash
Under

that
conducted

was

who

Tr.

164,

training

training

testified

safety
the

be

at

because,
206.

that

Jirovsky
engine

the

stated

one-half

and

(R.
site

and

its

In

Benke

As

had

Skinner,
the
penalty

at

because

of

MSHA

offered
accident.

Benke

were

Tr.

217.

was

asked

regarding

opinion

as

a

boom
arc

from

that

going
had

Johnson

the

by

boil

the
down

actually
Jirovsky

what

an

had

Benke
fact

that

Johnson

and

Benke
the

so

believe
not
be
would

accident

the

device

on

replied

fact

that

crane

was

who

was

in
218.

Tr.

while

Johnson

an

that
there

breakdown
accident."

the

had

he

He

[Johnson],

that

the

the

witnessed

had

looking
an
noticed
Jirovsky
that
thought
Jirovsky

electrical

amount
that

investigation,
the

216.

Tr.
an

Lyman-Richey

who

at

stated

accident

did

program.
indicated
mentioned
also

between

caused
was

after

including

that

his
accident?
is
to

upon
of

[Jirovsky],

touched

company

they

employees

to

the

was

immediately
a
report

the

safety

communication

He

Benke

conference.

with

the

five

about

company
the

that

222.

and

to

crane

accident

never

based

to

up.

that

the

company

cause

for

representatives,

Skinner

in
is

the

the

conference

if,

spotter,

believed
was

MSHA

impressed
counseling

seems

communications
Benke

it,

Tr.

breakdown

serious

acting

stated

connected

the

really

it

"what

7

assessed.

be
would
officials
immediate

the

accident,

the

closing

March

that

however,

agreed,

that

a

remembered
him
told
violations
for

severe"

"real
He

conferences
the

including

accident,

with

prepared
company
the
at
obtained
Benke
215.
Tr.
involved.
those
with
MSHA
concerning

the

with
in

participated

also

time
Benke

of

information

on

discussions

in

been

of

investigation
addition,

own

based

7)

the

At

director.

director

safety

as

had

he

that

years.

safety

assistant
initiated
occurred.
it
Exh.

Holmes

succeeded

who

JR.

BENKE,

E.

STi•'LEY

Lyman-Richey,

simply

Jirovsky

210-211.

Tr.

Benke,

the

Id.
victims

the

that

so

that

and

crane

Jirovsky

wires."
believed
Campbell
into
could
get
wires
the
forgot

into

charged.

were

boom

the

the

to

chargeable

was

of

boom

employees

compartment

there.

were

the

other
raised

No

Tro

accident

the

concluded
raised

had
"Frank

committee

the

electric
that

itself.

been
have
should
Jirovsky
from
hand
for
a
signal
have
and
waiting
Johnson
watching
boom.
the
raise
to
it
was
that
alright
Johnson
indicating
boom
the
realize
did
not
that
Jirovsky
Benke
221.
Tr.
speculated
he
that
and
vision
his
of
the
to
wires
dues
the
angle
under
was
believed
He
with
Johnson.
without
communicating
the
boom
raised
out
find
to
with
trying
been
have
two
the
preoccupied
that
may
Benke
it,
As
221-222.
put
Tr.
with
the
crane.
was
what
wrong
no
was
there
that
in
"somewhere
something
happened

Benke

was

of

the

opinion

that

been

.

1389

.

.

communication."
been

Tr.

looking
replied,

Benke

lifting

to

the

feet

stated

the

of
of

that

Benke

they

were

the

time

the

occurred,

where

accident.

Once

acting
Benke

as
same

reason

not

He

observed
another
site

As

Benke

did
(Benke
discussion
mentioned
fuel
filter.

had

the

boom.

was

doing

at

while

Walter
Plant
No.

twenty-one
Tr.

it,
it

as

Johnson

and

the

years

of

experience

"We
about

usually

returned
before

that

to

cab

past

L.

going

are

to

entered

8

between

go
into."

When

absolutely

and

had

get

the

crane

not

years.
total

and

sure;
Tr.

imperfect

memory.

224.

each
He

whether
when
Benke

get

he

regarding
I

talked

a

wrench
to

has

the

Meanwhile,
had
to
begun
what
Dryden

and

certain

been

the
He

with

superintendent

stated

the

that

he

and

talk

of

course,

then

that

employees

if

that

usually

verified

there

trauma

preceded
how

over

had

been

any

boom

Benke

replied,

he

may

had

company.

that

the
raising
to
[Jirovsky],

1390

and

check

training

knew

speculated

the

discussion

together
job
and,
also

Id___=.

For

DRYDEN
he

safety

been
because

a

crane.

was

had

the

going

of

the

229.

following

he

that

232.

Johnson

to
the

Tr.

to

or

moved

who

Jirovsky

the

twelve
in

doing

Tr.

asked

Jirovsky

himself."

the

accident

capacity,
moved.
being

were

the

from

work

225.

testified
the

Dryden

truck

that
Tr.

the

and

McGhee

about

wasbeing

evaluate

spotter.

about)

returned

time.

described

to

instruction

any

crane

longer

no

and

been

in

Dryden's
he

for

job.

of

However,

shortly
down
Johnson,

Johnson

was

to

ii

Dryden

i0

because
materials

the

231-232.

particular

is

to

was

stated

Dryden

the

within

applied

time

the

broken

WALTER

of

be

Id.

inside

also

the

223-224.

crane

Jonson
into

Benke

and

shouldn't
so."

crane.

had

functioning

that

climbed

boom

everyone

the

until

site

had

the

that

instructed

this

there

Tr.

replaced

Dryden
Then,

lift

had
down

job

crane

described
know
what
Johnson
went

Jirovsky

that

that

ceased

one

he

lift

never

and

have

could
the

decals

were

moving

believe

not

to

there

had malfunctioned

the

no

in

do

broken

did

spotter,
explained,

as

Jirovsky

of
danger
operating
He
emphasized
that

should

Dryden
to

had

to
gone
at
that
the
crane

if

220.

that

crane

training.
had

Tr.

sure

that
the

operator
spotter

a

expected

Benke

Dryden
situation

crane

a

was

job

area

power

vision

knew
about
lines.

he

asked

was

to
signal
stop
raising
but
too,
actually
so
instructed
to
do

a

possible
being

warning

crane

boom
without
the
boom.

raising

Benke

for

high-voltage

obstructed
with
the

task

Johnson

"That's
boom
without

Benke
cab

s

222.

was

have

not
caused

a

we

safety
are

communication
"I'm

really

Jirovsky's

not
sure

this
in
and
regard
in
equipment
operating
annually
the
crane.
for
of
certificate
training
identified
Jirovsky's
the
of
consists
the
training
to
Dryden,
233-234.
According
Tr.
and
materials
safety
and
literature
training
reading
employee
of
and
involved
of
equipment
the
piece
for
particular
procedures
or
has
she
suggestions
or
if
he
any
the
employee
asking
Dryden
information
the
that
given
stated
235.
Tr.
Dryden
questions.
safe
the
of
operation
discussion
a
included
have
would
Jirovsky
also
236.
Tr.
lines.
Jirovsky
around
energized
power
cranes
of
from
an
of
crane
a
in
the
operation
training
had
on-the-job
237-238.
Tr.
crane
operator.
experienced
already

trained

Dryden

operation

safe
stated

spotter
operated

ahead

the

rule

it

being
things,
is

other

In

240.

Tr.

policy.
discussion
be

were

Tr.

with

did

according
the

truck

lines.

equipment

to

work

on,

239.

In

addition

Tr.

in

crew

moves

Jirovsky

was

work

the

connection

in
in

Jirovsky
moved

be

and
to

moved.
site.

was

other

that

(It

volunteered

to

9

Dryden

then

was

located.

was

After

surveying

the

scene,

Dryden

saw

the

crane

past

the

moved.

been

He

approximately
facing
truck

Dryden's
thought

something
to
a
get

needed

9

moved

high-voltage

30

away

Dryden

and

power

the

told

him

the

be

wrong

from

estimated
lines

feet

20

that

during
under
in

the
the

the

1391

yards

300

and
stopped
parked

fuel

previous
particular

that

and

Dryden

responded

the

years

portion
Tr.

Johnson

filter

four

252.

he

his
to

walked
that

stalled,
box.

the

where

Johnson

tool

accident.

his

in

and

crane

the

with

Dryden's

to
had

246.

had

crane

times

involved

returned

Tr.

crane.

might
wrench

approximately

40

to

from

that

spotter

as

left

245.)

Tr.

then

that

to

approximately

located

some

arrived

it
act

The

repair

to

going

once

crane

243.

Tr.

was

crane

244.

Tr.

he

the

they

procedure."
the
moving

employee.
the
plant

of

crew

Johnson

Dryden,

.

discussed

part

the

position

to

where

.

.

other

one

another

to

explained
to

the

morning,

the

procedures
certain

was

normal

a

day.

that

safety
he

had

he
done

be

to

the

just
Dryden

"that's

because

accident

jobs
discussing
the
jobs,

about
recall
with

crew

crane

truck,

the

of

aware

the

among
lines.

power

well

the

of

the

drove

for,

past

crane

where

had

watch

we

to

where

vicinity

the
to

morning

the

on

specifically

crane

for

crane

been

that

determine

to

and,

from

opinion,

not

to

area

while

the
the

Dryden's

Dryden

pumps.

being
power

responsibility

a

when

victims,

was

crane

lines."

power
of

clearance

undertaken
discussed
Later
242.
the

near

or

of

feet

i0

have

we

man"

crane

a

within

"if

added,

He

is

when

and

"point

a

the

lines.

power

trammed,

crane

members
other
have
moved

stated
with

Dryden
he

being

of

251.

Tr.

While

the

is

operation

no

he

vicinity

in
the

of

anywhere

spotter,

crane

crane

is

words,"

do

the

cranes
a

goes

other

"In
don't

to

of
when

that

regarding

policy

Lyman-Richey's

about

asked

was

of

the

crane

he

had

he

would
filter

fuel

call

finished

his

about

boom

At

involved
in

was

filters

most

understood
Dryden
access
gain
to

Dryden
the

and

Tr.

255.
on

When

he

caution

he

was

going
stated,

equipment

and

Dryden

could

described
could

not

what
do

to

see

he

help

two

was

Richard
Frye

was

Frye

described
the

of

safety

was

believed

a

McGhee

but

and

explained

a

Frye

stated

crew

that
The

crane.

260.

yelling

he

job

the

same

The
have

route

dredge,
rise,

travel
the

driven
lines
that

he

same

power

the

had

member

of

he

received

had

Tr.

the
the
that

i0

15

Jirovsky

had

Dryden
he

power
foot

the

accident

dredge
have

previously
Tr.

1392

be

above
backed

he

to

be

it

could

the
267.

moving

the

a

266.
would

crane

from

rather
air

Frye
crane

to

take,

edge

up

into

the

Tr.

the

part

was

moved

away

Tr.
268.

safety

the

moved

rise

rise.

the

times.

it

he

updates

dredge.

as

ran

and

with

route

and

that

the

Because

rise

felt

read

the

crew.

welder

a

company

the

one

worked

accident

training;

of

reach

should
would
not

as

He

had

has

He
the

maintenance

the

lines.

crane

in
to

and

nothing

of

the

would

to

up

equipment

ii.

time

of

only

lines

boom

participated

crane
was

power

traveled

crane

off

the

6

he

morning

there
traveled
to

and

parts

the
5

a

so

lines

No.

the

and

that

that

had
under

knew

crew

forward
as

Plant
At

that

up
because

and

at

in

and

a

FRYR

ongoing,
periodically,

passed

to

L.

was

knew

as

wires.

was

years.

the

act

filter.

the

there

the

to

Johnson.

see

that

Johnson

raise

257.

crew.

on

turned.
in

was

of

site
it

route

boom
could

dispatcher

lifting

fuel
with

familiar

part

crew

different

the

filter
249.

after

needed

prevalent"

that

to

fuel
Tr.

someone

"very

was

is

248.

raised

a

Jirovsky

training

262-263.

be

minutes

Tr.

he

Tr.

welder

said,
Tr.

see

262-263.
that

undated

was

Tr.

a

three

on

The

crane.

training

that
that
the
that

assumed
He

obtain

not

"was

Jirovsky

maintenance

the

manual

as

the

to

forth."

twelve

he

yelling.

working

Johnson

a

for

working

member

of

is

Frye

Lyman-Richey

could

that

RICHARD

for

Dryden

models.
have
to

not

Dryden
only

down

stated

crane.

older

did

He
be

Johnson.

that

and
the

he

Johnson

saw

to

Dryden

Jirovsky

250.

heard
from
the

indicate

the

if

was

so

after

window

the

249.

see

to

replacement

a

and

left
248.

would

Tr.

get
cool

he

of
on

to

was

model

part

to
heard
this
Tr.

jumped

already
Dryden

located
the
boom

that

Dryden

motors

are

him.

if

spotter

an

front

to
did

Nor

older

was

he

try

Tr.

the

called

estimated

boom.

raised.

filter.

thing

talked

be

that
the

then

next

Dryden
had

to

and

weather
Johnson
did
Johnson

with
time

no

going

filter

radio
The

discussion

was

crane

fuel
where

truck

Johnson.

inches.

6

the
the

the

on

for

of

the
the

than
under

the

believed
under

the

and

Frye
Johnson,

crane

backed

that

to

level

the

crane

up

ground
Frye

testified

He

needed.
heard
he

Harold

approximately
job

a

that

explained
working
As

the

moved

crane

concentrating
its
on

Tr.

275.

ground

and

way.
the

lines."
the

that

he

Tr.

276.

explained

Tr.

281.

McGhee

was

both

hands

engine
when

from

the

Tr.

crane.

on

Johnson

if

he

and

other

McGhee
stated

had

and

hand

"what's

filter

off[?]"
(McGhee

the

stated

help.
Johnson.

Jirovsky

that

Johnson
and

forearm

left

the

crane's

the

engine

for

The

electric

heard

277.

was

what

on

was

he

backward

slid

he
and
described

also

change

approach
any
with

hand

his

things

to

He

starting
Tr.

subsided

it

then

not

in

be

stalled,
made

that

that
he

would
with

testified

his

area.
was

crane

recalled

McGhee

he

power

needed
worked

he

after

about
was

usually

he

279.

277.

he

did
filter.

working

McGhee

and

the

the

thought

McGhee

incline
decision

crew

work

was

concern

a

noon

that

thinking

that

filter.

this

taking
hit

a

right

crane.

he

and

we're

current

the

on

start

his

the

¢,f

that

one

stated

that

even

However,
testified

Tr.

Johnson.
watching
with
wrench
a
holding
the
was
McGhee
thought

was

to

that

"wasn't

Johnson's

on

crane

another

obstacles

of

one

was

around

any

bin

a

McGhee

272-273.
he

McGhee

for

top

Tr.

for

laborer.

a

operate

to

concluded

the

move

as

assigned

was

testified

McGhee

he
that

was

Lyman-Richey

for

started

had

incl]Lne,

there

happened

that

since.
accident

work

out

the

Therefore,
materials

some

worked

was

the

of

why.

Johnson

was

h•

held

he

At

he

that

to

McGhee
started
assist
to

until

crane

had

the

He

filter.

fuel

he

oking

know

not

that

has

that

275.

Tr.

did

McGhee

McGHEE

ago,

up
io,

on

more

next.

get

thing

L.

made

do

level

on

was

have

to

explained

Frye
it

to

truck

HAROLD

The

wa&

stopped.

going
to
going

area

The

crane.

269-270.

and

dredge.

it

dredge

the
the

because

ne)•t

Tr.

morning

decision

a

the

years
years
he
that
the

the

at

which

seven

or

complex,

that

18

six

About

welding

stated

McGhee

to

were

the

yell.

Jirovsky

from

next

were

they

to

went

away

•ere

others

what

about
and

left

backed
walked

stopped

had

and

and

discussions

crane

spotter,
ground

acting

as

thought
Jirovsky

he

the

watched,

As

happened

what

away
to

Id.)

Johnson.

testified

McGhee

had
he
starting
while
•nd that
of
hand
signal

airlifted

to

treatment

for

Jirovsky

no

he

any

the
the

stated

warning

that

with

was

kind

he

Jirovsky.

that

underwent
Tr.

•RANK

J.

he

had

1393

never

Tr.

he

where

injuries.

burn

boom

the

Johnson
to

hospital

the

for

except

that

of

the

going

to

sound
was

Johnson

saw

about

three

280.

JIROVSK¥

been

an

employee

raised

give
McGhee

283.

278,

engine
be

of

a

was

weeks

of

for
Lyman-Richey
repairing,

seventeen

worked

He

cranes.

first
main

crane

Tr.

288-289.

was

second

or

of

year

operator

and

He

described

apprenticeship,,
operation

and
of

Durlng

years.

and
maintaining
initially
assigned

cranes

to

as

it

already

as

he

to

it."

ran

all

of

the

carried

Tr.

i0

Jirovsky
(R.

Exh.

i)

receipt

he

Tr.
In

manual
the

specific

and

transit

of

to

be

involved
identified
Id___•.

done

to

how

the

passed

manual

also

identified

had

been
Tr.

to

within

cranes

the

to

area

had

to

Jirovsky,
when

plant

arid

292,
the

not

R.

Exh.

he

usually
the

day

of

how

the

moving

start

the

power

were

the

as

an

•ts

very

was

a

bigger
was

had

Tr.

obvious

the

Tr.

the

power

--

after

including

job.

the
cran,•
to
the
297.
He
believed
that
he
had
tral•med
the
area
the
previous
day.
Id__•. The
crane
was
taken
area
it
by driving
forward
that
is
with
the
ahead
of
the
crane
toward
the
This
dredge.
was
have
clearance
under
the
lines.
power
Therefore,
also
backed
out
with
the
boom
toward
pointing
this
Again,
was
done
to
ensure
clearance

had

crew

finished

equipment,

Tr.

295.

hazard.

how

been

same

jobs
obvious

an

safety.

accident,

work

different
under
passed

they
brought

there

include

a

travel

if

2.

barring

of

there

lines

power

be

a

manual

feet

i0

that

him

given

regarding

would

dredge,
crew
began

the

under

crew

of

presence

new

to

the

•that

the

and

described
the

crane

according

safety

it.

]read

for

recall,
capabilities,,

290.

He

reference

discussions

the

at

a

at

the

Jirovsky
working
and

had

stated

Dryden

hazard

crane,
route

and

Jirovsky

among

lunch

should

Tr.

their

watching

"height
equipment

out
how

me

and

had
the

Lyman-Richey
it.
receiving
that
he
indicating

signed

lines

the

watch

taught

could

lines.

power

noted

He

been

of

that

that

to

to

he

been

the

recalled

addition,

had

feet

the

plar•t

him

Jirovsky

as

288.

signaling

•power
had

I

Tr.

291.

discussion
that

the

lines.

"when

of

long

as

stating

identified
and
had

of
possession
he
Moreover,
the
operation

lines.

at

signs

began
by
required
that

"an
the

as

regarding

power

aware

For

received

of

that

his
then

the

operator°
had

he

because

crane]

289.

equipment

stick-on
within

operated

the

of

by

training

vi¢•inity

during

cranes

he

included

including

trained

was

backup

a

When
he
started
with
working
c•ranes
main
crane
an
operator,
assignment
for
lines.
power
Jirovsky
explained
to
run
the
I
was
crane,

relationship

operate

training

the

had

he

equipment,

He

served

period

operating

employment.

stated
in
the

the

296.

power

lines
lines

dredge

area.

to

crane

and,
he

the

into

the

boom

the
The

dredge
dredge

pointing

done

in

the

order
crane

to
was

--

Tr.

the

the

dredge

297-298.
As

acted

alongside,

as

the

crane

spotter.

guiding

began

to

Tr.

299.

Jirovsky

from
away
Johnson
was
as
he
backe,•

move

1394

the

under

walking
away

dredge.
lines

area

Johnson

directly
from

had

the

dredge

Jirovsky

area.

the
was

of

Johnsol•

and

moved.

crane

watching
equipment

in

were

The

distanc'e.

from

a

and

Johnson

contact

the

When

backing
up
ceased
motor
operation.
the
t•amming
ground,
the
at
lines
were
the
that
stated
power
300.
Tr.
Jirovsky
traveled
had
the
crane
"quite
and
that
level
the
of
ground
302.
Tr.
Therefore,
level
reached
it
ground.
after
ways"
lines.
of
the
clear
was
the
boo•
power
that
thought
Jirovsky

then

to

resume

According
asked
it
might

what

checked

plenty
that

it

might

tool

to

take

fuel

plugged

be

thought•that

boom
that

check
would

to
we

going
the

[the

boom]

believed

Tr.

308.

Tr.

302.

engine
to
or

he

in

the

same

at

the

•far

was

lines

the

at

lines."

raise

I

figured

was

going

to

that

but
them.

distance."

in
started

boom's

the

fifteen

perhaps
recall

raising

to

what
time

of

from

lines
did
not

He•

the

out

there

away
he

into

Id.

were

power

prior

to

period

that

tl•.me

304.

Tr.

Earl

misjudgment

the

elapsed.

time

and

get

figure

to

the

short

"a

going
because

enough

the

contacted

boom

to

raised

lines

"a

from

crane

was

in

the

the
order

"I

in

be

(In

be

•ower

knew

he

might

into

there

point

some

that

to

looi•

Jirovsky,

estimated

back
boom.

comigartment,
to

at

crane

said

While

the

boom

a

spark

fly

saw

stated

he

that

he

Tr.

305.

whether
boom.

the

McGhee,
worked

sensitivity

realized

It
and

was

Dryden,

wrench

the

off

something

that
the

difficult

for

to

about

with

him

in

questioning

testify
for

in

crane

several
the

what

years.
witnesses

to

to

Counsels

are

1395

th.e

Jirovsky,

especially

witneese•,

occurre•

regarding

Johnson.

Jirovsky
holding.
and
terribly
wrong
Johnson.
to
help
try

gone

the
had

at

was

Johnson

had
order

of

all

looked

Jirovsky

raised,

being

was

•0umpedfrom

10

and

the

seconds
looked
had

to

truck

was

thought
a
get

308.

Tr.

He

that

the

twenty
not

stated

until

h•d
s;ta•ted:

with

contact

was,"

He

boom

the

in

that
"It

operated

•hhe

and

off,

came

there
and

problem

the

cl•imbed

he

have
and
it;

with

Jirovsky
he

.

probably

wrong
filter

take

.

.

and

Jirovsky
the
engine

301.)

Tr.

fuel

that

filter

Dryden's

to

that

engine's

the

fuel

the

Id.

but

know

Jirovsky

told

a

Johnson

not

off

took

%•ent

he

stopped
did

edge

off.

Jirovsky
Meanwhile,
itself,
engine
tramming
that
the
started
engine
the
compartment
engine
distance."

he

n•Dticed

so

filter

the

engine

said
He

level.•
Johnson

Then

the

then

Johnson

the

fuel.

of

Jirowsky

and

wrong
fuel.

the

be

%•en

Jirovsky,

the
was

and

was

and
crane

level

reached

cap

Frye

piece

another
forward

it

drive

equipment.

as

that

approached
stop,

the

c•[ear

also

crane

Jirovsky

ha•

visual
believed

and

Jirovsky

299-7300.

Tr.

oral

All

Johnson.

commended

specifics

of

the

had

known

for

their

accident.

Jirovsky
conversation

stated
with

Johnson

the

boom;

raising

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signal

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speak

or

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Lyman-RicheY
56.12071.

within
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26-27,

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mining

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ASSESSMENT

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regards

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SPECIAL

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"High-voltage,,

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"High
volt•,geDepartme•nt
ol
e,t
(1968)
543.

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defined

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Interior,

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likelihood

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and

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lines
with

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other

to
Johnson
section
56.12071
the
death
and
Miners
do
work

within

operated

unacceptable

an

proximate

happened

violation,

power

equipment

the
the

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and

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What
accident

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conclude

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analyzed.

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prevent

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Given

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well.

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hazard

violation

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injury,

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lines

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to

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NEGLIGENCE

Skinner

degree
Exh.

G.

found

7.

Lyman-Richey
given

and

to

for

the

its

employees

lines.

power

58-60,
management

have

disabled.

evaluated
Tr.

from

64-65.

should

arrival
Dryden's
the
attempted
"[E]ven
though

and

.

in

.

there,

mind

.

feel

I

had

of

he

the

to

have

company."

Tr.

the

presence

of

repair

work

was

with

undertaken

was

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tramming

to

[T]he
where
reason

Tr.

central

point
engine

tramming
everything
for

back
was

to

someone

into

monitor

safety
tramming

the

pinpointed
safety

engine

operation;
.

check

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and

per

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Skinner

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stated,

make
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been
in
charge

engine.

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to

respect

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117.

supervisor

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114-116.

there

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the
Tr.

prepared

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fault

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exhibited

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Nonetheless,

action

any

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credited

work

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somebody

from

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concerning

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assessed

before

repair

determination,
procedure

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have

exhibited
violation

safety
132.
114,
personnel
situation

the

management

procedures

written

Tr.

Lyman-Richey's
should

Lyman-Richey
the
allowing
this
finding

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in
negligence
In
reaching

of

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the

se.

119.

for

Counsel
assessment

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1398

argued
management

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Skinner's
personnel

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had

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On

314-316.

Tr.

that
trained
accident

the

part

to

which

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to

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Dryden

for

320-321.

Tr.

are

heir

and

and

that

him

to

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did
him

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to

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was

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of

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change

in
think
and
I
evaluation
an
intervene.

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for

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to

correct
be

filter;
there

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that

that

in

his

needn't
fuel

say

him

by

he

[was]

need

not

234.

Tr.

in
extensive
guidance
held
that
it
has
other
long
Among
negligence
attributable
to
is
miner
not
rank-and-file
of
a
Ohio
Coal
Southern
civil
for
penalty
purposes
while
I
FMSHRC
1463-1464
Therefore,
1982).
(August
into
the
raised
boom
he
the
that
of
statement
Jirovsky

Commission

The

evaluating
the
negligence
the
operator
4

Company,

accept

the

wires

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of

obviously

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to

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afforded

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so
negligent

distance"

doing

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I

by

look

beyond

Lyman-Richey

itself.

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Commission

the

The

that

fact

violation

a

non-supervisory
shield
such
the

from

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operator's
disciplining

violations
Stone,

5

by
necessarily

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the

FMSHRC

the

as

standard

13,

15

1399

a

deemed
case,

look

foreseeability
risks
the
involved,
and
training
supervising,
to
its
prevent
employees

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type

considerations
miner's
conduct,

the

Smith

does

this

In

committed

was

employee
operator

an

negligent.

guidance.

provided

has

in

(January

issue.

1983)

that

his

attribute

not

omission

or

conclude

and

Rather,

302.

Tr.

commission

of

acts

judges
things,

of

a

Lyman-Richey.

to

care

Jirovsky,

A.H.

was

reasonable

and
and

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.

.

boom

access

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description

.

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.

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.

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done

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fuel

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perfectly

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[Johnson's]
to

know

situation.

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made

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that

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319.
a

only

did

and

amount
Tr.

care.

argued

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of
training,

on

no

happened

need

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based
what
was

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raised

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area

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understanding,

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judgement

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were
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regarding
represented

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291-292.

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lines,

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jobs
during

the

training"

response

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its
It

the

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the

away
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acted

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Johnson

commendable,

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left

foreman

1400

the
Tr.

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miners
be

back

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dredge

196.

174,

crane

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had

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in

made

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Holmes

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provided
required.

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of

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to

testimony

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power
describe

accurately

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to

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risks

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length

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finding

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moved

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244-245.

training

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discussion

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a

Tr.

the

with

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at

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to

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with

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referred

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at

that

policy

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they

conclude

policy

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this

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mine,
I

spotter.

faulted

agree

the

at

lines.

to

had

hazards

testimony)

295.

operating

power
hazards

cab

Lyman-Richey

from

company

additional

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to

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policy

(a

implemented
Tr.
jobs."

in

left

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jobs

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290.

feet

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220,

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to

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employees,

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of

268,
spotter.

297-288.

enough,
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Dryden

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all

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work

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in

area

located.

safety

vicinity
required

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replaced.
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arrived
should

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accident

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prevent
have

gauging
danger

miners

parties

stipulated
history

for

two

the

years

introduced

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and

assessed
section

during
parties

size

operator,
would
($8,000)
in

faith

in

In

business

abating

a

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found

have

Construction,

(February

13

acknowledged
preformed
any

Dryden
where

certified

the

is

the

1991.

7,
reveals

The
three

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copy,
violations

violations

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of

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reflects

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stipulated
proposed

of

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•SSESSMENT

civil

penalty

for

instructive
Law

if
a

(July

Judge

James

dollars

violation

that
of

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the

dangers
has
line.

1401

Warren

1992).

In

Broderick

($8,000)
like

inherent
to

be

one

13

FMSHRC

appealed

Tr.

239

in
worked

the
on,

Steen
that

case

assessed
a
violation
for
a
had
at
issue

the

company

section

of

of

miner.

a

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equipment

violation

case

1125

thousand

power

the

the

FMSHRC

recognized
near

of

copy

accurately
to
March
prior
into
evidence,
this
period.

Broderick).

that

CRITERIA

PENALTY

a

1991)(ALJ

He

of

find

I

negligent.

PENALTY

electrocution

the

standard

Therefore

CIVIL

56.12071,
in

resulted

standard.

where

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very

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or

previous
is
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that
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of
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ability
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good

14

Inc.,

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that

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Commission
Administrative
civil
of
eight
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of

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assessing

56.12071,

meet

This

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The

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CIVIL

violations
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negligence
to

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lines
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to
the
Johnson
repairing
tramming
engine,
and
as
no
one
was
on-hand
to
ensure
he
spotter,
229.13
To
as
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Lyman-Richey
does,
argue,

Tr.
to

the

stall

act

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crane's

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fault
to

However,

the

to

not
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256
and

the

work

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situation.
the

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Commission

affirmed

(August

comparison

A

establishes

of

assessment.

14

In

judge
operation
negligence.

that

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and

the

company

within
unlike

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of

the

the

case,

victim

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1125

that
I

violation

is

violations

no

and

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of

aware

with

lines.
evidence

power

prevent
the

other

directed
the
personally
a
of
high
degree
and
Dryden
Lyman-Richey,
knowingly
placed
equipment

to

rapid

factors

which

Also

that
the

hazards
did

company

achieve

the

of

thousand
this

dollars

matter

conclude

a

that

three

concurred

offered

to

here
in

Therefore,

Commission

company
be

case

and

involved.

not

demonstrate

compliance

having

after

thousand

lower

dollars

found

assessment,
is

assessment

appropriate

an

Commission

the

($8,000)

it

company

violation.

the

eight

present

culpability

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to

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of

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absence

The

with

1133.

and
purposefully
energized
high-voltage

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unlike
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suggest

at

employees

train

not

who

acted

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its

Moreover,
faith
good

the

individual

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present

disciplined

the

in
Steen

company,

14

the

Warren

Steen,

and

with

Steen

differences

criteria.

been

Warren

substantial

penalty

did

judge's

the

1992).

strongly

warranted.

penalty

for

the

($3,000).

ORDER
Based

i.
2.

date

this

of

dollars
of

the

on

Citation

No.

($3,000)

shall,
pay

for

this

ORDERED:

is

AFFIRMED.

to

within

thirty

the

Secretary

violation

the

matter

is

2659299

Lyman-Richey
decision,

payment,

it

foregoing

is

found

(30)
three

herein

days

of

the

thousand
and

receipt

upon

DISMISSED.

David

F.

Barbour

Administrative

Law

Judge

Distribution:
Kristi

Floyd,

U.S.

Department
Denver,

Street,
Steven

D.

1306

Regency

Esq.,

Office

of

of

Labor,

Room

CO

80294

Solicitor,

the

Federal

1585,

(Certified

Johnson,
Esq.,
Kennedy,
Parkway
Drive,
Omaha,

/epy

1402

Building,

1961

Mail)
Holland,
NE

68114

& Svoboda,
DeLacy
(Certified
Mail)

Stout

OFFICE

LAW

ADMINISTRATIVE

OF

lOth

FLOOR

LEESBURG

PIKE

SKYLINE,

2

5203

JUDGES

22041

VIRGINIA

CHURCH,

FALLS

COMMISSION

REVIEW

HEALTH

AND

SAFETY

MINE

FEDERAL

J UL 2 71993

HEALTH

AND

SAFETY

MINE

Docket

(MSHA),

ADMINISTRATION

PROCEEDINGS

PENALTY

CIVIL

LABOR,

OF

SECRETARY

Petitioner

A.C.

INCORPORATED,

A.C.

92-1073

KENT

No.

15-13920-03788

No.

v.

Docket
COAL

COSTAIN

92-1110

KENT

No.

15-13920-03789

No.

Respondent
Docket

Docket

15-13920-03793

15-13920-03798

No.

Pyro

#9

Docket

15-13920-03799
Wheatcroft

Docket

15-14492-03626
92-1049

KENT

No.

R

15-14492-3616

No.

A.C.

93-260

KENT

No.
No.

A.C.

93-261

KENT

No.

Docket
A.C.

93-206

KENT

No.
No.

A.C.

93-25

KENT

No.
No.

A.C.

Mine

Baker

DECISIONS
the
of
Office
Solicitor,
Esq.,
Taylor,
the
Petitioner;
for
of
Labor,
U.S.
Department
and
Henderson,
Kentucky,
B.
Carl
Esq.,
Boyd,
Coal
Costain
Inc.,
R.
Davis,
Esq.,
Eberley
the
for
Respondent.
Kentucky,
Sturgis,

Appearances:

Mary

Before:

Judge

Sue

Koutras
Statement

These

filed

penalties
to

section

1977,

proceedings

30

twenty-two
standards

Regulations.

concern

petitioner

the

by

the

Federal

820(a),
alleged

violations

in

75,

of

ll0(a)
(22)
found
The

Part

respondent

Proceedinqs
for

Mine
civil

Safety
penalty

Title
filed

1403

the

of

certain

30,

Code

timely

respondent
and

Health
assessments

mandatory
of
answers

civil

of

assessment

proposals
against

seeking

§

U.S.C.

the

of

pursuant
Act

for

safety

Federal
and

of

contests,

in
and
informed

to

response

disputed

prehearing
parties

a

that

me

the

citations,

but

circumstances,
these
involving
Evansville,

the

order,
proposed
unable

were

cases

counsel

most

of

the

others.

resolve

with

hearings

and

June

on

to

settle

consolidated

were

parties,

same

Indiana,

petitioner's

the
to

were

the

Under

other
held

cases

in

1993.

8,

Discussion
In

the

respondent
civil
proposed

disputed

citations

the

me

that

to

settle

No.

counsel

and

and

arguments

made

3858304.

trailing

asserted

that

the

evidence

that

the

facts

Under

the

circumstances,

and

citation

citation,

cable

should

be

the

respondent

Nos.

3857517

and

in

had

led

run

over.

modified

to

the

believe

that

petitioner's

the

cable

was

inspector's

the

concluded

104(a)
the

pay

5-11;

The

support

section
to

agreed

after

counsel

a

(Tr.

to

that
not

proposed

record

him

reflects

respect
informed

the

issued

was

would

of

the

on

the

parties
they

support

which
been

of

that

me

With

negotiations,

citation

tracks

(16)

the

heard

and

The

equipment

finding.

the

citations,

car

damaged,

"S&S"

the

discussions

informed
the
initial

of

sixteen
violations.

for
of

disputed

were

observed

shuttle

not

(6)

further

Citation

amount

assessments

settlements

inspector

full

settlement

six

parties

the

the

pay

violations,

the

proposed
137-140).

to

in

after

hearings,

the

agreed
penalty

remaining

to

a

of

course

the

that

non-"S&S"

reduced

penalty

assessment.

Citation
No.

evidence

supports

finding

was

less

to

Citation

moderate
Under
the
settlement

inspector.
the

reduced

warranted,

and

penalties

in

the

agreement

inspector
findings

failed
with

petitioner's

penalty

3552688,
that
to

respect
counsel

the
take
to
stated

the

agreed

to

3552693,
dust
any
Citation
that

No.
the

1404

potential

inspector.

With

stated

counsel

that

negligence,
originally
by
of

parties

believed

were

reasonable

the

that
and

modified

the

question.
The

3553249.

evidence

samples

any

the

in
and

available

gravity

to

pay

violations

the

Citation

to

available

inspector's

assessments

respondent

Nos.

in

the

finding

circumstances,
of

respect

that

exposed

negligence

settlement

Citation
were

reflects

the

With

believed
by
petitioner's
low
a
degree

3857734,

evidence

than

rather

No.

the

miners

of

originally

than

available

stated
of

number

the

regard

3857734.

counsel
modification

a

because

hazard
the

and

petitioner's

3857517,

parties

reflects
to

support

3553688,
citation

and

will

that
his
the
be

the

gravity

modified

to

reflect
stated

a

that

exposure

originally

gravity

the
associated
believed

by
will

finding
exposed

miners
of
Citation
available
than

reflects

and

inspector,
The
parties
citations

agreed

the

that

a

addition

support

of

information
in

found

to

support
approving
entire

Docket

the

made

by the
accordingly.

amounts

these

for

respondent

the

settlement

presented

arguments
settlements,
the

Act.

of

pleadings,

the

proposed

the

the

of

C.F.R.

§

civil
After

I

conclude

which

have
and

initial

pursuant
bench
further

Upon
find

and

my

and

rendered

settlements.
been

approved

bench

decisions

that

the

in

record
also

presented
criteria

review
and
in
submissions
Commission
to
decisions
review
of
the

settlement
reasonable

are

and

assessments,

the

penalty
careful

and

settlements,
I
2700.31,

proposed

on

parties

the

arguments,

are

herein

the

settlement

in

and

the

reaffirmed.
amounts

follows:

KENT

No.

92-1073

30

C.F.R.

Section

3857393

7/27/92

75.304

3857397

7/28/92

75.517

No.

KENT

No.

No.

Assessment

$362
$235

Settlement

$362
$235

92-1110

30

385739o

that

Conclusions

and

Date

Citation

in

of

the

Citation

Docket

respect

modified

warranted,

number
to

negligence

and

penalties

the

rather

penalty

statutory

record,

as

degree
originally

six

dispositions
interest,
public
The
citations,
are

asserted

the

29

31,

counsel

proposed
concerning
section
ll0(i)

consideration
Rule

the

the

of

inspector's

be

than

reflect
With

reduced

and

Findinqs
In

less

the

that

question.

in

violations

was

and

hazard.

will

citation
the

that

hazard

3552693,

of

finding

that
believed
reasonable
were
modified
the
pay

to

low

the

accurately

potential
petitioner's

negligence

moderate

the

to

the

to

evidence

reflects
No.

modified

further

counsel

inspector,

the

be

3553249,

No.

Petitioner's

violation.
evidence
available
Citation
with

non-"S&S"

C.F.R.

Date

Section

Assessment

7/23/92

75.202

$987

1405

Settlement

$987

Docket

No.

KENT

93-25

30

Citation

No.

3553192
3552416

pocket

No.

C.F.R.

Date

Section

7/6192
7/29/92

75.400

$2,301

$2,301

75.402

$506

$506

No.

Date

3859297

Docket

10/8/92

No.

KENT

No.

3552688
3552693
3552694
3859298

3857489
3553249

pocket

No.

KENT

75.

516-2

No.

3857517
3859147
3857734

Docket

No.

KENT

3858304
3858307
3858308
3546628
3858168

3546381
3546389

No.

(b)

Settlement

$5O

$5O

C.F.R.

Date

Section

10/6/92
10/8/92
10/8/92
10/8/92
10/26/92
11/23/92

75.316

$235

$5O

75.400

$506
$506

$362

75.402
75.316
75.316
75.400

Assessment

$288
$235
$690

Settlement

$506
$288
$235
$309

93-260

C.F.R.

Date

Section

10/14/92
10/23/92
11/4/92

75.400

$506

$362

75.517

$204
$204

$204

75.316

Assessment

Settlement

$154

92-1049

30

Citation

Assessment

93-261

30

Citation

C.F.R.

Section

30

Citation

Settlement

93-206

30

Citation

Assessment

C.F.R.

Date

Section

8/29/91
8/30/91
•9/16/91
10/21/91
10/22/91
10/30/91
11/26/91

75.606

$147

75.400

$157

75.400

$206
$227

75.400

Assessment

$227
$147
$206

75.400
75.400

75.400

1406

Settlement

$5O
$157
$206
$227
$227

$147
$206

ORDER

days
of

the

of

payment,

to

above

in

civil
pay
satisfaction

made

to

is

Payment

question.

ORDERED

shown

amounts

settlement
in

IS

respondent

The

of

date

to

be

decisions

these

proceedings

these

are

of

MSHA

and
dismissed.

in
the
violations

penalties
the

thirty

within

order,

Admlnlstratlve

(30)

receipt

and

upon

Law

Judge

Distribution:
Mary
of

(Certified
R.

Richard

Eberley

Box

289,

Mr.

Clifford

Incorporated,

Jones

of

Solicitor,

the

Suite

Road,

B-201,

Department
TN
Nashville,

U.S.

Mail)

(Certified
B.

office

Esq.,

2002

Labor,

37215

Carl

Taylor,

Sue

223

Esq.,
Boyd,
Mail)

Davis,
Sturgis,

Legal
KY

Burden,

D.
P.O.

Box

First

Affairs
42459

Henderson,

Street,

Costain

Manager,

/ml

1407

Coal

Inc.,

P.O.

Mail)

(Certified

Director,
Sturgis,
289,

42420

KY

Prevention,

Loss
KY

42459

Costain

(Certified

Coal

Mail)

OFFICE

OF

ADMINISTRATIVE

2

SKYLINE.
5203

FALLS

LAW

10th

LEESBURG

CHURCH.

JUDGES

FLOOR
PIKE

VIRGINIA

22041

JU,t. 2 7 993

CONSOLIDATION

COAL

COMPANY,

CONTEST

PROCEEDING

Contestant
v.

SECRETARY

Docket
Order

MINE
SAFETY
ADMINISTRATION

AND

HEALTH

Dilworth

(MSHA),
Respondent

Appearances:

Rebecca

Mine

Zuleski,
Esq.,
Morgantown,

J.

Crltchfield,
Contestant;
Anita
Eve
Office
of

for

March

18,
filed

raised

on
hearing
Washington,

S.

Louis
of

Conrad

written
its
Post

in

Klinefelter

hearing,
briefs,

Findings

Hearina
of
Fact,

June

1993.

17,

Department

of

&

Labor

the

time,

hearing
West

Patrick
testified

Virginia,
James
Wise,

N.

for

Contestant.

requested
granted

so

June

15,
of

1408

an

this

1993.
and
•w

reprethat

Robert

at
E.

date
G.

testified
continued

1993,

one-day

a

on

for

counsel

19,

on

for
held

§

issues

The

based

Newhouse,
was

C.F.R.

with
March

on

scheduled

Zvolenski

30

Expedite.

call

hearing
W.

of

to

discussed

was

Eugene
The

Concluslons

violation

a

case

Coal
Company,
the
issuance

challenging

generally

At
Robert

the
parties
and
were
Brief
on

Consolidation

conference
at
which

Morgantown,
Jr.,

Case

Motion

a

were

and

Jr.,

the

alleges

Pennsylvania,

1993,

the

Virginia

Webb
for

Amos,

Philadelphia,

Contest

filed

(Respondent).

J.

of

a

Barletta

Gary

Furbee,

U.S.

Operator,

telephone
on
March
22,
1993,
of
this
counsel,
1993.
April
15,

again

Secretary
May 13,

of

the

Notice
which

a

pleadings
in

sentations

James

1993,

3658846
Contestant

the

by
parties

both
and

No.

Also,

36-04281

Respondent.

Statement

(Contestant)

ID

Weisberger

Judge

of
Order
75.364.

2/18/93

Mine

West

Wright,
Esq.,
the
Solicitor,

Pennsylvania

On

93-231-R

3658846;

LABOR,

OF

Before:

PENN

No.

No.

in

Santee,

for

the

on

which

time

Hunyady

and

At

the

conclusion

to
opportunity
Contestant
right.

Respondent
Brief
in

filed
•uDDort

summit
filed
on

Stipulations
Consolidation

i.

Dilworth

1977,

subject

order,

104(d)(2)
a
duly

of

The

4.

section
Santee,
Labor,
1993,
5.

The

not

affect

number
the

has
the

Act.

representative
the

of

this

over

to
pursuant
by Robert
the
of
Secretary
on
Wise,
18,
February

served

of
Pat

Respondent,

Act

issued

was

•roperly

was

the

subject

are

Health

Jurisdiction

3658846,
and

Act,

of

agent
DilworthMine.
of

assessment
the

civil

a

to

condition

the

of

penalty

ability

Operator's

Abatement

6.

of

105

authorized

an

upon
the
at

Judge

Law

Section

to

pursuant

Mine
and

Safety
seq.

of

operator

proceeding.

Dilworth

et

801,

§

and

owner

this

the
Mine

Federal

U.S.C.

Administrative

The

3.

matter

30

amended,

as

and

Company
the

of

the
of

subject

the

Coal

Jurisdiction

the

is

Company
is

Consolidation

2.

to

Coal
which

Mine,

proceeding

in
continue

this

and

listed

cited

in

will

business.

in

the

Order

was

timely.
7.

A

the

any

of

8.

is
authentic
the
Order
subject
the
for
of
establishing
purpose
the
truthfulness
of
establishing
purpose
therein.
the
statements
asserted
of

copy
evidence

into
for

Order

There
for

No.

water

was

present

width

the

of

spad

survey

50

this

at

of

slipping
rock,

accumulations.

1

and/or

debris
loose
This
certified

of

blocks,

9.

entry

possible
possibility
weekly
agent
outby

in

intake

The

by
of
this

violation

from

10-01-92

Order

No.

a

the

coal,
entry

operator,
was

02-17-93

issued
to
3658846

inby

for
distance

during
12-31-92

alleges

the

to

47

be

longwall
10-D
tailgate
a
presents

required

examiner,
JLF

due

is

There

p.m.

a

violation

§

C.F.R.

of

anacting

observed,

inspection

30

cement

such
water
be
examined

to

8:22

last

very
the

to

blocks,

who
date

last

the
of

1409

inby
No.

of
not

could

hazard
crib
of
under
etc.,

the

the

distance

a

deep

Just

and

46

water

mud
is

inches

11

[sic]

(future
such

of

(023)

9-D

tripping
consisting
mine
and

area,

No.

exact

feet,
time,

presence

4

No.

entry).

the

relevancy

or

part:

ranging
up
beginning

continuing

approximately
measured
section

entry
(between

73+50

and

crosscut)

the

admitted
but
not

be

may

issuance,

pertinent

in

states

3658846

and

was

period

75.364(d).
30

C.F.R.

|

75.364.

Findlnqs

of

Mine
the

floor.

I.
i.

Dilworth

Contestant's

accumulations

of

problem,
the

water

2.

On

Contestant
out
of

for

extended

4.

10-D

8,000

feet,

an

the

face,

inby

the

and
face.

5.

The

bleeder

to

fire-boss.

repair

coal.

30

C.F.R.
he

that

4

the

entry

was

the

face

§
would
to

and

allowed
abatement

According
2

or

3

designated

not

is

an

traveled

there

Findinqs

was

inby

escapeway

weekly

regularly

miners

by

to

service

and

indicated

He

water
and
also

3

75.364,
allow

to

miners

he

and

He

line

the

presence

under
of
other

entry
blocks,

to
(inby)
old
pipeline,

going

alleging

informed

Contestant's

8:00

see

water
the

up

4

inch

a

the

water.

He

material
the

to

in

point

the
in

loose

rock,

of

representatives

February

a.m.,

crosscuts

violation

a

on

20th

observed
unable
to
also
observed

was

citation,

and
until

19th
he

the

that
at

Section

air
up
crib

observed
a

the

muddy.

was

inch

travelling

East

entry)

that

suspected

issued

be

it

as
a

testified

9-D

(bleeder

Discussion

and

inspector,
the
Between

Mine.

entry

Fact

of

MSHA

an

inspected

he

for

12,

the

abated.
not
return
there
was

until

issued

a

Santee,

pumping

that
the

water
he

informed

he

17.

him

104(b)
Upon

that

order

until

returned
the

1410

on
area

the

12,

original

Contestant

with

order,

February
February
18,

between

Section
J.J.

February

on

because

104(b)

a

and

discussion

citation

that

told

issue

terminated

Section

in

He

to
going
coordinator,

was

then

indicated

He

present.

longwall

Santee

Section

when
water

February

more

the
water
to
return.
Santee
voided
the
of
the
original

mupervisor,
the

travel

representatives

citation,
had

inby
miners

order.
Kenny
Boyle,
the
pumper
foreman,
had
been
out.
pumped

water

face
extend

the

while
he
had

Contestant's

104(b)
Pohira,

the
not

did

deep.

Santee
did
he
returned

when

East

outby

Santee,

He

violation

9-D

section

1993,
Dilworth
intake

he

question,
and

the

entry

Further

line,
as,

in

Section
wide.

31+50.

working

G.

Contestant's
in
the
No.
14
inches
bottom
of

water

tailgate

16

bleeder

bleeder

pump

pumps.

i0,

that

future

the
The

entry

Robert

said

spad

face

to

East
feet

9-D

18,
1993,
escapeway.

II.

drainage

longwall

basis,
this

pumps

(the

the

approximately

the

1993

regular

a

control

pneumatic

entry
in

panel
was

at

Also

the

February

and

of

bleeder

longwall

i0,

February

On

designated

the

on

To

series

a

1993,

located

was

experiences,
mine

installed
mine.

18,

the

February

On

Section

on

the

February

entry)

3.

water

Fact

the

his

and
18.
he
19th

extended
observed
and
20th

to

69)

crosscuts
rib.
to
1

muddy,

water

the
water

depth

hit

it

until

crib

blocks

spad

73+50

he

indicated
he
was
had
he
previously
that
the
indicated

that
which
He
50

feet.

not
far

see

being

were

removed

through
felt
the

he

as
on

took

He

observed
"almost
observed

an

identical"

between
rib
from
went
the
that
water
was
indicated
he
the
When
entered
water.
in
the
ruler
safe.
He
a
put
the
and
noted
that
bottom,
measurement.
one

He

mud

the

inches.

ii

was

at

Santee,

of
water
to
that
to
and
20.
19
extended
and
could
and
he
he
went
as

accumulation

that

inby.

water

According
(Tr.

observed

also

He

crosscuts.
the
from

only

water

the
the
floor
at
observed
on
also
Santee
outby
footprints
that
there
also
indicated
He
accumulation.
the
water
of
and
at
lower
elevation
feet
a
140
at
outby,
a
72+10,
Spad
swag
the
to
accumulation.
water
the
Santee,
than
According
presence
out
water
had
been
that
indicated
the
in
pumped
of
a
swag
pump

side

the

was

of

swag.

the
water
accumulation.
other
three
and
the
was
pipe
the
of
the
entire
These
ran
diameter.
in
length
inches
pipes
side
the
of
the
on
and
inby.
were
entry
right
placed
entry,
from
the
was
these
water,
from
Aside
nothing
protruding
items,
crib
loose
or
cement
there
coal,
blocks,
blocks,
were
nor
any
believed
that
there
he
were
stated
that
Santee
observed.
rocks
and
crib
blocks
observed
had
he
the
as
under
water,
objects
walked
the
when
he
had
locations
various
blocks
at
cement
entry
there
to
were
that
earlier
Santee,
According
day.
inby
in
inches
6
crib
"numerous"
by 30 inches
blocks,
by 6 inches
At

spad

One

the

throughout

length

he

Santee,

led

in

diameter,

entry.

(Tr.

inches

four

aluminum

saw

to
and
I0
in
diameter,
73+50.
the
outby
spad
swag
and
crosscuts
19
between
of
wide
16th
an
inch
3/4
it
said
that
He
length.

73+50

Santee
he

opined
could

objects

submerged
rock

loose

from

not

2The

area

Spad

73+50.

according

Also,

Joints,

3

to

to

inches

4

in
around
the
length,
pump
water
said
the
of
that
area
steel
bands
that
contained
were
20,
in
and
between
and
6
feet
4
inch
thick,
items.
such
is
to
on
trip
easy
very

in

•antee

if
as

Zvolenski

P.

described

inspection
could

that
been
such

86).

pipeline

steel
and
inches
15

a

had

person

injured
pipes,

entered

by

slipping

crib

blocks,

water

at

Spad

tripping

or

cement

on

blocks,

mud.

or

1Eugene
he

have

into

pipes

two

73+50,

was

a

where

see

at

crosscuts

miner

water

the
he

at

who
73+50

accompanied
as

cloudy,

Santee
and

on

said

his
that

walking.

was

19

and

1411

20

is

approximately

4,300

feet

Santee
C.F.R.

30

a
.

§
that
at
hazardous

provides
and

issued

75.3643

that

Section

104(d)
75.364,
7
days

Section

least

every

conditions

order

a
violation
alleging
as
pertinent,

•

examination

an

"shall

be

shall

of

be

made,

immediately.,,

corrected

III.

Violation

A.

The

of
issue

key

Santee's

C.F.R.

30

for

inspection,

constituted

75.364

resolution
accumulation
condition

the

hazardous

a

§

is

whether,
of

which

the

on

date

in

water
had
not

Contestant

did

observations

of

accompanied
Inspector,
the
depth,
the

extent

testimony

of

which

muddy,

or

and
line

crusted,

the

other

mine

and

possible

to

looking

at

tell

the

The

record

water

cloudy

was

accumulation

a

water-discoloration

was

swags

dry,

was

inby

73+50.
spad
superintendent

the

was

to

contradict

seen.

the

indicated
accumulation

an

he

between
feet

20

who

of

age

contain

not

existed

of

prior

analysis

an

the

to
the

of

evidence
of

the

issue,

knowledqe

documentary
presence

in

does

had
to

that

did

line.

He

any

testimony

that

it

of

water

opined

is

On

of

the

not

soley
that

by

water

can

quickly.

personal

water
made

concluded
the
area
had
observed

water-discoloration

quite

having
is

period

that

being

approximately

with

Nor
the

from

Barletta,

Safety
regard

testimony

bottom

regarding
who
Wise,

M.

Contestant,s

as

accumulation.
witnesses

the

Louis

the
a

accumulate

of

high,

hand,

during

the

Santee
he
time
because
because
he

some

inches

36

of

Santee

Patrick

Santee's

Respondent's

to

for

accumulation.

capacity

prevented

According
present

testimony of

the

water

in
his
contradict

Santee
did
not
and

impeach

not
the

area

corrected

immediately.
his

of

cited

the
been

length

Santee's

water

close

to

prior
cited

the

the

inspection.

documentary

indicates,

from

time

of

evidence.
to

Santee's

area.

In

any
person
accumulation
Resort
thus
The

an

inspection,

the

Examinations

of

ers

•ncludinq
February
noted
The

1993

follows

as

is

following

"reported".
(Contestant,s
pumps,

was

effective

for

Tests

17,

and

Methane,

at
under

the

set

forth

the

(Contestant,s
the

Exhibit

D),

water

level

3The pertinent
found
previously
August

16,

Examination

"15
tailgate,
"hazards
heading
under
the
heading

Exhibit
wherein
in
the

language,
at

("Weekly

10-D

30

1992,

set
C*F.R.
57

F.R.

1412

C).

The

pumpers
of

area

forth

§

in

75.305,
20914

Book"),

to
noted":

backend"

xc

"H20

"action

taken":

pumper's

Report

note
various

the

on

it

condition

of

pumps,

Section

75.364,

and

had

been

(March

15,

1992)).

is

73+80".

revised

indicates

on

the

water

72+20

spad

"at

was

at

1993,
15,
strainer"

February

that,

located
pumps
Barletta

the

(sic).
approximately

at

explained

inches.
3
the
to
comments
are
midnight
reports
same
next
at
the
In
1993.
shift,
shift
on
17,
8:00
a.m.
February
it
is
12"
at
57+20
noted
level
as
water
the
72+20
location
pump
"noted
level
the
water
as
20
and
at
noted
as
is
36+90,
xc,
I0",
this
shift
for
the
"strainer"
Report
Also,
Pumper's
(sic).
needs
to
"told
that
E.B.
remarks
the
contains
pumps
following

indicates

this

that
The

start

a

inbyin

pump

in

pipes

naturally

on

of
water
should

cited

the
the

tail

for

the

depth

the

extent

in

fact
I

constituted

Santee

(sic).
fact

the
water,
accumulation,

the
the

of
the

to

2

for
the

12/18/93"

mines,

of

floor

of

the

of

and

water,

by

it

that
the

mud
and
that
that
conclude
hazardous
a

was

of

presence

rocks,

occur

accumulation
that
condition

the

reported.

been

have

depth

10-D

Considering
or
muddy,
cloudy
two

water
found

above
had

the
of
framework
the
Within
accumulation
water
hazardous
the
it
time
the
to
Contestant
prior
herein
Contestant
that
conclude

was

did

not
noted
violate

evidence
been

conclude
I
corrected
by
thus
I
by Santee.
Section
75.364,

that

u•_•_ra.

Siqnificant

B.

Substantial

and

characterized
Santee
He
substantial.
and
would
which
condition
corrected.

injury
account

contained
of
feet

debris

outby

any

cited

he

"significant

and

significant

as

substantial"

the

the

Barletta

hand,

slipping

be
an

cited.

area

other

a

cause

a

as

it
could
serious
before
injury
situation
in
the
that
herein,
He
presented
opined
into
have
to
occurred,
taking
was
likely
reasonably
it
that
the
likelihood
and
of
the
water,
presence
observation
his
based
conclusion
was
This
debris.
upon
which
and
was
crosscuts
19
in
of
4,300
the
area
20,

On

of
that

violation

the
defined

or

tripping

injuries

indicated
in

that
water

up

he
to

not

was

aware

inches

12

M.
Patrick
1993.
to
1988
from
February
January
in
the
Contestant's
during
period
inspector
Safety
the
that
also
effect.
He
the
testified
to
same
opined
it
was
constitute
as
a
did
not
issue
at
accumulation
hazard,
said
He
without
cited
the
area
in
to
travel
slipping.
possible
without
in
the
there
travelled
had
slipping.
that
he
past
the
need
of
miners
aware
that
are
in
Barletta
indicated,
essence,
miners
and
that
is
or
in
water
walk
cloudy,
to
muddy
carefully
and
their
in
the
water
of
the
of
aware
are
pipes
placement

Wise,
issue,

occurred
who

location.
is
possible

was

He

to

also

safely

indicated
traverse

that

by
water

through.

1413

using
that

a
can

stick

as

not

been

a

guide,
seen

it

and

by

In
evaluating
substantial,

Santee,

whether
I

and

the

erroneous

herein
was
definition

refer

to

established

case

instead

whether
analyzing
is
significant

In

vlolation

Decision
912,

recent

13
FMSHRC
elements

of

vlolation

wherein

We

also

affirm

violation
A vlolation
substantial

in
Southern
Commission

based

that
that

the

on

violation,
the

of

Cement
Division,
FMSHRC
825
822,
(April
1981).
FMSHRC
3-4
1,
(January
1984),
order

to

mandatory

substantial

Secretary

must

of

a

hazard

of

to

safety

danger
violation;

the

that

the

an

injury;

that

the

reasonably
also

See

103-04

99,

(December
third

1987)

element

hazard
there

of

--

Co.

1988),

a

to

v.

a

to

will

in

result

likelihood
be

9

Mathles

of

a

861

FMSHRC

2015,

criteria).

formula

reasonable

is,

contributed
likelihood

SecretarT,

aff'g,

(approving
the
•

establish
contributed

Secretary

standard;

a

Power

and
the

that

--

reasonable
hazard
contributed
to
and
(4) a reasonable
in
injury
will
question
serious
nature.

Austin
Cir.
(5th

6

underlying

safety

(3)

Co.,

explained:

violation

a

the

result

Coal

significant

(1)

prove:

discrete

measure

Mathles

GYpsum

mandatory
safety

a

and

reasonable

a

Commission
that

is

National

under

violation

by

establish
standard

the

the

to

In

Company,

facts

exists

the

the
the

nature.

will
a
serious
reasonably
Natlonal
GTpsnm
Co.,

3

(2)

•oal
reiterated
and
substantial

contributed

illness

or

In

Ohio

particular
there

hazard

nature."

a

that
of

note

a

"if,

of

take

conclusion
Judge's
that
and
significant
substantial
as
properly
designated
significant

is

injury

proffered

law.

establish
I

significant

a

significant

the

of

was

surrounding

herein

the

establish

to

follows:

facts

substantial,

Commission

(1991),

as

likelihood
in
an

the
and

the

required

violation

the

disregard

F.2d
2021

The

"requires
likelihood

that
that

will

the

the
in
which
FMSHRC

result
in
an
event
Steel
injury"
(U.S.
6
Mininq
Co.,
1836
1834,
and
(August
also
that
1984)),
the
likelihood
of
be
evaluated
injury
in
terms
of
continued
normal
mining
operations
Steel
(•.S.
Mininq
Co..
Inc.
6
FMSHRC
1574
1573,
See:
also
(July
1984);
Halfway.
8
Inc.,
FMSHRC
12
8,
(January
1986).

(Southern
I

Section

is

Ohi
have

an

•

at

already

found

75.364,

o,

su_•_Ea,

916-917).
that
and

did

Contestant

in

that,

1414

essence,

violate
vlolatlon

the

herein

contribute

did

to

evaluating

cognizance
that

fact

presence
James
on

the
bottom

following

2

pipes

in
Jr.,

of
Samuel

crib

4

side;

an

lying

on

and

Conrad's

in

observed,

and
the

1993,

7,

blocks

right

could
the

Conrad

February

In
or
of
tripping.
slipping
take
I
the
of
formula,
Mathies
of
the
the
water;the
facts:
depth
the
the
water;
be
not
seen
through
uncontradicted
the
water;
testimony
the
who
MSHA
inspected
Inspector

hazard
element

the

third

the
of
the

the
in
uncontradicted

floor

the
center

cited,

area

of

of
site
and
the

planks
on
entry

the

testimony

within

that

observed
on
had
a
canvas
73+50
of
lying
feet
20
Spad
inby
when
it
made
which
mud
with
slippery
covered
extremely
floor
it
been
that
has
conclude
I
above
the
Within
framework,
or
event
that
an
i.e.,
slipping
established
producing
injury
also
occurred.
I
have
to
was
likely
reasonably
tripping,
should
in
that
items
the
of
the
nature
due
to
water,
conclude,
likelihood
reasonable
there
was
a
or
have
slipped,
tripped
person
conclude
I
nature.
serious
of
Thus,
a
of
an
reasonably
injury
herein
that
violation
was
a
established
been
it
has
that

the

he

C.

Unwarrantable

Failure

According

to
Santee,
unwarrantable
failure"
of
known
a
action.
In

Contestant's
"unwarrantable
have
should

corrective
similar
area

outby,

have

been

indicated
out.

pumped
in
as

tail

an

outby
swag
connection,
of
the
Report

de
a
unwarrantable

said
20

cited

had

accordingly,
a

higher

determination

Dovo

this
not

known

that

he

observed

feet

inby

Spad

of

evidence

Accordingly,
to

Santee

evidence

important
issue

the

all

upon
issue.

significant

he
on

February

not
to

made

February
start

to

in
should

an

Also,

he

been
the

entry

17,

1993

had
to

is

or

the

i0,

on

inby

pumps

whether

failure

the

on

10-D

5

to

when
be
and

part

crib

record

the
of

and

blocks,

I

Contestant,

7

planks

73+50.

not
is
resolution
5The issue
for
violation
was
the
that
determination
he
took
factors
the
in
finds
support
of
issue
the
decision
on
significant
based

did

elevation

reference
shift
second
needs
pumpe

knew
take

operator

an

and
referred

Contestant
conditions.

water

at

from

resulted
defined

(sic)

making

4Conrad
approximately

that

E.B.

herein
Santee
where

condition,
connection,

he
that
hazardous

this

In

establishes

this

of

aware

the
Pumper's
"Told
follows:
for
2/18/93."
In

as

concluded

and
made
that

violation
the
failure.
situation
a

violative

which

accumulation

a

5

substantial.

and

significant

wet.

whether

significant
into
and
at

Santee,s
and

account,
substantial

but

substantial
rather
be
must

de
on
novo
a
hearing
presented
of
the
observations
Conrad,
although
constitute
his
he
made
determination,
the
in
into
account
taken
analyzing

substantial.

1415

a

consider

the

following

accumulation
accumulation

evidence

indicating
point

at
a
have
before

FMSHRC

context
that
the

conduct

on

time

2004

the
the
of

lack

in

these

violation

part

of

have

occurred
would
not
it
out

pumped
evidence

question
I
facts,

on

has
was

been
that

a

result

as

and,
Emery

not

conclude

herein

(See

of
had

any

Contestant

failure

the

which

of

area

7

(1987)).

to

lack

the

unwarrantable

an

similar

inspection

and

why

of

a

issue

at

Santee's

extent
the

i0;

accumulation

6

established

1997,

February

on

to

the

and
that

fact

sufficient

Within

out.
been

depth
the

the

inspection;
explaining

part

it
has
of
aggravated
constituted
9

cited

Contestant

Santee's

Contestant

the

Santee;

by

that
close

time

of

allowed

pumped

facts:

observed
had
been

hence

Mininq

Corp.,

ORDER
is

It
the

that

ORDERED

the

affirmed

be

ORDER

Notice

of

Contest

be

/•/•vram

6I
occur

how

long

find

that

Barletta's
is
of
quickly
the
accumulation

7It
to

to

appears

October

1992,

accumulation

of

be

that
opinion
such
valve
probative
observed
by Santee

water

exceeded

hip

water
water
he
was

exceeded

knee
than
such

higher

told

of

water

across

this

Contestant,s
were

aware

such

persons

issue
pump

and

the

be

cited

height;
and
height;

in
in

the

1/2

15
a

policy

of

such

to

decided,

accumulations,

of

in

in

a11,
charge

as

establishing
actually

that

in

bleeders

intake

that,

prior

unless

the

an

entries

unless

entries

unless

Hunyady

indicated

inspectors

accompanied

when

the
the
that

they

them
on
not
find

there

Nor

into

1416

the

water

came

merit

is

evidence
any
accumulation
MSHA
upon
past
not
"policy",
below
the
level
being
of
hip boots.

walked
reliance
or

had

1987.
I
do
much
there
is
no
evidence
that
of
water
accumulations
pumping

or

"policy".

MSHA

in

policy

boots.
he

accumulation

an

return

various

by
when
1986

First

measured

inch

Judge

argument

not

subsequent
argument.
personnel

Contestant's

unwritten

boot

accumulations

inspections
to

an

would

water

was

of

part
had

MSHA

Law

little

existed.

and

Weisberger

Administrative

can

DISMISSED,

written.

as

that
at

to

Distribution:
J.

Rebecca

(Certified
of

Suite

Center,

Hampton

Anita

Zuleski,

Eve

Labor,

Philadelphia,

Esq.,
4,

Amos,

Furbee,

West

Morgantown,

Webb

&

critchfield,

Virginia

5000

26505

Mail)

Wright,
3535

Esq.,
Market

PA

19104

Office
Street,

of
14480

the

U.
Solicitor,
Building,
Gateway

Mail)

(Certified

nb

1417

S.

Department

FEDERAL

MINE

SAFETY
1244

AND

REVIEW

BOULEVARD
CO

DENVER,

(303)

HEALTH

SPEER

COMMISSION

#280

80204-3582.

844-5266/FAX

844-5268

(303)

JUL 2 7 993
SECRETARY

OF

LABOR,

MINE

SAFETY
ADMINISTRATION

AND

CIVIL

(MSHA),

Docket

Petitioner

a

PROCEEDING
WEST

No.

92-III-M

48-00007-05562

Mountain

CEMENT

Wyoming

No.

A.C.

Va

MOUNTAIN

PENALTY

HEALTH

Cement

Company

COMPANY,

Partnership,
Respondent

DECISION

Appearances:

Robert

J.

Murphy,
Department

U.S.

Office

Esq.,
of

Labor,

of

the

Solicitor,
Colorado,

Denver,

Petitioner;

for

Philip

Nicholas,

Esq.,

NICHOLAS

LAW

Laramie,
Wyoming,
for
Respondent.
BEFORE:

Judge

The

Health

Company
under

the

Federal

(the

"Act").

A

September
on

oral

Secretary
Administration
with
("MCC")

hearing

on

1993.
i,
argument.

OFFICE,

Morris

of

on
behalf
Labor,
("MSHA")
charges
a
violating
safety
Mine
and
Health
Safety

the

merits
The

parties

held

was

submitted

1418

of

the

Mine

Respondent
regulation
Act

in

'

Laramie,
their

Safety

and

Mountain

Cement

promulgated
30

U.S.C.

Wyoming,
respective

§

801,

on
cases

et

--

Citation

Act,

alleges

reads

as

violated

MCC

C.F.R.

30

Section

under

issued

3635856,

No.

104(d)

56.12017.*

S

of

the

citation

The

follows:

high

The

repair

to

nents

both

field

"A"

retrieve

to

dropped

gized

"B"
The

ted.

March
electrical

i,

and

foreman
with

was

had

that

the

ener-

electrocu-

was

at

2:55

p.m.

was

the

working

reportedly

very

on

practice

This

system.

the

compartment

and

occurred
victim

The

1991.

out.

contacted

component

field
accident

familiar

was

failure.

unwarrantable

an

into
the
connection
He

the

locked

and

conductor
earlier.

a

been

powering

circuit

climbed

individual

One

compoin
the

located

de-energized

was

de-

attempting

were

were

The

compartment.

same

not

was

Energized

field.
fields

field

"B"

the

employees

two
"A"

the

from

to

precipitator

while

energized

circuit

dc

voltage
electrostatic

the

of

STIPULATION

the

The

parties

i.

MCC

United

stipulated
is

in

engaged
its

and

States,

follows:

as

mining
mining

and

selling

limestone
interstate

of

operations

affect

commerce.

cited

The

S

56.12017

is

on

on

such

the

work.

shall

be

taken

which

circuits

from

being

knowledge

of

Such

locks,

shall

be
them

signs,

are

shall

only

by

authorized

1419

do

out

or

the

without

working

preventive
by

shall

to

prevent

energized
or

removed
or

signs

who
locked

individuals

the

before

hot-line

unless

warning

measures

them.

installed

de-energized

individuals

the
Switches

by

power
the
vices

be

circuits

Suitable

used.

are

posted

circuits.

power

shall

done

be

other

Work

circuits

Power

work
tools

provides:

regulation

the

person

personnel.

on

dewho

in

2.

is

MCC

Mill,

Company
3.

is

MCC

Safety
"Act").

the

and

I.D.

No.

subject

Health

of

Administrative

The

subject

operator

jurisdiction

the
30

1977,

Law

5.

representative

Respondent

on

the

and

not

admitted

into

issuance,

citation
date

evidence

statements
6.
made

The

exhibits

are

stipulated

to

as

their

and

the

place

for
the
therein.

for

asserted

Secretary

was

of

U.S.C.

SS

Judge

matter.

authorized

be

properly
Secretary

be

relevance

the

et

7.

The

8.

proposed

and

establishing

or

relevancy

the

not

The

operator

MCC

is

The

certified

demonstrated

.

in

i0.

accurately
to
prior

years

MSHA's

faith

with

operator

the

ployed

107

at

other
several

A

cement

purchased

of

the

Citation.

THE

EVIDENCE

investigation

of

of

in

the

report.

located

at

Albany
County,
seven
day,
days
Limestone,
and
shale,
and
hauled
to
the
mill,

a

cement.

any

and

the

568,861

hours

worked

for

Wyoming.

It

The

mill
mill

which

was

the

was
em-

mined
into

processed
at

states
in
the

Road
The

week.
were

parties

I0).
Creek

two

basic

the

(Tr.

gypsum,

the

The

case.

Production

the

Violations
mine

Sand
a

is
asserted

abating

the

5

of

of

encapsulates
of

per

Portland

be

in

Assessed
this

report
aspects

Laramie,

shifts

of
tons

MSHA

History

the

technical
to
the
facts
MCC
mill
was

people.
locations

types
400,000

the

the

as

three

operated

the

of

copy
reflects
date

accident

facts
as
well
have
stipulated
in
that
part
southwest
part

had

mine

large

a

may

Respondent's

1990.

History

aged

affect

good

duly

matters

business.

violation.

a

stipulation

no

of

this

its

Respondent
but

will

penalty

continue

to

by
agent

of

truth

Mine

(the

in

an

therein,

by

Federal
se_9_q•

served

authentic

or

the

upon

stated

offered

to

of
801

therein.

ability

Cement

jurisdiction

has

the
purpose
truthfulness

to

Mountain

of

48-00007.

to

Act

The

.

and

owner

MSHA

mill

aver-

year.

mill

had

the

facility

been

located
in

1986

1420

at

the

site

and

had

remodeled

since

1927.
and

MCC

upgraded

in

operation

the

kiln.
than

more

1500

within

rated

high

kiln

and

i,

MCC

7

at

1991,

LeRoy

a.m.,

his

notified

carried

also

on

miscellaneous

Robarge

assigned

rarily

at

down

precipitator

the

to

plant

Robarge

precipitator
to

produce.

explained
the

switched
of

went

to

ing

damage.
the

area,

located

The

be

to

approximately

the

The

to

through
between

the
the

1421

inspection

transcould

conductors

appeared

conductor
at

angle,

an

of

inspection

a

nipple.

cover,
and

they
conductor

horizontal

addition

vertical

cover

the

from

internal

the

were

insulating)

an

vertical

this

in

A-field

the

leading

extending
inch
by the

possible

replaced.

(air

bushings

by
3/4

oil

with

was

not

was

the

for

drain-

by
for

tested

problem
and

floor

top

transformer

The

coils

the

the

to

troubleshooting

the

the

for
was

transformer/recti-

the

isolating

Because

working
connection

breaker

section

entered
this

correct

1/2

circuit

proceeded

Ro-

Robarge

where

A-field

the

so

several

by

disconnects

provided

removed

was

#4

the

designed
on

trained

being

where

by
in

was

and

began

horizontal

east
cover

it

as

Robarge

was

conductors
was

and
the

A-field

why

transformer.

tube

The

tempo-

contacted

was

center

building

diameter

problem
was

control
switches

they

and

a.m.,

causing

without

and

control

14-inch

a

Morrissey,
nected

been

repaired

being

was

with

motor

the

power

inspected.
visually
and
be
misaligned

decided

had

kiln

The

voltage

the

voltage

the

on

was
oc-

ongoing

an

dc

Robarge

was

tube.

former.

he

they

ii

At

plant.

working

transformer
that
concluded
reassembled
was

and

inside

located

container

as

electrician,
determining

of

A-field

the

it

high

supervi-

emissions.

weeks

out

transformer

The

stack

the

the

located.

from

When

shut

two

locked

dismantled

then

the

which

Robarge

a.m.,

off

be

units.

were

oil

for

immediate

priority

the

EPA

been

precipitator

nearby

the

a

kiln

assignments

work

through

trunnion

task

had

Morrissey
and

units

fier

to

men

off

the

the

Robarge,

troubleshoot

a

producing

not

precipitator

four

with

between

reported

his

pager,
their

hired

the

past

to

to

newly

Morrissey
the
jobs
The

barge.

around

of

with

was

electrical

jobs

while

a

assist

to

removed

time.

II

Lupton

could

Morrissey,

Greg

was

precipitators.

power
violation

in

be

by

electrostatic
time
this

the

of

gene-

victim,

approximately

until

a.m.

was
one

Dust

and

and

problems

working
with

kiln.

shift.

the

7

From

to

the

received

company

a

electrical

of

during

curred

material

starting

initially
electrician,

foreman,

Robarge

sor.

one

the

located

Robarge,

A.

normal

chief

Lupton,

James

from

entering
system
preheater

before

precipitator

electrical

working

to

stack.

March

at

used

dry-feed

with

heat

equipped

was

was

electrostatic

emissions

On

work

degrees

F

the

voltage
the

and

preheater

two-stage

A

mill

The

1987.

horizontal

disconcon-

ductors.
inside

this

At
the

Of

Because
the

need

the

to

get
exit

south

short

time,

coffee

cipitator
Robarge

rent.

He

the

men

returned

to

went
he

the

and

(break

time),

He

was

Ken

Keirn,

the

to

unit

and

opened

Robarge
jacket

burning
until

Robarge
outside

stairway

Memorial

emergency

outside

caused

The

fire
and

head

G-8).

(Tr.

been

help.

motor

con-

precipitator

put

out.

CPR

was

immediately

on

that

of

he

would

in

from

at

was

not
and

be
con-

Laramie

the

Emergency

Med-

ambulance.

carried

and

Ro-

shirt
could

Hospital

board

care

of

EMTs,

where

he

was

at

the

signs

three

and

re-

unit.

down

the

different

the

down.

way
the

with
His

personnel

continued

was

mechanics,

initiated

Memorial

back

a

CPR

shown

Vital

emergency
Ivinson

all

it.

removed

office,

the

side

first

arcing

Morrissey

to

Cook,

was

of

under

is

cur-

accident

the
four

assisted
They
precipitator

the

they

Sheriff's

the

Gary

of

and

fire

on

west

and

interior

placed

door

access

caused
dc

had

the

to
all

shouted

help.

for

Hospital
physician
by electrocution.

room

2

back

stairway.

victim,

The

Ivinson

below

to

with

landings

for

stairs

calls

County

was

east

see

shouted

the

arrival

Technicians

could

he

floor

one

of

power

power
and

time

the

Brigade,

the

secured.

the

this

pre-

arcing

the

the

on

and

a

the

volts

until

down

the

was

After

the

he

off

the

from

heard

door

working

by

area

entered
Robarge
to
trying
B-field
energized

where

side

east

and

the

shop.
nipple

50,000

Robarge

Vialpondo,

to

side,

east

left

men

the

ran

and

Stan

responded

contacted

shut

he

off

power

at

the

went

he

help

electrician,
Bigelow

then

dropped

whether
but
while

compartment

not

to

where

units.

moving
barge's

could

of

approximately

the

Going

center

Exhibit

electrical
with

determined
feet
first

the

on

with

around

responded.

scene

in

the

be
or

working

Bigelow,

trol

first

conductor,

off.

compartment

p.m.
two

the

side

west
not

head

that

turned

the

could

contact

knew

22-inch

nipple,

break,

Morrissey,

arrest

2:15

was

to

2

Robarge's

detected
tinued
Fire
ical

which
went

fallen

by

also

extension

It

conductor.

also

time

an

went

the

all

the

and

compartment

reach

Joe

slipped

compartment.

door

hatch.

and

section

floor.

access

the

vertical

the

precipitator

4:24

move

in

52).

1422

the

transported

Cause

is

(if

shown

Robarge

direction

to

dead
death

pronounced

p.m.

compartment
Exhibit
G-9

was

of

by

Exhibit

in

entered
shown

cardiac

M-I.
the

by

the

was

the

The
com-

worker

PHYSICAL

occurred

accident

The
ic

precipitator
that

components

precipitator
kilns

fed

stack.

suspended
direct
50,000-volt
lates
generated

in

electrodes

called

current

were

subjected

These

mechanically

to

the

attracted

dust

into

The

collected

dust

was

then

Exhibit

G-12

shows

the

portions

in

insulated
and

touched

the

and

outside

the

precipitator.

groups.

fields.

Each

These

groups

field

was

row

connections
The

and

A

in

fields

B

tator
fields

where

were

installed

next

two

may

have

confused

and
side

of

the

compartment

by
of

into

B,

high

and

C,
voltage

D

in

each

the

and

power
first

less

victim

row

and
This

hatches

compartments
where

near

the

accident

1423

the

fields.

precipithese

A

and

fields

B

to

the

in

individually
arrangement

connected
nonstandard

of
that

floor

of

accident.

the

the

interior

the

to

the

compartments.

precipitator
8'
approximately

atop
were

round

diameter

of

contributed

and

for
end

Both

space.

(south)

They

kiln

precipielectrical

the

Consequently,

suspended
compartments.

Access

enclose

system

the

at

compartments
the
of
top

on

to

heaviest.

the

compartments

wide.
22"

four

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of

similarly.
8"

2'

through
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rows

twelve

The

the

fields

D

the

structed

A,

separate

suspension

the

was

more

in

and

with
used

were

located

were

dust

the

required

C

a

building

metal

the

compartments
of
and
parts

These

from

feet
the

divided

were

identified

were

80
of

sides

south

as

head

provided

was

and

and
"ener-

building.

metal

precipitator

the

compartments

of

located

were

upper

east

down

unit.

rows

tator.

on

field

level

precipitator
the

B

marked
his

approximately
The

gable-roofed

powered

transformer/rectifier
Three

the

on

They
indicated
Robarge
37-40).
(Tr.

the

shake
electrodes.

disposal.

are

long.
a

in

fields

electrode

The

tube

was

feet

40

with
covered
of
level
the
upper
located
stairways

two

four

on

was

to

Access

energized
compartment.

to
the

for

away

precipitator

wide

feet

30

beneath

portion.

energized

precipitator

located

Burns

electrostatic

The

high,

the

"insulator."

gized"

applied
hauled

electrodes

the

vibrations

hoppers

groups

polarity
and
dust
particususpendedwire

of

groups

the

between

utilized

Periodically

"fields."

The

resources.

positive

a

attract

to

charge
kiln.

the

electrical

power
located

with

electrostat-

the

precipitator

The

charged

electrodes

wire

were

two

from

emissions

the

and

of

that
different
device

dust-collecting

a

of
level
contained

upper

compartment

a

were
was

the

on

inside

XNVOLVED

FACTORS

were

all

long,
compartment
8"

extended

level.

The

access

occurred

was

on

con-

4'

6"

was

the

from

hatch
the

high

west

long
to
side

of

the

compartment

located

at

the

southeast

of

corner

the

precipitator.
Two
at

ing

end.

The

approximately

.25"
A

insulators
insulators

support

each

thick

when
the

energized

from

motor

rod

the

west

volts

single

ac,

circuit

from
of

of

connect

the

precipitator.

phase.

in

mounted

controllers

instruments

controller
monitor

to

The

transformer/rectifier

between

the

transformer/rectifier
switches.
tary
be

intensity

changers
on

power

had

The

prevent

deenergized
damage
tap
were

access

to

the

precipitator

sembled

and

would

gation
tenance

prevented

disassembled.

of

during
where

when

the

the

located

be

tap

set

The

changers

with

investigation

to

change
tap

the

could

be

unit.

key
to

gaining

interior
Witnesses

the

stated
had

bypassed.

was

operated

from

occurred

that

the

disas-

No

required
The

the

lock

lock
knew

one

investimain-

some

system

of
and

been

Further

had

ro-

could

than

transformer/rectifier

was

the

transformer/rectifier
that
the
primary

stated

disassembled.
that
the
interlocking
system
and
but
alignment
would
operate.
access
to
energized
components
3

dis-

a

of

Other

the

accident

system,

west

were

could

prevent
persons
the
or
compartments
was
system
energized.
the

the

precipitators.
tap
changing
which
positions

or

the

center

with

fields

fed

the

currents

to

the

lock

along
equipped

480

was
were

with

equipped

were

interlocking

the

say
found

to

changers
designed

interior
whilethe

interviewed
compartment

the

Electricians
before

in

field.

the

on

disconnect

to

way

level.

that
the

fields

charges

located

the

five

had

the

ground

no

rotary

interlocks

or

be

were

fields

and

for

building

power

the

voltages

of
the
top
equipped

changers

dc

upper

to
to

others

and

was

the

operated

tap

the

of

there

units

to

units

isolate

to

set

the

the

on

The

located

fed

was

level

primary

panel

units

compartments

the

contacted

fields

ground

a

was

fields.

of
top
energized

accident

the

victim

for

were

Each

A

compartment.

The

controllers
in
the

the
were

precipitator

located

The

breakers

and

four

#4

The
building.
the
building.

the

wall

the

from

of

the

high.

insulator.

rods
the

tub-

18"
each

upward

and

one

fiberglass

of

threaded
the
time

inside

center
of

top

extended

while

for

power

control
side

rod

plate

or

compartments
of

the

and
plates
At
energized.
left
energized

were

primary

The

to

steel

mistakenly

was

the

approximately

and

bolted

steel

The

in

constructed

diameter

was

threaded

fields

the

B-field

on

plate

diameter
insulator.

2"

the

were

in

14"

steel

located

were

would
not

have
been

3

The

Exhibit

lock

is

shown

on

the

access

G-9.

1424

door

at

approximately

2

o'clock

An

victim,

The

assistant

who

to

to

were

in

out

control

the

did

work
the

at

stick

the

to

not
to

the

use

precipitator

the

get

prior
shorting

used

cited
circuits

The

hot-line

worded

in

standards,

prudent

person
purposes

tive

prohibition
7

Co.,

of

FMSHRC

the

In

this

knowledgeable
ment
containing

multiple

to

the

ways

The

discharge
Evidently
to

victim

he

may

in

was

rush

a

requires

56.12017

is

ii

FMSHRC

Company,

interpreting

such

on

test

as

whether

a

industry

and

2416

2409,

applying

and

mining

the

broad-

reasonably
the
protecthe
specific

have
recognized
Coal
Canon
standard,
citing
Quinland
1987),
Coal,
•nc.,

would
of

done

used."

Cement

standard

that

work

the

(April

1614,

1987).
electrical
the
electrical

the

energized
shut

lockout

by-passed

was

and

The

before

are

with

situation,
about

conductor

FINDINGS

S

appropriate

6678

6676,

(September

1617-1618

long
current

FURTHER

in

requirement

or

the

was

the

because

C.F.R.

Ideal

the

planned
enter

to

accident.

the

stic•

that

familiar

locked

originally

compartments.

the

tools

stated

1990)

circuit

and

no

6'

for

test

deenergized

be

Commission

(November

and

30

"shall

unless

clamp

AND

regulation

The

The

line.

on

DISCUSSION

power
circuits

opened

at

electrocuted.

was

to

precipi-

given
thought
trouble,shooting
of
the
and
uncoupled
part
into
the
fell
compartment.
the
and
coupling
part,

and

within

components

was

failed

have

compartment

the
the

from

weeks

the

electricians
As

to

two

about
victim.
The

probably

conductor

a

worked

was

B-field.

coupling

with

the

so

was

the
the

stick

shorting

two

the

coTapartment

the

entered

of

conductor
.of

retrieve

to

ground

level.

the

piece

a

attempting

available
static

of
unit

prec•ipitator

A-field

the

A

very

components.
low
output

ongoing

an

only
little

irlstructions

deenergize

and

victim

had

knew

at

of

cause

who

either

the

to

continued,
In

the

he

house

or

need

conductor

that

require

not

compartments
to

locate

assistant

his

and

A-field

the

transformer/rectifier

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the

foreman,

t•oubleshooting

in

engaged
attempting
The
voltage
problem.
the
stated
operation
tator
and
was
following
They

electrical

working

the•

was

were

shorting

off

foreman

circuits,

and

deenergized

the

but

power

circuits.
these

were

system.

fltick

is

in

shown

1425

Exhibit

who
entered

G-14.

Very

was

the

compart-

There

were

ignored

as

was

is

It

ity

to

common

knowledge

if

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circuits

energized

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is

person

volts,

50,000

he

in

close

proximrisk

the

runs

of

electrocution.
In

support

Company
Kennedy

position,
(August

1975

considered
here.

contest

his

of

FMSHRC

8

similar
with

a

I

agree

Even

if

Mr.

Morris

work

on

the

upper
Section

violation

of

Manual

the

regulation,
Judge
Kenned•

[electrician]
77.500.

The

deenergized
enclosure

shall

within

circuits

instant

In

lation

addition,

the

entitled

to

1989)

was

energized

"B"

proximity

exists,

MCC

such

the

FMSHRC

at

energized
guards
1982,

energized

and

compartment.
is
compartments
same

its

foreman

working

violation

or

1983.

deenergized
The

the

of

his

of

Secretary

of

867

F.2d

hazard

very

danger

interpretation

no

be

is

physical

Inc.,

field.

(Tr.
at

I

the

time
here

record

circuit.

reguo.b.o.

Labor,
1432

Cir.

(D.C.

conclusion,
of

tools

then
in

illustrates
if

S

56.12017

miners.
The

citation

no

the

standard

only

circuit

MCC's

would

energized
would
hardly

should

be

was

AFFIRMED.

as

being

work

retrieving

at

argument
be

of

"on

the

circuits."

such

being
to

deenergized
Such
compartment.
the
promote
safety

1426

the

close

interpreted

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work

no

accept

of

evidence

efforts

being

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I

As

in

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situation

a

should

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field.

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no

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argues

29).

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violation

a

further

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trieve
tion

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Secretary's
deference;
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tools.
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shall
electrical

an

.

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done

proximity

unless

due

Cannelton

v.

to

they

within
before

3

both
the

such

circuits.

Bushnell

enclosure
by suitable

the

entering

such

is

deenergized

be

cases,
in

located

were

contacting

in

one

that:

Inspector's

physi•cal
parts,

or

are
guarded
physical
separation.

adequate

by

the

stated

in

was

MSHA

close

circuits

All

....

performed

the

to
he

states:

is
work
in
"[w]hen
performed
electrical
circuits
exposed

In

he

B.

Joseph

intend

not

circuits,

to

circuits
presented

when

Coal

Amax

Judge
77.500,

S

did

energized

cites

Se•cretary
wherein

1981)

done
its

merely
an

on

any

ultimate
to

re-

interpretaand

health

of

a

is

violation

A

Substantial"

("S&S")

reasonably
3

Co.,

will

FMSHRC

822,

825

order

to

In

a
(2)
danger
a
(3)

Cir.
Mathies
tion

safety--contributed

question

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be

based

establishes

evidence

occurred.

A

and

any

specific

particular

facts

fourth

special

allegations

a

The

of

special

finding

of

of

104(d)

9

Corp.,

The

duct

constituting
in

meaning

the

(April

1988);

relation
of

to

this

violation
with

of

FMSHRC

Coal
defined

unwarrantable

a

pursuant

1997,
Company,

2004

due

was

2007,
fa•tlure

neg'ligence
the

Act."

and

tel,erred

of

1427

the

unwar-

as

set

forth

814(d),
in
issuing

S

Section

(Dec•mber
FMSHRC

to

regulation.

,U.S.C.

re)

ordinary
failure

the

AFFIRMED.

representatives

orders

than
violation

by

fatality,

failure,

unwarrantable

more

to

be

the

30

Act,

9

to

the

established.

were

unwarrantmble

Secretarial

56.12017

S

P AILURE

comply

Mine

the

of

contributed
to

should

S&S

of

MCC

by authorized
withdrawal
and
Ohio
and
Commission

tor

viola-

2011-2012

was

contributed
Mathies

hazard

contends

failure

Section

qheny

(approving

surrounding

500-501

violation

•afety

to

danger

Since
the
formulations

Secretary

The
rantable

Mininq

498,
2007,

FMSHRC

(5th

103-104

•[December

UNWARRANTED

made
tions

F.2d

whether

that

of

measure

violation.

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in

nature.

99,
1987)

9

Co.,

of

1987).

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third

Coal

the

measure

861

FMSHRC

i0

Inc.,

Ohio

and

Youqhioqheny
(December

on

under

violation;
in
injury

sG•rious

of

the

explained:

standard;

a

tlhe

that

a

Gypsum

the

Secretary,
2021
2015,

v.

FMSHRC

Texasqulf,

violation.

the

9

must

S&S

is,

by

to

of

man-

(i)

safety

reasonably

a

Co.

Power

criteria).
is

of

a

prove:

mandato:ry

likelihood
be

will

aff'q,

must

hazard--that

safety

to

reasonable

of
v•tolation
substantial
an•d

a

a

discrete

Austin

1988),

of

Violation

question

also

that

the

the

that

illness

or

National
Commission

Division,

significant
Secretary

the

Gypsum

underlying

See

establish
is

injury

1984.),

(January

likelihood

an

Cement

standard

datory
•ational

in•

result

to
nature."

particular

and

surround-

facts

re•asonable

a

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being

as

tl•e

on

exists

there

contributed
serious

hazard

designated

properly
based
if,

violation,

the

ing

SUBSTANTIAL

AND

•GNIF•CANT

and

1987),

citaIn

104.

be

may

•mery

youqhio-

2010

1987),

as

con-

(December
"aggravated
by a mine
examined
Emery
to

it

in

such

operathe
terms

"indifference,"

as

care,"

this

In

employees
of

the

the

circuits.

power

to

ineffective
failed

to

worked

in

close

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shorting

stick

was

not

Finally,
that

proximity

Section
in
is

MCC

out

were

posted

on

different

two
used

system
system

to

was

rendered

would

have

check

pre-

foreman
before

he

high

negligence

and

unwarrantability

MCC.

CIVIL

criteria

locking

it.

to

establish

of

and

electrical
working
was
deenergized

the

B-field

the

factors

part

by

interlock
effective

for

posted

fed

An

reasonable

instructions

were

by-passed.

and

of

2003.

deenergizing
warning
signs

no

the

accident.
insure

15

ci•rcuits

Additionally,
the

the

!the

a

lack

FMSHRC

written

n•o

the

Further,

sources.

current.

vented

on

were

show

"serious
9

explaining
addition,

In

compartment

the

there

case,
review

to

intent,"

"willful
violation."

"knowing

and

ll0(i)
assessing

of

Act

civil

large

a

the

P•,%FALTIES

consideration

mandates

certain

of

penalties.
with

operator

568,861

hours

affect

the

in

worked

1990.

(Stipulation).
to

The

proposed

continue

in

The

for

The

dition

the

operator's
could

The

been

have

this

$30,000.
For

the

case,
Based

the

the

on

ability

operator's

foregoing

consisted

of

ending

March

period

apparent.
good

to

In

history

negligence
easily

was
gravity
statutory

entitled

n,st

(Stipulation).
prior
two-year

operator's

violations
(Ex.
G-l).

will

penalty
business.

such

lwas

that

67

assessed

26,

the

1990.

violative

con-

prevented.
MCC

abated

the

violation

and

faith.

SecreteLry
record,
reasorls,

proposes
I

a

in

concur

I

enter

civil
this

the

penalty

of

assessment.

following:

ORDER

$30,000

Citation

No.

is

ASSESSED.

3635856

i•;

AFFIRMED

/Admini•trative

1428

and

civil

penalty

of

Law

Judge

is

Distribution:
Robert

Murphy,

J.

of

Labor,
Denver,

Philip
928,

1585
CO

Esq.,
Federal

(Certified

80294

Nicholas,
Laramie,

Office
Office

Esq.,
WY

82070

NICHOLAS

of

Solicitor,

the

Building,

1961

Department

U.S.
Stout

Street,

Mail)
LAW

(Certified

OFFICE,

Mail)

ek

1429

221

Ivanson,

P.O.

Box

FI•ERALHIHK

ANDWZaTTHRKVZEUCOH•SSION

SAFETY

OF

OFFICE

2

ADMINISTRATIVE

LAW

10th

FLOOR

SKYLINE,
5203

FALLS

LEESBURG

CHURCH.

JUL

SECRETARY
OF
MINE
SAFETY
behalf
RICHARD

PIKE

VIRGINIA

22041

7 ]993

LABOR,

DISCRIMINATION

PROCEEDING

HEALTH

AND

ADMINISTRATION,
on

JUDGES

(MSHA)

Docket

,

No.

WEVA

92-172-D

of
E.

GLOVER,

HOPE

CD

92-11

Complainant
v.

U.S.

STEEL

MINING

COMPANY,
Respondent

SECRETARY
MINE

Mine

Shawnee
INC.

:

LABOR,

OF

SAFETY

CIVIL

PENALTY

Docket
A.
C.

No.
No.

PROCEEDING

ANDHEALTH

ADMINISTRATION,

(MSHA),
Petitioner

WEVA
93-13
46-05907-03657

v.

U.

STEEL

S.

MINING

Shawnee

Mine

U.S.

Department

INC.:

COMPANY,

Respondent
DZCISION

Appearances:

Tina

Mullins,

C.

Office

of

the

Esq.,

Solicltor,

Arlington,

Petitioner;
Tennant,
Esq.,
Pennsylvania

for

M.
Billy
Pittsburgh,

Before:

Statement
In

U.S.C.
Glover
did
not
30

training
penalty,
that

issue

these

Steel

Mining

Company,

Respondent.

consolidated

of

the

CasA

the

Secretary
(Petitioner)
Complaint
to
pursuant
of
the
Federal
Mine
I05(c)
and
Health
Act
of
Safety
§ 815(c)
The
("the
Act,").
that
Complaint
alleges
was
discriminated
Steel
against
by U.S.
(Respondent),
him
for
compensate
newly
miner
employed
experienced
it
him.
The
provided
also
seeks
Secretary
a
civil
of

Section

U.S.
for

Labor,

Virginia,

Welsberger

Judge

behalf

of

Richard

a
alleging
attending

miners
in
both

cases

cases,

Glover,

filed

vlolatlon
is

on

a

of
30
such
training
whether
Glover

1430

C.F.R.
shall
was

§
be
a

48.10

which

compensated.
miner.

1977,
who

requires
At

the

notice,

to

Pursuant

in

West

Virginia.

Fred

and
not

James

Charleston,
A.
Tucker,
did
Respondent
filed
post-hearing
of

Tindinqs

I.

call
briefs

E.

witnesses

any

has

("UMWA")
and
safety

to

health

2.

An

UMWA representative,
and
investigates
his
time
of
1/3

36

Mine

at
5.

U.S.

obtain

6.

After

date

for

since

1984.

conducts

Glover

in

Glover
placed
Mine.
Shawnee

his

employee

work

only
there

Mine

safety
He

spends

mines.

off

to

United

mines.

coal

Mining

Steel
laid

the

by

representative

at
accidents
in
underground

was

status

USM's

because

on

name

pursuant

No.

recall

the

USM's
Shawnee
the
USM-UMWA

at
to

day

one

Inc.

Company,
1983

agreement.

working
protection

establish
collective

with

USM
to
USM-UMWA
his
continue

day

one

the

under

intended

Glover

agreement,

employed
international

1989,

bargaining
Job

parties

The

1993.

an

U.S.

intended

Glover

to
Mine
collective

for
he

until

1972

October
Steel's

In

4.

panel

worked

Glover
from
closed.

3.

("USM")

been

as

assigned
inspections
approximately

testify.

to

18,

June

on

Glover

America

of

testified

Bowman

Glover,

Fact

Richard

1.

Workers

F.

1993,

on

hearing,

the

At

27,
April
E.
Richard
Petitioner.
for

heard

were

cases

to

a

seniority
bargaining
with

employment

the

UMWA.
7.

July

On

opportunity
On

July

to

as

a

Respondent

that

his
of
Glover
Shawnee
Mine.
he
accepted

advised

recalled

to

USM's

mechanic

its

at

the

Mine

position.
8.

a

notified

Respondent

1992,

recalled
Glover

1992,

3,

mechanic's

as

1,
be

July

In

1992,

Glover

was

Shawnee

mechanic.
the

9.

Glover

mechanic,
processed

took
for

benefits

purposes.

i0.

USM

assigned

an

11.

USM

did

not

pay

July
employed

20,

1992,

accepted
a

recall,

tested

was

and

examination,

physical

number

employee

for

to

a

Job

as

a

administratively

was

Glover

on

July

15,

on

July

15,

1992.
for

Glover

his

activities

1992.
12.

of

newly

On

experienced

Glover
with
provided
miner
training
required

USM

1431

eight

hours

under

30

Part
when

C.F.R.

break,
13.

July

On

Shawnee

Respondent's
to
lunch,
go

48.
to

Mine,

USM

did

not

did

not

assign

of

14.

and

not

was

when

Glover

1992,

he

production

1992,

20,

and
coal.

told
to

agents
and

issue

did
in

Glover
his
UMWA

15.

received
16.

was

associated

UMWA

Glover

to

Fred

18.

night

before

advised
business

Tucker,
he

Glover
the

that

work

work
his

employer

at

on

July

with

the

20'i/

advised

to

teach

Tucker

that
his

closer

Charlie

to

Johnson,

three

to
19.
and

which
four

and

1992,

USM

work
be

at

that

on

Shawnee
to
attend
that
a

July

July
day.
to

1992.

21,
on

on

spoke
the

July

on

scheduled

as

representative,

international

an

investigation,

20,

21,

21,

Glover

Mine,

the

and

to
an
union
required
Tucker
union
explained
needed
to
a
that
had
investigate
fatality
and
that
union
a
Coal,
also
representative
a
class
at
the
Mine
training
Glover
Academy.
he
would
the
cover
because
course
it
training
and
would
take
one
home,
and
that
only
day,

Sharples

needed

by

day.

was

occurred

start
would

he

next

representative

UMWA
to

was

July

on

commence

Glover
did
not
for
report
Glover
considered
UMWA to
be
and
chose
not
to
be
employed

1992,

UMWA

or

that

scheduled

USM

of

employee
day.

an

wages

17.
1992.

was

a

at

extraction

equipment

safety
duties

any

take

underground

go
the

when
to
from
lunch.

job.

mechanic's

was

not

involved

Glover
him

Glover
return

was

closer

to

representative,
his
home,

would
which

and

the
take

cover

would

days.

On
was

July

21,

paid

by

1992,
the

Glover
UMWA.

remained

on

the

payroll

of

the

20.
On
the
of
morning
Tucker
to
21,
U.S.
July
1992,
spoke
Steel's
Labor
Relations
David
because
Representative,
Labor
Cook,
Relations
Les
in.
was
not
He
Manager
advised
Cook
Morgan
that
Glover
was
leave
a
of
absence
in
order
to
requesting
his
perform
union
and
he
faxed
leave
a
of
duties,
absence
from
UMWA
request
President
Richard
Trumka
to
at
2:30
Respondent
that
approximately
afternoon.
Cook
stated
that
he
knew
about
the
details
of
nothing
Glover's
and
that
Tucker
would
have
situation,
to
speak
toMorgan
when
he
returned.
21.

July

23,

When

1992,

Morgan
he

discharging

Glover.

had

his

refused

Shawnee
for
the

Mine.

mix-up

returned

to
the
office
on
Thursday,
.
Tucker
that
U.S.
Steel
was
of
thinklng
He
later
called
back
and
stated
that
Glover
and
was
no
the
on
at
the
longer
panel

advised
recall

Subsequently,
and
to
explain

Glover
what

1432

called
Morgan
had
happened.

to

apologize
Morgan

refused

to
to

training,

the
for
Steel.

pay
U.S.

August

On

22.

rendered

filed

Glover

1992,

13,

had

Glover

because

Section

a

services

no

I05(c)

failure
discrimination
MSHA,
Respondent's
complaint
miner
On
the
for
him
training.
to
experienced
employed
newly
pay
issued
F.
Bowman
a
James
MSHA
104(a)
1992,
Inspector
18,
August
Glover
for
the
refusal
to
the
based
on
citation
pay
Respondent's
under
30
C.F.R.
he
was
which
§
required
alleged
training,
based

with

4S.

on

(a).

10

After
of
§

23.

violation

citation
modified

a

(later

48.30(a)

citation

the

abated

issued

MSHA

paying

by

to

alleged

an

48.10(a)),
for
protest
§

under

Glover

for

USM

to

USM

the

day

of

training.
Payment
August

24.

and

dated

ii,

1993,

relying

he

27.

As

involved

until

II.

Discussion

Docket

A.

of

105(c)

provides

pertinent,
No

the

established

be

or

nation

against

of

statutory

the

miners
mine

or

subject

required

discharge
to

be

rights

applicant
to

in

this

for
Act

manner

any
or

cause

with

interfere
any

miner,

employment
....

1433

was

been

involvement

seniority

a

work

at

annual
Shawnee

48.

this
to

105(c)(1)

or

nor

Act)

in

entitled

discharged
of

not
Part

the

the

Mine,

receive

not

of

is

otherwise

or

in

involved

prevail

to

February
1992.
July,

on

in

Shawnee

by

105(c)

Secretary

cause

worked

received

did
could

Glover
and
48,

Part

that
Glover
Act.
Section
the
follows:
as

shall

person

against

he

$116.75,

of

Glover
has
never
his
Shawnee
Mines
establish
to
attempts

WEVA •3-172-D
O• Section

No.

for

order

In

he

training

(V•olat•on
first
Section

his

employee,

under

received

he

and
had

amount

at

to

UMWA

an

training

Mine

representative,

limited

As

28.

the

Glover
was
never
coal
at
USM's
hazards
there.

activities

safety
been

refresher

of
mine

to

UMWA

an

in
has

there
date.

1992,

exposed

regularly

again,

training

production

or

in

check

a

Glover
the

on

Throughout

26.

extraction

by

1992.

recalled

USM

25.

made

was

24,

it

case

the
of
the

must

protection
Act

as

discriminate
discrimiexercise
the
of

representative
in

any

(Emphasis

coal

added)

or

other

of

Whether
section

working

"working",

is

not

International
used
work

Dictionary,
an

or

fulfill

duties

indicates,

that

newly
employed
experience
The
Respondent.
training
notice
a
already
accepted

miner

The

record

qualifications

for

employment
work.
the

On

mine.

production

or

receiving

newly

July

Hence,
he
20,

mine

as

The

of

Glover
extraction

since

to

Glover

request

and

and
did

all
not

not

legally

of

after
his

not

completed
required

prepaper
activities

at

without

the

mine

at

first

training.
work

have

any
been

(See,

Websters,

to

a

any

perform

used

the

took
of
he
had

perform
any
perform

miner

experience

Glover
did
be
considered
is
commonly

cannot
word

1992,
at
the
Glover

20,

activities

employed

word

Third
•ew
defines
when
"work",
to
"...(c):
perform
or
salary".

opening,

could

"...any

demonstrated

recall,

examination
Glover
1992,

any

that

was

as

The

Webster's

training,
provided

particular

a

physical
July
20,
Indeed,

"miner"

mine;".

July

on

Miner

a

(1986
edition),
follows:
as
verb,
for
regularly
wages

intransitive

as

was

of
the
Act
defines
in
coal
a
or
other
defined
in
the
Act.

(3)(g)

individual

Complainant

at

mine

the

"working"

at

on

the
1

supra).

Circuit,

10th

the
D.C.
and
the
Circuit,
have
Commission,
term
"miner"
in
the
context
of
training
section
115
of
the
and
have
Act,
to
held,
pursuant
the
definition
of
the
term
"miner"
in
Section
the
3(g)
su_•_Eaof
Act
that
and
former
job applicants,
miners
on
did
not
layoff
as
under
the
qualify
and
"miners",
hence
were
not
Act,
entitled
to
under
Section
115
training
of
rights
the
Act
(Emery
Mininq
v.
of
Co_•
783
F.2d
155
Secretary
Labor,
(10th
Circuit)

previously
under
rights

(job

examined

(1986)

applicants);

(D.C.

Cir.

•rock

1Although
of

Respondent,
any
salary

receive
is
significant

the

Also,
recall

agents

preserve

his

directed

to

that
or

date,
21

822

and

Westmoreland

layoff);

on

underwent
there

was

no

or

for

fullfilling

note
told
to
return

seniority

report
and
he

that

his
activities
within
the

salary"

to

Company,

training

wages
that
Glover

on

agreement

July

F.2d

at
20,
beforehand

this

1134

Coal

the
that

obligation.

of

the
training
although
take
a
when
to
break,
go
and
when
from
he
was
still
lunch,
an
employee
UMWA
on
that
and
was
for
that
date,
paid
day by UMWA.
it
is
to
note
that
when
significant
Glover
to
the
responded
for
the
Shawnee
he
intended
to
Mine,
work
one
only
day to

Respondent's
to
lunch,
of

Glover

Coal

peabody

v.

(individuals

1987)

direction
he
It

the

did
was
on

scope

(Webster's,

of

rights.

for
not
not

going

July

20,

work

advise

fulfilling

day

on

when

to

Glover
had
been
Further,
although
he
did
not
to
July
21,
work
on
report
at
time
Respondent
on
any
20,
July
to
to
work
on
21.
report
July
Thus,

undergoing
"duties

L•P_•).

1434

training,
•

do
not
fall
for
wages

or

11

Company,
In

the

noted

(individuals

Corporation,

Empire

Cyprus

Commission

1989)

(June

960

FMSHRC

Westmoreland
supra,
of
miners
for
purposes
walk-around
designated
and

15

of

holdings
held

and

FMSHRC

•_9__ry,

entitled
being
representative

to

the

(1993),
Peabody,
employees

i0

supra,

striking

that

layoff).

on

supra,
not

were

previously
MSHA
an
inspector
the
reviewing

have

their

accompany
The
after
Commission,
of
the
term
"miner"
definition
set
forth
in
Section
as
3(g)
concluded
follows:
a
status
as
as
a
miner
"Thus,
muDra,
person's
determined
not
the
fact
that
he
is
is
an
by
employed
by
operator,
the
statute
rather
he
works
in
but
as
a
provides,
by whether,
at
I
that
in
this
mine."
supra
13).
conclude,
(Cyprus
general,
the
bar.
is
to
at
case
Hence,
reasoning
applicable
considering
all
conclude
that
inasmuch
the
I
Glover
had
as
on
above,
20,
July
for
and
not
not
in
was
the
work,
reported
mine,
yet
yet
working
2
not
miner.
he
was
a

during

inspection.

an

Accordingly,
is

Glover
Act.

for

Complaint

Hence,

2petitioner
was

also

"representative
of
protection

Section

Glover

employment,

miners",

of

and

notice

to

qualify
"applicant

of
for

Petitioner

Also,
recall

on

the

of

105

that
of
is

i05(c)
the
Act,

inasmuch
that
as
essence,
of
the
UMWA, he
qualifies
he
is
entitled
to
the

supra.
105(c)(1)
Respondent's

was

accepted
procedures

requisite

of

Section

in

conclude
I
Section

reasons,

under

Representative

a

since

above

protection

argues,

International

an

that

all
the
the
to
filed

entitled

not

and

to

Glover
as

argues

applied

panel,

recall,

the

underwent

for
the

position

as
a
mechanic,
and
thus
employment"
Section
of
of
the
protection
105(c)(1)
supra,
Act.
under
the
Section
terms
of
an
However,
105(c)(1),
supra,
for
or
of
miners"
comes
"applicant
employment"
"representative
within
the
of
that
section
if
there
has
been
purview
only
interference
"...with
the
exercise
of
the
of
rights
statutory
miners
of
for
or
applicant
employment
representative
to
Petitioner
the
that
was
Accordlng
statutory
right
allegedly

should
entitled

be

considered
to
the

an

a

...

any
"

....

interfered

Specifically,

it

C.F.R.

§

pertinent,
added)

Although
Glover

is
to

48.10

that

rate

•P•E•,
to
those

miners

newly

right

Glover's

the

herein

with
for

compensated

30

he

for

of

pay

Accordingly,
right

was

right

Glover's

receive

compensation

supra.

Section

"...miners

provided

as

to
receive
and
miner
training.

experience
employed
that
alleged
Respondent

pursuant
receive

in
to

the

compensation

with

pursuant
as
provides,

supra,
such

Section

be

training

for

48.10

attending

interfered

to

training
of

receive

shall

(emphasis

48.2(d)...".
terms

to

Section

48.10

limited
is
training
within
fall
the
of
"miner".
a
persons
category
being
Glover
be
construed
to
have
been
a
may
representative
for
or
an
in
these
applicant
employment,
capacities,
did
not
have
to
receive
a
for
right
compensation
training.

the

to
who

1435

for

of

be

dismissed.

B.

Docket

3

No.

WEVA

issue

At

issued

by

(Violation

93-•3
is

herein

the

inspector

MSHA

validity

James

F.

of

30

of

Citation

Bowman,

§

C.F.R.

48.10(a))
2736770

No.

August

1992,
of
30
C.F.R.
by Respondent
§ 48.10(a),
as
that
which,
pertinent,
shall
provides
receive
"miners",
for
ompensation
training.
OnJuly
20,
1992,
Respondent
required
Glover
to
receive
miners
newly
employed
experienced
and
training
he
received
such
that
date.
The
trainingon
critical
is
question
whether
Glover
as
a
"miner"
qualifies
as
defined
in
30
C.F.R.
§
Section
defines
48.2(a)(i).
a
miner
48.2(a)(i),
as
E•/_•,
in
an
"...any
mine
working
person
and
who
is
underground
engaged
in
the
extraction
and
or
who
is
production
process,
regularly
mine
to
is
who
or
a
exposed
maintenance
hazards,
or
service
worker
or
a
maintenance
employed
by the
operator
or
service
worker
contracted
to
work
at
the
mine
by the
operator
for
or
extended
frequent
periods".
on
Clearly,
Glover
July
20,
1992,
was
not
in
working
as
any
underground
mine,
explained
above,
he
as
was
not
in
infra,
II(A)
the
extraction
engaged
and
Glover
had
been
production
process.
as
an
employed
underground

alleging

miner
and,

accordingly,

"new

miner"

July

20,

the

effective

date
was

(See,

(See
July

on

in

in
for

training

3Additionally,
prevail

to

that

was

during

order

for

Section
it
must
105(c)
supra,
was
involved
in
protected
activity
v.
of
pasula
Consolidation
oal
Co.,
other
on
rev'd
sub
(1980),
nom.
qrounds,

that
2800

Company
behalf

Marshall

633

Robinette

v.

v.

of

(1981)).

In

argument

that
and

receive,
training.

above,

establish

that

4No argument
either

"regularly"

a

1211
Castle

Cir.

(3rd

is

Glover

or

to

this
I

in

the

13).
the

to

be

period

of

by

the

to

FMSHRC

on

2786,

1436

or

2797-

onsolldation
1981));
Secretary

for
the

that
that

on

right
miner
reasons

fails

activity.
Glover

he

Coal

817-818

the
record

protected

Petitioner,

service
worker,
mine
hazards.

his

established

(Secretary
2

such,

As

by

Petitioner
first
be

that
any

in
a

experienced

the
found

contention
conclude

engaged

was

made

was

maintenance

exposed

merit
to
Hence,

no

II(A).

on

defined

United
3
FMSHRC
•oal
Co.,
this
in
it
is
connection,
Petitioner's
essence,
the
herein
protected
was
Glover's
activity
be
for
compensated
newly
employed
experience

There

forth

F.2d

is

right

no

a

production

or

at

1978,

to

considered

be

u•_•_ra,
to

who
have

took

in

(c)).

can

13,

opposed
However,

as

extraction
that
term

at

and

supra,
he

that

note

I

and

under
Glover

behalf

set
to

status

a

October

miner",

he
best,
Empire
Corp,
was
comparable

1992

layoff
Westmoreland,

was

regulations,

At

Cyprus
20,

the

"miner"

a

4

su_•_ra.

miner",

compensated

not

was

48.2(a)(1)

miner
who
Commission

C.F.R.
not

was

he

Hence

of

"experienced
i§
48.2(b)
inthe
engaged

an

30

he

1992

process.
Section
"former
his
status

18,

violation

a

on

on

was

was

to

layoff,

find

I

Respondent
to

supra,

not

was

did

issue

shall

considered

have

not

him
violate

be

DISMISSED.

miner

a

since

that

therefore
did
not

compensate

Respondent
at

he

as

at

Glover

Section

not

was

obligation,
the
training

any
for

time.

that

it

48.10,

"miner",

a

Section

to

pursuant

provided.

such,

the

Citation

reasons,

these

and

supra,

48.10
As

ORDER

is

It
be

cases

hereby

i

that,

ORDERED

above

the

DISMISSED.

•vram
Weisberger
Administrative

(703)

56-6215

the

Solicitor,

Law

Judge

Distribution:
Tina

C.

of

Labor,

Mullins,

(Certified
Billy
PA

M.
15219-4776

4015

Esq.,
Wilson

Office
Boulevard,

of

Room

516,

U.S.

Arlington,

Department
VA

22203

Mail)
Tennant,

Esq.,
(Certified

600

Grant

Mail)

nb

1437

Street,

Room

1580,

Pittsburgh,

FEDERAL

MINE

SAFETY

OFFICE

AND

OF

HEALTH

ADMINISTRATIVE

SKYLINE,

2

5203
FALLS

OF

MINE

FLOOR

LEESBURG

PIKE

CHURCH,

VIRGINIA

JUDGES

22041

DISCRIMINATION

AND

PROCEEDING

HEALTH

ADMINISTRATION

(MSHA),

OF

COMMISSION

1993

LABOR,

SAFETY

BEHALF

LAW

10th

JUL 2.
SECRETARY

REVIEW

DANNY

ON

Docket

SHEPHERD,

No.

BARB

CD

KENT

93-219-D

92-35

Complainant
Diamond

No.

Mine

1

V.

ADENA

FUELS,

INCORPORATED,

Respondent
DECISION
Before:

Judge

APPROVING

Barbour

STATEMENT

This
the

by
Shepherd
pursuant
Health

proceeding
of
Secretary
and
against
to

30

had

they
settlement

The
of

joint
that
of

Health

signed
Mindful

proposed
adjudicative
the

the

the

of

the

as

settlement

of

has

Commission's
is
an

responsibilities
Commission's

motion

aspects

sound

agreement

to

the

further
the

statement

that

have

1438

of

aspect
.

and

concluded

is,

in
I

have

it

The

motion

settlement
civil
a

of

Mine
discloses

and

Safety
other

president,

important
.

Adena

agreement.

Adena's

discretion[,]"
and

by

payment

($i00)

The

monetary
motion,

settlements

the

their

of

final

and

me

they

that

1993.

14,

July

on

advised

and

full

a

heard

approval

July

on

reached

dollars

be

orally

proceeding

the

received

including

Shepherd's
pre-trial

to

parties

requesting
proceeding.

the

have

Administration.

scheduled

of

was

parties

and

extensive

the

motion

hundred

one

in

1993,

of

motion
the

confidential

to

joint

litigation,

this

penalty

has

1,
aspects

dismissal

and

states

a

complaint

the
was

July
all

file

to

of

behalf.

own

engaged

proceeding
on

settled

intended

filing
parties

the

However,

1993.

his

on

the
the

PROCEEDING

a
of
discrimination
filed
complaint
behalf
on
of
("Secretary")
Danny
Adena
Fuels,
Incorporated
("Adena
Fuels")
Federal
Mine
and
i05(c)
(2) of the
Safety
In
§ 815(c)(2).
addition,
through
counsel,

U.S.C.

Following
intervention,
and
discovery

THE

concerns

intervened

has

OF

Labor

section

Act,

Shepherd

SETTLEMENT

Danny

Shepherd

Charles

Yates.

"Oversight

of

Commission's
committed
general,
reviewed
fully
is
reasonable

the

7,

and

in

FMSHRC

1428,
Co.,

Liqht

1430
12

the

approve

(August

FMSHRC

1548,
and

settlement
to

addition,

In

confidentiality,
in

under

seal

the

Commission

or

Utah

(August

1990).

will

dismiss

this

parties

desire

the

order

v.

for

motion

will

to

subject

be

judicial

will

I

Therefore
matter.

settlement

it

ii

Co.,
and

Power

UMWA

1554

where
record•
an
appellate

the

Mininq

1989);

the

honor

will

I

Birchfield

citing

interest,

public

the

be

placed
by

review

to

only.

body

ORDER
ORDERED

are
parties
including

The

settlement,
the

settlement

the

date

amount

this

of

ORDERED

proceeding

is

DISMISSED.

of

a

and

penalty
thirty
(30)
to

in

MSHA

to

of

days

Approve

payment

of

this

Barbour

F.

Administrative

(703)

the

of

aspects

reciept

upon

David

all

within
Motion

Joint

The
SEALED

IS

with
civil

comply

above,

stated

decision.

Settlement

to

payment

the

Judge

Law

756-5232

Distribution:
Anne

Knauff,

T.

Labor,

Tony

Oppegard,
&

Lexington,
Jerry
Fuels,

of

Road,

Jones

the
Suite

Solicitor,

U.S.

Department

Nashville,

B-201,

of
37215

TN

Mail)

(Certified
Research

Office

Esq.,
Richard

2002

KY

Wayne
Inc.,

Fund
40508

Slone,
P.O.

Project
Safety
Inc.,
Kentucky
Mail)
(Certified

Mine

Esq.,
Defense

Esq.,
Box

727,

Weinberg,
Hindman,

/epy

1439

the

of

630

of

Campbell
KY

41822

Appalachian
Court,

Maxwelton

&

Slone,

(Certified

PSC,

Adena

Mail)

FEDER]t3,

M.T.NB

B]kl•]kND]•,]kLTH]RII•IC•O]d]•ZBBZON

OFFICE

OF

ADMINISTRATIVE

2

SKYLINE,
5203

FALLS

LAW

10th

LEESBURG

CHURCH,

JUDGES

FLOOR
PIKE

VIRGINIA

22041

JUL 2 9 ]993
SECRETARY

OF

MINE

LABOR,

SAFETY

AND

CIVIL

PENALTY

PROCEEDING

HEALTH

ADMINISTRATION,

Docket

Petitioner

No.

A.C.

WEVA

No.

92-1292

46-01455-03941

v.

Osage
CONSOLIDATION

No.

3

Mine

COAL

COMPANY,
Respondent
DECISION

Appearances:

Heather

Bupp-Habuda,

U.S.

Department

Office

Esq.,

Labor,

of

the

Solicitor,
for
Virginia,

of

Arlington,

Petitioner;
Daniel

E.

Rogers,

Pittsburgh,
Before:

above

petition
1977,

called

30

for
and

criteria

N°

single

citation

Inspector

s__eq.,
in

1993,

concerning
facts

associated

section

ll0(i)

with
the

of

proceeding

which

Kalich,

at

10:30

a.m.,

issued

for

an

alleged

of

combustible

30

C.F.R.

§

to

the

fact

and

of

Therefore,

I

75.400.
the

the

At

I

Section
"Coal

loose

cleaned

up
on

hearing,
of

issues

provides

75.400

dust,
surfaces,
or

the

including
electric

coal,
and

not

be

Act

this

penalty

of

are

record.

104(d)
by

respondent
on

hear

civil

June

25,

(2)

1992.

impermissible
violation

of

contained
in
the
respondent

section

resolution

dust

coal

and

of

the

75.400,

stipulated
(Tr.

are

7).
whether

the

follows:

as

float

to

violation.

the
for

result

a

Section

the

in

standard

occurrence

remaining

to

dust

coal

safety

as

the

concerns

issued

was

me

jurisdiction

my

was

mandatory

workings,

June

Federal

t

e

G.

health

Company,

of
Labor
Secretary
Mine
and
Health
Safety
This
(the
case
Act).
was
Washington,
Pennsylvania.

order

accumulation

be

the

before
the

3121636,
Michael

subject

dusted
shall

of

801,
22,

pertinent
in

.

by

§

contained
This

Order

is

filed

105(d)

U.S.C.

the

proceeding
penalty

on
hearing
stipulations

parties'

matter

The

civil
section

to

of

The

captioned

for

pursuant
Act

Coal

Feldman

Judge
The

a

Consolidation
for
Respondent.

Esq.,

Pennsylvania,

other

permitted

equipment

1440

therein

deposited

combustible
to
accumulate

(emphasis

rock-

on

materials,
in

added)."

active

violation

respondent's
hearing
expressed

reservations

my

unwarrantable
and

conferred

reached

a

settlement

facts

are

Citation

1:15

is

citation,

which

excessive
dust,

accumulations

lumps
in

miner
Mine.

Inspector

removing

the

section
accumulations
the

by

previous

proceeding,
than
he
No.

a

had

observed
the

issued
as

p.m.,

on

This
noted
fine
coal,
continuous

what
continuous

to

for

order

day
his

subject
abate

timely

to

the
had
he
best

that

were

action

in

same

observed

explained
this

rather
accumulations
Citation
Kalich

the

in

noted

this

left

one

of

accumulations

new

the

the

to
be

Mine

3

No.

for

1992.

24,

reasons

the

3

deadline

that

for

coal

No.

Osage

Osage

believed
miner

failure

the

June

he

previous
explaining

In

termination

25,

the

3121633.

at

1992,

104(a)

proceeding,

materials,
of
the
vicinity
the
at
respondent's

However,
3121636,

24,

June

75.400.

returned

No.

for

On

issued

He

Order

order

104(b)
observed

subsequently

1992.

i04(d)(2)

a

of

Kalich
section
this

6:00

39).

(Tr.

day.
he

dispute.

I

the

matter.

respondent's

the

around

Kalich,

in

of

in

June

on

he

where

this

combustible

as

to

morning

following

in

established

Kalich
accumulations

returned

Kalich

not

oil
section

and
left

one

testimony,
of

parties

The

subject

a

of

coal

of

the

not

after

Inspector
the
sustainability

violation

for

3121633

No.

the

of

below,
Kalich's

Inspector

p.m.,

substantial

and

result
noted

a

As

about

allegation.

approximately

as

of

failure

dispositive

The
at

portion

significant

a

significant

as

occurred
failure.

violation
the
unwarrantable

whether

and

designated

properly

was

regard

stated:

informed

I

that

25th,

paper
it
was
miner.

the

same

(d)

a

to

cleaned
terminated

up

issued

a

order

that

that

and

that

the

citation
order

(d)
I

it
I

it
on

order

40-41).

1441

in
day
personnel

and

changed

more

And
foreman

them

know,
you

on,
that

it

again,

I

my

mind

instead

25th,

failure

[a]

you

based

that

to

serious,

lot

it's
citation.
section

So

not

me

that,

say

the

on

more
a

a

of
that

and

lot

about,

told

piece

were

up.
heard
reoccurred

the

originally

(Tr.

a

(b)

to

a

believed

I

afternoon

going

terminate

management
begged

because
abate

order

order,

to

the

it's

because

story

the

issue.

basically

takes

brought
basically
cleaned
had
they

know,

course

they

was

that

to

the

of

know,
you
the
forth

someone,

that

case,

that

order

(b)

since

with

(b)

appropriate

the

been

discussions

a

they

for

the

on

a.m.,

a

accumulations

mine---and

Consol
know,
you
a
serious
than
of

have
this

10:30

issue
failure

to

is

during

But

the

issue

in

issue

to

subsequent
at

which

would

which

at

Renner

going

was

order,

104(b)
and

Mr.

I

of
I

was

was

and
the

(b)

going

physically

I

cleaned,

I

so

afternoon

did

basing

was

observe
termination

not

the

miner

the

the

on

boss'

statement
that
had
cleaned
it
they
and
that
the
accumulation
up
had
reoccurred.
And
based
on
that's
that,
and
why I changed
my mind
issued
a
order
instead
of
(d)
a
order
that
I
(b)
had
told
them
I
was
originally
to
issue
on
going
the
25th
at
in
10:30
the
morning.
(Tr.
41).
.

believe
and
June
I
still

I
June

24

tions.
accumulations.
told
me,
to
write

Kalich

testified
No.

stated

and
a

foreman's

he

at

I:00

know,
order,
44).

issued

on

June

the

the

company

asking

me

(d)

order

not

Citation
1992.
25,

actually

was

his

on

same

the

a

both

3121633

based

that

I

on

accumula-

what

on

they're

p.m.,

24,

observed
same

to

had

3121633

and

However,

terminated

decision

accumulations

No.

at

accept

been

he

"the

cleaned.

43).
order

In
the

prevail

to

Secretary

Rushton

Mininq

Company,

i0

9
FMSHRC
Corporation,
9
FMSHRC
Company,
a
by issuing
i04(d)(2)
in
elected
to
effect,

accumulations

observed
credit

respondent
said

that

same

location
the

the

During

these
observed

attributable

are

to

conduct

Mininq

Emery

Youghioqheny

1987).

In

a

104(b)

order,

with

cleaning

the

Having
accumulations,

1992.

the

that

Se__ee

1988);

respondent

cleaning

accumulations

by
"inexcusable"

(March
1987);
than

24,

2

bench

and

urged

conference
the
parties

They

conferred

and

reached.
A
the
record.
the
Secretary

a

bar,
Kalich,
at

the
the

it

cannot

be

morning

conduct

aggravated

Ohio

and

case

given

following

2

expressed

the

consider

a

motion

for

The

substance

of

During
that
Counsel's

order.
be
prejudicial

I

to

informed
of
approval

has

citation

104(a)

requested

rather
the
June

on

for

249

conduct

at

the

on

reducing

this

bench

I

modify
the

the

conference,
I04(d)(2)

the

request
to

modify

to

agreed
thus

the

was

denied

respondent.

1442

above

noted

that

settlement
settlement

had

settlement
settlement

agreement

me

the

order
i04(d)(2)
of
underlying
degree

counsel

for

order
as
such

in
a

this

of

been

proffered

was

the

the

part

respondent.

concerns
case.

order
credit

failure,

respondent's

(December
(December

2007

unwarrantable

characterized
that
is

FMSHRC

1977

of

the

conduct"
behavior

or

Coal

issue

that

"aggravated

justifiable"

"not

the

on

establish

must

constituted
was

of

based

terminated

No.

June

word"

(Tr.

(b)
(Tr.

Citation
on

p.m.,

you

that

3121636

that

6:00

accumulations
to
be
the
25]
believe
it
was
But

instead.

Order

[the

.

on

is

that

to

a

negligence

Secretary

issue
to
modification

a

104(b)
would

high

from

Section

underlying
penalty

that

parties'

$1,300

of

penalty

violation

ll0(i)

proposed

settlement
motion

the

record.

the

for

with

associated

gravity

Section

in

Consequently,
the
on
granted

was

civil
serious

the
of

I

Act,
this

matter

of

approval

the

for

the

civil

the

and

of

of

The

substantial.

and

accumulation

dust

the

appropriate.

settlement

the

contained

criteria

concluded

a

pay

Given

issue.
combustible

in

to

violation

the

of

significant

as

agreed

has

citation

was

remains

75.400

respondent

The

removed.

is

designation

failure

unwarrantable

the

As
such,
characterization

high.

moderately

to

63-65).

(Tr

ORDER

Order

Accordingly,

No.

is
designated
that
citation
properly
ORDERED
Is
The
tial.
respondent
violation
the
of
satisfaction
in
this
of
date
the
of
30
within
days
matter

this

payment,

is

modified

is

3121636
to

104(a)

a

and

substan-

penalty
is
Payment

Decision,

and,

$1,300

of

civil

a

pay
issue.

in

to

significant

as

to

be

receipt

upon

made
of

DISMISSED.

•S••

Law

Judge

Distribution:

Solicitor,
Room

Daniel
1800

U.S.

516,
E.

Washington

of

Department
VA

Arlington,
Rogers,

Robert

Esq.,

Bupp-Habuda,

Heather

Esq.,
Road,

22203

S.

Wilson,
4015

Labor,

Coal

Consolidation
PA

vmy

1443

Office

of

the

Boulevard,

Mail)

(Certified

Pittsburgh,

Esq.,
Wilson

15241-1421

Company,

(Certified

Mail)

FEDERAL

MINE

AND

SAFETY

OFFICE

OF

SKYLINE,
5203

FALLS

MINE

WORKERS

of

Behalf

of

on

CHARLES

MARK

ROSEN,

COMMISSION

LAW

10th

JUDGES

FLOOR

LEESBURG

PIKE

VIRGINIA.

CHURCH,

JUL

AMERICA

REVIEW

ADMINISTRATIVE

2

UNITED

HEALTH

22041

9 }993
DISCRIMINATION

et

al.,

Docket

Complainants

PROCEEDING

No.

MORG

CD

LAKE

93-89-D

92-15

v.

Saginaw
SAGINAW

MINING

Mine

COMPANY,

Respondent
DECISION

This
filed
and

Health

this

act

The

has

6

and

appropriately

has

to

of

§

discrimination
Federal

(3)

joint

their

of

agreed

a

the

815(c)

their

of

Union

the

(3)

U.S.C.

substance
without

Local

upon

i05(c)

30
1977,
approval

respondent,
occurred,

SETTLEMENT

based

me

my

matter.
the

District
was

of

seek

now

that

before
Section

to
Act

parties
of

is

case

pursuant

APPROVING

(the

Act).

motion

proposed
any

to

total
will

be

distributed

of

whom

complainants

behalf

on

settlement

resolution

that

the
pay
which

The

for

admitting
9695,

complaint
Safety

Mine

is

discriminatory
$200

of

sum

this

to

action

brought.
I

have

parties'
should

considered

motion
be

I

IS

conclude

GRANTED

payment

of

the

sum

order.

IT

IS

FURTHER

subject

complaint

and
noted

in

provided

that

the

Accordingly,

approved.

settlement

information

the

and

IT
above

the
IS

within

this

that,
proceeding

for

that

the

30

upon

days
receipt

IS

DISMISSED

Administrative

of

the

settlement

motion

•e

1444

support

proffered

ORDERED

ORDERED

in

of

the

approval
respondent
the

date

of

payment,
WITH

of

this

the
PREJUDICE.

I•
Law

of

make

Judge

Distribution:
Thomas

Bottom,

John
St.

General

Shadyside,

OH

Manager,
OH

Carol

Feinberg,

Labor,

4015

(Certified

Esq.,

Mine

Dubiel,
Clairsville,

43947

Polito,
Pittsburgh,

Basara,
Center,

George
Gateway

Esq.,
Wilson

District

Counsel,

Myers,

M.

43950

office

(Certified
Smock,

and
PA

15222

Saginaw
(Certified
of

the
Room

Boulevard,

Mail)

vmy

1445

6

UMWA,

Dilles

56000

Mail)
P.C.,

(Certified
Mining
Mail)

Co.,

Solicitor,
Arlington,

516,

Suite

400,

Four

Box

218,

Mail)
P.O.

U.S.

Department
VA

22203

of

I•D•L••vgTYAND•TH••SSION
OFFICE

ADMINISTRATIVELAW

OF

2

5203
FALLS

10th

SKYLINE,

JUDGES

FLOOR

LEESBURG

PIKE

VIRGINIA

CHURCH,

22041

.JUL 3 9 1993
SECRETARY

OF

LABOR,

MINE

SAFETY
ADMINISTRATION

AND

CIVIL

PENALTY

(MSHA),

Docket

Petitioner

No.

A.C.

A.C.
LAND

MINING

Docket

DECISION

These

No.

Health

Act

before

are

under
of

(the

1977

from

the

representations

and

I

under

petitions

upon
of

for
Federal
has
filed

the

Petitioner

agreements

considered

appropriate

Strip

SETTT.•mfRNT

105(d)
Act).

this

case,

me

Section

settlement
in
penalty

approve
reduction

APPROVING

4

WEVA
92-1063
46-04383-03503KZV

Weisberger

cases

penalty

and

$317

conclude
that
the
criteria

dismiss

to

$250

to

days

motion
for
.WHEREFORE, the
is
Respondent
ORDEP•D that

a

these

thls

set

forth

of

in

Section

110(i)

pay

of

settlement

pg•alty

•

$250

of

C.

Mr.

1181,

Mullins,
4015

Esq.,
Wilson

Office

of

Boulevard,

the
Room

Law

Solicitor,
516,

Mail)

A.
Timothy
Charleston,

Keeney,
WV

Level

Land

25324-1181

Mining
(Certified

nb

1446

is

U.

30

Judge

S.

the

GRANTED,

wlthin

Weisberger

Distribution:

Labor,
(Certified

A

cases.

in

Administrative

of

to

and
the

/Avram

Tina

and

motion

is

approval

order.

Safety

I
have
proposed.
documentation
submitted
proffered
settlement
is

it

of

of

assessment

Mine

Act.

and

92-1058

46-04383-03502KZV

No.

No.

civil

WEVA

No.
No.

A.C.

Judge

92-1038

46-04383-03501KZV

CORPORATION,
Respondent

Before:

WEVA

No.

Docket

V.

LEVEL

PROCEEDINGS

HEALTH

Department

Arlington,

VA

22203

Corporation,
Mail)

P.O.

Box

ADMINISTRATIVE

LAW

JUDGE

ORDERS

2

CHURCH,

VIRGINIA

JUL 6

1993

22041

PROCEEDINGS

CONTEST

INC.,

RESOURCES,

WALTER

JIM

PIKE

LEESBURG

5203
FALLS

FLOOR

10th

SKYLINE,

JUDGES

LAW

ADMINISTRATIVE

OF

OFFICE

COMMISSION

REVIEW

HEALTH

AND

SAFETY

MINE

FEDERAL

Contestant
Ve

LABOR,

OF

SECRETARY
MINE

(MSHA)
Respondent

ADMINISTRATION

No.

Docket

No.

SE

6/2/93

THE
PART

IN

CONTEST

eS

93-336-R

3

No.

GRANTING

DECISION

CONTESTANT

6/2/93

3007641;

Mine

PARTIAL

93-335-R

SE

3007642;

Citation

HEALTH

AND

SAFETY

Docket
Citation

AN__•D

Morrow,
Stanley
David
and
Inc.,
Frierson
Cooper,

R.

Appearances:

Contestant;
William

M.

proceedings

Section

to

issued

of

for

Solicitor,

the

for

Alabama,

Birmingham,

Labor,

June

on

issued

were

of
of

105

the

challenging
Act)
the
at
1993,
2,

(the

1977,

of

Act

office

Notices

concern

pursuant

citations
citations
The

Resources

Walter

Esq.,

Feldman

Judge

contestant
Health

Maynard,
Alabama
Birmingham,

of

Department
Respondent.

These

Jim

Smith,

Esq.,

Lawson,

U.S.

Before:

Esq.,
Gale,

&

PLANS

CONTROL

DUST

REINSTATING

ORDER

for

alleged
(a)

Contest

filed

by

Federal

Mine

Safety

validity

the

contestant's
violations

the
and

two

of

3

No.

Mine.

Sections

of

and
longwall
control
dust
without
an
approved
continuous
operations
in
conducted
Alabama,
was
Birmingham,
An
hearing
expedited
plan.
that
the
my
the
agreed
At
parties
1993.
hearing,
June
on
18,
contestant's
the
3007641
No.
concerning
Citation
in
decision
3007642
No.
Citation
to
also
would
apply
operations
longwall
continuous
operations.
mining
contestant's
the
concerning

(i),
mining

75.370(a)

At

hearing,

the

which

issues
of
to

rescind

issued

which

provides

promptly
a

basis

3

Mine.

(i),

for

identified
in

resolved
Health

subject
No.

is

and

Safety
the

contestant's

citation

be

75.370

parties

the

must

Mine

the

§

C.F.R.

30

order

the
to

determine

the

Administration's
issues

These

violative
a
corrected,
rescission
for

dust

for

in

1447

(MSHA's)
in

plans

control

dust

central

two

are:

at

effect

(i)

whether

absence

and

modification

attempt
the
a

condition,

concentration

the

propriety

of

any
of

reoccurrence,
dust
the

control
Section

plan

absence

of

or

under

Section

75.370(a)

(i)

evidence

any

concentration
to

increase

pressure

of

requirements
dust

water
the
is

and

result
contestant
ventilation

the

amount

face

The

35

at

the
at

program
revealed
cubic

i00

drum

the

a

dust

and

shearer

Section
the

tailgate

sprays,

in

that
coal
as

a

the

air

of

water

sprayed

the

at

the

the

at

this
the

operations

(Tr.

violations

of

At

this

i0,

Section

single

a

which

of

the
30

plan
There

is

no

1448

of

external
this

70.100(a),
contestant's
of

the

respirable
longwall

approximately
dust

per

150,

to

(the

promptly

evidence

coal

using

respect
violative

respirable
the

I0,

of

loader,

was

C.F.R.

for

70.100(a).

of

March

result

a

per

mg/m3

and

occupation

out

1993)

longwall,

2.0
tons

stage
a

on

044-0

the

of

with
is

plan

per
and

(milligrams
of

3,600
C.F.M.,

the

proceeding
by

(pounds
sprays,
obtained

mg/m3

As

control

70.100(a),
177).

the

on

P.S.I.

sample
spot
inspection

limit
time

respectively.

control

50

20,

air

of

occupation
2.8

63,600

pressure

January

external

shift
"CBE"

mining

with

violation

Section
dust

of
the

on

of

as

minute)

per

of

was

water

effect

feet

allowable

70.100(a).

of

standard

of

designated

the

contestant

P.S.I.

in

level

the

drums

occupations

rescinded

reduce

single

A

exceeds

48

of

fact
of

proposition,

and

MSHA's

operator

and

result

of
the

velocity

generated

volume

and

of

The
focal
of
point
contestant's
dust
longwall
dust
concentration
exposure
shearer
on
March
operator
a

the

is

pressure

sprays.

I

i0

air

general

a

dust

water
loader

result

a

which
in

sprays

minimum

the
volume

plan
(cubic

concentration

inspection
ventilating

day,

control
C.F.M.

tailgate,
stage

as

for

meter)

1993,

the
the

the

1993,

contained

modifying

to

that

the

recognition

for

amount

in

in

dilute

dust

the

on

i0,

in

plan,

the

As

increase

an

48,134

inch)
P.S.I.

March

and

146-150).

required

square

face

minimum

stipulated
between
dust

coal

of

to

approved

velocity

working

the

higher

process.

increase

an

tends

concentration.(Tr.

1993,

parties

extraction
that
agreed
and

working

reflect

863(o),

the

dust

basis

a

§
in

(2)

unilateral

the

control

correlation

the

of

of

at

excess

provides

the

positive

extracted

in

to

U.S.C.

and

continuing

or

dust

30
I

operator's

plan

hearing,

a

Act,

standards.

pressure

At

there

repeated

output,

control

the

whether
an
air
velocity

existing

the

of

regulations;

sprays

production

existing
and

the
the

in

increased

the

of

violations,

decision
water

303(o)
of

8

corrected.
concentration
MSHA

longwall
subsequent

to
As

sample,

shift

single
contestant

that

on

P.S.I.

drums
the
levels

on

concentration

1993

as

compliant

dust

production

and

air

loader

was

is

There

day.

since

7

Kleppe,

536

FMSHRC

evidence

no

the

March

I0,

181,
Subcommittee

the

Mine

Act,

Committee

15

Company,

Coal

F.2d

870

Dole,

v.

application

universal

through

accomplished

2

Secretary's
by Judge

The

invalidated

Mininq
sample
invalid

appeal.
important
the
single

in

plan

violation
a
of
measured
by

the

of

the

Federal

the

of

which

prohibited

S.

Rep.

Senate
95th

Cong.

Safety

and

common

to

this

health

and

sampling

procedure

December

7,

appeal

pendinq.

use

of

requested
despite
the

proceeding
respirable

was

five

1449

dust
shift

I

the

address

impropriety

the

mining
by

MSHA

as

standard

concentration

sample

the

determined

procedure
Secretary's

continuous

rescinded

the

this

of
the

that

matter

Moreover,

of

use

been

has

be

was

Keystone
Although

1992.

continued

procedure
Continued
resolution

contestant
this
in

citinq
Such

must
mines
standards

all

to

safety

Secretary's

until

1993)
1989).

Cir.

standards

on

See

process.

(March

386,
(D.C.

381,

FMSHRC

a

rules

general

imposing

from

after

traditional

Coal

v.

also

in

are

approval

plan

the

the

the

this

Resources,
Mine

2017,

sample.
in

Human

FMSHRC

raised

issues
shift

reprinted

shift

abeyance

trial,

At

(1977),
on

inappropriate.

is
held

be

See

single
Weisberger

appealed,
procedure

has

Secretary

1976).

669-72
662,
of
mandatory
the
mandatory

14

Corp.,

Zeiqler

Cir.

conditions
in

mines

1985);

Co.

(1978).

613

at

as

authority

case

Coal

25

Sess.

ist

History

all

to

Appeals

(D.C.

may

mines,

of

Peabody

Coal

406-07

consider
is
MSHA

MSHA

applicable
UMWA

(September

398,

1977,

of

While
number

a

Legislative
Act

of

303(o)

mine
that
require
provision,
the
address
must
provisions
plan
Carbon
See
mine.
County
particular

1367

F.2d,
95th
Cong.,
on
Labor,

No.

2d
Sess.,
Health

of

Section
of

Court

control

dust

or

Company,

control

air

approximately

of

levels

of

statutory

conditions

specific

be
should

1.3

with

stage

the

at

pressure

when

concentration

and

this

interpreting

single

per

language

statutory
Commission

ventilation

to

coal

and

inspection.
The

well

sprays.
achieved
of

dust

violative

any

were

1993,

1.0

tailgate

the

P.S.I.

60

water

27,

achieved

were

at

C.F.M.

the

between

results

These

tons

2,100

approximately
of

levels

concentration
average
concentration
dust
These
52,000
of
approximately
and
50
between
of
pressure
and,
external
the
sprays,

mg/m3.
velocity

longwall

by
March

through

25

March

period

submitted

samples

dust

the

the
the

for

plan

Ex.2).

dust

reflected

45

1993,
control

(Gov.

respirable

Subsequent
contestant
during

spray
and

2

adequate.

longer

no

was

existing

notified

MSHA

26,
dust

March

on

its

average.

of

dust
a

result

promulgated
7

through

FMSHRC

at

routinely

rescind

dust

control

standard

in

dust
and

the

this

first

the

dust

increased

minimum

following

is

with

issue

in

basis

for

control
Section
believe

I

is

supra,

should

bench

decision

and

Section
of

the

decision

statutory
proceedings,

unique
relationship

relying

on

to

its

and

are

control

detected.

Randy
plans

Zeiqler
safety

in

the
case,
standards

mine.
have

that

concentration
does

a

or

testified
violative

174-177).

1450

alone,

303(o)

Kline

conditions

causal

a

dust

rescission

30

Therefore,

concentration,
Section

in

these

unique

violative

(Tr.

Court

Kleppe,

v.

counterpart
the
applicable

particular

when

Carbon

Company

address

to

dust
for
under

D.C.

provisions
a

or

rulemaking
procedure
at
industry
large.

which

continuing

Inspector
is

the

the

circumstances
to

not
provide
dust
control
plan
Section
75.370(a)(I).

dust

issue.

excessive
a
basis

an

MSHA

this

mandatory
the
through

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are

Act

Circuit

on

intended

provide
dust

in

that

are

a

promptly

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decision
Coal

to

edited

several

the

Zeiqler

applicable
Section
303(o)
75.370(a)(i),
and
regulatory

The
is

regulations.

and

•,
in

reflect
standards.
which

whether
or

reoccurrence,
modification
of
a
of
the
Mine
303(o)

the

with
to

any

Commission's

Company,

established

§

levels,

of

to

is

which

absence

are

C.F.R.

that
absent

proceedings
condition,

concentrations,
the

controlling

be

they
However,
as

rescinds
concentration

the

contest

In
Carbon
County,
Commissionconcluded

3

pressure

of

not

concerning

water

concentration

that

issue
modified

and

be

the

is

following

continue

velocity

75.370(a)(I)

Coal
County
of
Appeals

remaining

the

to
of

contest

should

rescission
under

plan

issued

I

contestant,s
will

parties

the

violation

a

plan

these

dust
in

corrected,
a

of

dust

whenever

is
detected
70.100(a)
statutory
and
language
3
of
the
Act.
303(0)

The

transcript
changes:

non-substantive
The

issue.
control
air

the

violative
violative

plans
Section
the

County,
attempt

Secretary's

considerations,
the
granting

resolution

the

whether

above

partially

to

the

Section

of

Carbon

process.

regard,

contravenes

of

decision

regard
negotiate

this

intent

view

In

rulemaking

In

respirable
mine
specific
congressional

bench

the

1370.

modification
the

of

that

of
Act

MSHA

respirable

or

routinely
dust

a

I

of

feel
the
Act

the

imposable

under

regulations
an
provide
compliance

Sections

104(b)

operator

and

and

incentive

adequate
with

achieve

to

concentration

dust

the

70.100(a)
of
104(d)

Section

sanctions

that

standards.
If

control

dust

through
secretary

the

a

is

As

water

and

standards

plans
the
operator
and
velocity
control

standards
is
it

takes
water

pressure
in
the

concentrations.
standards,
chooses

by
the

for

apply,

basis
Section
mine
the

be

a

under

plan

not

in

operate
of

those

not

in

excess

be

discouraged

standards
for

operator
miner,

the

protect

rescission
if

there

call

for

which

the
of

303(o)

dust

minimum

the

reason,

the

all,
to

exposure

adequately

then

is
of

After

levels.

whatever

If

air
minimum
it

since

plan,

over

dust

plan,

pressure

additional
do

plans.
with

the

preventing

in

instant

with
water

velocity

provided

the

concentration

minimum

the

may

control
circumstances

or

approach
beyond

air

dust

the

is

If,

there

is

excess

Operators
than

or,
to

then

303(o)

to

should

goal

ultimate

the

itself
in

upon

and

more

in

provided
it

velocity

using

from

an

standards

pressure
are

as

levels.

minimum

such

minimum

are

provided
in
compliance

still
air

using

there

matter,

further

a

an

Whether

proceeding.

this

of

Section

of

such

proceeding.
from

the

of

dust

the

pursue

rulemaking
precluded

language

statutory

scope

of

should

he

standard,

approach
not
the

for

plan

concentration

rescission

automatic
violation

desires

Secretary

the

dust

the

peculiar

are

such

a

revision.
I

Consequently,
a

have

limited
concluded

level

basis

a

remaining

are

at

Jim

a

basis

Walter's

No.

rescission.

for

yet

completed

his

The

Secretary

has

that

testimony
increase

in

produced
apparently

at

velocity

and

the
the

taken

direct

provided

indicates
of
amount
contestant's
it
upon

water

of

absence

the

violations,
of

I

that

concentration

dust

in

with

issues
Mine

may
the

plan.

control
to

regard

However,

not

does
dust

a

which

3

in

contest

a

in

granting

decision

bench

violative
corrected,
concentration
rescission
for

dust

provide

a

contestant's

been

has

subsequent

issuing
the

that

that

There

am

fashion

operation
provide

the

well

very

has

Secretary

not

case.

significant

a

mine.
itself
of

pressure

1451

is

that

tonnage

of

amount
been

has

there

that

The

an

being
has

contestant

to

increase

the

the

sprays.

Whether

air
or

not

these

the

statutory

circumstances,
language,

Commission's
dust

decision

plan

to

this

on

on

control

this

County
since

seen

matter

an

inclination

an

effort

to

rescission.
contestant's

continuous

operations

in

issuance

of

also

record

effect
in
effect

its

the

to

continue

parties

No.

Mine

3

have

a

stipulation

that
in

the

dust

the

contestant's
issues

continuing

issue

that

I

have

plan

that
Mine

No.

in

7

these

validity

longwall
prior

immediately

in

control

the

and

shall

the

The

parties

of

the

to

whether

are

release

settlement

reached,
its

of
or

not

on

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will
in

I

contest

decision

they

that

they

be

to

have

inform
decision

currently

shall

also

been

remaining

No.

able

issue.

If

14

this

matter

request
these

reached,

days
as

reach

settlement

that
the
contestant
matters
and
I
will
these
proceedings.
we
will
reconvene
as

of

matter.

within
to

apply
plan.

date

this

the
in

Mines

7

the

in

the

remain

also

control

me

for

on

is

dust

the

to

confirmed

proceedings

of

requested
a
written

dismissing

cannot

is

withdraw
issue
If

a

settlement

expeditiously

possible.

as

they

reinstated.

be

control
in
the
plan
No.
3 and
remain
in
effect
for
14
after
days
release
of
my decision
formalizing

shall

and

discuss

to

dust

The

the

completed

satisfactory
dust
existing

a

the

mining

citations

the

as

the

to

with

of

of

As
the
have
parties
indicated
that
to
reach
attempt
settlement
on
the
I
am
issue,
an
order
issuing
reinstating
that
was
in
plan
effect
to
the
prior
the
dust
Thus,
control
in
effect
plan

control

the

context
the
rescind

haven't

we

reach

modification

a

the

under

to

remaining
dust

to

Carbon

be

in
basis

plan.
going

are

I

provide

a

issue.

I
have
discussed
have
expressed
this
matter
in

agreement

viewed

in

remains

testimony

when

ORDER

Consistent

with

Incorporated's
G•ED

XN

PART.

within

14

days

of

issues

in

this

contest

reminded
that
apparent
are

that
the

above

the

contest

of

The

parties

the

date

decision

Citation
ARE

they
minimum

must

ORDERED

to

decision
have

negotiate
dust

control

1452

Walter

3007641

this

of

proceeding

Jim

Nos.

been
in

Resources,
and

inform
whether
settled.

3007642

XS

me

the

remaining
The

good

faith

if

remedies

in

the

it

parties
is

subject

plans

are

inadequate

due

mines.

contestant's
should

inform

me

is

settlement

If

hearing

suitable

of

conditions

specific

to

the

at

not

reached,

dates

for

parties

the

this

reconvening

matter.

•Feldma•
Administrative

Judge

Law

Distribution:
Stanley
Brookwood,

R.

Maynard,
Strength,

Morrow,
Alabama

Cooper,
Esq.,

North,

Birmingham,

William

Lawson,

Solicitor,
35203

Suite

(Certified

Esq.,

Jim

35444

(Certified

Frierson

&

Alabama

David

Gale,

Esq.,
201,

M.

Plaza,

(Certified

35203

U.S.

Department

2015

2nd

Avenue

Mail)

vmy

1453

133,

Mail)

AmSouth/Harbert

2400

Box

P.O.

Resources,

Walter

Smith,
1901

Mark

Avenue

Mail)

office
Labor,
Birmingham,
North,
of

&

Esq.,
6th

of

the

Alabama

FEDERAL

MINE

SAFETY

AND

OFFICE

II•TII

REVIEW

COIILIBBION

OF

ADMINISTRATIVE
LAW JUDGES
2 SKYLINE, lOth
FLOOR
5203
LEESBURG PIKE
FALLS CHURCH, VIRGINIA
22041

JUL 2 0 1993'
SECRETARY

OF

MINE

LABOR,

SAFETY

CIVIL

:

AND

PENALTY

PROCEEDINGS

HEALTH

ADMINISTRATION
Petitioner

(MSHA),

:

Docket

:

A.C.

No.

CENT

No.

93-24

41-02803-03552

V.

FARCO

MINING

OF

TEXAS

INC.,

:

Docket

:

A.C.

:

Palafox

No.

CENT

No.

93-48

41-02803-03553

Respondent

ORDER

DISAPPROVING

ORDER

Before:

Judge
These

civil

and
to

under
Health

Act

Approve
in

The

these

their

93-24

CENT

93-48

parties

do

substantial
Section

ll0(k),

30

settlement
consider

whether

of

any

must

ll0(i)

of

the

upon

the

motion,

I

FURTHER

in

these
of

reductions
motions
ORDERED

information

statutory
U.S.C.

absence

and

of

superficial

reduction

in

significant

and

failure
findings.
Commission
approval
matters.
The
Commission
the
settlement
proposed
are
criteria
set
forth
in
Section
See

Health

Stone
Sellersburq
Commission,

Review

supporting

of

unable

am

to

approval
to

in

that

the

Accordingly,
of

parties

the

information

conclude

appropriate.

are

reductions

pertinent

820(i).

§

Safety

are

the

in

presented
approval

my

736

1984).

for
that

specific
for

six

reductions

requires

terms

30

Based

820(k),

the

Mine
Cir.

unwarrantable

§

for
for

the

Joint
violations
of

premises

presented

agreement

Act,

(7th

the

or

the

request

rationale
of

filed

of
and

$3,335
$3,400

to

premises

specific

Mine

follows:

to

their

assessment

approval
as

consider

to

me

U.S.C.

Federal

v.

seek

assessments

removal

the

1147

parties'
penalty

motions

the

with

Company

that

for

alleged

the

$8,630
$7,000

designations

consistent

F.2d

penalty

the

or

seven

the

parties

The

support
the
However,

penalties

parties

for
Federal
have

of

The
of

to

address

not

petitions

upon

1977.

request

Motion

agreement.

and

INFORMATION

105(d)

cases.

civil

CENT

Joint

of

me

Settlements

proposed

their

before
Section

are

penalties

Safety

SETTLEMENTS

SUBMIT

Feldman

cases

Motions
involved
in
the

TO

Mine

settlement
shall

each
citation
civil
penalties

1454

ARE

provide
in

issue
and

in

the

recommended
it
IS
ORDERED
DENIED.

IT

IS

additional

supporting
for

the

their

of

modifications
should
Failure
in
the

pertinent

the

within

provided

be

provide

timely
scheduling
to

the

these

of

of
days
requested

the

of

date

this

order.
will

information

result

hearing.

for

cases

information

This

citations.

30

•d

Feldman

Administrative

Judge

Law

Distribution:
Robert

A.

Department

Goldberg,
of
Labor,

75202

(Certified

Thomas

J.

74301-0558

Esq.,
525

Office
Griffin

of

the

Street,

Solicitor,
Suite

U.S.

501,

Dallas,

TX

Mail)

McGeady,

(Certified

Logan

Esq.,

&

Mail)

vmy

1455

Lowry,

P.O.

Box

558,

Vinita,

OK

FEDERAL

SAFETY

MINE

OFFICE

HEALTH

AND

OF

ADMINISTRATIVE
2 SKYLINE,
5203

FALLS

REVIEW

LAW

10th

FLOOR

LEESBURG

PIKE

CHURCH,

VIRGINIA

COMMISSION

JUDGES

22041

JUL 2 0 1993
IN

RE:

CONTESTS

OF

RESPIRABLE

SAMPLE

DUST

)
)
)

ALTERATION

CITATIONS

DECISION

Appearances:

the

For

ON

Esq.,
Esq.,

Virginia;
the

Defense

Esq.,
Esq.,

Timothy

TRI)T.

Counsel

Charleston,
Biddle,
Esq.,

M.

William

Henry

and

T.

West
Charleston,
Virginia;
and
J.
Alan
Esq.,
Truitt,
Birmingham,
Alabama;

Esq.,

and

Jr.,

For

United

the

Judge

Each
an

filter
dust

to

discovery,
1992,

and

a

May

28,
contentions
in

fact,

findings
they

and
are

the

Thomas

H.

Esq.,

America:

of

Lu

Mary

trial

have

the

on

April

considered

parties,

conclusions

including
are

(The

Secretary

1456

the

the

extensive
December

1,

The
Committee

of
Labor
Secretary
each
(LDCC)
and
a
brief
on
reply

record

and

extent

that
in
this
701

the

findings

proposed

incorporated
proposed

involves

of
weight
of
respirable
on

1993,
entire
the

To
not

docket

Following

30,
the

decision.

master
the

commenced

1993.
22,
Counsel

Defense

this

the

concentration
was

February

Lead

CASR

exposed.

were

brief
I

rejected.

McCrum,
Esq.,
D.C.;

D.C.

altered

the

sample

on

and

reaching

in

issues

posthearing
of

consolidated
mine
operator

miners

its
common

1993.

THE

to

concluded

(Secretary)
filed

OF

the
used

a

STATEMENT

cases

that

cassette
which

Workers

Washington,

Anthony

Broderick

the

of

allegation

Mine

Esq.,

E.

Pennsylvania;
L.
Kropp,

Wells,

Jordan,
Before:

Heenan,

Washington,

Esq.,
Pittsburgh,
and
Edward
IV,
Esq.,

Palmer

L.

Virginia;
Timothy

R.

Michael
Esq.,

Althen,

I.

Laura
and

Esq.,

West

D.C.;

Moore,

C.

Committee:

Chajet,

Henry

Washington,

Esq.,

John

91-1

C.

Lead

Beverage,
George,

and

ISSUES

No.

of
Labor:
N.
Douglas
White,
James
B.
Charneski,
Esq.,
Crawford,
L.
Denise
Richard
Galambos,
L.
Esq.,
Gilman,
H.
Page
Mark
R.
Jackson,
Esq.,
Malecki,
and
Patrick
M.
Zohn,
Esq.,
Arlington,

Esq.,

R.

COMMON

Docket

Secretary

Carl

Esq.,

For

Master

findings

the

of

proposed

decision,
and

and

conclusions,
proposed

13

and

fact,

Section

202

(Mine

Act),

the

30

U.S.C.

•

BACKGROUND

PROGRAM

Mine

Federal

of

requires

in

prescribed

take

accurate

samples

Secretary

of

the

respirable

dust

to

which

miners

30

C.F.R.

SS

70.201-220

(for

surface

set

forth

Title

atmosphere.

mines),

underground

71.201-220

miners)

90

Part

(for

90.201-220

manner

a

of

Act

mine

coal

to

mine

Health

and

Safety

842,

801,

S

operators
the

LDCC

nine

and

•

'

PROCEDURAL

AND

SAMPLING

DUST

RESPIRABLE

conclusions;

and

u!timate

two

law.)

of

FACTUAL

I.

1977

findings

of

conclusions

subordinate

A.

ultimate

findings

79

by

the

in

exposed

are

(for

and
mines),
sampling
mine
operators
the

must
which
the
to
procedures
MSA
of
an
the
use
taken
sampling
are
by
samples
and
a
a
a
a
unit
assembly,
hose,
cyclone
containing
pump,
liters
2
draws
the
If
cassette.
filter
calibrated,
pump
properly
to
which
is
the
designed
into
minute
air
of
assembly
cyclone
per
is
into
what
which
fall
of
dust
the
out
particles
larger
separate
with
smaller
air
the
The
(respirable)
the
called
"grit
pot."
Inside
the
filter
cassette.
the
direc£ed
into
is
dust
particles
aluminum
a
of
an
filter,
is
cone,
cassette
a
consisting
capsule
and
are
the
enter
The
capsule
and
a
particles
backing
pad.
filter
the
air
the
and
face
filter
the
through
on
goes
deposited
At
the
to
the
and
back
hose
into
the
the
and
pump.
backing
pad
sent
cassettes
are
filter
the
each
conclusion
of
shift,
sampling
Administration
and
Health
Mine
by
to
the
(usually
(MSHA)
S•fety
cards
data
their
dust
with
cassettes
The
for
weighing.
mail)
MSHA's
At
boxes.
in
cardboard
sent
attached
are
mailing
technicians
lab
Center
Health
Technology
(PHTC),
Pittsburgh

requirements

and

conform.
train

Dust

filter

the

remove

and
place
technicians

place
capsules
present
weight.

capsules
and

weighing
Section

the

seal

cassette
this
of
B.

any

before

of

90

The
30

moisture

any

weighing
percent
remainder

C.F.R.

"The
operator
cassette
or
filter
is
used
it
after
or

to

are

Parts
shall
alter
to

The

that

may

be

stability
using
samples
manually.
weighed

of

ensure

its

of

and
filter

capsules,

weighing.

for

70,
not
the
fulfill

71,

and
open

weight
the

a

in

provides

90
or

of

tamper

with

any

filter

requirements

part."
CHRONOLOGY
Robert

A.

hygienist
District

about

filter

the

boxes

lab

the

forceps,

remove
trays

remove

before

system.

209(b)
language:
of

to

weighs

PHTC

identical

processing

on

desiccated
stored
then

are

robotic

cassettes,

the

the

from

cards

data

trays.•Using

carrying

on

open

the

and•dust

cassettes

them

for
4

at

OF

THE

AWC

LITIGATION

industrial
a
supervisory
currently
Thaxton,
in
MSHA
industrial
an
worked
as
hygienist
MSHA,
direction
in
1983.
At
the
West
Mt.
Virginia,
Hope,

1457

of

his

to

determine

supervisor,

After

in

cassette

from

potential

preliminary
of
workings

some

internal
the

examined

Thaxton

the

the

for

readily

detected,

samples

submitted

of

could

In

Hope

the

filter

February
1989,
when
office,
protruding

since

capsule.
center

of

Thaxton

When

the

the

filter

who

filters

Company),
compliance
the
to

the

U.S.

Virginia,

West

August
by all

PHTC

mine

coal

the

Thaxton

performed

patterns

filters

altering
sources;
into

the

to

conducted,

Engineering
confirmed
procedures

the

collected,
week

analytical
person

examine

or

filter

States

tests

examined

from

referred
PHTC

southern

nationwide.
filters

In

submitted

for

abnormalities

air

flow

attempting
filters.
various

by

wall.

a

by

the

that

not

cause

the

May

1989,

PHTC

white

August

are

employee
the

air,
methane,
and
cleaners,
cassettes

formal
of

which
normal

and

sample

1989
and

examination

1458

were

Industrial
said

to

have

collection

appearances.

filters
began
referring
to
Thaxton.
(AWC)
the
weighed,
capsules
for
when
until

vacuum

studies
are

dust

liquids
from
varying

center

examined

in

filter

subjected
including

means,

Department

replicate

to
He

Two

University,

and

performed

filters
was

from

United

conclusion

capsules

branch
who

Coal

investigation.

the

the
to

dust

other

all

the

one

opened,
late

in

(Peabody

matter

examine

Virginia

abnormal

an

foil
area

similar

When

to

against

PHTC,

West

April

having
1

at
Thaxton's
would

In

for

them

by

one

reverse

operator

criminal
filters
filters

additional
on

reverse

threw

and

MSHA

respirable

the
and
pumps
using
compressed
he
inserted
cotton
swabs,
pipe
filter
and
he
cassettes;
dropped

heights

of
after

the

and

tampering.

abnormal

laden

center

submitted
air

was

Peabody
Peabody

in

the

discovered

aluminum
white

1983.

for

operators

indicate

might

filter

to

directed

was

The

The

all
all

later

and

1989,

which

examine

to

raised,

appearances.
Office

Attorney's

instructed

a

into
outlet.

inlets,

sample,

bi-monthly

instructed

was

similar

for

in

mouth
the

in'the
the

mine

same

receives

samples,
mine

the

by
into

be

filters

50

cassette

of

resembled
created
in

had

to

areas

the

technician
abatement

removed,

from

which

PHTC,

same

was

he

observed

were

circular

observed.
that
it

was

air

dust

i00,000
to
opened

were

25

of

of

being

blowing

jet

with

opening

was

percent

pump,
a

into

foil

filters

the

an

the

removal

without

subjected

He

the

filter

the

approximately

1

weighing

determined

experimental

than

of

of
that

the

of

laboratory

a

alteration

accomplished

less
annually,
examined
for
oversize
particles.
to
reverse
air
flow
tests,
using
the
cassette
and
outlet,
directing
Thaxton
noted
the
results:
white,
of
the
filters
in
direct
alignment
amounts
of
varying
loss.
weight

Mt.

the

concluded

be

especially

sampling
equipment
by tampering.

dust

misalignment

and
pump
Thaxton

itself

dust
of

consideration
the

assembly,

filter

the

removal

abnormal
he
was

suspected
PHTC,

At
are

Except

appearances.

assisted
1989,

October
and
referred

by

an

the
only
suspected

AWC

filters

to

Thaxton

laboratory.
technicians
written
No
filters

to
prescreen
instructions
considered

he
In

AWCs.

replace

to

thenew

technician

Raymond

in

turn

whether

a

"non-voids,"
when,

at

the

Over

time,

have

been

whenever

However,

the

also

On

many

September

1992,
and

concluded
reviewed
would
In

1200

expect

have

been

for

of

one

during

During

previously

Thaxton,

and

of
status
considered
he

was

The

identifying
remarkable"
communications

only

argues
filters

that

"Thaxton's

and

"[a]s

a

that

regarding

has
filters

should

1459

to
send

their
AWC

filters.
that
been.

filters

compliance

identify

to

others

be

no-calls

to

Thaxton

consistency
short
nothing
of

with

AWC

have

able

numerous

characteristics,

a

numerous

filters

Three

would

been

result

on

12

or

determined

were

he

he
cited.

i0

same

5100

issued

have

Raymond
suspected

filters.

stated

ultimately
Secretary
tampered

16

the

of

would

concerning
was
Raymond

PHTC,
nine
of

void
which

believed

he

for

PHTC

he

selected.
the

actually

filters
he

he
filters

1991,

at

1990

PHTC

the

compare
those

compared
found
only

suspected
referring
October

which

June

In

with

met

and

of

and

1989
of

1989

that

and

trial

at
at

seen

one

Thaxton
and

Thaxton
which

cross-examined

he
had
ultimate
trial
at
decide

period
him

only

of

of

6100

two

storage

properly

February

him

to

were

348-49.

referrals
were

filters,

that

them.

to

referred

When

they

dishes

for

March

or

1991
them.

Thaxton.

PHTC

dishes

PHTC

Between

Peabody

this
time

entire

the
not

the
that

concluded
referred

Thaxton

purpose.
should
citation
occasions

February

normal
appearances.
to
filters
at
PHTC
to
1600
with
him
to
be
referred
to
filters
reviewed
5100
he
1992,

September

were

to
6600

to

Tr.

petri

of

summer

filters
to

AWC."

for
termed

retaining
and
petri

halves.
and

reviewed

the

trays,
AWC

cassette

satisfied
him.

in

he

affect

not

later

began

submitted

filters

between

was

filters
examined
exhibited

suspected
Thaxton

compartment
suspected

date

voided

got

PHTC

that

though
did

normal,
time

some

halves

Thaxton

be

it

even

change

that

to

request,

cassette

occasions

filters

AWC

samples

Raymond

cited
inside

Thaxton
used

filters.

way.

the

transport
the

This

some

halves,
to

Thaxton

as

"sent

After

1477.

to

until

operators'

to

AWC

.

by

mine

of

transported

.

discarded

none

Thaxton

in
.

Tr.

filters

to
doubts

had

he

AWC

an

for

abnormal

Raymond
as

decide."
such

were

cassette

selected

be

lab

filters.

of

considered

he

1990,

deemed

used

photographs

filters

Those

1475.

The

19,

should

suspected

weighing
training

another

the

March

considered

he

referred

and
let
Mr.
Thaxton
along
did
forward
not
Raymond
abnormal
felt
were
they
of
"95
or
so
percent
Tr.

those

to

filter

a

and

trained
Raymond
technician.
retiring
her
showing

included

Prior

Thaxton.

D.

normal

1990,

November

technician

to

the
head
of
weighing
Raymond,
lab
trained
two
weighing
Raymond
1989,
his
review.
filters
for
AWC
suspected
showed
them
but
were
Raymond
provided,

Lewis

was

October

In

by
to

in
of

the

which

Thaxton

and

criteria

Raymond

which

34.

The

they

LDCC

be

identify

that

will

somewhere

it

19,

1990,

AWC

void

code

codes,

such

as

those

for

initiation

the

began
to

filters

where

considered

they
suspected

were

them

April

On

approximately
assessments
of

30

the

1991,
mines

C.F.R.

respirable

cassette

dust

James
the

being
Although

Wills

H.

filters

determinations
what

he

believed
exhibit

filters
of

the

71,

the

the

examination

filters
code

was

code

to

citations.
filter
considered
submitted
submitted

period
protocol
of

the

filters.

that

been

altered

has

.

fulfill

the

were

issued

AWCs

(in

by

March

However,

it

all

the

he

decided

the

time.

describing
be

tamper

cited.

operators,

same

mine

Thaxton
his
He

codes

at

1990.

being

cited.

the
not

trial,

in
on

and

criteria
described
the

Thaxton.

should
should
bases

not

cited

be
for

his

filters

the

and

the

to

30

applies

issuance
the

filters

operators'
within

Thaxton
the

or

did

whether

by

The
of

of

the

requirements
Inspectors

MSHA

decided

mine

coal

information

mine

while

determination

codes."

to
prior
damage

from

pertinent

any

by
by

209(b)

weight

"the

solely

he

charges

cited
AWC
Generally,
circular
color),
in
area
the
center
6 millimeters
in
diameter
in
direct
inlet.
codes
1 through
Tamper
4 were
and
investigation
to
prior
August

19,

physical

preclude

penalty

made

appearances
appearances.

of

filters

the

PHTC

to

sampling

the

was

10."tamper

Peabody

on

of

could

of

to

were

each

if

citation
of
Section

provisions
alleges

Those

cassette

instituted

filters

Thaxton

citations

Each

codes
5 through
Tamper
9 originated
and
August
code
1989,
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1463

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III.

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Besthoff,

Inc.,

a

substance.

CORD.,

658

(1982);

In

F.2d
488

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questions

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proof
Br.

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I

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[his]

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individually."

994

1988),

probably

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me

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of

I

U.S.

Cir.

(6th

v.

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exposure
Aircraft

455

before

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evidence

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Capaci

Lockheed

cases

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Nor

290

number

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(5th

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1987);
1983).
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this

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3.

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AWC

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age

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of
purpose
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essentially

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or

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1006
(1989).

U.S.

for

It

to

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Schneider
See,
e.g.,
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1981),
9ert.

835

may

CITABLE

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815

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toxic

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it
5000

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OF

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circumstances
of

consolidated

conspiracy

a

I

mine-

evidence

such

trial,

by

Brotherhood
Palmer

a

not

racial,

International

(1977);

been

discrimination

employment

analogous
plaintiffs

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CONSISTENT?

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explanation
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February

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1992

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filters
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assigned.

classified

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1992,

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in

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filters

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from

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such

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4

i0.

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dust
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in
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substantial

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raises
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involved

five

and

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1992

as

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second

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type
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code

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upon

15

changed

was

assigned
review,

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1992,

6,

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oil
following

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initially

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code

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they

as

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is
suggested.

photographs
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original).

in

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with

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filters

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brief

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changed

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ring).

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491828

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347935

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320678,

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of

area

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citations

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4,
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dust

removal

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time
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1467

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285344
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IV.

TAMPER

THAXTON

EXPERT

SCIENTIFIC

CLASSIFICATIONS

THAXTON

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PATTERNS

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subjected

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Minnesota,

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DUST

MARPLE

vs.

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Virgil
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spot
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THAXTON

TAMPER

Richard

Dr.

examined

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millimeter,

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within

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CODES

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Lee's

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laboratory
by Marple.
filters
from
the
Twenty

from

60

that

had

before

classification

and

first
filters

only

find

series

a

performed

with

had

(Pitt-i

MSHA's
United

were

apart,

and

conducted

September

tests

I

Studie•

dislodgment

throughout
The

it

court.

Dislodqment

taken

districts
tests.

because

equipment.
adequate,

was

the

Dust

studies
of
particle
in
approximately

forty

inferior
it

used

purposes

intelligible
b.

fingerprint

Marple's

and

to
tile

with

configurations:
inlet
plugged
inlet

with

open;
E

type

type

different
diameter
in

quite

was

larger
tests,
drop

was

of

height

a

type

pattern
in

In

set
from

down

in

resulted
Ii

it

that

second

a

inlet

the

A

down.
two

55

classified

were

other.

as

tests

Twenty

assembly
pattern

swab

of

the

over

filters

Twenty

6

sampling

entire

the

to

A

feet.

E-I

type

them.

tested

were

into

touching

by

A

D

type

with

filter

the

inlet

cassette

the

surface.

were

moving

and

the

in

resulted

pattern

with
direction

a

screwdriver

through

patterns;
F,
type

and

Twenty

each

type

three

A-l,

filters
and

the

Twenty

cassette

filters

test

which

been

Mine

Coal
As

had

patterns

dislodgment

I

were

to

A-2,

in

table

top

the

reverse

dislodgment
two

E-I,

type

Laboratory

earlier,

Marple

seven

on

inlet
pump
cassette
seconds.
30

and
to

the
for

run

by

suggested
found

the

subjected

were

vs.

Dust

stated

it

allowing

and

pump

and

dampener
resulted.

closed

a

particle

had

removing
attaching

by

tested

were

patterns

dislodgment

one

air

reverse
on

other.

two

tampered-with

impacted
was
flowing

type

were

valves

outlet

the

seven

combination

with
a
tested
was
cassette
air
while
handle
Fifteen
cassette.
The

test.

impact

and

or

c.

of

3

from

filters.

the

flow

ii

cassettes
inserted
filter

filter

cotton

swab

in

found

was

dropping

performed
ranging

were

heights

from

Ten
a

reverse

defined.
sharply
with
were
dropped
patterns
dislodgment
was
one
E-2,
type
El,

Dust

Were

side

with

less

and

feet.

43

cassettes:

the

cassettes

70
5

of

cassettes.

three
than

inlet

and

in
E-2
type
The
dislodgment
air
flow
patterns

cassettes;

with

out;

plugs

and

down;

outlet
35

all

outletplugged

with

open;

resulted
in
F

with

in;

plugs

with
in

down;

pattern

cassettes,

all

outlet

and

to

a

MSHA.
filters.

the
No

cassette

snap

air

Reverse

Dust
Rubow

and

believe

that

the

in
dust
was
overriding
importance
the
of
threshold
velocity
dust
and
tunnels
wind
with
worked
have
their
They
testing.
tunnel
in
a
not
could
that
duplicate
believed
and
they
chambers
this
reason
For
mines.
coal
in
found
of
dust
kind
the
chamber
or
number
a
from
the
from
used
filters
compliance
program
they
Rubow
and
districts.
MSHA
I0
all
Marple
mines
from
different
on
of
threshold
the
particles
velocity
and
measured
compared
and
dust
mine
coal
generated
surfaces
filter
containing
dust
was
mine
coal
The
dust.
generated
generated
laboratory
such
filters
388
offices
filters
on
collected
by MSHA field
of

--

--

were

Thirty

returned
were

to

used

and

PHTC

in

the

were

threshold

special

called

velocity

1477

test
tests.

filters.

They

were

of

compared
McFarland,

with

particle

dislodgment

from

centimeters

per

30

18

and

to

140

Yao

particle

create

about

concluded

samples
samples

than
do

mine

Marple

some

within
that

with
the

exhibiting
uniform

ring
portion

around

color

the

cassette.

B

Type
diffuse

in
have

diffuse,

fairly
The

type
of

circular

C

with

the

bottom
The

type

into

the

cassette
the

caused
less

if
than

6

type

color
lighter
patterns

a

A-2

dislodgment

with

Neither

be

a

"V"

classified

as

but

through
A-3
type

the

ring

the

central

patterns

sharp,
6-millimeter,
formation
dagger
inside
the
was
the
ring
same.
blowing

"not
The

air

into

exhibited

a

extremely
B-2
type

pattern

somewhat

narrow

inlet

the

rather

of

large,
where
also

than

ring.

the

circular,"

smaller

a

white

the

but

pattern

removed.

B-I,

the

had
and

a
was

color.
resulted
into

sharp,

crisp

unlike

the

D

of

as

"predominate,,,

from

B-I
type
center,

inserted

not

ring

white
formation

a

outside

center

dagger

of

center.
to

He

pattern

tube

a

central

flow

Marple

6-millimeter,

a

type
the

air

reverse

common.

with

inside
classified

He

resulted

the
been

digitized
experiments,
six
major

into

from

most

some

appeared

and

white
in

uniform

way

the

were

light

and

his
Pitt-2

and

patterns

the

very

patterns

area

very

dust

outside,

The

particles

the

there
a

the

inside

The

filter,

dislodgment.

exhibiting

ring

by

the

of

those

and

sharp

very

studies,

those

the

ring.
6-millimeter,

a

Pattern•

predominately
was

across
coloring
formation
dagger

the

nor

was

dust

required

categories.

patterns

of

was

dust

velocities

Pitt-I

dislodgment

from
to

general
prepared

Dislodqment

his

A-I

A-I

ring,

fairly

Dust

resulted

outside

those

of

create

Lab-generated

threshold

subordinate

type

center

the

than

in

laboratory

velocity

dust

type

the

of

to

varied

required
samples
Dr.
Marple

samples.

mix

and
had

A,

as

in

that
on

dust

threshold

filters,

type

classified

ring

his

patterns

In

tests

Lee,

samples

second.

per
create

Drs.

required

samples.

of

A

Type
tests.

from

velocity
lab-generated

the

these

the

classified
of
which

Marple

types,

The

with

Classification

Following
fingerprints
Dr.

second.

of

provide

not

velocities

mine-generated

easier
to
mine
prepared

on

simulate

d.

basis

were

filters

The

centimeters

30

the

on

dislodgments

loaded
the

dislodgment

consistently

to

laboratory
(Shell).

pattern
inlet

swab

millimeters

was

inlet.

The

and
a
uniform
edges
A-2
type
pattern.

resulted
and

from

twisting

twirled.
in

introducing

from
the

inserting
it.

The

diameter.

1478

Spiral

dislodgment

a

vacuum

pattern

quite

value

gray

a

source
was

cotton
lines
was

across

swab
were

generally

The

diffuse,
was

dropping

E-I

pattern

was

diffuse

It

more

experiments,
rather
surfaces.

was

inner

and

outer

center

E-I

of

the

dislodgment.

the

of

in

dagger

a

the

patterns.
across
going

variety

wide

a

from

diffuse

with

donut-shaped

and

There
showed

The

controlled.

and

type

resulted

pattern

E

type

random

both

type

the

internal

section

type

the

than

pattern

E-2

The

A

patterns.
The

type

exhibited

a

very

resulting

also

pattern,
thin,

F

ring

white

tests,
drop
in
the
dip

the

from

with

little

a

fingerprint.

Marple/Rubow

the

of

loss.
weight
percentage
disconnecting

and

on

air

filters
in

used

Filters

rapid

in

gain

type

gain,
the
the

showed

three

percent

gain;

of

about

filters

were

None

were

available
device

measuring
(2)

when

no

change.

about

70

the

gain.
inlet
a

test
involving
in
cassette
the
with
control
drop
disconnect
line
air
showed
all
inlet,
the

220

the

Of

pump

filters
showed
Of

had

had

dust

a

all
with
loss

no

Marple
dislodgment

by

used

a

a

a
weight
approximately

and

loss,

showed

the

weight
approximately

two

loss,

a

a

to

ii0

type
weight
75

115

2

a

Dr.

and

Rubow
unused
1040
manufactured

directly

from
1989.
measurements
and
air
of
liters

Floppiness

Filter

Distance
and

Marple

The

G

pump

for

to
12
a
about
I0
weight
loss,
weight
the
gain
weight
explained
Marple
in
to
due
as
"uncertainty
patterns
A-I
3070.
The
Tr.
the
of
patterns
weight."
16.3
of
13.4
loss
percent;
A-2,
percent;
weight
6.3
10
F,
percent;
E-2,
E-l,
percent;
loss.
13.2
others,
percent
i00

Filter-to-Foil

distance

250

weight

the
pump
showed

of

in

approximately
i0

change.
dislodgment

average

Drs.

about

change.

no

percent;

0.2

box;"

and

test

700

the

patterns,

an

0.6

used

number

and
no
one
with
filters
measurements

A-3,

f.

this

patterns,

E

Model

pressure

Of

gain,

and

removal

Filters

experiments,

Of

weight
dislodgment
a

gain,

a

weight.

pattern.

0.9

a

surrounding
3-foot
a
involving
the
test
the
involving
the
on
cyclone
finger
air

in

and

their

in

through
percent
weight
percent

the
The
loss

tube.

1.3

a

test

the

and
on

inlet
the
showed

percent,

23.6

a

involving
with

a

involving
the
using

gain.

in
in

pump

Rubow

A

dampener

decrease

container,
out,
plugs
the

test

weight

percent

1.5

1

showed

average

outlet
to

result

a

as

test

the

for

inlet,

showed

2

set
the

flow

and

valve

20

in

into

The

cassette

the

cyclone
set

and

5.1

from

blown
in

used

used

those

and

line

5.2.

percent,

0.7

patterns
2)
generally

and

1

(sets

from

the

over

involving

test
control

or

varied
air
the

finger

a

dislodgment

tables

G-280,

See
loss

Loss

dust

exhibiting
experiments

filters

The

Weiqht

and

Dislodqment

Dust

e.

measured

the

from

MSHA

filters
in

1990,

1988,

They
were
was

1479

pulled

1991,
measured

were

taken

(I)
through

filter-to-foil
offices.
field
and

1992.

with
"out
the

a

of

filter;

laser
the

on

(3)

with

when

the

31

1988

1.13
274

Small

a

amount

pressure

filters

averaged

millimeters;
filters,

for

1992

largely

pressure

the

on

439

millimeters;
filters,

1991

millimeters.
the

on

day,

examined

280

filters

9,

and

filters
1988.

The

floppiness

difference

pressurized

in

liters

Of

have

In

reverse

floppiness

and
Marple
increased

has

not

manufacturing

indication

that

the

dates

other

group,
than

before.

sampling

filter-to-foil
the

in
When

force
stomping
dislodgments

When

an

as

a

two

and

dropped

showed

resulted
wlth
the

wall

desiccator
showed

Marple's
in

the

only

No

occurred

on

hose

a

as

A-3

patterns;

the

same

hard

20

17

step

tests,

walked
resulted.

individual

40

capsules

in

dislodgment

patterns

and

him.

Wrapping
a

60

table

from

and
Rubow
Marple
performed
the
tests,
using
test
special
and
McFarland,
and
filters
Yao,

tested.
seven

no

dislodgment.

feet

6

25

a,a•,=e
......

two
unlike
the

were

around
caused

of

perf =ormed

Only

they
hose

back

also

each.

a
a

of

could,

Marple

the

cassettes

height

leanina

using

around

in

When

cassettes

showed

any

on

extent

filter.

he

as

tests,

of

large

the

boots
mining
dislodgment

a

on

wrapped

pump
two

certain
hose

the

toward
the
hose
from
a

hose

classificatlon.

throwing

patterns

on

from

indicate

to

10-1/2D

directed

dislodgment

effect

filters
in

was

tested

cassettes
No

toes

sat

distance
that

on
the
hose
stepped
with
maximum
toes
toward
pointed
the
filter,
did
when
he
they
on
a
hose
stepped

his

individual

correlation.

Marple

not

In

hose.

a

to
are

filter-to-

the

group

subjected

size
on

sent

were

loading.

were

wearing

resulted

manner
with
heavy
tool
box
30-pound
6
inches,
one
only

the

there

These

to

do

before

pattern

2

through

good
filter-to-foil

experiments).

individual
with
the

and

in

indicates

loading

filters

walking
same

time

400

one
are

larger

a

This

(Pitt-3

individual

normal
the

a

test

studies

In

loading

distance

special

The

systematic
a
230-pound

when

returned.

were

filters.

after

filter-to-foil

measured,

388

have

distances

was

and

increased.

after

filters

over

257A,
1070,

measuring

direction

correct

in

255A,
1069,

filter

the

water

decreased

were

test
and

by

when

inch

1

the
not

which

before

the

by

mines;

from

special

as

between

has

filters

1040

collected
to

it

determined

was

in
has

distance

after
of

pulled

was

The

dust

referred
foil

filter

minute

per

cassette.
is
some

filters
distances
direction
the

of

in

for

were

1990,
and
1992.
1991,
But
see
exhibits
G-253A,
260A,
261A,
262A,
263A,
and
265A,
266A,
R-I068,
and
1071
which
indicate
a
for
tendency
filter-to-foil
larger
distances
over
time
between
1988
April
and
1992.
May
the

for

filters,

1990

1988

June

having

(4)

millimeters;

31

distance

1988,
259A,

and

distance

1.29

The

same

side;

for

filter-to-foil

the

back

filter-to-foil

The

1.57

0.87

manufactured
conclude
that
time
for
the

Rubow
with

of
released.

was

any
pump

dislodgment

tested.

additional

filters,
from

1480

lab
the

threshold
filters

compliance

velocity
from
program.

Lee,
The

Thirty
0

to

filters

dust

lab

I00

of

40;

over

120.

g.

MSA

Documents

Dr.

Rubow
to

R-If00

i191•

susceptible

to
of

center

filter

the

situations

Dr.

with
this

filter

on

a

to

flex,

but

certain

from

pressure

formation

of

problems

air

render

not

flow
sustained

a

would
his
in

were

in

changes

dislodgment

dust

under
reverse
that
conceded
Rubow
resistance
higher
the
is
not
case,

particularly

and

would

the

air
air

flow

filter

the

cause

with

opinion,

the

pulse

reverse

to

tend

the
filter

in

patterns
reverse

or

from
of

12

and

opinion,

drops

40.
of

MSA,

defects

Rubow's

Dr.

to

0

120;

from

documents

In

to

80

manufacturing

pad

the

of

33

from

of

velocities

threshold

had

80;

discussed.

backing

and

to

40

reviewed
which
in

and

disclosed
filter

velocity

threshold

a

filters

dust

from

of

24

had

mine

the

reverse

a

pulse
h.

Conclusions

Marple/Rubow

dislodgment

Dust

i

naturally
in
The

coal

a

velocity

the

dust

type

A

probably

result

filter

from

a

larger

than

the

filter.
dust

of

patterns
flow.

air

reverse

blowing

sampler

dust

air

is

pattern

most

patterns

A

reverse

producing

for

method
an

A

is

occur

dust

the

on

type

of

cause

filters

on

easiest

Type

of

probable

most

for

cannot

personal

a

removing
being

create
outlet.

.

of

flow

dislodgment
The

filters

on

mechanism
primary
air
tangential

is
the
threshold
The

patterns

in
the
operation
environment.
mine

flow

to

filter

through

the

from

deliberate

mishandling
o

The

most

probable

dislodgment
o

E

Type

on

patterns

mishandling
o

The
of

The

i0.

Cone
reverse

most

probably

the

of

dislodgment

shipment

probable

is

of

cause

formations
air

type
impact.

E

patterns

result

dust

of

accidental

from

equipment.

sampling

of

operation
dust

of

cause

filters

desiccator

at

PHTC

is

not

a

source

is

not

patterns.
samples
compliance
dust
of
dislodgment
on

filters

flow.

1481

are

by airplane
patterns

probably

caused

on

filters.

by

a

ii.

Impacts
do

to

not

the

Marple's
subjected

Pitt-3

tests
hose

to

13.

study
can

filter.

Twenty

cassettes
flow

air

dust

dislodgment
has

24,

page

su_up_ra,

instances
a

Mine

dust

weight
is

problem
15.

weight
gain

no

show

and
dust
at

dislodgment
Tr.

filter.

in

dust

in

patterns

response
flexed

airflow;
A.

would

I

flexed,
how
And

Q.

variation
which
that
I

floppiness

Q.

.

would

:

in

the

.

.

believe
between

they

I

floppiness.

think

it

they

yes.
the

filters
isn't

related

filter

1482

be

to

its

that

would

back
....

different

respond

airflow?

the

up,

it's

is

You

A.

they

differences,

the

of

how

testimony

?
this

say

.

distance

how
the

on

filters
to

variations

the

the

factors

reverse

that

some

filters.

in

range
how

in

different
these

.

the

wide

got

believe

produces

A.

variatlons

they

between

right

filters

right?

high

you

some

Marple's

see

filters
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West
Virginia

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health

University

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testified

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Virginia

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for
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air
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factor

McCAWLEY

Dr.

West

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would

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answered

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filter

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should

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I

then

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alia,
removed

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amount

of

tests

in
a
dust
coal
with
loaded
been
filters
20
involving
airborne
an
collected
as
been
sample
had
dust
The
dust
chamber.
coal
some
seam
in
mine
the
coal
years
from
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Pittsburgh
theWest
University
PHTC
Virginia
The
studyand
previously.
Senator
to
in
NIOSH's
referenced
were
of
Dr.
report
Myers
study
were
filter
cassettes
relied
not
but
were
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upon.
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which

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first

test.

had

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1483

cassette

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as

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loaded
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hours).

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to

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the

test

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times

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through

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filters

heavily

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to

percent)
filters

control

for

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filters
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series

to

been

manufactured

two

tests

varied

from

milligrams
showed
essentially
the
opinion,
weight

1.12

Dr.

According

John

Dr.

first

in

the

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average

test

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second

numbers
in

Miller

including

a

August

8,

4

Applied

no

loss

due

weight

test,
filters

the

used

1988.

my

of

Dr.

has

a

He

was

accepted

used

as

record

The

LDCC

value
order

causal

his

and

and

predictions
variable

Statistics
evidence
between

dust

March

31,

federal
U.S.

variables,

and

299

1992,

Denver

between
database

Thaxton's

has

this

contention

answered
motion

when
we

.

188

in

alone
the

cannot
.

that

•"

Derek

long
School

(1977).

1484

been

in

fact

to

part

testimony
cannot

is

very
prove

prove

strong
that

Rowntree,
statistical

relationships

accepted
District

of

including

the

Nevertheless,
probable

field

no

obviously

use

(1981).

has

exclude

correlation

explaining

Hazelwood

to

Mason

database

processed

evidence

other

it

the

I

Tears

courts.

MSHA's

samples

George

Stanford
in

statistical

firm,

helpful

witness

expert

an

evidence

the

be

from

the

case.

"Even
are

in
at

that

Statistical

Without
can

as

Contestants,

causes

Professor

Statistics

statistics

database,

relationships.

one

in

all

argues
in
this

denying

Miller.

Ph.D.

of

Associate

an

Engineering

He

1989,

probative

is
and

4

statistics.

in

Miller

J.

of

University.
University.

433

test

were

two

the

outlet.

MILLER

Department

the

the

cassettes

result

a

5

In

and

have

of

hard

as

cassette

sampling

McCawley's
is
statistically
significant.
filters
to
the
subjected

tests

the

out

cross-examination,
The
loading

as

percent).
in

dust

off

caps
about

controls.

(over

the

10.27

in
as

milligrams

(34.25
change
to

On

into

after

some

times.
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first

both

"blew

Hearl)

of

air

the

four

as

used

0.08

6

8933.

of
and

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pulsed

"

cassettes

puff

a

before

with

Then
J.

balloon"

a

up

hours);
additional
Eight
were
They
tapped
was
sampling
pump
The
person
conducting

the

were

blow

weighed
(testing).

"tampering"

table.

a

Frank

produced

were

then

to

This

8933.

of

co-worker

blow

would

cassettes
the

his

(and

you

side

the

on

McCawley

as
v.

probative
Pnited
States,

in

filter

all

assigned

criminal

charges

samples,

and

officers

of

performed

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his
for
values:

subsequent
"before,"

analyses,
"after,"
date
sample

or

If

the

if

or

the

March

19,
March

before

before-A

defined

in

1990.

Before-C

sample

dates

the

rates

random

hypothesis
evidence

to

determine
mines.

whether

against
generating
phenomena

likelihood

cited

of

some

others.

20,

mines
result
all

in

1

prone

involving
1990,
the
in

of

1990.

31,

cited

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is
which

AWCs

null

the

mine.

each

at

same

of
was

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the

is
overwhelming
that
is
conclusion
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or
random
not

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are

is

heterogenous,

very
cited

generate
cassettes
only

tests
abatement

and

excluding

and

rejection

null

the

of

date

sample

1990,

i,

than

cassettes
whose

April

subdistrict

Norton

31,

observation

(X 2) analysis
of

•

overwhelming

was

March

was

on

Random

of

before

and

on

was

both

rate

to

was
or

If

chi-square

more

version

version

was

generation

possible

three

"after."

March

-n

variables

Before-B

cassettes

cited

database,

dates

and

i0

Miller

not

1990,

x

of

date

were

the

hypothesis.

null

tests

March

before

excluding
samples

of

to

and

date

AWCs

abatement

date

delete

purposes
of

rate

guilty

all
the

known

cutoff

a

pled

Before-A

to

cassette

much

mines
Similar

had

the

For

P-value

a

the

with
is

performed

shows

test

The

Miller

the

which

were

AWCs

Dr.

between
5
that
is

as

19,
Cited

of

Rate

created

mine

all

IDs,

three

He

was

used

March

the

dates

"missing."
the
except

was

between

First,
cited

way

version

Whether

a.

the

same

of

before-A
was

Denver

this

"missing."
the
processing

or

1990,

19,

missing,

were

1990.

each

database

mine
which

With

code

tamper

samples,
showing

cassettes.
tests.

filter

the

the

fraudulent

certain

"before"

Peabody

Corporation

MSA

from

manufacture

before

in

all

companies)

of

submitting

of

records

the

mines

subdistrict,
(or

with

Thaxton

all

Thaxton,

by
Norton

companies

of

IDs

each

to
MSHA

the

from

to

submitted

samples

hypothesis.
In

mailing

a

as

office

5

"The

hypothesis
.

rejected

Is

the

by
Curtis,

C.

Wayne

is

tested
condition

the

essentially

in

called

the

the

null

the

under

specified

test,
Statistical

Post

the

that

condition

Concepts

null

the

assumed

is
For

to

Attorneys

(1983).
The

statistical
between

0

null

stands

"P"

of

measure

hypothesis
the

being
If

MSHA

to

exclude

tests

these

of

assuming

AWCs,
mailed

cassettes

the

false."

119

cause

results

the

cited

the

of

handles

hypothesis
hypothesis
be

opinion,

Miller's

Dr.

and
and

the
i.

for

probability.

The

P-value

the

consistency

between

the

observed
P-values

P-values

data:

close

to

hypothesis.

1485

zero

are
are

not

is
null

always
consistent

the

numbers
with

same

The

manner.

the

of

cause

different
b.

in

for

Sample

Miller
cited

whether
cited

then

rate.
there
in

change
Z-score

of

hypothesis
not

80.

difference

the

PHTC

Miller

decreasing

concluded

cited

or

instituted.
is

overwhelming
the

sample
to

was

in

whether
about
The

in

the

rate

marked

decrease

This

in
be

could

due
in

decrease

a

cassettes

rate

1990,
a

that
cited

The

randomness

data
with

Manufacture

Date

the

Miller

then

did

on

or

(2)
or

to

a

not

are

to

seems

and

there
about

modification
rate

of

Dr.

cited
behavior

a

time.

Cassette

c.

time;

cited

over

hypothesis

the
to

there

(i)

over

be

the

systematic
consistent

homogeneous

rate

to

be

19,

a

1990.

mines

the

is

trend
to

March

null

rates)

a

seems

at

any

19,
show

after

of

was

results

and

date

determine

there
March

evidence

before

that

rates

as

from

correct.
Dr.

to

was
This

over

of

particularly,
on
occurring

rate

(no

analyses
analyses
time
through

of

these

of

inhomogeneity

code

in
cassettes

Rate

number

a

more

handling
handle

Cited

vs.

purpose

any

cited
void

AWC
7

Date

and,

the

the

out
not

manner.

performed

was

rule
does

different

a

The

cassettes,

when

also
it

assuming

mines
Tests

vs.

results

AWCs

leading
in

change
with

the

a

time.

over

of
analysis
date
vs.
sample
cited
manufacture
date.
The
adjustment
assumed
that
cassettes
manufactured
on
the
same
date
or
on
close
temporally
would
days
exhibit
similar
He
properties.
used
a
statistical
test
called
the
sign
and
used
test,
both
the
data
analysis
set
and
the
reduced
data
analysis
set
in
versions
and
A,
C.
B,
In
all
cases
the
results
were
small
extremely
P-values
and,
an
thus,
overwhelming
of
rejection
the
null
hypothesis.
Dr.
Miller
thus
concluded
that
there
is
overwhelming
evidence
of
a
definitive
in
the
change
cited
rate
between
"before"
and
"after"
even
after
adjustment
for
manufacture
date.
Because
of
bias
potential
from
the
resulting
fact
that
there
is
difference
in
the
number
of
in
the
samples
before
and
after
for
period
individual
date
any
of
Dr.
manufacture,
Miller
did
a
8
bootstrap
The
analysis.
did
analysis
disclose
such
a
but
bias,
it
is
a
small
one.
The
null
hypothesis
date
(that
of
manufacture

adjusting

rate

A

extremely
of

is

80
s

A

hypothesis
effect

of

small
less

P-value.
than

test

potential

more

1.0

using
be

an

cassette

Z-score

to
of

for

x

than

2

The

P-value

i0

The

bias

5

translates

data
enforcing
is
to
designed

test

resulting

1486

into

corresponding

-n.

hypothetical

true.

or

from

unequal

an

to

the

a

Z-score

null

determine

variables.

the

a

makes

difference)

a

adjustment
Therefore,
in
differences
large
1990.
March
or
31,
did

Miller

Dr.

is

before

or

hypothesis

that
is
manufactured

the

hypothetical
holding

explain

March

For

in

difference
manufacture

date
not

does

sample

before

date

observed

The

manufactured
is
explained

and

before

by

an

experiments,

Pitt-3

allocated

Miller

Dr.

(there

manufacture

of

year

Floppiness

and

Distance

Marple's
by (i)

Dr.

filters

400

that

date.

Filter-to-Foil

d.

no

of

1990.

1990,

i,

null
evidence

no

analyzing
31,

cassettes

for

or

1990,

I,

manufacture

of

when

January

sample

little
is

the
and

as

same

the

enforce

terms

date

March

or

after

for

adjustment

is
there

the

for
the

January
to

in

null

citations
is
1990,

i,

there

constant,
1990,
i,

rate

manufactured

those

of

in

were

The

manufactured

difference

19,
cited

in

difference

rate

analysis
that

1990,

1990.

January

bootstrap

observed

the

after

and

hypothetical

January
Therefore,

rate.

i,

1990,

difference

the

cassettes

the

January

the

19,

March

whether

whether

by

explain

after

and

determine

after

date

after

cited

and

to

concluded

sample

the

test

data.

the
not

datedoes
before

before
cassettes

a

he

and

before

rates

for

rate

hypothesis,

cited

explained

Following

after.

manufacture

with

consistent

not

for

a

cited
rates
manufactured
cassettes

still

is

from

none

were

and
measured
as
by Marple;
distance,
(2)
1989);
the
MSHA
to
sent
to
be
measured
as
by Marple;
floppiness
(3)
Pitt-3
the
After
experiments,
dust
offices
for
district
loading.
the
whether
determine
to
did
Miller
a
regression
logistic
could
Thaxton's
calls)
citable
of
(using
dislodgment
possibility
filterthe
either
and
of
the
experiment
be
using
type
predicted

filter-to-foil

distance

to-foil
show

statistically

any

citable

significant

effect

dislodgment:

dust

associated

floppiness
strength

with

larger

probability

was

associated

with

of

refers

citable

AWCs

whether

Weiqht

and
did

a

formation.
The

not

dislodgment,

on

was

and

larger

dislodgment.

of

than

greater

much

was

a

floppiness

and

conclusion
Thaxton's

of

Miller

calls

on

AWCs).

Miller

filters

calls

Marp!e's

to

distance
distance

(This

distance.

filter-to-foil

the

did

data

probability

larger

and
show

floppiness

or

test

dislodgment,

relation

to

significant

statistically

of

floppiness

the

of

The

e.

of

failed

results

The

both.

or

marginally

distance
filter-to-foil
the
piston
However,
filter-to-foil
both
filter-to-foil
larger

formation.

AWC

that

or

between

relationship

on

floppiness,

or

and
statistical

weight
He

a

Loss

inspector
null

analysis

statistical

formal

loss
studied

was

associated

with

hypothesis

(including

filters

compliance
filters),

and
is

1487

special
that

to
reverse

the

determine
air

AWC

operator

filters

separately.

average

weight

change

in

the

control
statistical

The
four

had

least

groups
squares

group

would

have

to

compare

the

some

conclusion

is

numbers

show

AWC

filter

that

it

f.

Miller

if

sample

lightly

will

for

the

loss

the

fact

the

here.
filter
loaded.
there

greater

phenomenon

is

not

than

The

weights
The

is

a

filters

Some
group.
the
likelihood

is

were

appropriate

heavily
hypothesis:

loss

the

groups

as

that

but

a

that

the

some

null

the

did

mean

all

compared

AWC,

an

weight

a

of

in

experimental

with

have

the

of

Miller

statistically

loaded;

rejection

Because

Dr.

being
the

group.

variance.

the

are
are

consideration
were

of

estimate
sizes

an

the

experimental

the

analysis
of
filters,

means
squares
if
averages

a

in

as

an

analysis:
had

loss
weight
a
weight

greater
not

unequal

into

differed:

same

is

Least
took

the

analysis
means

same.

things
analysis

is

group

do

that

an

likelihood

the

won't

Conclusions

I.

The

cited

A

mechanism
all
mines

at

AWC

pattern

is

There

was

of

is

occurrence.

likely

equally

responsible

for

to

occur

observed

the

AWCs.

decrease

a

time

the

not

cited

of

which

event

or

random

a

in

the

rate

initiation

the

cited

of

the

of

AWCs

void

about

at

in

code

March

1990.

The

observed

not

due

to

over

time.

Any

potential

filter

When
the

reverse

weight
B.

•HE

i.

LEE

Dr.

engages
solid

OPERATORS'

Richard

J.

in

accepted

an

previously
1450

cited

additional

previously

stated

is

cited

the

of

the

of

cassettes

have

air

direction

there

is

for

blown

the

time.

over

through

the

is

AWCs

cassettes

explanation
constant

them

likelihood

in

of

a

EVIDENCE

is

President
research

of

from

witness

and

analyses,

that

filters
and
cited
filters.
identified

Dr.

He

this

examlned

1488

Lee

inter
has

Lee

a

Group,
alia,
Ph.D.

He

an

in

was

materials

environmental

videotapes
classified
decision.

J.

University.

physics,

and

examined
in

State

in
Lee

R.

which,
Dr.

Colorado

expert

the

laboratory

characterization.

physics
as

rate

quality

not

and

materials

characterization

AWCs

Lee

testing

state

the
the

loss.

MINE

independent

in
in

mine-specific
of

occurrence

.

drop-off
change

a

and

of
them

monitoring.

evaluated
more

into

Approximately

I

than

more

than
five

1240

types
34

percent

were

7

percent

46

type
percent

were

When

Lee

i,

4,

type

type
percent

were

and

6

cross-examined

was

had

with

his

a.

Systematic
For

low-vol

his

in

use

in
samples
various
from

R.

the
coal

those

as

aerodynamic
temperature

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obtained

Lee

country.
distance

with

samples,

these

simulate

first

Lee

to

4

without

and
4

with

feet

caps
a

filter-to-foil

samples
1

millimeter.

caps

cassettes

impact,

samples,
the

across

filter-to-foil

AWC

in

separation

and

both
to

and
cyclone
from
ranging
with
secondary
were
dropped

occurred

AWCs

shape

processing.

out;

of

inches

impact
from

the

of

than
was

in

resulted

impact
3

appearances

percent

33

less

separation

filter-to-foil

the

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were

secondary

cited

to

heights

When

with

and

from

with

with

and

same

laboratory
testing
designed

For

cassette

of

impact.

indistinguishable

the

tests

from

dropped
in

in

measured

and

series

a

secondary

mines

prior

The

and

the

laboratory

the
coal

taken

was

controlled

under

to
from

used

similar

collected

handling,

were

caps

of

were

Lee

loading.

conducted

Cassettes
with
feet;

tests.

an

dust

3100
coal

within

microscope.

collection,

sample

and

were

dust

after

and

before

sizes

addition

optical

measurements

not

medium-vol,

particle

tested,

sample

agreed

over

The

high-vol,

were

In

stereo

a

filters

to

filters,

35

tunnel.

samples

dust

650

each

For

mines,
Samples

humidity.

over

of

generated

Lee
dust

included
coal

from

diameter.

5.

with
respect
classification
i0

included

and

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type

were

Studies

Group

seams

Samples

coal.

range

Lee

trial

only

experiments,
J.

percent
type

trial

Dislodqment

Dust

were

at

his
in

classified,

previously
classification
prior
batting
average.
impressive

he

6

2,

only

4

greater
percent

of

millimeters,
appearances
filter
and
heads
(including
cyclone
Sampling
samples.
inches
to
3
from
from
ranging
were
heights
dropped
cassette)
feet
2
from
When
with
3
some
dropped
impact.
secondary
feet,
from
AWC
with
indistinguishable
impact,
appearances
secondary
filterwith
a
of
the
in
40
cited
occurred
AWCs
samples
percent
in
occurred
millimeter.
than
i
less
to-foil
distance
of
They
filter-to-foil
the
when
of
the
separation
8
samples
only
percent
3 millimeters.
than
was
greater
AWC

3

than
the

impact

Hose

medium,
hoses

1/2

pound

1

hard.

and

soft

inch

to

by a
length

1-pound

with

a

of

appearances

separation

tests
AWC

during
to

i0

8

inches

the

pounds

weight
hose,

AWC

a

separation

resulted

greater

in

only
than

hose.
inches
3
of

i0
3

When

1489

hoses
foot
1

to

in

with

of

1

the

from

were

impacted

onto

a

percent

67

than

less

percent
millimeters.

soft,

were

more

occurred

appearances

filter-to-foil
was

from

that

frequently
from
ranging
Weights
from
ranging
heights

tests.

dropped
sampler

dropped

hoses

occurred

appearances
initial
were

onto

using

performed

were

samples

when

the

millimeter.

samples

Filter-to-foil

1-inch

of

AWC

distance

was

Capsules

with

the

were

extremely

AWCs

occurred

pump

on

to

with

the

the
were

around

the
resulted

at

b.

PHTC

he

inspected

He

then

filter

they

were

This

resulted

in

conducted

tests

capsules
Dr.

the

at

tests
Lee

evaluated

percentage

that

that

to

5

contributed
c.

AWCs

by

in

simulate

the

lab.

AWCs

of
and
was

not

made

The

measurement

off

was

and

AWCs

disassembly

of

as

filters

a

to

and

20

the

hose

50

also

filter

the

result

these

of

foils.

determine
It

to

box.
Lee

aluminum

handling.

which

from

cardboard

a

the

the

recompression
dust
eight

AWCs.

formed

MSHA

when

at

of

to

and

occurred
and

into

done

series

a

evacuation

Subsequently,
carrying
tray

rapid

and

handling

performed

same

a

were

procedures,
laboratory.
and

formation

caused

the
his

was

percent

opinion

were

Loss

in

used

weighed

were

the
nine

and

filters

recorded.

gains.

concluded

in

result

which

testing.

after

loss;
On

that

reduction

a

tests

and

protocol.

weight

no

weight
Lee

impact

before

calculation

showed

showed

necessarily

i0

the
the
in

showed

average
formation

filter

a
no

of

weight.

Distancp
filter-to-foil

the

purchased
millimeter

using

countertop,

pump

handling.

newly

were

the

MSHAweighing

measured

0.i

a

laboratory

then

chucked

cited

from

MSHA

Filter-to-Foil
Lee

on

was

700

were

hose

waswrapped

on

PHTC

port

and

damage

formation

the

does

filters
about

in

filters
AWC

followed

Twenty-eight
weight
loss,
loss
weight
d.

cases

Weiqht

Forty-seven

AWC

desiccator.

placed

some

percent

and

resulted
Lee

MSHA

about

to

evacuation

recompression

resulted

15

MSHA

of

He

Lee's

stacked,

PHTC

impact
a

Lighter

hose

the

the

the
using
opinion,

were

considerable

and

rates

up,
to

on

PHTC

on

in

desiccator.

the

picked

G-170,

desiccator

capsules

hose

small.

simulate

In

the

tread

the

the
less

AWCs.

when

procedures

the

with
were

Formation

the

to

caused

AWCs

videotape,

MSHA's

in

When
the
down
firmly

so.

citable

However,

Heavy

hose

placed
was

to

own

rates.
close
in

was

the

less

or

impacts

impact.

doing

AWC

tests

his

recompression
possible

factor

the

citable

measured

in
in

laden

important

of

videotaped

Lee

rates

An

pump

MSHA

an

designed

practices.
recompression

capsule

minute,

of

and

off.

per

to

formation.

millimeter

1

Potentially

and

on

pump

distance

and

AWC
of

formation.

AWC

liters

potentially

viewed

tests

the
2

the

and

Handlinq

Lee

to

AWCs.

filter-to-foil

the

of

with

pump
in

affecting
distance

abruptness
perpendicular
not
capable

foot

treads
it

both

running
produce

was

factor

susceptible

and

likely
tests

dominant

filter-to-foil

a

a

is

to

from
almost

MSA.
5

microscope
accurate

with
to

distance
distances
millimeters.
a

within

1490

on

varied
The

computerized
0.i

3000

over

The

millimeter.

3

from

measurements
axis
state.
After

dust

an

deposited

was

again

measured.

large

filter-to-foil

other

measured

the

the

on

Two

another

measurement

foil

Exhibits
distances

in

October

See

the

25,

is
the

300,000

April

1989,

to

February

(from

the

In

in,

caps
of

0

(Lee's

cassette

4-foot

percent

33
1

millimeter

type

and

to

filter-to-foil

millimeters

of

hose

a

Dust

Dislodgment

drop

test

with

1

6K);

distance

of

1

AWCs;

the

impacted

5

found

to

impact

test

the

and

filter-to-foil

of

none

hose

of

with

concluded

Lee

AWCs

have

by

more

susceptible

and

after

distances,
are

less

in

that

susceptible

4

to

air

AWC

formation

with

large

to

reverse

a

short

or

with

variable
and

air

1491

of
of
to

formation

of
In

Filters

loading

after

or

distances

are

air
before

filter-to-foil

post-loading
pulse

of
three

impacts.
the
strongest

impacts

filter-to-foil

AWCs

to

inch

1

filter-to-foil

formation.

AWC
to
before
with
small

2

3

found

were

to

mechanical
is
distance
or

with

pre-loading

millimeters

susceptibility

pulses

Filters

5

with
of

distances
to

loading.

of

of
of

AWCs.

to

3
3

degree

filter-to-foil
filters

to

susceptibility

increasing

than

pulses

to

have

to

citable

with
weight,
1-pound
filters
30
of
percent
12
1 millimeter,
percent
of
2 millimeters;
none
12
millimeters,
percent
and
4 millimeters;
none

filter-to-foil

the

short

in

higher
reverse

opinion,

Lee's
factor
with

to

1

4

a

to

66

cassettes

that
a

either

0

a

of

AWCs

with

a

off,

of

distance
of
filters
with
a
distance
of
2
filters
with
a
distance
of
filters
with
30
a
distance
with
nine
filters
a
AWCs.
citable
have
potentially

with

distance

a

citable
filters
found
distance
a
distance

were

with

and

impact
distance

129

potentially

using

8

distance

filters

have

pump

distance

of

52

shorter

experiments.

secondary
potentially

of

2

the

had

filter-to-foil

have

millimeters
filters
43

to

none

percent

4

27

a

percent

to

found

were

feature

were

In

and

with

from
that

his

in

used

he

filters

30

of

citable
potentially
to
3 millimeters,
and
4 millimeters,
5

those

Distance

the

manufactured
(those
testified
Lee
1990).
and
series)
300,000

13,
200,000
than

Filter-to-Foil

e.

the

difference
series

distances

and
Lee,
Grayson,
1990,
February
13,
from
13,
1990,
February
1992.
to
28,
1992,
May
discussion,
Marple
filter-to-foil
in
the

15,
in

than

filter-to-

the

show

to

1988,
1989,

exhibits

after

3,

3,

after

of

February

from

these

distance
filters
cited
filter-to-foil

3,

significant

a

1071

the

filters,
loading;

of

smaller
filters.

much

floppy

filters

April

to

20,
1988,
and
1990,
to

There

supra.

and

generally

a

while

groups
to
that
was

were

1070,

April

from

reference

latter

the

experimental

the

manufactured

to

before

1069,

R-I068,

some

similar

was

had

one

•

was

millimeters),

3.7

In

loading
--

found:

were

measurement

after

February

from

(about

the

group,

the

Marple

distance
1 millimeter.

before

measurement

in

the

about

distance

filter-to-foil

filters,
populations

distances
than

those

differ,
with

distances.

small

mechanical
distance

have

greater
percent

to

tunnel

samples)
of

fllters

24

had

the

cited

had

such

uncertain
with

Filters

a

Twenty

less.,

is

Lee

impacts.

examined

the

no-call

filters,

and

some

concluded

that

physically
Lee

Second

One

hundred

coal

mines

dust

tunnel

Set

82

experiments.

A

ranging

from

attached

to

exhibited
feet

the

hoses
the

tested,

tested,
exhibited

with

tested,
hose,

Of

filters.

Peabody

or
......

the

of
and
were

was

31

filters

AWCs.

The

and
hose

table.

Of

of

hose

4

inches

to

1.71

pounds.

All

exhibited

14

door

the

hose.

Of

A

person

was

five

sat
Of

wrapped
filters

heights

from

18

of

tested,

the

Lee

dropped
length
tested,

about

cyclone.

J.

of

cabinet

AWCs.

R.

types

a

of
on

the

heights

filters

closed

underground
in

known

from

out

pump

various

a

weighed

20

the
a

used

using

Lee

Lee

the

Pocahontas

performed

cassette
outlet

removed

from

snapped

closed.

in

of

the

of

them
the

of

hose,

drawer

or

six

the
on

the

hose

a

filters

13

around

the

pump

five

tested,

pliability

and

dust

4

coal

seam.

hose

softness

capsule

Thirty-two

and

put
exhibited

1492

in

the

mid-vol

is

cassette
with

the

Forty-five

AWCs.

hose.

used

the

in

still

were

cassette
AWCs.

a

soft

hard

formation

covered

or

seven

the

and

AWC

tests:

plugged

filters

the

toughness

to

snap

filters
exhibited

tunnel

or

susceptibility

was

using

none

the

using

tested

were

distances.
Of
17
a
medium
and
hose,
the
filters
using

from
No.

that

Thirty-four
Twenty-five

six
all

on

taken

concluded
factor

the

hard

hose,

soft

a

occurred
the
medium
were

while

and

filter-to-foil

samples

from

significant
impacts.

medium,

soft,

AWCs

two
the

closed

exhibited

similar

four
hose.

coal

five
to

of

Hoses

All

the

AWCs.

filters
hard

category

pounds
onto

the

was

impacted

2

or

feet

hanging

on

each

cited

from

three

pumps

drawer

exhibited

4

then

percent

some

collected
different

dropped

Of

attached

was

1
2

The

left

or

in

cyclone.

hose.

was

door

to

were

soft.

were

hose

A

filters
which
and

and

Pumps
a

the

previously

to

pump

onto

AWCs.

and

a

AWCs.

from

dust

One

filters

normal

samples

samples

inches

3

5109

thirteen

subjected
of
weight

were

of

and

Experiments

of

and

and

percent

population,

the

filters

indistinguishable

f.

1.5

filter

the

of

some

rings.
1

rings.

(field

Lee

by

standoff
about

of

standoff

tested

and

involving

filter-to-foil

9-millimeter

of

the

filters,
rings.

situation

the

larger

a

incidence
filters
9-millimeter
of

non-void

Lee

of

a

hose

on

snapped

was
a

thumb.

capsule.
filters
before

were

it

was

In

air

pulse

and

the

another
a

cassette

filter.

Of

After

tamper
examined

optical
mishandling
h.

Lee

Analysis

others
dust
tests

had

of

but

and

2,

loading

(three

loading

AWCs

33.3

percent

filter-to-foil

loading,
32

short
exhibited

(14)
distance
long

AWCs

percent

of

the

loading,

they

resulted

i.

The

5109

Filters

Lee

examined

identified

by

which

respect

before
of
the
distance
50

and
time.

2,

using

50

loading

and

percent

of

before

and

after

Lee

used

test

4,

and

after

of

of

complete,

(three)
two
and

AWCs

Those
exhibited
where

groups:
dust

after

it

Where

was

resulted

before
time.

5109

time.

post-loading
time.

the

time.

the

the

long

a

the

the

his

before

of

large

cases.

AWC

before

of

filters)

(I0

AWCs.

loading

was

1493

after

piston

Marple's

and

percent

the

Marple's

the

percent

loading,
it

because

distance

of

the

the

distance

50

loading

percent

of

after

Lee.

filters

filter-to-foil

small

percent

57

in

AWCs

Combining
was

were

filters

to

2,
group
distance

thousand
There

the

than
(less
pre-dust

after

time.

Cones
Dr.

Sixty-one

limited

percent

and

and

of

filter-to-foil
i,
including

i0

46.7

has

an

and

MSHA.

distance

Where

several
MSHA.

by
was

AWCs

large
16.7

groups

to

AWCs

i

distance
exhibit
any
filters
exhibited

pre-loading

resulted

pre-loading

not

may

be

coning.
by

examined

after

in

filter

Study

exhibited
initial

filter-to-foil
exhibited

short

filters)
a

shorter
distance

dust

the

or

to

a
short
distance

all)

filter-to-foil
did

determine
With
a

(13

a

filters)

to

with

distance
with

long

contribute

group

characteristics
a

codes
type
characteristics.
filters
with

in
a

filter-to-foil
AWC

with

to
with

filters

with

Filters

small

studies,
supplied
analysis
regarding

(14

Filters

and
longer
exhibited

the

piston

no

variabilities

photographs

filter-to-foil

millimeters)
loading
post-dust

there

Filter-to-Foil

analyzed

When
of

samples

and

was

dust

a

region.

his
Lee

cones,

with

some

center,

may

Marple

Lee's

3,

1.6

cases.

the

in

there

surface

inspector

information
With
respect

loading.
l,

capsule

filters
of

some

Manufacturing

the

examined

no

the

disassembly
of

cited

In

front

through

measurements

included,

reverse

through

evidence

including

the

cone.

a

Marple's

were

air

of

the

central

from

some

filter-to-foil

Those

coning,

6-millimeter,

during
on

Lee

a

the

AWCs.

coning.

for

of

of

found

Dr.

flow

of
many
to
have

said

filters

wrinkled

were

in

create
between

exhibited

17

425

removed

is
illusion

Dr.

the

prevent

reclassified
the

partially
filter

to

inserted

sheet

tested,

evidence
in
the

disturbance

used

to

impacted

was

Report

of

discernible

the

outlet

including

266

been

plastic

Thaxton
codes

hose

thin,

filters

24

Coning

•ee

g.

the

test,

with

and

normal

identifiable,

after

filters

the

6-millimeter
about

rings

50

indicate
regular
Tr.

that

the

filters

basis

and

thus

Awc

and

Weiqht

Loss

Lee

took

apart
them,

a

deposited
to

percent

of

of

in

come

examined,
This
ring.

those

partial

a

with

contact

"halfways

are

weight
found
and

and

which

the

on

19.23

that

some

loss

of

did

foil

the

range

uncertainty

Tr.

6306.

than

5

weight

milligrams

19.2

as

weight

gain,

filters

the

dust

recorded

in

MSHA

of

samples

for

number
MSHA's

milligram

intrinsic

of

analysis

the

from

47

been

them
subjected
the
formula
prescribed
a
truncated,
e.g.,

is

recorded

the

a

AWCs."

them,

followed
decimal

a

had

dust

He

showed
Of

filters
in

gaps

is

after

reassembled

on

being

to

way

and
would

some

measured,

Lee

weight

a

Lee

loss,

found

no

average.
an

cited

results

milligrams
filters

on

Lee
4900

second

change

no

weight

filters

of

the

means

of

some

series

weighed
them,
them.
reweighed

on

tests,
MSHA,

by

k.

20

indications

6276.

j.

2

about

on

had

percent

truncation
there
will
in
the

Therefore,
percent,

reported

for

each

the

existence
interval

405.

The

frequency

in
the
1
to
Thus,
be
about
a
"5
or
percent
greater
dust
concentration
determination"
process

unless

there
be

can't

one

weights
document

is

certain

weight

a

that

change

in

fact

of

more

there

was

a

air

flow

change.
Lee

Conclusions

The

primary

mechanism

for

a
through
filter,
The
of
the
impact
the
filter
through

but

different

of

Tr.

factor
competing
the
humidity,
There

dust

dislodgement

MSHA's

which

can

handling

in

filters

formation
filter-to-foil

seen

than

manufactured

Manufacturing
cassettes
appear

distance

cited

the
was

be

that

a

dust,

more

varies

PHTC

seen

purchased

substantially

A

cited

the

on

to

the

shorter
filters

recently
to

and

with

1494

other

or

filter-to-foil
of
filters

continues

filters

directly

filters.

more

variability
recently

to

on

be
the

especially
susceptibility

distance

those

be

may
the

of

disassembled.

are

Manufacturing
variables,
increase
distance,
the

on

flow

nature

and

different

and

etc.

where

AWC

effects

air

the

on

pulse

a

"different

Tangential

depending

wave.

causes

resulting

filters

to

foil

the

not

mechanical

or

in

6285-86.

cited

are

attributed
facilities

at

is

AWCs

tympanic

filter

amounts

patterns."

causing

a

used
a

change.
tests,

In

for

filter-to-foil
before

and

after

the
there

loading.

of

MSHA's

definition

subjective
should

been

to

of

of

constitutes

what

of

the
method

the

or

of

calculation.

6

sitting

the

on

AWCs

can

be

with

or

without

region
there

has

concentration

ring
distance

the

snapping

by

caused

4-foot

The

out,
millimeter,

caps

where

AWCs;

30

3 millimeters
distance
25

percent.

The

4-foot

caps

in,
the

to

distance

millimeters

was

where

the

with
of
1

AWCs

impact,

secondary
32

to

was

filters

exhibited

percent;

with

where
percent;
2
filters),
(49
filters),
(7

(118
2

was

where

to
the

filters),

(12

2

to

0

millimeters

2

16

distance

1495

also

See

citable

millimeters
2

it

was

percent;
0 percent

AWCs;

filters),

(77
to
3

to

0

was

showed

percent
was

impact,

secondary

no

distance
to

shut

distance

distance

14

2

halves

219;

the

test

i

table.

potentially

filter-to-foil

filters),

a

the
around

cone.

millimeters

5

from
on

show:

was

drop
the

(36

millimeters
5

distance

where
percent;
(61 filters),

cassette

filters),

(56

percent

where

percent;

26

12-1/2

4

was

millimeter

where

filter-to-foil

hose

drawer
the
hose
a

(G-217,
of

test

the

the

filters),

a

cassette

foil

drop

cassette

where

the

aluminum

the

the

on
or

or
wrapping
on
assembly

hose,

data
created
from
R.
J.
Lee
Graphs
the
223)
indicating
percentage
1
filter-to-foil
distances
6K) vs.

to

that

the

pump
door

a

G-221,

4

central

segmented

the

Miscellaneous

1

the

imply

filter-to-foil

closing

impacting

and

pump

dropping

by
inches,

occur

of

i.

.

in

weight

9-millimeter,
a
larger

a

indicates

can

height
hose,

1

is

AWC

vice-versa.

AWCs

.

6536

not

in

presence

and

(Lee's

citable
"consistent"

a

(Tr.

area
lighter
necessarily

a

does

MSHA's

generally

i0.

the

"inconsistent.")

read

The

affecting

factor

inconsistent.

and

pursuant

important

an

of

AWCs.

appearance
filter
the
reduction
a

of

incidence

higher
loading.

a

after

is

occurrence

The

also

rings

pliability

Hose

.

is

There

9-millimeter

3

millimeters

to
where

it

was

4

The

4-foot

caps

out,

cassette
the

millimeter

1

the

distance
where

filters),

(35
4

millimeters

4

to

The

15

2-foot

36
47

of

35

data

in

the

(5

filters)

samples

samples
(48

distance

had

2

6K
of

field

and

field

in

showed
The

from

cassette

to

3

it

to

where

millimeters

3

3

was

percent;

where

(ii

was

the

distance

the

to

the

filters),

60

percent

percent
1 millimeter
the
distance

of

the

to

the

of

the

0

the
millimeter

4

4

to

10.5

percent

percent

of

tunnel

millimeter

5

the

19

to

the

filters)

0

dust

tunnel
0

had

the

6K

the

of

21

samples
of

percent

dust

and

where
field

21

samples
percent

range,

of

1

was

range,
the
33

of

percent

tunnel

samples
(43
6K
features;

had

dust

the

of

dust

filter-to-foil

field

samples

of

to

and

that

millimeters,

10.2

in

filters

experimental

filters

classified

drops,
vacuum

filters

had

short

tunnel

had
the

two

samples

reviewed

by Thaxton
drops,

cyclone
desiccator.
filter-to-foil

hose

About

included

Thaxton

by
as

citable

which

impacts,

hose

twice

as

resulted

of

many

and

wrap
these

distances.

CORN
Dr.

Morton

Department

of

and

Public

in

industrial

He

was

a

Assistant
December
witness

Professor
and
Division
Health
Sciences,
Johns
Hopkins
University.
and
sanitary
engineering

in

Professor

Sciences

Health

from

expert

the

hygiene

Environmental
was

is

Corn

Environmental

Health,

University.

an

0

tunnel

3

and

and

and
Health

where

to

impact,
millimeter,

1

2

was

I0

shows

where

percent

impact,
2.

filters),

where
AWCs;
(96
filters),

37.5

vs.

dust

the

Lee

40

(78

features

6K

about

to

0

millimeters

report

percent

39.4

samples
features;
samples

6K

5

features;

the
2

was

samples
features;

to

with

27.9

percent

distance

percent;

filters),

Lee

filters)

millimeters,

39

secondary

where

(49
4

was

no
was

AWCs;

percent.

0

The

with

2

where

4

field

drop

percent;

showed
millimeters
the
distance

to

filters),

millimeters
distance

percent.

3

was

12.5

filters

i0
1

percent;

(52

16

distance

was

it

where

filters),

cyclone

distance

to

to

0

was

showed
percent
millimeters
3 millimeters

2

2

percent;

(48

filter-to-foil
percent

the

distance

to

1
was

impact,

secondary

no

27

was

it

millimeters,

5

test,

filter-to-foil

filters),

(36

percent;

where
22

drop

where

at

Secretary
in

to

the

fields

exposure

assessment;

aerosol

sampling

technology;

design

Labor

the

from

Department

Safety
accepted

Corn

of

industrial

particle

1496

was

hygiene
coal
physics;
of

research

Ph.D.

Industrial

Pittsburgh,

Occupational

management

a

Harvard

of

1977.

and

Hygiene
has

of

University
for

and

of
He

January

of

1975

the

Director,
School

and
as

and

mine
and

dust

investigation
aerosol
federal

assessment,

involve
that
exposure
projects
and
and
samplingtechnology;
physics,
particle
and
health
regulation
safety
occupational
of

and
enforcement

and

systems.
with
R.
the
cooperated
events
simulating
samples
and
analysis.
handling,

Corn
on

dust

sampling,
filters

300

MSHA's

from

Mt.

J.

Lee

and

visited

office,

experiments

the

cited
1248
and
videotaped
inspected
visually
identified
examined
AWCs
He
also
Arlington.
filters.
no-call
200
than
and
more
samples
discolorations
central
the
of
image
analysis
discussed
will
be
The
filters.
analysis
image

compliance

MSHA

from

reviewed

He

Hope

in

Group

expected

photographed
in

inspector
performed

MSHA

as

then

He

of

and

PHTC,

the

filters

cited
in

the
later

an

this

decision.

Lee's

observation,

study.

experimental

Corn's

opinion

filters

would

filters

with

characterizing

AWCs.

Corn's

conclusion

collection,
regulations

and

Dr.

than

R.

Energy

Larry
Resources,

mining

engineering

a.

and

Sampler
At

eye

the

of

and

engineering.

Assembly

Drop

groups
0.35
were

according
milligram

It
feet

onto

the

none

originally

was

the

3.5

more

and

including
cassettes

nearest
their

to
to

cracked
assemblies

dust
a

total

a

the

across

the

to

examined

nine

request,
for

corrugated
during
were

operator
samples

of

more

in

accepted

was

coal

dust

milligram

found
to

drop

the

from

heights

dropped

3.5

from

1497

1.5,

into

testing

they

appearances.

assembly

of
the

2,

five

from

and

2.5,

1.5,

floor.

drop,

34

opened

divided

sampler

the

on

foot

from

were

Before
AWC

cassette
cardboard
the

in

samples

740

and
varied

have

to

each,

Crowell
normal
a

of
taken

cassettes

The

weight.
They
2 milligrams.

was

clients

than

country.

planned
laden

20

0.01

than

and

Ph.D.

a

and

respirable

of

Mineral

of

has

He

Tests

approximately

mines

weighed

fields

mining

submitted
Moring
compliance
manner,
different

University.
University
Virginia

West
the

College

the

of

Dean

Virginia

from
in

Grayson's

Dr.

is

Grayson
West

witness

expert

an

research

and

cited

from

GRAYSON

3.

as

human

analysis
image
of
number
a
significant
produce
cited
of
those
matching
parameters
associated
events
that
commonplace
with
MSHA
in
and
compliance
analysis,
for
more
are
a
explanation
plausible
MSHA.
the
tampering
alleged
by

is

discolorations

central

caused

tests

the

that

handling,
procedures,

with

Lee

to

produced
visual

subjective

his

on

the

that

filters

experimental

Lee

Based

indistinguishable
is

It

central

the

concluded

Corn

discolorations
AWCs.

examined

visually
supplemental

Corn

in

Because

test
2.5

was

feet.

and
many
modified
After

&

the

was
assembly
inspected.
cracked,
testing

dropped

was

repeated.
removed

AWCs.

Of

the

744

6-millimeter
citable

or

Dr.

AWC

an

filters
AWCs

possibly

Grayson
filters.
millimeter

6-

ii
tested,
(1.5
percent);

assemblies
believes

went

to

each

that

mineralology,

etc.

Of

for

the
of

3

inserting
touching
tested
drop
AWCs

0.5
40
18.8

percent
of

possible
c.

drop

the

tests

distinct,
The

floor.

properties,

seam

probably

Later,
assembly
had
(six
AWCs).

from

AWCs

the

mines,
distances

23

Grayson
mine

Utah

is

humidity,

29.2

66.7

those
of

of

1.5

millimeter

the

cassette

into

microscopewas
tested

with

21.4
20

by

barely
were

AWCs.

No

filter-to-foil

with

to

a

distance
distance

of

those

of

those

a

percent
percent

found

were

and

for

found

with

those

of

2.5,
4

or

those

of

taken

Ninety-four

a

were

or

inlet

examined

with

30

of
were

used.

but

cassettes
when
tested

percent
percent
with
1.5,

millimeters;

nine

scale

a

of

2.5

measurements

not

3.5

had

millimeter;

0

and

The

two

those

with

those

20

30

measured

were

of

percent
distance.

No

The

178

millimeter;

1

3.5

were

millimeter
50
AWCs;

of

millimeters;
millimeters;

2

of

0

of

none

of

have

to

concrete

a

had

of

84

millimeter,
percent

possible

Two

31

found

possible

or

from

26

and

of

AWCs

received

Thus,

were

percent).

filters.

AWC

distinct,

have
found

have
on

testimony

cited

performed

once

number

to

were

probable

coal

deposition
400

distance.

filter-to-foil
a
millimeter
the
filter.

distance

had

millimeter;

0.5

millimeters.

smaller

or

samples

millimeters;
millimeters;

1.5
of

to

for
was

Distance

filter-to-foil

seven

and

found

in

Filter-to-Foil

b.

mine

capsules

examined

disturbance

dust

(21.4

Utah

was

The

were

than
found

159

were

greater

differences

Thaxton's
more

were

dropped

the

on

filter

the

cassette

procedure
performed.

filters
a

AWCs

two

AWCs;

to

4

a

Eight
were

related

citable

the

were

that

of

the

or

not,
the

based

was

examination

Grayson's

36

on

and

determination

to

on

If

drops

reweighed,

Grayson's

and

disturbed

three

of

height,

designated

the
was

stopped.

was

and

equivalent

from

dust

the

maximum

A

were

If

to

have

is

not

have

probable
of
of

i,
2,
3,

with
with

probable

and

or

AWCs.

Conclusions

Grayson

Mailing

the

filter

cassettes

factor

in

Grayson

did

a

causing

AWCs.

The
show

fact
AWCs

occurred.

Tr.

the

special

that
was

in

mailed

samples

indicated
This

sensitivities
take

that

the

handling

no

to

accidental

dropping

"probably

for

good

reason.

industry

were

such

that

in

time

at

5744.

1498

this

point

not

had
The

they

would
"

....

AWCs

result

from

imparts

a

varying

degrees

of

dislodgment.

result

can

impacts,
Filter
distances

Further

effect

with

dropping

impacting
2-pound

weight

hose.

dimensional

with

cyclone.

length

of

dropped
resulting
substantially

than,

Grayson's

of

a

filters

the

R.

were

opinion

three-dimensional
filters
Four
two

only

had

a

examined

were

J.

Lee

height

2

dropped

was

effects
R-1014A

at

2.

6-inch

a

filters
exhibited
identical
to,
in
the
reclassified

observed

hose

a

weight

impacting

feet

involving

Group
onto

Three-dimensional
filters."

post-test

the

those

which

In

10-pound

A

hose.

the

effects

filters

and

The

specified

a

from

of

Many

pronounced
4.

greater

a

glass.

and

of

was

3.

effect

participated
from
weights

a
pump
6-inch
"in
many

found

were

and

filter-to-foil

of

illusions.

optical

of

magnifying

also

a

result

show

character.

of
to

not

13

code
evidence

three-dimensional

Grayson
connected

of

the

were

unlighted

an

causing

drops

range
have

examined

tamper

to

did

slight
very
three-dimensional

clear

lower

a

millimeters)
AWCs.
developing
2

Grayson

Thaxton

filters

the
but

a

the

1992,

by
of

seven

assembly

the

on

filter

Tests

reclassified

had

of

shroud
the

impacts.

with

(below

the
to

sampler

hose

from

cassettes

November

In

from

and

likelihood
d.

of

vibration

which

AWCs

.

striking

the

surface

A

length

threeoften

and

more

filters.

McFARLAND
Dr.

Andrew

R.

McFarland

at

Texas

A&M

Engineering
mechanical
thesis

engineering
was

witness

expert
mechanics,
an

in

Professor

a

University.

from

grinding

the

on

is

University

the
fine

of

fields

the

thermodynamics,

Mechanical

of

has

He

Minnesota.

of

particles.

He

aerosol

of

His

accepted

was

as

fluid

mechanics,

filtration,

aerosol

in

Ph.D.

a

engineering

and

statistics.

Experiments

McFarland

a.

For

obtained

his

all

from

crushed
described

as

fluidized

Most

of

of
about
weights
1.8
milligrams
the
with

cited

weights

AWCs.

coal

the

1.5

0.05

to

coal

Company
(USSMC)
size-classified
and
loaded
duct,

mines.

some

0.8

of

milligram

1499

is
the

--

the

it

the

dust
He

by
it

a

the
dust

equivalent

of

average

concentration

experiments

were

of

dust

on

process

onto

with

conducted

which

squared

However,
of

used

were

milligrams
meter

per

and

bed/flow
experiments

the

McFarland

Dr.

Mining

Steel

ground

and

filters.

experiments,

U.S.

the

conducted
filter.

on

A

steady

back

filter

cassettes.

flow

minute,

per
This

light

resulted

the

shroud.

entire

and

from

removed

When
filter

the

directed
formation.

a

to

the

is

air

than

velocity
tendency

for

from

foil.
with

A

normal

to

some

cases

produced
a
sharp,

a

at

the

be

to

the

jet

of

center

of

filter,
air
filter.

the

The

velocity

of

meters

per

second,

is

dagger

a

flow.

white

ring

student

A

also

assistant

to

the

pump

generate
is
flow,
patterns
air
pulse

an

AWC

of

short

pattern.
duration,

produced

the

of

McFarland

set

to

to

courtroom

and

second

applied
AWC

About
courtroom

with

pattern

a

gray
the

and
was

pulsed

vacuum,

connecting
pulse

second,

0.i

the

sufficient

to

from

air

but
flow

air

reverse

on

an

the
and

reverse

and

the

air

through
showed
in
the
water

inches

demonstration

A
3

in
the

The

cubic
front
MSA

a

very
center.
pressure

patterns

in

of
hose

the
to

set

was

nitrogen

centimeters

of

gas
air

cylinder

was

the

side

back

6-millimeter
An
AWC
was
pattern
was
generated.
in

which

water

ring

at
was

somewhat

into
of

ring
A

pulse
its
peak.

a

in

up

distinct,

presented
of
23
inches
6-millimeter

1500

of

pulse

used

was

apparatus

bottle

air

an

AWC-type

the

of

was

reading

It

producing

1993.

inject

with

computer.

for
version
to

crystal

associated

a

13,

piezoelectric

(a

pressure

filter
formation

pressure
resulted.

laden

center

distinguished

as

by

travelled

30

hose

than

used

The

dagger

dust

gradually

light,

pressure

apparatus

an

the

cylinder

filter.
a

up

was

side

applied
For

the

pulse,

filters

January

on

pressure

apparent.

a

pressure
Dr.
McFarland
A smaller

extensively
by
laboratory.

piston
displaced

on

the

his

of

but
AWCs

indistinguishable.

measure

record

under
the

stepped
created
less

the

on

create

present.

was
a

to

as

the

noted.

A

virtually

are

transducer)

and

easier

inlet

the

vacuum

Typically,
vacuum.
applied

was

is

are

to

the

a

a

it

flow

connected

pulse.
gradually

as

with

radial

cases,

cassette

An

hose

causing

the

However,

and

was

pump
In

some

the
with

the

to

air

tens

alone.

flow

vacuum

cassettes.

the

through

through
higher

and

filter

the

radially
tangential

flow

normal

both

when

and

the

than
the
normal
higher
of
air
velocity
passing
which
would
be
filter,
a
fraction
of
a
meter
per
The
and
the
white
keyhole
are
formed
air
ring
by the
the
filter
escaping
before
the
through
filter
contacts
It
is
to
AWCs
possible
with
produce
radial
flow
alone

is

in

of

the

second.

not

noted.

flowed

dust

the

considerably
through
it

part

is

aperture

of

of

rather

liters

4
were

area.

introduced
toward
the

order

laden

about

predominately

the

that

dust

filters
inlet

the
the

air

flows

the

on

than

of

opening

center

it

the

touching
the

in

up

through
greater

center

port

the

called
is

was

consequence
is
a
greater

pulse
pushed

The

flow

the

filter

across

air

filter

back
is

Marple

the

there

the

a

Dr.

in

As

region

flow

of

filter.

port

directed

the

Thereupon,

region

small

was

areas

from

aluminum

air
When

of

was

thicker
on
in
coloration
6-millimeter

side

one

with

McFarland

experiments,

using
dropping

hose,
cassettes,

tool

types,

varying

filters.

On

formations.

graphs.

box

See

all

tests,

He

recorded

he

on

the

lengthwise

pressure

on

the

order

required

drops
wrapped
samples
a

at

at

inches
is
AWC

by
by

but
He

b.

of

a
an

an

AWC

Pump
hose

a

and

laboratory

Shutting

water.

pulses
to
on

both

cause

as

create

an

filters

seven

AWCs

using

high

as

needed
hose.

a

can

were

formed

mine-run

and

pulses

pressure

characteristics,

9.6

hose

nipple
in

when

Cited
the

a

of

on

pressure

inches
which

the
of
water

was

of

inches
was

water,

applied.

attached

machined
direction

the
relaxed.

required

order
3

was

film

on

time

off,

to
that

the

foil

of

a

the
when

Filters
43

USSMC

cited

cited

filters

tamper

codes

The

filters

though

not

under
code
9.
filters
all

were

not

as

were

under

capture
The

R-I029.

small,

very
from
a

to

attempt
See

after

They
cited

characteristics
the
characteristics

is

moving
of

filter

videotape
AWC.

inlet

Review

tamper

in

had
defined

all

confines

of

the

color

than

fully

as

the
i

MSHA

and
had

four
on

dagger

within

pattern

ring,
of

the

the

lighter

filter;

1501

in

any

2,
four
and

others.

were:

6-millimeter

portion

on

AWC

water.

with

pump

with

created

off

created

were

together

squeezing
the

examined

A

with

pump
inches

pulse

cassette

of

back

some

I.

the

a

foot

pressures

mine-run
inches

17.5

drawer

or

halves

falls,
dropping

basic
The

door

seen

offices.

one

AWCs

was

by

McFarland
with

water.

resulted

which

McFarland

Arlington

AWC

Higher
than
running

pressure

pressure

and
and

to
cause

average

AWC

patten

rises

squeezed

be

water.

No

from

filter

can

of

both

on

9.2

from

cassette

demonstrated,

cassette

drops

and

hose

a

the

AWCs

of
on

when

hose

a

on

produced

presented

AWC

is
34

formation

an

water.

and

formation

second.

inches

30

22.5,

inches

the

0.01

to

patterns

AWC

ii,

Snapping

for

to

caused

of

the

McFarland
actual

on

flexible

non

and:the

running

pump

the

snapping

the

20

pressures

samples.

the

pump
with

it

about

ii

the

computergenerated

hose

water.

to

in

and

considered

the

shutting

3.75

results

direction

of

The
i0
inches
cabinet
a

lab

he

on

pressures
drawer

22

flexible

AWCs

inches

8

or

and

create

around

door

and
i00

hose,

Stepping

to
off.

of

than

what

with

hose

a

in

pump
formations

more

difference

a

R-I035.

Stepping

the

filter

gaps,
recorded
the

oriented
are

hose

drop,

the

stepping
pulses,
the
snapping
different
coal
using

the
wrapping
in
cabinet,

pump,

filter-to-foil

of

performed
flow,
pressure

air

reverse

the

and

pattern

region

outer

the

center.

the

dagger-type

a

between

other

on

6-millimeter

A
of

the

rest

of

The

region

within

the

average

on

filters

Many
in

also

filter;

shroud

than

of

is

ring

had

often

only

can

color

average

lighter

than

filter;

the

indentations
the
filter

cuts

the

6-millimeter

rest

where

The

lighter

the
the

had

ring

the

ring
the

cuts

or

embossed

or

contacted
be

areas

aluminum

the

seen

under

the

distance

a

microscope.
Filter-to-Foil

c.

Distance

McFarland
between

set

cassette.
the

inlet

cassette

distance

the

drawing
several

hundred

cassettes

0.002

to

0.07

inch

were

centimeters
AWC

and

centimeters

air
No

AWC

5

inches

Twelve

had

water

with

d.

of

had

30

a

Other
An

of

majority

vast

lie

cylinder
rigid

filters

AWCs

were

filters.

The

initial

The

inch.
with

the

1.3

inches

inch

or

floppy
larger.

the

range

of

average

aperture

applied

an

McFarland's

Dr.

in

susceptibility

opinion
to

AWCs.

However,

consequence.
to
form

AWCs.

had

Some

was

water.

with

aperture

was

gap
One-fourth

The

In

about

mean

inch.

0.05

of

filters.

0.06

a

Only
zero

one

gap.

inch.

Tests

individual

sat
then

and

mean

uncoiled
of
11.4

straight
The
running.
19.5

in

too

be

piston

gap

the

factor
also

is

to

0.125

laid

coiled

filter

cubic

filter

water.

rigid

were

seven

of

strike

important

an

found

gap

the

cubic

3

the

deviation

inches

4

the

were

than
of

standard
filters

the

is

gap

less

of

contact

than

0.014

to

Eleven

Seven

recorded.
to
0.147

and

from

gap
a

of
less

filters

measured

only
filters.

mine-run

gap

was

a

caused

large

four

close

range

which

percent

some

six
were

The

of
pressure
the
initial
The
floppiness

of
The

the

filters

the

pressure

the

on

1.5
three

volume

the

cubic

of

one-half

using
of

measured

varied
than

tested,

two

on

the

application

volume

and

on

measure

larger

gaps

One

applied

was

resulted

filters

Ii0

inch.

0.061

of

all

on

of

gaps

volume

USSMC

a

gaps.

then

distance

pressure
the
three
mine.

on

in

large

AWCs

the

filter

the

McFarland

pulse

a

to

used

patent

filters

patterns

loaded
had

produced

was

produced

AWC

four

apparatus.

six

Increasing

dust

were

and

Of

and

inch.

with

dust

applied.

MSA

0.125

Filters

with

loaded

caused

filters
filters

One

inch.

0.142

of

filter

filter-to-foil

The

patterns.

centimeters

at

shroud

was

The

distance

the

was

showed

points.

two

the

on

micrometer

deal

a

measure

aluminum

the

focussed

was

and

between
indicates

from

and

microscope

A

to

apparatus

an
up
surface

filter

the

pressure
inches
hose

water.
11

a

in

a

hose

and

hose
coiled

on
a
placed
arrangement.

sat

was

inches
No

times

on

water

AWCs

on

25

with

a

resulted.

created

An
a

1502

mean

bench.

times
maximum

The
The
and

was

was

not

pump
created

a

of

pressure

individual

pressure

hose

sat
of

25.8

on

inches

a

water

and

cuts

A

dimple

no

tool

straight
operating
water

box
and

pressure

of

cone

resulted.

or

40

pounds

loaded

a

coiled

hose.

In

on

Pressure

not.

some

generated.
(involving
be
clearly

were

test
could

inches

56

weighing
and

hose

second
cone

maximum

a

but

Only

was

dropped

on

25

of

filter

one

pressure
viewed
through

AWC

tests

some

pulses

a

An

water.

to

of

opening

was

the

After

inches

119

the

a

pump
inches

128

used.

was

pulse

the

with

water),

of

a

aluminum

the

shroud.
On

in

of
72

center,

inside

the

ring

was

dropped

was

recorded.

An

diffuse
and
outside

rather

the

Mine

e.

were

delivered

air

created
mine-run

using

clear

Laboratory

was

tests

to

mines
filter

or

Dr.

McFarland

coal

was

collected

median
the
sizes
from
dust
1.9

particle
lab

results
the

was

loadings
with

a

the

ring,
pattern,

dagger

inside

area

ease

The

of

AWC

By

using

that

and

determination

of
little

to

is

lab

dust

the

stripping
deposited

the

cited

concentration
Cited

mg/m 3.

0.5

(1)

size
difference
mine
the

the

cyclones
its
being
USSMC

it

loading

is

easier
in

to

that

1503

on

filters
non-cited
on

filters
the

using

have

recognize
optical

dust

as

had

distribution

of

in

the

though

dust,
of

median

the

particles

largest
the

mine-

dust,
such
McFarland

etc.

similarity

the

average

and

for

pressure

laboratory

The

of

Statistically

formation

smaller.

slightly
the

There

mean

variables

control

to

make
a
filters.
on
sizes
of

dust

a

water.

humidity,

because

water

6-millimeter

a

box

inches

42

of

size,

about

higher

the

able

on

The

in

better

from

mg/m 3.

with

water.
inches

9.82

samples.

concentration

USSMC

inches
was

loaded

prior

dust

tool

of

resemblance

particle

is

dust

mine-run

The

Dust

9.72

was

dust
weight,
type,
CCI
Technologies
dust

of

inch.

peak

between

been

had

milligrams
0.055

pressure
resulted

between

mine-run
with
and
samples
laboratory
different
States.
Back
in
three
pulses
Fifteen
cubic
centimeters
cassettes.
which
formed
at
AWCs
were
mean
pressure

The

AWCs.

laboratory

run

a
height
was
pulse
and
ring

from

pressure
6-millimeter

in
coloration
outside.
filter
The
demonstration
was

a

a

drop
by

zone.

did
three

a

was

cut,

loaded
samples
difference
no

laboratory
there

and

The

2.32

distance

vs.

from

with

loaded

coloration

McFarland

samples

second

A

in
6-millimeter

Dust

that

pattern

AWC

than

difference

a

and

dust.

with
filter
a
filter-to-foil
inches
6
from

The

difference

a

box

inches

6

was

dropped

was

with

resulted
with

laboratory

conducted
dust.

It

box

table.

pattern

AWC

the

with

pounds.

31

tool

a

tool

The

towel-covered

a

An

in

dagger
the
region
loaded

weighed

onto

a

courtroom.

the

and

inches
inches.

6

conducted

McFarland

1993,

14,

January

demonstration
inches
19.5

filter.

The

about

averaged
filters

higher
an

AWC

contrast

of
dust
on

a

is

filter

better;

and

loaded

filters.

f.

it

(2)

McFarland

McFarland
cuts

CDC

as

patterns

reported
44

and

refers

to

three

of

and

16

inches

dimples

on

two

of

not

a

water,
use

microscope,
the

by

Thaxton.

cut.

many

with

were

floppy

cuts.

could

enhance

pressure

to

values

pressures

that

filters

found,
his

In

pulses

of

not

from
Dr.

not

water

fatigue

and

A

CDC

filter

to

exceed

pattern

CDCs

be

to

CDC

at

pulses
its

code

3

but

also

by

a

touch

inches

about

I0

CDC

patterns

established
low

abnormally
provided

elastic

the

limit.

CDCs
be

can

hose

to

Tests

a

repeated

re

sampling
can

cause

to

and

cone

floppiness

pressure

more.

and

cone,
a

tamper

measured
water

or

cones.

formation

produced

subjected

Conclusions

to

inches

3

did

who
or

faint
had

AWC
of

inches
or

were
a

which

McFarland

inches

the

cause

McFarland

reclassified
enhances
McFarland
wide
range

67

8.4

Thaxton,
dimples

one

only

than

cones

which

cones,

filters

tests,

water,

with

filters
had

or

CDC

concluded

find

not
that

reclassified

ranging

when

did
cuts

cited

A

that
lower
reviewed

that
would
be
maximum
pressures

inches

7.5

the

not

34

do

do

i

the

dimples,

and

The

not

formation.
method.

lab

levels

pressure

g.

CDC

touch

was

water.
with

All

Floppiness

experiments

were

lightly

on

Thaxton

McFarland
He
believes

Three
one

cones,
show

dimpled.

eight

USSMC

found

He

his

confounded

examined

have
studies

characteristics

eight.

the

AWCs

Marple.

in
or

the

form

considerably

pressures
Dr.

water.

reclassified
a

at

expert

coned

McFarland
one

which

McFarland's

McFarland
exhibited
AWC
were

to

patterns
Dr.

Dr.

eight

for

recorded

Studies

them

of

citable

Cone

by

used

difficult

more

patterns.
be
produced
by MSHA

can

those
filters
that

is

from

produced
the

created

by

removal

of

the

pump.

at

pressures

low

as

inches

7.5

as

water.
A

47

inches

water

squeezed

from

as

little

as

Pressures

as

high

as

individual

an

.

A

CDC

hose
water.

.

A
on

of

pressure

can

and

pressure
a

coiled

inoperative

be

on

produced

generating
of

56

hose

stepping

by

inches

water

placed

on

1504

water
hose.

a

pressures

pump.

inches

inches

40

duck-walked

result

can

2.5

no

8-inch

be

on

than

created

high

air

is

created

were

heavily
larger

can
an

when
hose.

of

a

44

by
bench

when

coiled

inches

sitting
with

an

CDC

.

patterns
to

subjected
There

20

pressure

to

inches

dust

loaded

of

about

20

and

AWC

an

filters
inches

water.
of

susceptibility

the

A

pressure

CDC

on

CDCs.

and

caused

water

on

in

variations
great
AWCs
forming

are

filters

produced
pulses

be

can

about

of

floppy

a

filter.
no

Conclusions

McFarland
At

least

2,
McFarland

AWCs

The

AWC

obtained
characteristics.
When

of

and

surface

production

of

inch,

0.125

than

those

gap

of

examined

of

0.125

the

filter

to

AWC

susceptibility

is

shroud
the

the

the

to

result.

filter
The

less

in

filter

majority

have

factor

in

important

an

is

to

the

at
the

from

in
distance

likely
from

the

region
dust

the

the

of

annular

If

those

upper

surface

factor

McFarland.
inch.

by

than

less

pushes

a

more

varies

distance

Floppiness

.

is

AWC

an

Filter-to-foil
all

is

pattern.

AWC

an

it

aluminum

inner

the

distance

filter-to-foil

The

.

and

and

flow

between

the
through
squeezed
and
away
sweep
ring
AWC
an
pattern
produce

be

to

the

trapped

pulses

or

same

cassette

of

is

air
the

the

as

flows

reverse

a

aperture

that
filter

the

reverse

air

into

comes

the

air

same

have

tamper

under

characteristics

by
pulse

air

air

toward

by

obtained

patterns
by reverse

causes

surface
shroud
6-millimeter

.

obtained

reverse

filter
This

the

have

3

cited

filters

the

of

and

i,

codes

.

portion

a

a

formation.

AWC
an
to
form
needed
air
of
pattern
volume
minimum
The
is
minimum
The
centimeter.
cubic
pressure
to
I
is
0.5
But
back
of
a
the
form
in
water
pulse.
inches
4
about
will
not
water
inches
produce
always
of
i0
a
pressure
Tr.
absolutes."
5026,
no
are
E.g.,
"There
AWC.
an

.

5057.

o

It

possible

is

the

.

to

AWC

patterns

sampling

unit.

create

of
Any
sufficient

the

apply
by

following
volumes

of

hose

the

cause

sufficient

can

air

filter:

1505

to

sufficient

pulses

pressure

squeezing

cause

an

to
to

attached

and

pressures
AWC

pattern

on

a

a.

Dropping

Do

of

Shutting

a

sampling

head

Dropping
weight

Co

is

on

the

hose

while

the

30

pounds

on

on

hose

a

wide

and

to

which

the

sampling

to

which

from

the

pump

period

in

accordance

in

the

the

assembly

sampling

attached.

Removing
of

hose

the

sampling

the

instructions

in

hose.

hose

a

from

attached.

attached.

is
f.

pump

on

is

6-inches

hose

a

a

door

or

sampling

a

as

assembly
object

an

Stepping

e.

such

inches.

8

drawer

on

Sitting

de

object

an

distance

a

contained

at

assembly

the

completion
with

the

instruction

MSA

manual.
I0.

There

is

difference

no

laboratory
with

between

with

samples

respect

patterns

to
associated

mine-run
to

respect

threshold
with

velocity,
threshold

Variables

such
the

process,
factors

can

deposited
12.

The

on

with

13.

14.

5.

influence
a
filter.

the

manner

factors
to

respect

velocity

The

next

the

hose.

The

presence

of

not

indicate

that

influential

most

in

the

AWC

i,

filter

factor

the

is

of

dust

formation
and

2,

3

are

floppiness.
the

pattern

weight

other
is

and

which

codes
and

AWC-type

an

sampling

the

equipment,

in

distance

after

or

tamper

or

condition

on

filter

a

filter

the

of

does

was

altered.

ROT____HH
Dr.

H.

Associates,
in

diesel

filter-to-foil

intentionally

during
of

influential

most

process
the

water

as

presence

and

dislodgment

or

experiments.
Ii.

samples
formation,

AWC

Daniel
Inc.,

mathematics

New

York

the

field

Roth
a

is

President

statistical

consulting

(probability
at

Stony
of

Brook.

and

theory)from
He

was

accepted

statistics.

1506

founder
firm.
the
State
as

an

of
He

Roth
has

a

University
expert

witness

Ph.D.
of

in

Analysis

a.

Using

the

data

same

shows

a

virtually
apparently

the

entire

period.

increasing

AWC

rate

of

cited

The

rate

After

in

rates

1992.
over

period

initial

of
the

1989,

September
the
through
and

August

decreased

continuously

AWCs

the

March

rates

AWC

brief

a

plotted
to

1989

declining

of

trend

strong

Roth

Dr.

from

plot

The

Miller,
August

Dr.

as

Time

Over

Rate

citations

AWC

of

rates

weekly

Citation

AWC

of

rest

the

of

period.
decline

of

void

a

AWC

rates

before

difference
that
claim
in
decline
monotonical
is

is

highly

the

March

the

AWC

1990

the

Miller's

cited

rate

in

date

a

of

the

cited
cited

the

sample

19,

that

the

higher
the

number

Roth

April

In

1991.

with

provided

was

of

July
inspector

data

than
MSHA

the

on

From

1991.

rate)

the

(not

samples

AWC

case

every
lower

October

to

1989

the

after

and

before

rates
to

cutoff

any
date.

that

significantly

Roth
from

virtually

after

in

decrease

fundamental
is
AWCs
a

of

rate

August
statistically

was

the

marked

a

has

before

is
cited

it

than

is

1990,

1989

from

AWCs

the

1990

declining.

Analysis

c.

Roth

Dr.

do

AWC

did

a

analysis

an

to

March

after

homogeneity

1990,

using

IDs.

The

periods.

the
result
In

the

between

of

period

before

there

for

762

considered

were

additional
in
not

mine
the

data

showed

Miller's

Further,

after.

IDs

a

1990.

same

fact
mines.

was

19,

after

in

were

Therefore,

only

not

did

set

more

1507

than

I000

after
rates

these

rates
the

AWC

data

in

no

Three
in

considered

31,
mine

in

was

period.

after

testing
March

AWC

include

there

because

2377

the

mines

not

between

and
different

1990,

19,

did

rates

analysis

an

with
Miller
as
set
in
non-randomness
a
wide
a
was
disparity

data
mines
in
the

analysis.
he

that

variation

such
did
March

Roth

rates

in

enough

go

there

rates

AWC

chi-square

Miller's
far

see

AWC

Dr.

didn't
if

comparing

analysis

chi-square

Miller

Mines

Between

Rates

replicating

that

states

mines
the

of

mines,

all

between
Roth

they

March

recognize

in

Rate

there

that

about

to

with
the
caused
a
cited
rate

period.
Cited

vs.

The

0.0001).

notification
decline

weekly

of

slope

(P-value

code

Roth

event.

that
the

inconsistent

the

conclusion
or

before.

is

entire

Date

Sample

rate

-0.ii

and

fact,

throughout

rate

was

void

1990,
the

after

inspector
January

19,

month

each

15th

after
that

1990,

In

on

than

the

before

steeper

showed

significant

significantly
period
study
chart
comparing

the

prepared

19,

rate.

fails

he

statistically

is

March

of

Dr.

flaw:

which

analysis

regression

Analysis

b.

notification

code

March
did

significantly

was

the
but

information,
hundred

period,

before
out

of

a

total

of

2677

weren't

used

in

in

cited

rates

could

be

having

nothing

d.

to

Analysis
Of

cited,

of

the

4.36
482
0.392

Miller's

March

was

is

nothing

3994.
AWC

decline

in

Roth

by

cited

in

January

1990,

i,
contaminated.,,
eliminated
Miller
also

cited

44,000

test

using

the

plot

to

be

the

have

Weiqht

e.

Dr.

type,

Loss

analysis
weight

of

a

condition,

over

the

load

on

the
these

the

the

opinion

control
this

air

or

mainly
by
statistically
•oth
.

four

used

with
of

because
1989

by

the

"totally

was

Miller
before.

or

which
been

time
used

all

the
The

up.

doesn't

air

reverse

filters

of

in

had

the
and

the
did

filter
load
Marple
(the
the
interaction
and
condition
type
find

not

AWC)

to

weight

be

loss.

had

AWCs

a

the

a

Roth

Miller/Marple

the

variables:

compliance

and

flow

explainer

four

the

Roth

air

filters

the

using

only

variables,

(reverse

compliance

loss/gain,

AWC

the

significant

for

that

before

bootstrap

weight),
experiment),

Miller

condition

statistically
the

(the

filter
variables.

Using

weight

loss

load

manufacturer,s
before

experimental
that

weight

MSHA

initial

between
variables.

of

concluded

analysis

have
the

1990

Analysis
did

Roth

analysis

correlated

1992

it.

correct

trend

1989,

and

power

higher

manufactured

would

the

different
19th,

Miller's

to

1990

that

were

nicely

in

analysis

any

a

after

March

inappropriate

was

before

using

He

manufactured

out

show

and
rates

of

cassettes
December
31,
test

They

the

opinion,

cassettes

manufactured
does
not

rates

1990,

for

sign

strung

cassettes

cited

manufacture.

seems

after

and

of

about

after,
was

19,

a

Roth's

and
rate

May

same:

of

1990

cited

period,

were

was

test

magic

rates

The

in

date.

the

filters

4337
rate

and
the

date

In

mines

sign

1990,

rates

date.

differences

a

prepared

rates

1990,

The

manufacture

result

difference

between

cited

the

cited.

throughout

the

monthly

sign

performed
19,

for

entire

manufactured
not

were

"[T]here
Tr.

Thus,

cassettes

Roth

the

differences

before

cited.

the

So

dates.

manufactured
not

122,590

manufacturing

f.

Manufacturp

1990,

dates

before.
date."

and

of

declining

were

the

Date

adjustment

rates
cutoff

the

cutoff

Of

percent.
19,

January

with

were

cited,

were

analyses.
explained
by

do

cassettes

95,246
percent.

both

agrees

analyses
weight
loss,

mean

of

mean
weight
In
gain.
Roth's
explained
the
by whether
filter
was
a
reverse
but
not,
MSHA
load
by the
and
the
compliance
weight,
the
compliance
The
weight.
load
is
not
Marple
a
significant
of
explainer
loss.
weight

is

a

not

Conclusions
If

beginning

began
filters

for

in
the

prior

October

first
to

1989,
time

Raymond's

1508

to

the
make

initial

seeing

them

PHTC

lab

technicians

screening
to

determine

of

o

which

ones

effect

on

If

beginning

at

filters
of

rate

in

If

between
AWCs

the

criteria

in

for
this

being

mine,
affect

the

and

looking

affect

the

of

examples

an

in

AWC

the

chi-square

more

filters
on
difficult

PHTC

handling

of

AWC

distributions.

explain

thereafter.

rate

differs

mine
this

from

dislodge,

to

to
could

mines

different

in

rates

not

further

not

were

AWC

the

filters

and

protocol

in

use

written

a

follow,

to

filters
on
difficult

more

to

developed

the

differences

could

began

could

technicians

affect

could

collected

dust
some

have

photographs

1990,
PHTC

for

if
Raymond
technicians

and

the

the

June

and

posted

prescreening,

If

this

magnification,

March
were

protocol
meeting
reviewed,

could

thereafter.

AWCs

of

first

Raymond

1990,

March

under

this

thereafter.

AWCs

of

rate

Thaxton,

to

sent

be

would
the

distribution

among

mines.
collected

dust

the

If

mine,

some

Office

or

being

different
If

o

mine,
handling

explain

to
and

The

testimony

image

analysis

John

an

visually

spectrum

features,
classification

analysis
comparison
the
term

who

term

of

the
with

could

devoted

largely

was

John

Dr.

Corn,

worked

set

Russ,

C.

a

image

filters

required.

AWCs
that

of

laboratory

discoloration"

or

The

image

analyst,

Page

at

Conco

for

2

to
and

Conco

hereafter

discussed

years,

1509

"CD"

Johnson,
with

than

rather
a
a

it
such

showed

objective

more

discolorations

central

filters

a

which

Hope

defied
believed

he

Because

cited

about
Mt.

the

examined

he

means

the

was

filter

microscope

at

which

concluded

City

analysis),

this
in
viewed

earlier

out

stereo

Corn

Ponca

other

"central

"AWC.")
had

the
cited

chose

of

by visual
classify

of

Corn

is
in

expert
through

array

impossibleto
of

Morton

Dr.

expertise

classification

method

witnesses

expert

three

of

evidence:

whose
is
not
decision
(he
filters
cited
AWC
i00
The
MSHA
facility.

a

the

EVIDENCE

Corn,

confident

dust

to

and

Holm.

C.

Dr.

are

to

mine

from

dislodge,
identical,
dislodgment

results.

chi-square

the

ANALYSIS

IMAGE

mines

all
at
practices
in
susceptibility

in

result

could

to

to

Post

the

differs

difficult

more

mine

from

dislodge,

filters

the

filters

on

being

some

difference

C.

collected

dust

the

differs
to

do

image

a

(Corn

uses

the

MSHA

graduate

specialization

chemist
in

optical

imaging,

direction.

performed

image

analysis

perimeter,
the

the

analysis

had

1248

cited

filters

system

was

used

Corn

circularity,

roundness,
diameter,
standard,,
"gold
was
R.
J.
Lee
No-calls,
filters

were

linear

minimum

image

clarity,

He

measured
of

exterior

and
edge
(comparison

circularity
considered

following

of

5

mm

5.5

<

4

mm

minimum

<

perimeter

ratio

circularity
parameters

features

of

inside

or

changes
(e.g.,
the
position
with

the

Using
from

the

cited

found

to

of
found

were

be

are

from

cited
filters

study
experimental
the
once

the

filters,

AWC

Zeiss
and

did

a

filters

imaging
five

were

reproducibility
the

MSHA's

image

supplemental
were

randomly

remeasured

study
no-call

filters,

fifty-five
One

hundred

R.

J.

were

and

and

99

Corn

based

visual

on

inconsistent.
cited

AWCs

analysis

indicating
involving
Sixty-five

selected

Thereafter,

60

times.

seven

indicated

that

1510

438

213

AWCs.

of

no-call

are

techniques.
of

causes

techniques.

report.

and

of
and

and

image

265

measured

cited

codes

analysis
6

of

indistinguishable

measured
AWCs.
were

and

alignment

65

be

subjective
by

February
system.

had
to

parameters

tamper
analysis

in

tampering

are

objectively

by

Lee's

filters

the
levels

marks,

(i.e.,

from
of

characterizing

measured
that

supported

Dr.

scratch

and

allegations

all

grayness

three-dimensional

Corn

AWC

the

2.25

<

account

in

found

indistinguishable
MSHA
inspector
to
be
indistinguishable

concluded

of

system,
were

were

opinion,

Corn

shapes)

face

CDs

when

not

filter

hundred

of

Corn's

mm

mm

ring,
filter,

Two

examination

within

fell

mm

into

with

MSHA's

Corn

parameters

11.8

take

the

imaging

filters.
filters

that

variable

the

193

concluded

CD

to

perimeters
and
only),

circle).

a

changes

Forty-seven

AWC

eleven

not

in

on

optical

of

six

diameter,

diameter

edge

of

inlet).

experimental

Corn

CD

exterior

AWC

in

parameters:

6-millimeter
tears

measured.

Lee

In

do

the

of

ratio

the

inspector

standard
maximum

0.65

including

cones),

minimum

area

six

AWCs,

cassette

filters

>

the

of

(PI/P2:

if

obviously

cited
outside

diameter,
to

the

in
Corn's

filters.

MSHA

gold

area,
of

0.2

ratio

aspect
These

>

CDs

parameters
varied

AWC

the

diameter
<
i0
diameter
<
diameter
<
i0
PI/P2
(internal

<

diameter,
shape.

and

(ratio

Corn's

average
maximum

mm

cited

average

with

ranges

the

shapes
keyholes

any

the

Zeiss

a

for

internal

with

indistinguishable

CDs

that
and

filters,

ratio

aspect
internal

884

found

compared

shape:

general
and

morphological

by

and

Corn's

videotaped

measure

experimental

diameter,
diameter),

maximum

the

similar

determined

parameters

of

and

discoloration.

central

to

under

the

a

reproducibility
Lee

and

measured

using

filters

were

remeasured
that

Corn
concluded
the
Lee
experimental
MSHA
filters
inspector

AWCs

Lee's

February

filters
filters

might

at

data,

fringes

Corn's

opinion
good

accurate.

typographical,
decisions

Johnson's

she

(because
Johnson

saw

CD

no

as

a

worked

never

did

He

filters

could

image

required

R-I037

quality

conclusions

are

transmission,

had

database

the

or

--

high

used
his

and

errors.
some

offered

had

Corn

case,

that

not

was

his

that

reanalysis

and

AWCs"

criteria."

reproducibility,

conceded

He

cited

analysis

image

his

of

number

small

"a
to

match

with

consistent

are

acceptability

the

of

obtained

In
he

their

in

affected

the

"at
4.

report

6

be

i.e.,

criteria,"
although
findings,

acceptability

"AWC

the

match

check

not

Page

analyzed
enhancement).
be

not

Prior

trial.
at
witness
with
computer-assisted

this

to

image

analysis.
C.

John

Dr.

Department,

engineering
expert
analysis
image

results.

Russ

reviewed

Dr.
was

analysis

image

cited
no-call

the

that

filters,

and
logical
supplemental

bias

operator

reproducible
analysis
distinguish

is

characteristics
confidence.
with
Corn's
report
misinformed.
filters
cited
AWC

from

Russ

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sampling

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filters
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of

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filters
cited
manufactured

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this
than

filters

1989.

13,
evidence.
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percent,
were

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testified
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300,000
1989,
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series

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or

5000

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and
controvert

did

approximately

manufactured

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series,

200,000
1988,
20,

that

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between

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to

1400

that

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of

specifically

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from

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distance

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testified

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1990.

witnesses

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subsequently

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filters
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the
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filter

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to

to

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some

ultimately
.

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and

is

filter

floppy

20,

1988,

more

and

February

13,

cited

filters

were

issued,

since

1990.

cassettes

discarded.
261A,
262A,
and

1071

263A,

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less;

and

97

and

had

filter-to-foil
45

95

those

500,000

series

two

cautionary

graphs:

the

number

varied

had

32

from

the

300,000

series,

and

1684

loading
series,

measurements,

69

from

the

300,000

400,000
respect

series,

and
of

1591

24

to

Grays.n,
followed
foil

some

important
cited

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firmness

may

be

related

500,000
filters

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of

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in

to

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300,000
millimeters

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or

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to

these

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series.

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keeping
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manufactured
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1991)

series.
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only
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and
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are
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had

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series

measured
from
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from
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series,

methods

graphs

series
October

and

series,

included;
and

in

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issue,

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are

filters

than

259

of

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the

were

series,
from

different
distance.

mind,

filters

300,000
millimeters

measurements.

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measurements,

the
2

time

those
in

with

filters

than
the

filter-to-foil

series

such

28,

measurements

over

notes
of

in

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to
August

1990,

400,000

considerably.

measurements
measurements
and
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.

of

of
the

more

to

the

larger

percent

of

of

those
in

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measurements

percent

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in

increase

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slight
the
percentage
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1990,

25,

with

percent

injected

24

the

those
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the

series

in

October

Eighty

series

show
in

of

13,

of

greater
filters

of

distances.

of

percent

somewhat

percentage

less;

those

of

February

of

the

after

those

of

260A,
1070,

filters

until
time

percent

foils

show

distances
of
percent

measurements.

a

which

measurements

from

such

show

I00

percent
from
72

page

over

Ninety-five

(manufactured
and
1990),
(manufactured
had

increase

filter-to-foil

the

257A,
259A,
R-I068,
1069,
consist
25,

1988,

filter-to-foil

millimeters.
series
200,000
or

20,

now

and

measurements

an

2

had

recoverable

experimental

on

April

with

series

su_up_r_a at
Government

the

distances
from

toward

filters

of

to

by

pre-loading

tendency

not

course,

disassembled
G-253A,
255A,
265A,
and
266A,

referred

1992.

of

the

on

citations

the

were

Exhibits

graphs
prepared
filter-to-foil
manufactured

distance

measuredbefore

is,

and

the

filter-to-foil

The
not

was

and

I

all

filter-tocautions
on

filter-to-foil

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in

an

find,

that

the

distance

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of

formation

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sampling
of

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softer

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used

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and

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ones.

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hard
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Appendix

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However,

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1992.

31,

rates

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rate

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of

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G-454)

4,
1989,

about
November
about
1989,
that
The
1990.
Secretary
argues
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March
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misconduct
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RATE

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1990).

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FILTER-TO-FOIL

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with

in

Proceedings
respect

.

Urling

Corp.

appear

1993,
August
discovery
discussing
the
case-specific

Coal

are

STAYED.

proceedings
referred

J

Administrative

the

of

purposes
trial

and

a

to

above.

date

for

Broderick

A.

James

the

Pike,
Tuesday,

on

for

a.m.,

trial

Mining
in

conference

Virginia,

i0:00

Mining

Coal

Keystone

Leesburg

5203

Church,
at

with

Keystone

prehearing

Room,

Falls

i000,
i0,

a

except

to

for

and

at

Hearing

Commission
Suite

No.

Secretary

the

for

shall

cases

issued
1 Mine

citations

the

Counsel

pending

the

all

the

to

for

Corp.

ORDERED

IS

IT

Therefore,

Law

Judge

Distribution:

Douglas
of

White,

N.

Labor,

(Certified

Avenue,
Michael

WV

and
20004

Heenan,
Esq.,
Washington,
N.W.,

Smith,

Heenan

D.C.

20005

John

IV,
WV

Avenue,

Wells,
North,

AL

35203

(Certified

All

others

Jordan,
N.W.,

by

Esq.,

A

and

Maynard,

Cooper,

2400,

Pennsylvania

Althen,

600

Vermont

iii0

Mail)
Grant

58th

Street,

Mail)
McElwee,

Frierson

P.O.

and

Plaza,

Amsouth/Harbert

Box

Gale,

1791,

1901

Birmingham,

Mail)

Esq.,

regular

Mine

United

Washington,

and

and

(Certified
Suite

553,

Mail)

(Certified

Mail)

D.C.

Workers
20005

mail.

/fcca/fb

Appendices

22203

VA

Box

P.O.

i001
Moring,
(Certified

Ingersoll,

Robinson

Esq.,

Kelly,

(Certified

15219

25326

6th

Thomas

Buchanan
PA

Palmer,

Charleston,

Lu

Department

U.S.

Arlington,

Mail)

D.C.

Esq.,

Mary
Street,

400,

Crowell

Moore,
Henry
Pittsburgh,
Floor,
C.

Solicitor,

Biddle,
Esq.,
Washington,
N.W.,

M.

R.

H.

(Certified

25322

T.

Avenue,

the

Suite

and

Jackson

Esq.,

Beverage,

Charleston,

Timothy

of

Mail)

E.

Laura

office
Boulevard,

Esq.,
Wilson

4015

B

1523

America,
Mail)
(Certified
of

900

15th

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