NOVEMBER 1992

COMMISSION DECISIONS
11-23-92

Southern Ohio Coal Company

LAKE 91-650-R

Pg. 1781

KENT 92-718-D
PENN 92-230
PENN 92-305
WEVA 91-293-R
WEST 91-432
KENT 91-1013
KENT 92-73
VA 92-54
KENT 92-42

Pg. 1789
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Pg. 1804
Pg. 1824
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Pg. 1830
Pg. 1836

KENT 92-259-D
KENT 92-126
SE 92-145
CENT 92-113-M
CENT 91-196
WEST 92-93

Pg. 1858
Pg. 1905
Pg. 1907
Pg. 1931
Pg. 1941
Pg. 1951

Master No. 91-1
CENT 92-240-M
CENT 92-246-M
WEST 92-430-M
PENN 92-696-M
Master No. 91-1

Pg. 1957
Pg. 1964
Pg. 1968
Pg. 1971
Pg. 1973
Pg. 1975

ADMINISTRATIVE LAW JUDGE DECISIONS
11-05-92
11-05-92
11-05-92
11-05-92
11-06-92
11-09-92
11-17-92
11-17-92
11-18-92
11-19-92
11-23-92
11-23-92
11-25-92
11-27-92
11-27-92

Sec. Labor for Coy Crabtree v. LEECO, Inc.
International Anthracite Corp.
Harriman Coal Corporation
Eagle Nest Incorporated
Energy Fuels Coal Incorporated
Peabody Coal Company
Paul Shirel employed by PYRO Mining co.
Well Tech Incorporated
Peabody Coal Company
Sec. Labor for Clayton Narttz V• ·Nally and
Hamilton Enterprises, Inc.(not final)
Pyramid Mining, Inc.
Faith Coal Company
Acme Gravel Company
Pittsburg and Midway Coal Mining co.
Powderhorn Coal Company

ADMINISTRATIVE LAW JUDGE ORDERS
10-29-92
11-13-92
11-13-92
11-13-92
11-18-92

11-20-92

Contest of Respirable Dust Samples
Wharf Resources USA In.c.
Fisher Sand and Gravel Co.
Livingston Marble & Granite
Chestnut Ridge Sand
Contest of Respirable Dust Samples

NOVEMBER 1992

Review was granted in the following case during the month of November:
Secretary of Labor, MSHA v. Virgina Crews Coal Company, Docket Nos. WEVA 92-246
and WEVA 92-247.
(Judge Koutras, October 13, 1992)

There were no cases filed in which review was denied.

COMMISSION DECISIONS

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

November 23, 1992

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

v.

Docket Nos. LAKE 91-650-R
LAKE 91-664-R

SOUTHERN OHIO COAL COMPANY
BEFORE:

Holen, Chairman; Backley, Doyle and Nelson, Commissioners
,, DECISION

BY THE COMMISSION:
This consolidated contest proceeding arises under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)(the "Mine Act"
or "Act"). The Secretary of Labor alleges that Southern Ohio Coal Company
("SOCCO") violated 30 C.F.R. § 75.1704-Z(a), a mandatory underground coal mine
safety standard requiring that escapeways follow "the safest direct practical"
route out of the mine 1 and failed to abate the violation, which resulted in a
section 104(b) order. 2 SOCCO contested the citation and order, and sought
1

Section 75.1704-2(a) provides:
In mines and working sections opened on and after
January 1, 1974, all travelable passageways designated
as escapeways in accordance with § 75 .1704 shall be
located to follow, as determined by an authorized
representative of the Secretary, the safest direct
practical route to the nearest mine opening suitable for
the safe evacuation of miners. Escapeways from working
sections may be located through existing entries, rooms,
or crosscuts.

2

Section 104(b) of the Mine Act provides, in pertinent part:
Follow-up inspections; findings; orders. If, upon
any
follow-up
inspection
of
a
mine,
an
authorized representative of the Secretary finds
(1) that a violation described in a citation issued
pursuant to [section 104(a)] has not been totally abated
within the period of time as originally fixed therein or
(continued ... )

1781

temporary relief from the order.
Commission Administrative Law Judge Avram Weisberger concluded that
SOCCO violated section 75.1704-2(a), sustained the Secretary's section 104(b)
failure to abate order, and denied SOCCO's application for temporary relief.
13 FMSHRC 1149 (July 199l)(ALJ). The Commission granted SOCCO's petition for
discretionary review, which challenges (1) whether the Secretary had proved a
violation of 30 C.F.R. § 75.1704-2(a), (2) whether, in order to reduce the
length of an escapeway, SOCCO can be.required to construct an overcast, and
(3) whether the judge erred in dismissing SOCCO's application for temporary
relief. The Commission subsequently heard oral argument.
For the reasons set forth below, we reverse the judge's conclusion that
SOCCO violated section 75.1704-2(a) and vacate the Secretary's section 104(b)
order. We find the denial of SOCCO's application for temporary relief to be
moot.
I.

Factual and Procedural Background
SOCCO owns and operates the Meigs No. 2 Mine. On June 11, 1991, Mine
Safety and Health Administration ("MSHA") Inspector Charles Jones walked the
designated primary escapeway from the mouth of the 3-South longwall section
(the "mouth") to Air Shaft No. 2 (the "air shaft"). 3 From the mouth, the
escapeway ran east parallel to the track and belt line entry for approximately
2,300 feet. The escapeway then turned north and traversed four entries by

2

( •••

continued)
as subsequently extended, and (2) that the period of
time for the abatement should not be further extended,
he shall determine the extent of the area affected by
the violation and shall promptly issue an order
requiring the operator of such mine or his agent to
immediately cause all persons, except those persons
referred to in [section 104(c)J to be withdrawn from,
and to be prohibited from entering, such area until an
authorized representative of the Secretary determines
that such violation has been abated.

30 u.s.c. § 814(b).
3

Air Shaft No. 2 was placed in operation on February 23, 1991 and it
was constructed, on SOCCO's own initiative, in order to improve ventilation to
the working faces. It became a mine opening suitable for the safe evacuation of
miners when an escape capsule (hoist) was approved by MSHA on April 25, 1991,
thus reducing the designated primary escapeway from the 3-South longwall section
from 16,200 feet to 7,300 feet.

1782

means of an overcast, 4 then turned west to the air shaft, a distance of
approximately 2,500 feet. The length of the escapeway from the mouth to the
air shaft was about 4,800 feet. 5 Jones found the escapeway in good condition
but was concerned about its length. Tr. 41, 113. Jones determined that the
mouth was approximately 200 to 300 feet directly south of the air shaft and
that a more direct route existed.
Jones issued a section 104(a) citation alleging a violation of section
75.1704-2(a) as follows:
The most direct practical route to the nearest
mine opening was not provided from the 3rd South
Longwall section in that miners were required to
travel an additional 4,800 feet by traveling outby
from the mouth of the section for 2,300 feet and
traveling inby for about 2,500 feet. The emergency
escape shaft is located at the mouth of the 3 South
longwall section (across the track and belt entry).
The violation was designated as being of a significant and substantial nature.
Jones suggested that, in order to abate the violation, SOCCO could
construct an overcast over the track and belt entry between the mouth and the
air shaft, which would permit SOCCO to designate a more direct escapeway. 6
Use of an overcast would reduce the length of the escapeway to approximately
200 to 300 feet from the mouth. Tr. 65-66, 304-05.
On July 3, 1991, SOCCO contested the citation and requested an expedited
hearing, which was held on July 11. 7 Prior to the hearing, SOCCO attempted
4

An overcast is "[a]n enclosed airway to permit one air current to
pass over another one without interruption." Bureau of Mines, U.S. Dept. of
Interior, Dictionary of Mining, Mineral and Related Terms at 780 (1968).
5

The designated escapeway contained four ninety degree turns but was
roughly configured as three sides of a rectangle.
6

Under 30 C.F.R. § 75.1707, the escapeway required to be ventilated
with intake air must be separated from the belt and track haulage entries for
their entire length to the beginning of each working section, except as permitted
by the Secretary or her authorized representative. The purpose of the overcast
was to separate the track and belt
air from the intake air, allowing the
track and belt entry air to pass under, and the intake air to pass through the
overcast. Thus, a person walking the escapeway from the mouth to the air shaft
could travel in intake air at all times.
7

At the July 11, 1991, hearing, SOCCO also filed an application for
temporary relief, in which it requested that it be relieved from abatement until
issuance of a decision as to the validity of the section l04(a) citation. The
Secretary had modified the citation to extend the abatement date until July 16,
1991. The judge denied the motion.

1783

to abate the citation. SOCCO rerouted the escapeway and reduced its length by
approximately 30 percent.
On July 16, 1991, MSHA Inspector Ronald Taylor issued to SOCCO a section
104(b) withdrawal order alleging that "little effort" had been made to abate
the section 104(a) citation. On that same day, SOCCO filed a notice of
contest and application for temporary relief seeking vacation of the section
l04(b) order unless and until it was determined by the Commission that the
citation was validly issued and that the time permitted for abatement was
proper.
MSHA modified the withdrawal order on July 17 to permit mining on the 3South longwall section based upon SOCCO's commitment to construct an overcast
during the July 20 weekend. On July 19, the judge sua sponte consolidated the
contest of the withdrawal order with the contest of the citation and issued
his decision.
The judge determined that section 75.1704-2(a) is violated when the
escapeway designated by the operator follows a route "that has not been
determined by the Secretary's repre,sentative to be the· safest direct practical
route." 13 FMSHRC at 1151. Relying on his earlier decision in Rushton Mining
Co., 10 FMSHRC 713, 716 (June 1988)(AIJ) aff'd on other grounds, 11 FMSHRC
1432 (August 1989), the judge held that, because the cited escapeway was not a
"direct" route, SOCCO violated section 75.1704-2(a). 13 FMSHRC at 1151-52.
The judge noted Inspector Jones' suggestion that SOCCO construct an
overcast so the escapeway could proceed more directly from the mouth to the
air shaft. 13 FMSHRC at 1152. The judge also noted SOCCO's argument that
section 75.1704-2(a) does not require an operator to engage in construction in
order to designate a conforming escapeway and that it was not "practical" for
the overcast to be constructed. Id. The judge concluded, however, that
SOCCO's arguments concerned abatement, not the fact of violation. The judge
reasoned that, since the Secretary had not mandated a specific escapeway route
for abatement purposes, questions concerning the overcast, including its
practicality, were beyond the scope of the proceeding. 13 FMSHRC at 1152 n.1.
Consequently, the judge denied SOCCO's contest of the violation. 13 FMSHRC at
1152, 1154. He found, however, that the violation was not significant and
substantial. 13 FMSHRC at 1153. The Secretary did not request review of that
finding.
The judge also denied SOCCO's contest of the section 104(b) order and
its July 16, 1991, application for temporary relief, reasoning that SOCCO's
position was predicated on its argument that the cited escapeway was not
violative of section 75.1704-2(a). 13 FMSHRC at 1153 n.2.
IL

Disposition of Issues
A.

Section 104(a) Citation

The Secretary asserts that she is not required to designate a specific

1784

escapeway route in order to establish a violation of section 75.1704-2(a).
See O.A. Tr. 25, 29-30. See also S. Br. 8-9. The Secretary argues further
that it was SOCCO's burden not only to prove what it considers to be the
safest direct practical route but also to prove, in the negative, that all
other routes fail to meet those criteria. O.A. Tr. 25, 29-30; S. Br. 8-9.
The Mine Act imposes on the Secretary the burden of proving a violation of a
safety standard.
Garden Creek Pocahontas Company, 11 FMSHRC 2148, 2152
(November 1989); Consolidation Coal Company, 11 FMSHRC 966, 973 (June 1989).
The Secretary's position evades her fundamental obligation in a contest
proceeding to prove a violation by the operator.
Section 75.1704-2(a) requires that designated escapeways "be located to
follow, as determined by an authorized representative of the Secretary, the
safest direct practical route to the nearest mine opening suitable for the
safe evacuation of miners." Accordingly, it is the Secretary's burden to
prove that, as compared to the designated route, there is at least one other
escapeway route that she has determined more closely complies with the
standard's requirement of "the safest direct practical route." Thus, in order
for the Secretary to establish a prima facie case of violation, she must show
that the operator's designated escapeway is deficient because it is not "the
safest direct practical route. 11 It"·is· insufficient for the Secretary to
merely cite the designated route as being out of compliance with the
regulation. She must present a specific escapeway alternative that she
believes is more appropriate. The language of the regulation, "safest direct
practical route," implies that there is one best route. Accordingly, the
Secretary, in order to prove a violation, must show that there is a specific
escapeway alternative that more fully complies with those criteria than does
the cited route. The judge therefore erred when he found a violation absent
proof of a specific safer direct practical route.
13 FMSHRC at 1152 n. 1.
The Secretary also asserts that a violation was established by the very
configuration of the cited escapeway. O.A. Tr. 42-43, S. Br. 8. Essentially,
the Secretary is suggesting that for the purposes of this proceeding, the
configuration of SOCCO's escapeway is a per se violation of section 75.17042(a). The Secretary's interpretation is clearly at odds with the wording of
the standard and loses sight of the fact that directness is not the only
factor to be considered in the designation of an escapeway. See Rushton
Mining Co., supra, 11 FMSHRC at 1437.
Focusing on the language of the regulation, there are three considerations in designating escapeway routes: (1) "safest," (2) "direct", and
(3) "practical." Accordingly, in the Secretary's determination of what is
"the safest direct practical route" there must be a consideration of all three
factors. No one factor may be used exclusively to determine the designated
escapeway without taking into account the other two factors. The judge
therefore erred when he based his finding of violation solely on his
determination that "the escapeway was not 'direct' 11 (13 FMSHRC at 1152)
without giving due regard to its practicality and its safety relative to other
possible routes.
While the Secretary "suggested" the construction of an overcast over the
belt and track entry, she failed to prove that there was a specific better

1785

route. 8 The judge found that neither Jones nor any other representative of
the Secretary mandated a particular route that was designated as an escapeway
for the purpose of abating the violation. 13 FMSHRC at 1152 n.l. Jones
conceded that he never gave SOCCO a specific escapeway route. Tr. 49. When
asked to mark on a map an alternative for the safest direct practical route,
he did not do so. Jones merely responded that "[a]nything can be used as an
alternate route either inby or outby the mouth." Tr. 49, 50. Nor does the
citation itself indicate a particular escapeway that Jones believed was the
safest direct practical route.
Furthermore, the Secretary has taken the position throughout this
proceeding that she has only suggested, but not required, construction of an
overcast. 9 See S. Br. 10-11; Tr. 14-15, 21, 23, 49, 51, 104, 132, 305, 307;
0.A. Tr. 25, 29. If, indeed, construction of an overcast was not required, a
route containing the overcast could not have been determined to be the safest
direct practical route. 10 We conclude that the judge erred in finding that
the Secretary established a violation of section 75.1704-2(a).
B.

Section 104(b) Failure to Abate Order and Application for
Temporary Relief

Prior to the expedited hearing in this matter, SOCCO attempted to abate
the violation alleged in the citation by designating a shorter route as its
primary escapeway. In addition, SOCCO requested that the judge extend the
time for abatement until after he issued his decision on the merits. SOCCO
complied with the section 104(b) order, shut down the longwall, and
constructed the "suggested" overcast. Under these circumstances, we vacate
the section 104(b) order.

8

The record does not address whether the shorter escapeway designated
by SOCGO after the citation was issued met the requirements of section 75.17042(a).
9

Even if the Secretary's "suggestion" is construed to have required
the construction of an overcast, the Secretary at oral argument was equivocal as
to her authority to require such construction. See O.A. Tr. 31-32, 35-36, 37-38.
See also S. Br. 11-12 n.4. Counsel for the Secretary suggested that if "there
was no other direct, safe and practical way out of the mine ... the Secretary
under those circumstances could require construction to some extent." O.A. Tr.
32.
When asked what the Secretary's position was on construction, counsel
responded that-she was "not going to totally preclude that possibility." 0.A.
Tr. 35-36. Pressed further, she responded that "we are not taking the position
that the Secretary could never require construction." 0.A. Tr. 37-38.
10

Finally, we note that SOCCO, on its own initiative, constructed the
air shaft and the hoist.
As a result, SOGCO was able to reduce its primary
designated escapeway from the 3-South longwall section from 16,200 feet to 7,300
feet. It is noteworthy that, prior to voluntary action by SOCCO, which reduced
the escapeway distance by 8,900 feet, the much longer escapeway was approved by
the Secretary.

1786

SOCCO also asserted that the judge erred in denying its request for
temporary relief from the section 104(b) failure to abate order. Since we
have vacated the order, SOCCO's assertions with respect to the application for
temporary relief are rendered moot.
III.

Conclusion
For the foregoing reasons, we reverse the judge's finding that SOCCO
violated section 75.1704-2(a) and vacate the citation. We also reverse the
judge's decision sustaining the section 104(b) failure to abate order and
vacate that order.

Arlene Holert;cllairlllan

L. Clair Nelson, Commissioner

1787

Distribution
David M. Cohen, Esq.
American Electric Power Service Corp.
P.O. Box 700
Lancaster, Ohio 43130
Tina Gorman, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Administrative Law Judge Avram Weisberger
Federal Mine Safety & Health Review Connnission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

1788

ADMINISTRATIVE LAW JUDGE DECISIONS

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

' .,
'.'I>'(

/\

-;··

•J

)

;....

DISCRIMINATION PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION on behalf
of COY CRABTREE
Complainant

Docket No. KENT 92-718-D
BARB-CD-91-32

v.

Mine: No. 60

LEECO INC.,

Respondent
ORDER OF DISMISSAL

Before: Judge Feldman
The Secretary has filed a dismissal motion requesting
approval to withdraw her complaint in the captioned case for the
reasons stated therein. In addition, the Secretary states that
the complaining miner, Coy Crabtree, also intends to withdraw his
complaint with the Mine Safety and Health Administration. Under
the circumstances herein, permission to withdraw is granted.
29 C.F.R. § 2700.11. This case is therefore DISMISSED.

~~:=.
~::old

Feldman
Administrative Law Judge
(703)

756-5233

Distribution~

Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department
of Laboru 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215 (Certified Mail)
Timothy J. Walker, Esq., Martin J. Cunningham, III, Esq., Reece,
Lang and Breeding, P.S.C., P.O. Drawer 5087, London, KY
40745-5087
(Certified Mail)

Mr. coy Crabtree, P.O. Box 243, Viper, Kentucky 41774
/vmy

1789

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

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

CIVIL PENALTY PROCEEDING
Docket No. PENN 92-230
A.C. No. 36-01781-03549

v.
B & M Tunnel
INTERNATIONAL ANTHRACITE CORP.:
Respondent
DECISION
Appearances:

Before:

Gayle M. Green, Esq. and Linda Henry, Esq.,
U.S. Department of Labor,
Office of the Solicitor, Philadelphia,
Pennsylvania;
Mr. Ronald Lickman, International Anthracite
Corporation, Pottsville, Pennsylvania,
pro se.

Judge Weisberger

This case is before me based on a petition for assessment of
l penalty predicated upon the issuance of 3 Section 104(g) (1)
orders alleging violations of various training requirements set
forth in Part 48p Sub-Part B 1 of volume 30 1 Code of Federal
Regulations. Pursuant to Notice, the case was scheduled and
heard in Reading, Pennsylvania on July 14, 1992. Harold Glandon
testified for the Secretary of Labor (Petitioner), and Ronald
Lickman testified for the Operator (Respondent)
It was agreed
the parties that Lickman 1 s testimony and arguments set forth
in Harriman Coal Corporation, Docket No. PENN 92-305, heard on
the same date 1 are to be incorporated by reference herein.
o

Findings of Fact and Discussion
I.

Order No. 3080095

On May 13, 1991, Harold Glandon, an MSHA Inspector,
inspected Respondent's B & M Tunnel operation. Respondent had
purchased that operation on April 26, 1991, and had never mined
coal there. At the date of the inspection, there was no mining
taking place at the operation and it was temporarily abandoned.
However, Respondent's representative indicated Respondent "never
abandoned the mine". (Tr.93) On the day of Glandon's inspection,

1790

one of Respondent's employees, David Labenski, was operating a
caterpillar bulldozer loading coal on trucks. Two other
employees, Robert Searles and Ron Lickman, Jr., were observed
operating a bulldozer and backhoe, respectively, grading and
filling in various voids.
a. Applicability of Part 48, subpart B, supra to
Respondent's Operation
Respondent argues in its brief, in essence, that it is not
subject to the requirements of Part 48, inasmuch as no coal was
being mined, or produced on the dates the citations herein were
issued. I reject Respondent's argument for the following
reasons.
Essentially, Part 48 Subpart B, supra, requires certified
training for miners working at surface mines and surf ace areas of
underground mines. Section 3(h) (1) of the Federal Mine Safety
and Health Act of 1977 defines a mine, inter alia as " .. lands,
excavations, ... used in, or ~o be used in, or resulting from,
the work of extracting such minerals from their natural deposits
. • . . " Respondent's employees were engaged in filling voids
which had resulted from the extraction of coal (Tr.10, 14, 88).
As such, the site at issue falls within the statutory definition
of a mine.
b.

Violation of 30 C.F.R. § 48.25

According to Ronald Lickman, Respondent's President, Ron
Lickman, Jr., had been operating construction equipment for 15
years. Ron Lickman, Jr., told Glandon that he was experienced
with the 245 backhoe as he had performed construction work.
Further, Glandon indicated that he appeared to know how to
operate the backhoe, and that the equipment and the work
practices looked good. Also, Ron Lickman, Jr., had received 8
hours training at another site. However, he informed Glandon
that he was not certified as an experienced miner, and that he
had not received 16 hours training, nor had he received 8 hours
training on the site.
Glandon issued an Order pursuant to section 104(g) (i) of the
Federal Mine Safety and Health Act of 1977, which, provides as
follows:
If, upon any inspection or investigation pursuant
to section 103 of this Act, the Secretary or an
authorized representative shall find employed at a coal
or other mine a miner who has not received the
requisite safety training as determined under section
115 of this Act, the Secretary or an authorized
representative shall issue an order under this section
which declares such miner to be a hazard to himself and

1791

to others, and requiring that such miner be immediately
withdrawn from the coal or other mine, and be
prohibited from entering such mine until an authorized
representative of the Secretary determines that such
miner has received the training required by section 115
of this Act.
30 C.F.R. § 48.25 provides as follows:
{a) Each new miner shall receive no less than 24
hours of training as prescribed in this section.
Except as otherwise provided in this paragraph, new
miners shall receive this training before they are
assigned to work duties. At the discretion of the
District Manager, new miners may receive a portion of
this training after assignment to work duties:
Provided, that no less than 8 hours of training shall
in all cases be given to new miners before they are
assigned to work duties.
(Emphasis added)
30 C.F.R. § 48.22(c) defines a "new miner" as a miner who is
not an experienced miner. Section 48.22(b) supra defines an
"experienced miner" as either a miner who was employed as a miner
on the effective date of the regulations i.e. October 13, 1978,
or one who has received training from an appropriate state agency
within the preceding 11 months, or one who has had a least 12
months experience working in a surface mine or surface of an
underground mine during the preceding 3 years, or one who has
received the training for a new miner within the proceeding 12
months.
Section 48.22(a) (1) defines a "miner", inter alia as a
person working in a surf ace mine or surf ace areas of an
underground mine and 01 regularly exposed to mine hazards. 0'
Inasmuch as Ron Lickman, Jr., was engaged in operating heavy
equipment, he clearly was exposed to the hazard of operating this
equipment at the mine site in question. Accordingly he is to be
considered a ~miner" within the purview of Section 48.22 supra.
Although he indicated to Glandon that had received 8 hours
training at another site, there is no evidence that he had either
received training acceptable to MSHA from an appropriate state
agency within the preceding of 12 months, or had received
training for a new miner within the preceding 12 months. Also,
there is no evidence that he was employed as a miner as of the
date the regulation was made effective i.e. October 13, 1978.
Further, although he had experience operating heavy equipment,
there is no evidence that he had at least 12 months experience
working in a surface mine or surf ace area of an underground mine
during the preceding three years. Hence, I conclude that he was
not an experienced miner within the purview of Section 48.22(b),
and accordingly must be considered a new miner.

1792

Section 48.25 supra, unequivocally provides that a new miner
shall be given "no less than eight hours of training •.• before
they are assigned to work duties." Ron Lickman, Jr., did not
receive 8 hours of training before he was assigned to work duties
at the subject mine. Hence, he was not given the training
provided for in Section 48.25 supra. Accordingly, I conclude
that Order No. 3080095 was properly issued.
c.

Significant and Substantial

According to Glandon, an accident was highly likely to have
occurred as a consequence of Lickman not having been provided
with new miner training pursuant to Section 48.25 supra, and that
in the event of a accident there could be a serious injury. He
thus concluded that the violation was "significant and
substantial".
In this connection he noted that slope of the area
in question was approximately 20 degrees, there was loose earth
from the grading operation, and the earth was unstable. He
opined that if the earth would shift, the equipment being
operated could roll down the,yoid.
However, Lickman was experienced operating the 245 backhoe
in question, and according to Glandon, appeared to know how to
operate that equipment. Also, Lickman and had experience at
operating heavy equipment at construction sites. Based on these
factors, I conclude that it has not been established that there
was a reasonable likelihood that the hazard contributed to by the
lack of Section 48 training would have resulted in an event in
which there is an injury. (See U.S. Steel Mining Company, 6 FMSHRC
1834, 1836 (August 1984).
Accordingly I conclude that it has not been established that
the violation herein is significant and substantial (Mathies Coal
Companvu 6 FMSHRC 1 (January 1984)
o

d.
Respondent's management should have been aware that it had
the responsibility of providing Lickman with 8 hours training
prior to his being assigned work duties. Howeverv the gravity of
the violation herein is mitigated by Lickman's experience in
operating the equipment in question at construction sites.
I
find that a penalty of $100 is appropriate for this violation.

IIo

Order No. 3080096

On May 13, 1991, Glandon observed David Labenski operating a
caterpillar front end loader loading trucks with coal. According
to Glandon, he "talked to Mr. Labenski and his certification his
annual refresher training, had expired five months previously"
(Tr.24) (sic). Glandon issued an Order pursuant to Section

1793

104(g) (1) supra, citing a violation of 30 C.F.R.

§

48.28.

Section 48.28(a) supra, provides, as pertinent, that "each
miner shall receive a minimum of 8 hours of annual refresher
trainingn. Inasmuch as Labenski had not received this annual
training, Glandon's order was properly issued.
Labenski was observed operating the loader in question on
level terrain. According to Glandon, if the loader turned over
with the bucket in a raised position, Labenski could have become
injured, even though the loader had roll-over protection.
However, according to Lickman, Labenski had worked on this site
several years and was quite proficient with the loader. Based on
Labenski's experience, I conclude that it has not been
established that there was a reasonable likelihood of an injury
producing event contributed to by Labenski's lack of annual
refresher training. I thus conclude that it has not been
established that the violation was "significant and substantial"
(See U.S. Steel, supra.).
Considering the terrain on which the vehicle in question was
being operated by Labenski, and experience on the site, I find
that the gravity of the violation herein to be considerably
mitigated. I find that a penalty of $50 is appropriate for this
violation.
III.

Order No. 3080097

On May 14, 1991, Glandon observed Roberts Searles operating
a Caterpillar bulldozer. Glandon asked him if he had received
newly employed experience miner training, and he indicated that
he had not. Searles, who appeared to Glandon to know what he was
doing and was operating the dozer safely, informed Glandon that
had worked at another of Lickman 1 s job sites where he had
received training and a certificate.
Glandon issued Order No. 3080097 alleging a violation 30
C.F.R. § 48.26. Section 48.26 supra requires a newly employed
experienced miner to receive training, " ..• before such miner is
assigned to work duties. 10 This training includes, inter alia, an
introduction to the work environment which includes " •.. a visit
and tour of "the mine", as well as instruction concerning the
ground control plans "at the mine", and procedures for working
safety in areas of pits and spoil banks. (Emphasis added). It is
clear that Section 48.26 supra, requires instruction regarding
conditions at the mine where the experienced miner is "newly"
employed, and currently working. Inasmuch, as Searles was not
provided with such training before he was assigned to his work
duties at the subject site, Respondent herein did violate Section

1794

48.26 supra. 1
Since Searles appeared to know what he was doing, was
operating safely, and had received training at another Lickman's
jobs sites, I conclude that the violation herein was not
"significant and substantial". I find that a penalty of $75 is
appropriate for this violation.
ORDER

It is ORDERED that Order Nos. 3080095, 3080096 and 3080097,
be amended to reflect the fact that the violations cited therein
are not "significant and substantial". It is further ORDERED
that Respondent pay a civil penalty of $225 for the violations
found herein, and that such penalty~ paid within 30 days of
this decision.

//I

i&~s~

Administrative Law Judge

Distribution:
Gayle M. Green, Esq., and Linda Henry, Esq., Office of the
Solicitor, U.S. Department of Labor, 3535 Market Street, 14480
Gateway Building, Philadelphia, PA 19104 (Certified Mail)
Mr. Ronald Lickman, President, International Anthracite
Corporation, 101 N. Center Street, Suite 309, Pottsville, PA
17901 (Certified Mail)
nb

1

In light of this decision, I deny Respondent's Motion, made
at the hearing, to dismiss the order issued for Searle's lack of
training. Since he had not been provided with the proper
training before he was assigned to his work duties, as required
of Section 48.26 supra, Glandon properly withdrew Searles.

1795

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

;
'

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

'")
i

,·'

CIVIL PENALTY PROCEEDING
Docket No. PENN 92-305
A.C. No. 36-06440-03509

v.
HARRIMAN COAL CORPORATION,
Respondent

Goodspring No. 1 Mine
East and West
DECISION

Appearances:

Gayle M. Green, Esq. and Linda Henry, Esq.,

u.s. Department of Labor,

Office of the Solicitor, Philadelphia,
Pennsylvania;
Mr. Ronald Lickman, International Anthracite
Corporation, Pottsville, Pennsylvania,
pro se.
Before:

Judge Weisberger

This case is before me based upon a petition for assessment
of
1 penalty filed by the Secretary (Petitioner) alleging a
violation by the operator (Respondent) of 30 C.F.R. § 77.410.
Pursuant to notice the case was heard in Reading; Pennsylvania,
on July 14v 1992. Howard Joseph Smith, testified for Petitioner,
and Ronald Lickman, testified for Respondent.
Finding of Fact and Discussion
On September 19, 1991, Howard Joseph Smith, an MSHA
Inspectorf inspected Respondent 9 s Penag Goodspring Mine. He
observed a Caterpillar Model 988 front-end loader in operation.
He testified that the 01 backup alarm was not working 11 u and that
01
there was no audible alarm" (Tr. 20) .
He issued a citation
alleging a violation of 30 C.F.R. § 77.410, which in essence,
provides that front-end loaders shall be provided with a warning
device that, "(1) gives an audible alarm when the equipment is
put in reverse; . . . . " Respondent did not offer any evidence to
contradict the testimony of Smith that on the date he issued the
citation the alarm on the loader in question was not functioning.
Accordingly I find that the Respondent herein violated Section
77.410.

1796

According to Smith, the violation herein is to be
characterized as "significant and substantial". He explained
that this type of does loader not have a mirror 1 , and that there
is a blind spot immediately behind the loader. According to
Smith, the tires are almost 6 feet in height, and hence, it is
not possible for an operator to see the immediate 12 to 15 feet
behind the loader. He further testified that on the date he
issued the citation, in addition to employees operating various
pieces of heavy equipment, he observed a mechanic, Michael Dent,
approximately 15 to 18 feet away from the loader. In essence, he
concluded that because the reverse alarm did not function, an
injury was reasonably likely to have occurred due to the blind
spot behind the loader. He also concluded that, given the weight
of the machine, i.e. approximately 20 tons, should the loader run
over an individual, serious injuries would result.
In Mathies Coal Co., 6 FMSHRC 1 (January 1984), The
Commission set forth the elements of a "significant and
substantial" violation as follows:
In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum the Secretary of
Labor must prove:
(1) the underlying violation of a
mandatory safety standard; (2) a discrete safety
hazard--that is, a measure of danger to safety-contributed to by the violation;
(3) a reasonable
likelihood that the hazard contributed to will result
in an injury; and,
(4) a reasonable likelihood that
the injury in question will be of a reasonable serious
nature.
(6 FMSHRC, supra, at 3-4.)
In United States Steel Mining Company« Inc., 7 FMSHRC 1125,
1129 (August 1985), the Commission stated further as follows~

We have explained further that the third element of the
Mathies formula "requires that the Secretary establish
a reasonable likelihood that the hazard contributed to
will result in an event in which there is an injury 11
UoS. Steel Mining Coo, 6 FMSHRC l834f 1336
(August 1984)0
o

Ronald Lickmanp Respondent's President testified that he
1

Although Respondent in its brief alleges that mirrors are
standard equipment an this loader, Respondent did not adduce any
evidence at the hearing with regard to the existence of a mirror
on the loader.

1797

normally visits the site in question approximately once a week.
He indicated that Dent is a mechanic/welder who spends
approximately 80 percent of his time in a shop welding buckets.
He indicated that the only time Dent works at the face where the
loader in question operates, is when he has to repair or observe
a piece equipment. In general he indicated that there were no
new employees on the site.
Considering all the above I conclude that the record
establishes a violation of Section 77.40 supra, which contributed
to the hazard and of a person being hit by the loader operating
in reverse. Also given the blind spot which makes it impossible
for the operator of the vehicle to see the immediate 15 to 18
feet behind the loader, and the fact that at least one miner
works, at times, in the area, I conclude that there was a
reasonable likelihood that the hazard contributed to by the
violation herein would result in a injury producing event.
Accordingly, I conclude that it has been established that the
violation herein was significant and substantial.
I find that the violation herein was serious as it could
have resulted in severe injuries. There is no evidence as to how
long a period of time prior to the date of the citation the alarm
was not in operation. Lickman indicated that operators of
loaders usually pull the alarm, but that he would fire an
employee for disconnecting the alarm. I conclude that
Respondent's negligence herein was not more than ordinary. 2
Taking into account the seriousness of the violation as well as
the remaining statutory factors stipulated to by the parties I
conclude that a penalty of $100 is appropriate for the violation
found herein.
ORDER

It
decision 9

Respondent shall, within 30 days of this
1 penalty of $100.

(;__
Avram Weisberger
Administrative Law Judge

2There

is no merit to Respondent's argument that, in
essence, management shall not be liable for the negligence of its
employees. The law is well settled that, to the contrary, an
operator is liable for the violations of the Act committed by its
employees, (Western-Fuels Utah, 10 FMSHRC 256 (1988); Sewell Coal
Co v. FMSHRC, 686 F.2d 1066 (4th Cir. 1982); Allied Products Co.
v. FMSHRC 666 F.2d 890 (5th Cir. 1982)).

1798

Distribution:
Gayle M. Green, Esq., and Linda Henry, Esq., Office of the
Solicitor, U.S. Department of Labor, 3535 Market Street, 14480
Gateway Building, Philadelphia, PA 19104 {Certified Mail)
Mr. Ronald Lickman, President, International Anthracite
Corporation, 101 N. Center Street, Suite 309, Pottsville, PA
17901 (Certified Mail)
nb

1799

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

v

.f\l 0 ~)
EAGLE NEST, INCORPORATED,
Contestant

CONTEST PROCEEDING
Docket No. WEVA 91-293-R
Citation No. 3751114; 3/20/91

Vo

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

Eagle Nest Mine
Mine ID 46-04789

DECISION ON REMAND

Before:

Judge Weisberger
Statement of the Case

On May 20, 1991, I issued a decision dismissing the Notice
of Contest at issue, and finding that the violation alleged in
the Notice of Contest was not significant and substantial.
(13 FMSHRC 843 (1991)). Subsequently, the Secretary's petition
for discretionary review was granted by the Commission. On July
28u 1992u the Commission issued its decision vacating my finding
that the violation was not significant and substantial, and
remanding uoooofor further analysis and determination of the S&S
issue without consideration of whether the hazard could be
mitigated by the use of cautiono 00 (14 FMSHRC 1119, 1123) o In a
telephone conference call on August 6, 1992, I initiated with
counsel for both parties, both counsel requested the right to
submit briefs regarding the issues raised by the Commission's
remando This request was granted, and on September 28p 1992, the
parties each filed a brief on remando
Finding of Fact and Discussion
The citation at issue alleged the following condition as
being violative of 30 CoFoRo § 75.305 as follows:
At least one entry of the longwall tailgate return
entry could not be made safely in its entirety. Water
has accumulated in depth exceeding 16 inches at Survey
Spad [N]o. 3777 and various locations outby (sic).
This condition creates a hazard to those persons
required to make weekly examinations.

1800

In my decision, (13 FMSHRC supra), I found that the
accumulation of water presented a hazard to miners who would have
to traverse it to make an examination, that this hazardous
condition was not immediately corrected and that accordingly,
Section 75.305 supra was violated. There was no challenge to
these findings.
In analyzing whether the violative condition was properly
designated by the inspector as being significant and substantial,
I am guided by the following authority as set forth in the
Commission's decision (14 FMSHRC supra at 1122):
A violation is properly designated as S&S "if,
based on the particular facts surrounding that
violation, there exists a reasonable likelihood that
the hazard contributed to will result in an injury or
illness of a reasonably serious nature." Cement
Division. National Gypsum Co., 3 FMSHRC 822, 825 (April
1981). In Mathies Coal co., 6 FMSHRC 1, 3-4 {January
1984), the Commission explained:
In order to establish that a violation
of a mandatory safety standard is significant
and substantial under National Gypsum, the
Secretary of Labor must prove:
(1) the
underlying violation of a mandatory safety
standard; (2) a discrete safety hazard
that is, a measure of danger to safety
contributed to by the violation; (3) a
reasonable likelihood that the hazard
contributed to will result in an injury; and
(4) a reasonable likelihood that the injury
in question will be of a reasonably serious
nature"
The third element of the Mathies formula "requires
that the Secretary establish a reasonable likelihood
that the hazard contributed to will result in an event
in which there is an injury" (U.S. Steel Mining Co., 6
FMSHRC 1834 1 1836 (August 1984)) 1 and also that the
likelihood of injury be evaluated in terms of continued
normal mining operations (U.S. Steel Mining Co .. Inc.,
6 FMSHRC 1573 1 1574 (July 1984); see also Halfway.
Inc., 8 FMSHRC Sv 12 (January 1986). The Secretary is
not required to present evidence that the hazard
actually will occur. Thus, in Youghiogheny & Ohio Coal
Co., 9 FMSHRC 673 (April 1987), the Commission held
that:
In order to establish the significant and
substantial nature of the violation, the
Secretary need not prove that the hazard

1801

contributed to actually will result in an
injury causing event. The Commission has
consistently held that proof that the injurycausing event is reasonably likely to occur
is what is required. See, ~, U.S. Steel
Mining Co., 7 FMSHRC at 1125; U.S. Steel
Mining Co., 7 FMSHRC 327, 329 (March 1985).
9 FMSHRC at 678. The question of whether any
particular violation is S&S must be based on the
particular facts surrounding the violation. Texas
Gulf, Inc., 10 FMSHRC 498, 501, (April 1988).
Further, in its decision, 14 FMSHRC supra, the Commission
found that the first, second and fourth elements of the Mathies,
test were not in issue, with the only issue being the third
element of the Mathies, test i.e., whether there was a reasonable
likelihood that the hazard of slipping or falling would result in
an injury.
I find that on March 19,, 1991, there was an accumulation of
water approximately 48 inches deep at the No. 23 pump. I further
find, based on the uncontradicted testimony of MSHA inspector
Ronnie Joe Dooley, that on March 20, 1991, water extending the
width of the entry reached a depth of 16 inches. I also find,
based on the testimony of Dooley, that the accumulations of water
were murky and the bottom could not be seen. Further, the
uncontradicted testimony of Dooley establishes that the bottom of
the mine floor contained mud, as well as submerged rocks,
abandoned pieces of wood from cribs and pallets, lumps of coal,
rocks, remnants from concrete stoppings, and a submerged 10 inch
water line. Due to the depth of the water, its murky nature
which prevented one from observing the bottom, the presence of
numerous stumbling and tripping hazards on the bottom, and due to
the fact that the area would have to be traversed by an examiner
conducting the weekly examination required by Section 75.305, I
conclude that there was a reasonable likelihood that the hazard
of slipping or falling, contributed to by the fact that the
hazard of accumulation of water was not immediately corrected,
would result in an injury of a reasonably serious nature. I
based this conclusion additionally upon the ground that the
Commission, 14 FMSHRC supra, reversed my finding in the intial
decision in this case, (13 FMSHRC supra), that the hazard of
slipping or falling could be mitigated by walking cautiously to
feel for submerged objects so they could be avoided.

1802

Based on the all the above I conclude that it has been
established that the violation herein was significant and
substantial. 1

~~

Avram Weisberger
Administrative Law Judge
Distribution:
David J. Hardy, Esq., Jackson and Kelly, P.O. Box 553,
Charleston, WV 25322 (Certified Mail)
Pamela s. Silverman, Esq., Office of the Solicitor, u. s.
Department of Labor, 4015 Wilson Boulevard, Room 516, Arlington,
VA 22203 (Certified Mail)
nb

1

In reaching my conclusion I have considered all the
arguments advanced by the Operator in its brief 1 but find them to
be without merit. The critical issue for resolution is the
likelihood of an injury contributed to by the violation herein
i.e. the failure to correct the hazardous conditions of water
accumulations. As such, the argument by the Operator that pumps
were installed to eliminate past and future water accumulation,
is not relevant to a determination of this issue. Also, it has
not been established that the fact that the hip boots were
providedu lessens the likelihood of an injury as a result of the
depth
the murky water hiding from vision submerged hazardous
objects. Nor is it relevant that Ronnie Roberts, the longwall
coordinator, testified that he "wouldn't" ask anyone to travel in
water deeper than hip boots (Tr.266) Further, in analyzing
whether the specific violative condition herein was significant
and substantial I do not place much weight on the testimony of
Roberts who indicated that he did not have knowledge of anyone
being injured as a result of slipping in hip level water. This
testimony is not probative of the likelihood of the specific
hazards presented herein resulting in an injury producing event.

1803

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
(303) 844-5266/FAX (303) 844-5268

1· i , .

:J~l

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

CIVIL PENALTY PROCEEDING
Docket No. WEST 91-432
A.C. No. 05-03455-03592

v.

Southfield

ENERGY FUELS COAL INCORPORATED
Respondent
DECISION

Appearances:

Margaret A. Miller, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Phillip D. Barber, Esq., Denver, Colorado,
for Respondent.

Before:

Judge cetti

This case is before me upon the petition for civil penalty
filed by the Secretary of Labor pursuant to Section 105(d) of the
Federal Mine Safety and Health Act of 1977v 30 C.F.R. § 801 et
~u the v1Actu 00 charging Energy Fuels Coal Incorporated (Energy
Fuels) with five "significant and substantial" (S&S) violations
of mandatory safety standards in 30 C.F.R. Part 75 entitled
"Mandatory Safety Standards - Underground Coal Mines."
Energy Fuel filed a timely answer contesting the alleged
violations, the significant and sub.stantial designation of the
alleged violations and the appropriateness of the proposed
penalties.
The only witnesses called to testify for the Petitioner were
federal mine inspectors Donald Jordan and Melvin H. Shiveley.
The only witnesses called by Energy Fuels were Messrs. Gary
Carroll, the mine's Safety Supervisor, James W. Pushchak, the
mine's Maintenance Superintendent and Randy Acre, Manager of the
Southfield Mine.

1804

I

I have considered the evidence presented and the record as a
whole, and find that a preponderance of the substantial, reliable, and probative evidence along with the applicable law establishes the following Findings of Fact and Conclusions.
Findings and Conclusions

1. Respondent is the operator of the Southfield Mine locaed at Fremont County, Colorado. The mine is an underground coal
mine.
2. The operations and products of the Southfield Mine affect commerce or the products of such mine enter commerce.
Accordingly, the mine and its operators are subject to the provisions of the Federal Mine Safety and Health Act of 1977, 30
u.s.c. § 801 et ~ (the Act).
3. As a result of an insp.ection by an authorized representative of the Secretary, Respondent was issued five citations,
pursuant to § 104 of the Act (30 u.s.c. § 814) and penalties were
proposed pursuant to §§ 105 and 110 of the Act (30 u.s.c. §§ 815
and 820).
Each alleged violation was alleged to be a significant
and substantial (S&S) violation.
4. Each citation number, date issued, provision or standard
allegedly violated, MSHA's proposed penalty and the penalty
assessed herein is as follows:
Citation No.

Date

30 C.F.R.

3242478
3243302
3243303
3243304
3242437

1/8/91

75.512
75.1105
75.512
75.400
75.202(a)

1/9/91
1/9/91
1/15/91
1/2/91

§

Proposed
Penalty

Penalty
Assessed

119
192
119
168
119

vacated
$100
80
20
20

TOTAL

$220

5. With respect to Citation No. 3242478, the evidence is
insufficient to establish a violation of 30 C.F.R. § 75.512.
There was no persuasive evidence that the 480 volt belt control
and starter box in question was not frequently examined, tested
and properly maintained to assure safe operating conditions. The
citation should be vacated and the proposed penalty set aside.
6. With respect to Citation No. 3243302, the air compressor
was housed in an expanded metal housing with no fireproofing material.
It was not housed in a fireproof structure. There was a
104(a) non S&S violation of 30 C.F.R. § 75.1105. The violation

1805

was not significant and substantial as there was no reasonable
likelihood that the hazard contributed to would result in an injury or illness of a reasonable serious nature~ The operator was
negligent. A civil penalty of $100 is appropriate.
7. With respect to citation No. 3243303, the Pineo 150 KVA
Power Center, that provided power to the belt drive that hauls
coal out of the mine, was not maintained in safe condition. This
was a 104(a) non S&S violation of 30 C.F.R. § 75.512. The violation was not significant and substantial as there was no reasonable likelihood that the hazard contributed to would result in an
injury or illness of a reasonably serious nature. An appropriate
penalty for this violation is $80.
8. With respect to Citation No. 3243304, the preponderance
of the evidence established the existence of an accumulation of
combustible material within the meaning of the cited safety standard (30 C.F.R. § 75.400) as interpreted by the Commission in Old
Ben Coal Co., 1 FMSHRC 1954 (December 1979) and Old Ben Coal Co.,
2 FMSHRC 2806. The violation was not significant and substantial
as there was no reasonable likelihood that the hazard contributed
to would result in an injury of a reasonable serious nature. A
civil penalty of $20 is appropriate.
9. With respect to Citation No. 3242237, there was a non
S&S 104(a) violation of 30 C.F.R. § 75.202(a). There was a
hazard related to a potential fall of a rib. There was no
negligence on the part of the operator. The likelihood that the
hazard contributed to would result in injury was remote. An
appropriate penalty under the facts and circumstances established
at the hearing is $20.
II
~ISCUSSION

AND FURTHER FINDINGS

Citation No. 3242478
Citation No. 3242437 alleges a "significant and substantial"
violation of the standard at 30 C.F.R. § 75.512 and charges as
follows~

The 480 volt belt control and starter box
located at crosscut #56 of the west submains
was not maintained in safe condition, in that
the doors provided were not locked and could
be opened by unauthorized personnel and
expose themself [sic] to 480 volts.
The cited safety standard 30 C.F.R. § 75.512 provides as
follows:

1806

§ 75.512 Electric equipment; examination,
testing and maintenance.

All electric equipment shall be frequently
examined, tested, and properly maintained by
a qualified person to assure safe operating
conditions. When a potentially dangerous
condition is found on electric equipment,
such equipment shall be removed from service
until such condition is corrected. A record
•of such examinations shall be kept and made
available to an authorized representative of
the Secretary and to the miners in such mine.
This belt control and starter box supplies power to the belt
motor.
It sits on the mine floor on a set of metal skid bars and
consists of a box shaped cabinet, 36" by 60 11 and approximately 36
to 48 inches high. It has two metal doors on the front.
On the
outside of the metal box is an "on-off" switch to stop and start
the belt.
Inside the metal box is a breaker panel and wiring for
the power center. To access the breaker or the wiring, the doors
of the box have to be opened. There are no electrical parts
outside of the box and the only hazard which Inspector Shiveley
described was the possibility that an unauthorized person might
open the cabinet doors and inadvertently contact an energized
part.
The only thing Inspector Shiveley observed that he felt was
unsafe was that the doors to the metal cabinet were ajar and not
locked so as to prevent an unauthorized person from touching anything inside the cabinet. The only thing the inspector required
for abatement of the citation was to put a lock on the cabinet so
as to keep 01 unauthorized peoplen from getting inside the cabinet.
The inspector on cross examination admitted that the cited safety
standard does not restrict access to "authorized personneln and
does not have any i 0 1ocking out" requirement.
Jim Pushchak, the Southfield Mine Maintenance Superintendent
and a certified electrician? testified on behalf of Energy Fuels.
Mr. Pushchak testified the control box was in safe operating
condition.
It had no electrical problems and was maintained,
serviced and tested by qualified electricians pursuant to
30 C.F.R. § 75.512.
Only belt men and electricians have any reason to access
this power center. All of these miners are either certified
electricians or have been task trained, and know how to operate
the equipment and are aware of any hazards related to it. There
were no exposed electrical equipment on the exterior of the box,
and the only reason that a belt man opens the doors to this box
is to reset the breaker for the belt control. Mr. Pushchak
testified that if a person went inside the box to reset the

1807

breaker, the power inside the box would have been deenergized
except for the leads coming in on the line side into the top of
the main breaker. Therefore, exposure to electrical hazard was
negligible.
Mr. Pushchak described the metal cabinet box as having metal
doors on the front that latch shut. He testified that since 1979
every belt drive in the mine has had this type of box. These
boxes are inspected frequently by personnel from the Southfield
Mine, and by the MSHA inspectors. Mr. Pushchak stated that in
the 12 years that these boxes were in use at the mine they have
never before had any complaint from any inspector that these
boxes constituted an unsafe condition. Energy Fuels had never
received any indication before this citation was written that it
was going to be required to lock this box.
Inspector Shiveley's application of the cited safety
standard to the facts of this case constitutes an impermissible
expansion of the plain meaning of the standard and thus
constitutes an im-permissible avoidance of the rulemaking
requirements of Section 101 of the Mine Act.
In relation to the deference to be accorded an agency's interpretation of a mandatory safety standard, the court is required to give effect to the actual words and the plain objective
meaning of the regulations and is not bound by the agency's "hidden intentions and idiosyncratic interpretations." Western Fuels
_- UtaJ:.L._Inc., March 1989, 11 FMSHRC 278, 284.
It is a basic tenant of administrative law that "a regulation cannot be applied in a manner that fails to inform a reasonably prudent person of the conduct required." Secretary v.
Garden Creek Pocahontas Company, 11 FMSHRC 2148, 2152, (1989)
citing Mathies Coal Company, 5 FMSHRC 300, 303 (1983). An agency1s
lure to provide adequate and fair notice constitutes a
denial of due process and renders any attempted enforcement action invalid. Gates and Fox Company. Inc. v. Occupational Safety
and Health Review Commission, 790 F.2d 154, 156 (D.C. Cir. 1986).
The rulemaking provisions of the Mine Act were intended to ensure
sound standards and regulations and fair and adequate notice to
regulated parties. Regulatory interpretations that extend beyond
the clear language of the regulation and change the rights or
duties of the parties constitute unenforceable amendments that
are in avoidance of required rulemaking procedures. Garden Creek
Pocahontas Company, supra.
If the Secretary truly desires to require a cabinet housing
a power center such as the one in question to be equipped with a
lock and use it to lock out access by "unauthorized persons",
then the Secretary must pursue this goal through notice-andcomment rulemaking. The Secretary should promulgate a standard
to clearly and directly address not only the perceived hazard but

1808

also clearly inform the mine operator what he must do for compliance.
I credit the testimony of Mr. Pushchak.
Based upon the
plain meaning of the cited section quoted above, the testimony of
Mr. Pushchak and the admissions made by Inspector Shiveley on
cross examination {all summarized above) I find that a preponderance of the evidence presented at the hearing failed to establish a violation of 30 C.F.R. 75.512. citation No. 3242478 and
its related proposed penalty are vacated.
Significant and Substantial Violations
MSHA designated the four remaining citations significant and
substantial (S&S) violations. The term significant and substantial is taken from Section 104(d) (1) of the Act, 30 U.s.c.
§ 814{d) (1), which distinguishes as more serious in nature any
violation that ''could significantly and substantially contribute
to the cause and effect of a ... mine safety or health hazard
" It is well established-that. a violation is properly designated as S&S "if, based on the particular facts surrounding that
violation, there exists a reasonable likelihood that the hazard
contributed to will result in an injury or illness of a reasonably serious nature. 11 National Gypsum, 3 FMSHRC at 825.
In
Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the Commission
further explained:
In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum, the
Secretary of Labor must prove:
(1) the
underlying violation of a mandatory safety
standard; (2) a discrete safety hazard
that isr a measure of danger to safety
contributed to by the violation; (3) a
reasonable likelihood that the hazard
contributed to will result in an injury; and
(4) a reasonable likelihood that the injury
in question will be of a reasonably serious
natureo
6 FMSHRC at 3-40
See also Austin Power Co. v. Secretary, 861 F2d
99v 104-05 (5th Ciro 1988), aff'g 9 FMSHRC 2015, 2021 (December
1987) (approving Mathies formula "requires that the Secretary
establish a reasonable likelihood that the hazard contributed to
will result in an event in which there is an injury." U.S. Steel
Mining Co., Inc., 6 FMSHRC 1834, 1836 (August 1984).
It is this third element of the Mathies formula that the
preponderance of the evidence presented fails to establish in
each of the four remaining citations discussed below.

1809

Citation No. 3243302
citation No. 3243302 alleges a "significant and substantial"
violation of the standard at 30 C.F.R. § 75.1105 and charges as
follows:
The 480 volt Sullair air compressor Serial
No. 003-55609 located in crosscut #24 of the
west submains, was not installed or
maintained in a fireproof structure, in that
the area surrounding the air compressor was
designed of expanded metal, no fireproofing
material was provided for roof or ribs in
area.
The air currents, when tested, were
being coursed to the return.
The safety standard 30 C.F.R. § 75.1105 provides as follows:
§ 75.1105 Housing of underground transformer
stations, battery-charg~ng stations, substations, compressor stations, shops, and permanent pumps.

Underground transformer stations, batterycharging stations, substations, compressor
stations, shops and permanent pumps shall be
housed in fireproof structures or areas. Air
currents used to ventilate structures or
areas enclosing electrical installations
shall be coursed directly into the return.
Other underground structures installed in a
coal mine as the Secretary may prescribe
shall be of fireproof construction.
It is undisputed that the 480 volt air compressor was not
housed in a fireproof structure or area, and for this reason the
violation of 30 C.F.R. § 75.1105 was conceded. The primary
issues remaining were whether the violation was S&S and the
appropriate penalty.

The a
compressor was a screw type compressor enclosed in
an expanded metal housing. There were electrical leads and oils
"involved in the unit. 0u The potential hazard was that a fire
under some circumstances could occur within the compressor and
possibly ignite combustible material.
The air compressor was located in a crosscut between a
return airway and an intake airway. Respondent asserts the open
ends of the crosscut were sealed off from the air courses. There
was undisputed evidence that air coming into the crosscut from
the intake side was restricted and minimized by a flame resistant
curtain. The return side of the crosscut was blocked off by a

1810

fireproof Kennedy stopping. A tube ran from a hole in the
Kennedy stopping to a place directly above the air compreessor.
All air from the crosscut, and any fumes or smoke, would be
coursed through the tube into the return airway and away from any
miners. There was no active mining at the time the violation was
observed and the citation written, and no one was outby the place
where the crosscut air was vented into the return. A smoke-test
performed by the inspector demonstrated that the air was being
properly vented into the return.
The air compressor was located four to five feet from one
wall of the crosscut, eight to ten feet from another wall of the
crosscut and approximately one foot from the top of the crosscut.
The crosscut had been rock dusted as required by law. The air
compressor was resting on a rock floor, a naturally incombustible
surface.
The inspector testified that the compressor was operating
and there 'was a "probability or possibility" that the conditions
observed could cause a fire. ··He put his hand on the coal 12
inches above the top of the compressor and found the coal was
warm. The inspector testified that he probably "could have left
it (his hand) there" without burning his hand. He did not take a
temperature reading of any thermostats installed on the compressor.
Mr. Jim Pushchak, the Maintenance superintendent at the
Southfield Mine, accompanied Inspector Shiveley when this
citation was written. He observed the compressor and determined
that it was working properly and running as normal.
The equipment was in safe operating condition, was not emitting any smoke,
was not unduly hot and did not have any accumulation of combustible material on it"
This particular compressor had been operating at this location for over seven months with no problems. The mine has never
had any problems with the air compressor and it was still working
properly and safely on the date of the hearing, some 16 months
after the citation was writteno
One factor of considerable importance on the S&S issue was
that the compressor was equipped with an automatic fire extinguisher that was activated by heat. Once activated, it would
have completely extinguished any fire hazard in the crosscut by
covering the entire area with a fire dampening chemical.
Mr. Pushchak concluded his testimony with his opinion that under
all the facts surrounding the violation there was no reasonable
likelihood 0£ a fire resulting from the violation.
Upon careful evaluation of all the probative evidence I find
that the preponderance of the evidence presented did not

1811

establish a reasonable likelihood that the hazard contributed to
by the violation would result in an injury. There was no persuasive evidence of a confluence of factors that such an event
was reasonably likely. There existed a mere possibility that was
less than the reasonable likelihood required in Mathies for an
S&S finding.
I find the operator was negligent to a moderate degree in
using over a long period of time an air compressor subject to
weekly examination, that did not comply with the fire proof
housing requirement of the cited standard. The violation was
serious. 'on consideration of all the statutory criteria in
§ llO(i) of the Act I find that a civil penalty of $100 is
appropriate.
Citation No. 3243303
Citation No. 3243303 alleges a "significant and substantial"
violation of the standard at 30 C.F.R. § 75.512 and charges as
follows:
The Pineo 150 KVA Power Center 4160/480
volt, located in crosscut #2 of the 2 left 2
west, was not maintained in safe condition,
in that the 480 volt line side power lugs
were exposed on the upper part of the 400 amp
rating circuit breaker supplying power to the
2 west beltdrive. Persons that are required
to test and operate the circuit breaker would
be exposed to the energized 480 volt lugs.
§ 75.512 Electric equipment; examination,
testing and maintenance.

All electric equipment shall be frequently
examined, tested, and properly maintained by
a qualified person to assure safe operating
conditions. When a potentially dangerous
condition
found on electric equipment,
such equipment shall be removed from service
until such condition is corrected. A record
of such examinations shall be kept and made
available to an authorized representative of
the Secretary and to the miners in such mine.
The power center in question provides power to a belt drive
that hauls coal out of the mine. It was located two or three
crosscuts from where the coal was being mined.
It was housed in
a large box-shaped metal cabinet that sat on the mine floor.
It
was 5 feet wide, 8 feet long and 3 feet high.
In front, the
cabinet had a closed metal door. on the side it had a sign
warning that the power center had "dangerous, high voltage."

1812

Inside the metal cabinet is a circuit-breaker unit. This
unit is a small plastic box with a handle on the front.
Inspector Shiveley testified the breaker box poses no hazard if you
operate it properly but could be dangerous if the miner "shoved"
the handle of the breaker up with the palm of his hand in such a
way that his fingers went up and over the top of the insulating
barrier (insulated backboard) rather than lifting up the handle
to deenergize it.
The nazard according to the inspector were two uninsulated
exposed lugs located behind the insulated barrier inside the
circuit breaker unit. These lugs were attached to the bussing on
the primary 480 volt feed and were not insulated. A person
operating the handle located in front of the breaker by pushing
the breaker handle with the palm of his hand could get his
fingers over the top of the insulated barrier back board in such
a manner that his fingers could come in contact with the uninsulated lugs. If this were to happen, the person would probably be
electrocuted.
The Respondent presenteff evidence that there is no electrical equipment exposed either on the outside of the power center
box, or on the outside of the inner breaker box.
In order to
contact the metal lugs, a person would have to get down on his
knees, open the outer metal doors, and reach the inner breaker
box and push his fingers over the top of the insulating barrier.
The citation was abated by placing a few pieces of insulating
tape over the top on the insulated backboard so that the lugs
were no longer exposed to an inadvertent potential contact.
I credit the testimony presented by Respondent which
established that it was not reasonably likely that the hazard
contributed to would result in an injury. The power center box
sat on the mine floor and was only 3 feet high so that a person
opening the cabinet door to reset the breakers would most likely
pull up on the breaker handle and rather than getting down close
to the floor level to push the handle with the palm of his hand
in such a manner as to push his fingers over the top of the insulated barrier and contact the uninsulated lugs. Although the
hazard contributed to was not reasonably likely to result in
injury, there was a remote possibility that the hazard
contributed to could result in a serious injury. Since the
injury could be fatal, the violation was serious.
Based upon the evidence presented, I find that there was a
violation of 30 C.F.R. § 75. 512.
I further find, based upon
the particular facts surrounding the violation, that the preponderance of the evidence does not establish a reasonable
likelihood that the hazard contributed to, would result in an
injury. Thus the evidence did not establish the third element
required by the Mathies criteria for an S&S finding.

1813

On careful consideration of all of the statutory criteria in
section llO(i) of the Act, I find a civil penalty of $80 is an
appropriate civil penalty for this non S&S violation.
Citation No. 3243304
Citation No. 3243304 alleges a "significant and substantial"
violation of the standard at 30 C.F.R. § 75.400 and charges as
follows:
Accumulation of combustible material, float
coal dust was deposited along the rockdusted
ribs and mine floor, in the last open
crosscut #16+65 for a distance of 180' feet,
the area in MMU0060, 2 west was dark gray to
black.
The cited safety standard 30 C.F.R. § 75.400 provides as
follows:
§ 75.400 Accumulation of combustible materials.

Coal dust, including float coal dust deposited on rock-dusted surfaces, loose coal,
and other combustible materials, shall be
cleaned up and not be permitted to accumulate
in active workings, or on electric equipment
therein.
Float coal dust is defined in 30 C.F.R. § 75.400-l(b) as
follows:
(b)
The term 9ifloat coal dust 11 means the
coal dust consisting of particles of coal
that can pass a No. 200 sieve.
Inspector Melvin Shiveley was the Secretary's only witness.
On Januar~ 15, 1991 when he inspected the secortd West section of
the Southfield Mine he found that miners were actively mining
coal
the area. They were cutting coal with a continuous
miner.
Inspector Shiveley observed that there was "float coal
dust 99 laying on the curtain and mine floor for a distance of
approximately 180 feet outby from the face.
It was such a·,fine
layer of 11 float coal dust" that its depth was not measurable. He
observed white rock dust under the coal dust. The "float coal
dustvi was black in color near the face to dark gray further away
from the face.
On cross examination, Inspector Shiveley testified he did
not observe any coal dust in suspension and took no test to
determine whether the particles of dust could pass through, a No.

1814

200 sieve.
See 30 C.F.R. § 75.400-1. The inspector agreed that
you need to stir up coal dust by another explosion to make coal
dust self explosive.
On redirect examination, the inspector agreed with his
counsel that walking or moving equipment in the area where float
coal dust had settled would have stirred it up and put it in
suspension.
The inspector testified that he took air readings and found
the volume of air was permissible and in compliance with the
Southfield Mine Ventilation Plan; that methane was not excessive
and that he found no electric equipment in the area that was not
in permissible condition.
Coal is mined at the Southfield Mine in the conventional way
with a continuous miner and shuttle cars. There is no longwall
mining. The mining cycle begins with a continuous miner making a
cut of coal. The coal is then loaded and the continuous miner is
moved out of the section and a roof bolting machine is moved in.
The roof bolter installs roof'"bolts for permanent roof support.
The roof bolter is equipped with a rock dusting machine. After
bolting the roof, the roof bolter blows rock dust into the air so
that it will be carried by the mine's ventilation and deposited
outby the working face on top of any coal uust. This citation
was abated by having the roof bolting machine rock dust the area.
Respondent contends it would have done this as part of the normal
mining cycle had it been allowed to continue.
Inspector Shiveley
visited the adjacent entry that was part of this same mining
cycle, where the roof bolting machine had just completed its
work. He found that this entry had been properly rock dusted as
part of the normal mining cycle.
Inspector Shiveley acknowledged that it was not practical to
clean up or scrape up fine float coal dust; that the alternative
is to app
rock dust; and stated nonce that rock dust
applied, then you no longer consider that can be accumulation"
because the float coal dust is covered up with an uncombustible
materia L
(Tr" 96 line 8-25, Tr. 97 line 1-2) .
Inspector Shiveley conceded that the liberation of coal dust
is a "natural feature" and "an unavoidable consequence of mining. an He acknowledged that it is not possible to mine coal
without generating coal dust as part of the mining cycle. Coal
dust is liberated, suspended in the air, carried away as part of
the ventilation of the section and deposited outby the working
face during a normal mining cycle. Because the coal dust is
moist, most of the coal dust falls from the air near the working
face.
Inspector Shiveley conceded that float coal dust is
combustible only if (1) the float coal dust is in suspension, (2)
there is an ignition source, and (3) there is an actual ignition
or an explosion.

1815

As pointed out in Respondent's brief, Inspector Shiveley
testified that the length of time that coal particles had been
present in the area was irrelevant and that, in his opinion, time
was not a factor in determining whether there was an accumulation
under § 75.400.
Q:

So in your opinion, it makes no difference how long
the accumulation is there; isn't that correct?

A:

Yes.

Q:

Time is not a factor?

A:

No, it isn't.

Q:

Mr. Shiveley, you don't know how long this coal
dust had been present on top of the rock dust, do
you?

A:

No, I don't.

(Tr. 105, line 24-25, Tr. 106 line 1-6).
Energy Fuels presented the testimony of two witnesses, Jim
Pushchak and Randy Acre.
It also introduced Respondent's Exhibit
R-2, a diagram that was helpful in describing the mining cycle,
the cited area and the surrounding entries, returns and
crosscuts.
Mr. Pushchak testified substantially as follows:
He has
worked at the Southfield Mine for twelve years and is familiar
with the mining cycle at the mine. He accompanied Inspector
Shiveley on this inspection and walked through the area that was
cited by Inspector Shiveley. Mr. Pushchak explained that the
dust in the area in the return that was closest to the working
face was black because that was where most of the coal dust
tended to settle after being blown away from the face. · The
continuous mining machines were equipped with water sprays which
dampened the liberated coal dust. As a result, this dust is
heavier and is deposited near the working face.
As one proceeded
further away from the face, there was less coal dust on the rock
dust because most of the coal dust had dropped closer to the
face.
Mr. Pushchak described what was occurring in the mining cycle when the citation was written. Using the diagram, Ex. R-2,
he explained the continuous miner had just finished cutting Cut
No. 3 in the main entry and had moved to the adjacent left entry
to begin Cut No. 4. As the continuous miner moved out of Cut No.
3, the roof bolting machine moved into cut No. 3 to install
permanent roof support and then apply rock dust.
The coal dust

1816

which lay on top of the rock dust outby the working face had been
generated as a result of cut No. 3. The average amount of time
from the end of the cutting of coal to the application of rock
dust (with roof bolting having occurred in the interim) is 30
minutes. Cut No. 3, however, was a longer cut than the average
cut made on that shift.
(Tr. 147 lines 12-16).
It i9 generally conceded that it would not be possible to
mine coal without generating float coal dust.
Energy Fuel contends it would be hazardous to the health and safety of miners to
apply rock dust while mining was occurring. This could only be
done manually by miners standing just outby the working face.
Float coal dust would be generated by the mining, and some of it
would be deposited on the miners or it would be inhaled by them.
Therefore, Energy Fuel contends it is necessary to wait until
after the mining and the roof bolting have been completed before
rock dusting.
Furthermore, it contends that until the mining is
actually completed and the coal dust settles, rock dusting would
not cover all of the coal dust in suspension.
Randy Acre, the Mine Manager.at the Southfield Mine, testified substantially as follows: He has been in the coal mining
business for 20 years. He is well acquainted with mining cycle
at the Southfield Mine. Coal dust is rendered harmless by
allowing it to settle on top of rock dust, and then applying an
alternate layer of rock dust on top of the coal dust which renders the coal dust incombustible.
Mr. Acre testified that the continuous miner in this area
was equipped with special water sprays that force the wet coal
dust to settle in the return entries. The continuous miner is
equipped with a methane detection system that first provides a
warningv and then automatically shuts down the machine if the
amount of methane exceeds 2% per cubic metero
Mro Acre confirmed that the mining cycle in this area
provided for immediate application of rock dust after the roof
bolter completes bolting the roof of the cut.
The regulations assume that coal dust will be liberated as
part of the mining process p and requires the mine to i 9 clean
up 1Q and not allow
to naccumulateo ou Inspector Shiveley
fied that time was ovirrelevantu in determining whether an accumulation existed. Based on his observation, he was of the opinion
that an accumulation existed and that he was justified in issuing
the citationo
In Utah Power & Light v. Secretary of Labor, 951 F.2d 292,
295 (10th Cir. 1991) (n. 11), the Tenth Circuit stated that 75.400
"prohibits permitting [coal dust] to accumulate; hence it must be
cleaned up with reasonable promptness, with all convenient

1817

speed."
(Emphasis added). Thus, the length of time that
combustible material is present is relevant.
As Energy Fuels points out in its post-hearing brief, the
logic of the Tenth Circuit ruling in apparent.
If an operator is
not given a reasonable amount of time to clean up a by-product of
the mining cycle, then an operator could be cited as soon as any
coal dust is generated. This, however, is not what has happened
in this case. The cut in question was longer than the usual cut
being made on this shift and the mine manager conceded that one
hour may have elapsed after the roof bolter moved in and began
bolting the roof and the rock dusting of the cut began. (Tr. 157
line 20-25, Tr. 158 line 1-2).
It is undisputed that Federal Coal Mine Inspector Shiveley
observed a fine layer of combustible coal dust deposited along
the ribs and mine floor in the last open crosscut for a distance
of 180 feet.
Based upon his observations, Inspector Shiveley was
of the opinion that the coal dust he observed for a distance of
180 feet was an impermissible accumulation and cited it as such.
Based upon Inspector Shivele~'• observation, opinion and testimony, I find that this rather extensive fine layer of coal dust
was an accumulation in violation of 30 C.F.R. § 75.400.
I also
credit the testimony of Messrs. Pushchak and Randy Acre that
established there was no reasonable likelihood that the hazard
contributed to would result in an event that would cause injury.
Since the preponderance of the evidence did not establish this
essential factor needed to support an S&S finding, I find that
the violation was a non S&S 104(a) violation.
Considering all the statutory criteria in Section llO(i) of
the Act and the fact that the accumulation consisted of only a
fine layer of coal dust of rather recent origin, I find a penalty
of $20 is an appropriate penalty for this 104(a) non S&S
violation.
Citation No. 3242437
Citation No. 3242437 alleges a "significant and substantial"
violation of the standard at 30 C.F.R. § 75.202(a) and charges as
follows:
A loose coal rib measuring about 6' x 10' x
about one ft. in thickness, with at least a
four inch space behind it, just inby crosscut
#24 in the first right entry of the south
mains (intake haulage) was leaning out in a
hazardous position. This is the main travelway in and out of the working section.
The cited safety standard 30 C.F.R.
follows:

1818

§

75.202(a) provides as

§

75.202 Protection from falls of roof, face

and ribs.
(a) The roof, face and ribs of areas where
persons work or travel shall be supported or
otherwise controlled to protect persons from
hazards related to falls of the roof, face or
ribs and coal or rock bursts.
The primary issues presented are as follows:
1. Did the Secretary sustain her burden of proving that
Energy Fuels violated 30 C.F.R. § 75.202(a) as alleged in the
citation?
'
2.
If there was a violation, was the violation significant
and substantial?
3. If there was a violation, what is the appropriate
penalty?
Donald Jordan, Federal Mine Inspector, testified that on the
date of inspection, October 9, 1991, he was conducting a 103(i)
inspection which is required every five years.
[30 u.s.c.
§ 813(i)J.
Inspector Jordan cited Energy Fuels for a violation
of 30 C.F.R. § 75.202(a) because he observed a rib just inby
crosscut 24 that "appeared to be a hazard." He stated that the
rib was "loose." Inspector Jordan looks for loose ribs whenever
he inspects a mine.
Inspector Jordan was looking for loose ribs when he entered
the Southfield Mine on the morning that the citation was written,
but he did not observe that the rib he cited was "loose" or that
any
was Qi leaning" when he entered the mine, even though he
traveled past the area that he later cited on his way back from
the working face.
Inspector Jordan on his way out of the mine traveled the
same route he used to travel into the mine. As he traveled out
through the main travelway of the mine, he observed a rib that
had a crack on one side that ~ 1 would possibly extend to the point
that it could hit someone. 11
(Emphasis added}.
Inspector Jordan
had no idea how long the rib was in the condition that was noted
in his citation. He did not know whether any miner had passed by
this rib when it was loose, or whether any miner had observed the
rib and failed to scale it down. The pre-shift report did not
indicate that this rib had any crack in it.
Inspector Jordan
testified on cross examination that he could not definitely say
whether the rib would have fallen naturally or whether it would
have remained indefinitely in the position that it was in when
the citation was written. However, when asked by his counsel on

1819

redirect examination if it is ''likely" the rib would have fallen
on its own, he replied "Yes ma'am, I think it would have. 11
Inspector Jordan stated that cracks in ribs are common in
coal mines and that rib hazards are controlled by scaling--or
prying--the rib down. Inspector Jordan inspected four to six
thousand feet of the mine on the day the citation was written and
did not observe any other cracked or loose ribs. The miners were
working approximately 1,500 to 2,000 feet away from the cited
area and Inspector Jordan did not observe any person standing, or
walking by this rib. Evidence was presented that a person who
was traveling in the area cited by Inspector Jordan would have
probably driven by this rib in one or two seconds.
Gary Carroll, the Safety Supervisor at the Southfield Mine,
has worked in underground mines since 1974 and worked at the
Southfield Mine for over 10 years. He testified substantially as
follows:
The roof at the Southfield Mine is controlled by permanent
and supplemental roof support. The ribs at the Southfield Mine
are controlled by maintaining a permissible width (18 to 20 feet)
in the entries and by scaling and barring down ribs that are
loose.
On the day that the citation was written, Mr. Carroll rode
into the mine with Inspector Jordan on the mancar tractor,
driving down the center of the entry, as was normally the case.
Both he and Inspector Jordan were "looking around" as they went
into the mine to check for cracks and loose ribs. No cracks or
loose ribs were noticed as they entered the mine and none were
noticed during the inspection of the working face.
When miners enter and leave the mine, they ride either in a
tractor, or
a trailer pulled by the tractor, that has metal
supports on the sides. On the date of the citation, the miners
were working approximately 1,500 to 2,000 feet from the cracked
rib.
Cracks in ribs are common at the Southfield Mine. However,
a crack does not mean that a rib is loose.
It is not possible to
tell simply by visual observation whether a rib is loose. The
Southfield Mine Roof Support Plan requires that loose ribs be
scaled down. Mr. Carroll routinely scales down ribs whenever he
observes a loose rib. The hazard of a loose rib is that a person
standing close to the rib could be injured if the rib fell
naturally.
Mr. Carroll did not observe any crack in the rib as he
entered the mine. Like Inspector Jordan, he observed the crack
in the rib when he was leaving the mine. The crack was on one
side of the rib only, Mr. Carroll did not observe that the rib

1820

was leaning precariously. Mr. Carroll testified that the crack
was no more than four feet in height. He stated the entire coal
seam at this point in the mine has a maximum height of 5 to 5 1/2
feet.
Mr. Carroll had difficulty prying loose the cracked portion
of the rib.
It took three separate attempts to pry the piece of
coal away from the rib. On a scale of one to ten, with ten being
the most difficult rib to pry down, this rib was "between a six
and a seven" in difficulty. To Mr. Carroll, this meant that it
was "difficult to pry down." Mr. Carroll testified that the rib
was approximately four feet in height, six feet across at the
bottom and two feet across at the top after it was pried down.
After it was forcibly pried down, most of the coal fell within
two to three feet of the rib.
Mr. Carroll testified that this crack in the rib posed no
hazard to any miner. The crack was approximately one-half mile
from the working face.
It had been several years since there had
been any work in this area. In the twelve years that Mr. Carroll
had been at the mine, he has'·had to walk by this area only once.
On every other occasion, he drove or rode in a tractor by this
portion of the main travelway and would pass by the area within a
second or so. Energy Fuels has never had a rib fall in the travelway that caused any injury in the twelve years that the mine
has been in existence.
Respondent contends the Secretary failed to prove that
Energy Fuels had violated 30 C.F.R. § 75.202{a} because she
produced no evidence to show that Energy Fuels was not supporting
or otherwise controlling the ribs to protect persons from hazards
related to rib falls.
The undisputed testimony was that Energy
Fuels regularly inspects for loose ribs and when they are
noticed, bars them down.
The standard states that ribs shall be supported or controlled to protect people from hazards. Even though Inspector
Jordan viewed almost 5,ooo feet of entryway during this inspection, he saw only one place where there was even a crack in a
riba
Inspector Jordan did not obse~ve this rib which he said was
Qnobviously leaning" when he passed by it on his way into the
mine" Respondent contends that the only conclusion that can be
drawn is that the rib cracked after Inspector Jordan and Mr"
Carroll drove by it on their way into the mine. The Secretary
presented no evidence that the condition was known to Energy
Fuels and that Energy Fuels failed to take steps to control it.
I find that the evidence fails to establish that Energy Fuels was
negligent.
With respect to the special significant and substantial
finding, the evidence fails to establish that, if the rib in
question were to fall, a chain of events would occur that would

be reasonably likely to result in injury. Exposure to the hazard
of a falling rib would occur only when a miner is very close to
or in the immediate area of the falling rib.
Furthermore, it took a considerable effort to pry down this
rib and the testimony of Inspector Jordan regarding this rib
posing a hazard was only that when it fell, it "might possibly
extend to the point where it could hit someone." It appears from
the evidence that such a possibility was remote.
The evidence failed to establish a reasonable likelihood
that the hazard contributed to would result in injury.
Based upon the evidence presented, I find that there was a
104{a) non S&S violation of 30 C.F.R. § 75.202{a). However,
based upon the particular facts surrounding that violation, I
find that the preponderance of the evidence does not establish a
reasonable likelihood that the hazard contributed to, would
result in an injury.
On careful consideratiori of all of the statutory criteria in
Section llO(i) of the Act, including the operators lack of negligence, I assess a civil penalty of $20 for this non S&S
violation.
ORDER
Based upon the above finding of fact and conclusions of lawf
IT IS ORDERED that
1.

Citation No. 3242478 is VACATED.

2. Citation Nos. 3243302, 3243303, 3243304 and 3242436 ARE
NODIFIED to delete the significant and substantial finding and,
as modified, ARE AFFIRMED.
3. Respondent Energy Fuels Coal Incorporated shall PAY to
the Secretary of Labor a penalty in the sum of $220 within 30
days of the date of this decisiono

Aug t F. Cetti
Administrative Law Judge

1822

Distribution:
Margaret A. Miller, Esq., Office of the Solicitor, U.S.
Department of Labor, 1585 Federal Office Building, 1961 Stout
Street, Denver, co 80294
(Certified Mail}
Phillip D.' Barber, Esq., WELBORN, DUFFORD, BROWN & TOOLEY, P.C.,
1700 Broadway, Suite 1700, Denver, co 80290-1701
(Certified Mail}

sh

1823

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

NOV 9 1992
CIVIL PENALTY PROCEEDING

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

Docket No. KENT 91-1013
A. C. No. 15-02709-03766

v.
Camp No. 1 Mine
PEABODY COAL COMPANY 1
Respondent
DECISION

Appearances:

Before:

W. F. Taylor, Esq., U.S. Department of Labor,
Office of the Solicitor, Nashville, Tennessee,
for Petitioner;
David R. Joest, Esq., Peabody Coal Company,
Henderson, Kentucky, for Respondent.

Judge Weisberger

This case is before me upon a petition for assessment of
civil penalty under Section 105(d) of the Federal Mine Safety and
Health Act of 1977 (the Act). Pursuant to notice, the case was
scheduled for hearing on September 2 1 1992. On that date, prior
~o going on the record, counsel indicated that they had just
settled this matter. On October 9u 1992, Petitioner filed a
motion to approve a settlement agreement and to dismiss this
case. Respondent has agreed to pay the proposed penalty of
$1u700 in full.
I have considered the representations and
documentation submitted in this case, and I conclude that the
proffered settlement is appropriate under the criteria set forth
in Section 110(i) of the Act.
'\WHEREFORE, the motion for approval of settlement is GRANTED,
and
is ORDERED that Respondent pay a enalty of $1,700 within
30 days of this order"

Avram

Wei beb----

Administrative Law Judge

1824

Distribution:

w. F. Taylor, Esq., Office of the Solicitor, U.S. Department of
Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
{Certified Mail)

37215

David R. Joest, Esq., Midwest Division Counsel, Peabody·Coal
Company, 1951 Barrett Court, P.O. Box 1990, Henderson, KY 424201990 (Certified Mail)
nb

1825

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

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

.: CIVIL PENALTY PROCEEDING
:
:

Docket No. KENT 92-73
A.C. No. 15-13881-03792-A

.

Vo

0

Pyro No. 9 Slope
.. William
Station
0

PAUL SHIREL, employed by
PYRO MINING COMPANY,
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.

DONALD D. GUESS, employed
PYRO MINING COMPANY,
Respondent

CIVIL PENALTY PROCEEDING
Docket No. KENT 91-1340
A.C. No. 15-13881-03781-A
Pyro No. 9 Slope
William Station

DECISION
Appearances:

Stephen .D. Turow, Esquire, Office of
the Solicitorp U.So Department of Laboru
Arlingtonu Virginiav for Petitioner;
Flem Gordon, Esquire, Madisonvillep Kentuckyv
for Respondents

Before:

Judge Melick

A bench decision was issued in the captioned cases at
hearings on October B. 1992, granting the Respondents 0 Motions
for Summary Decision. That decisionv with only non-substantive
changesv is as follows:
I will, as I said before, grant the Motions
for summary Decision as to both cases and dismiss
both civil penalty proceedings, Docket Nos.
KENT 92-73 and KENT 91-1340. These cases are before
me upon the petitions for civil penalty which were
filed by the Secretary of Labor against Paul Shirel
and Donald Guess under Section llO(c) of the Federal
Mine Safety and Health Act of 1977, [30 u.s.c.
Section 801, et seg., the "Act"] charging Shirel and

1826

Guess as agents of a corporate mine operator, namely
Pyre Mining Company, with knowingly authorizing,
ordering or carrying out violations by the named
corporate mine operator.
Section llO(c) of the Act provides, in part, that
whenever a corporate mine operator violates a mandatory
health or safety standard any director, officer or
agent of such a corporation who knowingly authorized,
ordered or carried out such violation shall be subject
to the same civil penalties, fines and imprisonment
that may be imposed upon a person under subsections (a)
and (b).
Under Commission Rule 64(b), motions for summary
decision shall be granted only if the entire record,
including the pleadings, depositions and affidavits,
show that there is no genuine issue as to any material
facts and that the moving party is entitled to summary
decision as a matter of law.
As I have already stated, while the instant
motions were filed untimely under Commission
Rule 64(a), it makes little sense to proceed
further on the merits when the motions would be
dispositive of the cases. On September 23rd of
this year, Respondents filed Motions for Summary
Decision in each of these cases, asserting that,
on the dates of the alleged violations, Pyre Mining
Company was not in fact a corporate entity, but was
a partnership, and that an essential ingredient of
the charges could not therefore be sustained. In
these proceedingsu it is indeed undisputed that, on
the dates of the violations at issue, Pyre Mining
Company was a partnership recognized under the laws
Illinois and Kentucky and was not a corporation
under any jurisdiction. It is also undisputed that
Pyre Mining Company was the legally designated operator
of the Noo 9 Slopev William Station Mine at relevant
timeso
The Secretary alleges in her petitions in these
cases that Shirel and Guess were employees of Pyre
Mining Companyf and as such were acting as agents of
Pyro Mining Company as a corporate operator. Since
it is indeed now undisputed that Pyro was not then a
corporate operator and was not a corporation, but
rather was a partnership, the allegations in these
petitions cannot be sustained and the petitions must
accordingly be dismissed.

1827

I express no opinion here, and have no
information, as to whether either or both of the
Respondents could be charged under Section llO(c)
as agents of one or both of the corporations making
up the partnership Pyro Mining Company, for they in
fact were not charged in these cases as agents of
those corporations and there is no allegation that
these corporations were in fact the operators of
the Pyre No. 9, William Station Mine.
I should add that in reaching this decision,
I have not disregarded the Secretary's argument
that Pyro as a partnership was more closely akin
to a traditional corporation than a true partnership,
and that Congress intended that partnerships like
Pyro should be considered to be corporate operators
for purposes of Section llO(c) of the Act.
However,
I cannot make a finding contrary to the clear and
unambiguous language of Section llO(c), and the
language is indeed clear and unambiguous, that only
agents of corporations and corporate operators are
chargeable under Section llO(c).
The Secretary, in essence, would have me amend
Section llO(c) to hold liable agents not only of
corporate operators but also agents of partnerships
composed of two corporations. An administrative law
judge is certainly not in a position to make such an
amendment and I am certainly bound by the plain, clear
and unambiguous language of the statute.
I might add that the Secretary's arguments do
tend to point out that Congress may wish to revisit
the language of Section llO(c) in light of this
particular case andu indeedu in light of the Richardson
case and other decisions which suggest that agents of
large operators other than corporate operators should
be included within the scope of Section llO(c).
For the above reasonsv howeverv I am granting the
Motions for Summary Decision. These proceedings are
concludedo Thank youo

1828

ORDER
The captioned civil penalty proceedings
DISMISSED.

re hereby

aw Judge
Distribution:
Steve Turow, Esq., Office of the
icitor, U.S. Department of
Labor, 4015 Wilson Boulevard, Suiee 400, Arlington, VA 22203
(Certified Mail)
Flem Gordon, Esq., Gordon and Gordon, P.O. Box 1305,
Madisonville, KY 42413-1305 (Certified Mail)
/lh

1829

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

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

...

CIVIL PENALTY PROCEEDING
Docket No. VA 92-54
A.C. No. 44-01520-03501 JIC

v.

Virginia Pocahontas #3

WELL TECH INCORPORATED,
Respondent.
DECISION
Appearances:

Javier I. Romanach, Esq., Arlington,
VA, for Petitioner;
Georgl
R.
Carlton,
Jr.,
Esq.,
Dallas, Tx, for Respondent.

Before:

Judge Fauver

The Secretary seeks civil penalties for three alleged
violations of safety standards under the Federal Mine Safety and
Act of 1977g 30 u.s.c. § 801 et seg.
Having considered the hearing evidence and the record as a
whole, I find that a preponderance of the substantial, probative
and reliable evidence establishes the following Findings of Fact
and further findings in the Discussion below~
FINDINGS OF FACT
1.
On August 1v 1991, Federal Mine Inspector Leslie Slowey
inspected gas well site #267 of Island Creek Coal Companyes
Virginia Pocahontas #3 underground coal mine.
He inspected the
Cooper Drill rig operated by Well Tech Incorporated.
Well Tech
Incorporated 1 an independent contractor 1 had a contract with the
mine operator on a call-up basis to service wells used to extract
methane from the mine. This process involved withdrawing suction
rods, lifting the pump out of the well and servicing or repairing
the pump to correct the basis for the call-up by the operator.
Well Tech 1 s services were essential to the mine 1 s system of
removing methane from the mine. Methane removal was essential to
the extraction of coal.

1830

2.
Inspector Slowey inspected the drill rig for safety and
cited three violations.
First, he found that the fan inlets and
drive belts for the motor of the drill rig were not properly
guarded to keep a person from coming in contact with exposed moving
~arts, in violation of 30 C.F.R. § 77.400(a}, for which he issued
Citation No. 3778953.
He determined that this violation was
"significant and substantial."
Second, he found that the drive shaft coupling was not guarded
to prevent a person from coming in contact with moving machinery
parts, in violation of 30 C.F.R. § 77.400(a), for which he issued
Citation No.
3778954.
He determined this violation was
"significant and substantial."
Third, he found that the Cooper Drill rig did not have an
operable back-up alarm, in violation of 30 C.F.R. § 77.410, for
which he issued Citation No. 3778955. He determined this violation
was "significant and substantial."
DISCUSSION Wl:TR.FURTHER FINDINGS

A threshold issue is whether Respondent is an "operator"
within the meaning of the Act.
Section 3(d) of the Act provides
that:
operator" means any owner, lessee, or other
person who operates, controls, or supervises,
a coal or other mine or any independent
contractor performing services or construction
at such mine.
11

Section 3(d) was added by the 1977 Amendments to the Mine Act
t.o expand the definition of ~~operatorvw to include 81 any independent
contractor performing services or constructionn at a mine. In Otis
Elevator Company Vo Secretary of Labor and FMsHRCp 921 F.2d 1285
(D.C. Cir. 1990) 9 the Court held that in§ 3(d) the "phrase '\any
independent contractor performing services •.. at [a] mine• means
just that" and that the Court "need not confront ... whether there
is any point at which an independent contractorws contact with a
mine is so infrequent 9 or de minimis, that it would be difficult to
conclude that services were being performed since [Otis] conceded
that it was performing limited but necessary services at the mine"
(921 F.2d at 1290 n. 3, emphasis added).
Otis had a contract to
service the shaft elevators at the mine.
In Lang Brothers, Inc., 14 FMSHRC 413 (1991), Lang Brothers
had an annual contract to clean and plug gas well sites for
Consolidation Coal Company, "to ensure that natural gas does not
seep through the well into a mining area and create a safety
hazard." 14 FMSHRC at 414. In holding that Lang Brothers was an
"operator," the Commission stated:

1831

Lang's work at the well sites ••• was integrally related
to Consol's extraction of Coal. Cf. Carolina Starlite,
734 F.2d at 1551. The sole purpose of Lang's cleaning
and plugging contract with Consol was to facilitate
Consol's extraction of underground coal. 14 FMSHRC at
418.
The Commission did not adopt the restrictive interpretation of Old
Dominion Power Company v. Secretary of Labor and FMSHRC, 772 F.2d
92(4th Cir. 1985) (implying that an independent contractor must
have a "continuing presence at the mine" to be held to be an
"operator" under the Act).
Rather, it held that the de minimis
standard may be measured by the significance of the contractor's
presence at the mine as well as the duration or frequency of its
presence.
The Commission noted that even though Lang 1 s actual
presence at the mine to clean and plug wells was for a short
period, its activity was an integral part of Consol's extraction
process.
In Bulk Transportation Services, Inc., 13 FMSHRC 1354 (1991),
the contractor had a contract with a coal mine operator to
transport coal from the mine to a generating station 40 miles away.
The Commission noted that Bulk had a substantial presence at the
mine -- "[T)here is a constant ·flow of truck drivers in and out ..•
four to five days a week" 13 FMSHRC at 1359 -- but it focused on
the significance of Bulk's activities to the extraction process in
determining that Bulk was an operator subject to the Mine Act.
"Given the undisputed fact that Bulk was Beth Energy's exclusive
coal hauler between Mine No. 33 and the generating station, and
given the quantities of coal hauled by Bulk, we agree with the
judge that Bulk's services in hauling coal were essential and
closely related to the extraction process." 13 FMSHRC at 1359.
Similarly
this casev Well Tech 1 s work on gas well pumps
used to remove methane from Island Creek 1 s mine was essential to
the extraction of coal.
As Inspector Slowey testified, "This
minews ventilation plan requires that the methane be taken out of
the mine by vertical drilling.
In order to keep the mine going
they have to reduce the methane down to a certain percent or the
miner will not operate down there. 91 Tr. 42.
Well Tech performed such work at the Virginia Pocanhontas #3
Mine for 578 hours in 1991 1 the year of the citations.
This is
substantially more time than Otis mechanics spent at the mine in
Otis Elevator Co .• supra. There the Court stated that it need not
address "whether there is any point at 'which an independent
contractor's contact with a mine is so infrequent or de minimis,
that it would be difficult to conclude that services were being
performed 111 since Otis was "performing limited but necessary
services" at the mine.
921 F.2d at 1290 n.3.
Well Tech was
similarly performing "limited but necessary services" at Virginia
Pocahontas #3 mine, and was therefore an "operator" within the

1832

meaning of the Act.

1

In considering the evidence as to the three citations, I find
that the inspector's testimony was reasonable and persuasive.
Respondent did not present any evidence in rebuttal of his
testimony as to the facts concerning the alleged violations.
Citation No. 3778953

Inspector Slowey cited a violation of 30 C.F.R. § 77.400(a),
alleging that the fan inlets and drive belts for the motor of the
Cooper Drill rig were not guarded properly to prevent a person from
coming in contact with these moving machinery parts.
section 77.400(a) states, among other things, that "fan
inlets; and similar exposed moving machine parts which may be
contacted by persons, and which may cause injury to persons shall
be guarded."
The Commission has helg that this standard "imports the
concepts of reasonable contact stemming from inadvertent stumbling
or falling, momentary inattention, or ordinary human carelessness."
Thompson Brothers Coal Company, Inc., 6 FMSHRC 2094, 2096 (1984).
Although the fan inlets were toward the front of the cab,
opposite the end where the employees usually worked, the inspector
testified that there was still a hazard because the employees might
come in contact with the moving parts during maintenance or repair
work. Tr. 15.
The Commission has held that a violation may be classified as
significant and substantial" if there is a reasonable likelihood
that the hazard contributed to will result in an injury of a
reasonably serious nature. Texasgulf, 10 FMSHRC 498 0 500 (1988)0
Considering that t.he machinery guard standard is intended to
protect employees from coming in contact with moving machinery
parts because of "inadvertent stumbling or falling, momentary
inattention, or ordinary human carelessness" (see Thompson Brothers
91

The Secretary of Labor enforces both the Mine Act and the
Occupational Safety and Health Act of 1970, 29 u.s.c. § 651 et
~, and has reasonable discretion in determining which of her two
enforcement agencies 0 OSHA or MSHA, should exercise jurisdiction
over a given facility or activity.
The Secretary is entitled to
deference in exercising such discretion.
See, ~, Brock v.
Cathedral Bluff Shale Oil co., 796 F.2d 533, 537 (D.c. Cir. 1986);
and Donovan v. Carolina starlite Co., 734 F.2d 1547 1522 & n.9
(D.C. Cir 1984). See also Southern Railway Company v. Occupational
Health Review Commission, 539 F.2d 335 (1976).
I find that the
Secretary's exercise of discretion to assert Mine Act jurisdiction
over Well Tech's operations is reasonable and enforceable.

1833

Coal Company, above), I find that the evidence sustains the
inspector's finding that the violation presented a reasonable
likelihood of resulting in substantial injury. It is not required
that the Secretary prove that injury was more probable than not,
but only that there was a "reasonable likelihood" of injury. In
practical terms, this requires only a sustantial possibility of
injury.
See, e.g., judges' decisions in Mountain Coal Co., 14
FMSHRC 1572, 1582-1583 (1992), and Consolidation Coal co.,
14 FMSHRC 748-752 (1991).
citation No. 3778954
Inspector Slowey cited a violation of 30 C.F.R. § 77.400
(a) because the drive shaft coupling for the motor to the rig was
unguarded.
He testified that there was a reasonable likelihood that 'an
employee would come in contact with pinch points of the drive shaft
and lose a hand or an arm. Tr. 17.
I
find that the evidence sustains this charge and
inspector's finding that the violation was "significant
substantial."

the
and

citation No. 3778955
Inspector Slowey cited a violation of 30 C.F.R. § 77.410(a) (1)
because the drill rig did not have an operable back-up alarm. The
standard prc.;;.rides that mobile equipment including trucks (except
pickup trucks with an unobstructed rear view) "shall be equipped
with a warning device that gives an audible alarm when the
equipment is put in reverse."
Inspector Slowey testified that the Cooper Drill rig is in
effect a truck mounted derricko
Tr. 29.
The drill rig was
stationary at the time he was there, and he asked the drill rig
operator to put the drill rig in reverse to check the back up horn.
He observed that the rig did not have a back up horn. Tr. 32,42.

I find that the evidence sustains this charge and
inspector 1 s finding that the violation was "significant
substantial. 00

the
and

Considering the criteria for assessing civil penalties under
110 ( i) of the Act, I find that the following penal ties are
appropriate for the violations found herein:
§

Citation

Civil Penalty

No. 3778953
No. 3778954
No. 3778955

$39
$39
$39

1834

CONCLUSIONS OF LAW

1.

The judge has jurisdiction in this proceeding.

2.
Respondent was an "operator" of the subject mine within
the meaning of the Act.
3.
Respondent violated the safety standards as cited in
Citation Nos. 3778953, 3778954, and 3778955.

ORDER

WHEREFORE IT IS ORDERED that:
1.

Citation Nos. 3778953, 3778954, and 3778955 are AFFIRMED.

2.
Respondent shall pay the above civil penalties of $117
within 30 days of the date of this Decision.

~~Administrative Law Judge
Distribution:
Javier I. Romanach, Esq., Office of the Solicitor, U.S. Department
of Laboru 4015 Wilson Boulevard, Room 516, Arlington, Virginia
22203 (Certified Mail)
George Ro Carltonv Jrou Esqou Godwin Carlton & Maxwell, P.C., 3300
NCNB Plaza, 901 Main Street, Dallas, Texas 75202-3714 (Certified
Mail)
/fcca

1835

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

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

CIVIL PENALTY PROCEEDINGS
Docket No. KENT 92-42
A.C. No. 15-08357-03687
Docket No. KENT 92-56
A.C. No. 15-14074-03597

Vo

PEABODY COAL COMPANY,
Respondent

Docket No. KENT 92-65
A.C. No. 15-14074-03598
Martwick UG Mine
DECISION

Appearances:

Before:

William F. Taylor, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee, for
the Petitioner;
David R.
Joest,
Esq.,
Peabody Coal Company,
Henderson, Kentucky, for the Respondent.

Judge Barbour:
STATEMENT OF THE CASE

These civil penalty cases were initiated by the Secretary of
Labor (au Secretary 11 ) against Peabody Coal Company ("Peabody")
pursuant to Sections 105 and 110 of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 815 and§ 820.
In Docket No.
KENT 92-42 the Secretary charges Peabody with two violations of
mandatory safety standards for underground coal mines found at
Part 75v Volume 30 of the Code of Federal Regulations.
In Docket
No. KENT 92-56 the Secretary charges Peabody with one such
violation.
In Docket No. KENT 92-65 the Secretary charges
Peabody with two Part 75 violations and with one violation of the
mandatory notification and reporting standards found at Part 50,
Volume 30 of the Code of Federal Regulations.
The violations in Docket No. KENT 92-42 are alleged to have
occurred at Peabody's Camp No. 11 Mine. The other violations are
alleged to have occurred at Peabody's Martwick Mine.
Peabody
timely answered the Secretary's penalty proposals and the cases
were consolidated for hearing. At the hearing the parties
presented their positions through the testimony of witnesses and
through documentary evidence. Following the trial both counsels
submitted helpful briefs, which I have fully considered in
reaching this decision.

1836

SETTLEMENT AGREEMENTS
DOCKET NO. KENT 92-42

The parties agreed to settle one of the violations at issue
in Docket No. KENT 92-42. Citation No. 3548678 was issued
pursuant to Section 104(a) of the Act, 30 U.S. c. § 814(a), and
alleges a violation of 30 C.F.R. § 75.316, a mandatory safety
standard requiring an operator to adopt and comply with a
ventilation system and methane and dust control plan approved by
the Secretary. The citation states that Peabody was not
complying with its approved plan in that curtains controlling
ventilation were not installed and maintained in a reasonably
airtight condition. The parties agreed the evidence would show
that the curtains were properly installed. They also agreed,
however, that the inspector was right in finding the curtains
were not properly maintained following installation. The parties
further agreed that the violation was not a significant and
substantial contribution to a mine safety hazard (a "S&S"
violation), that an injury was unlikely to occur as a result of
the violation and that Peabod.y~xhibited moderate negligence in
regard to the violation. A $20 civil penalty was proposed for
the violation, which the parties stated would be appropriate.
DOCKET NO KENT 92-56

The parties agreed to settle the sole violation at issue in
Docket No. KENT 92-56. Section 104(a) Citation No. 3551054
alleges a violation of 30 C.F.R. § 75.507, a mandatory safety
standard requiring, except where permissible power connection
units are used, that all power connection points outby the last
open crosscut be located in intake air. The citation states that
a battery charging station containing four energized chargers was
located in return airf five crosscuts outby the face.
Given the
fact that Peabody 1 s evidence would show that it had built a
tent-like structure around the charging station to separate the
station for return a
/ the parties agreed that an injury was
unlikely to occur as a result of the violation and that the
violation was non-S&S. They further agreed that at the time the
violation was citedu Peabody was in the process of changing the
ventilation routing in the vicinity of the violation and that the
violation was due to Peabody's moderate negligence. They also
agreed that a civil penalty of $227 would be appropriate.
DOCKET NOo KENT 92-65

The parties agreed to settle two of the three violations
alleged in Docket No. KENT 92-65. Section 104(a) Citation No.
3416929 alleges a violation of 30 C.F.R. § 75.1710-1, a mandatory
safety standard requiring installation and use of canopies and
cabs on all self-propelled electric face equipment. The citation
states that the inspector observed a roof bolting machine

1837

operator who was tramming a roof bolting machine but who was not
under a canopy.
The parties agreed that the violation was due to
the operator's negligence. However, because the roof bolting
machine operator was tramming the machine under fully supported
roof which showed no signs of fault, they believed there was but
a remote possibility of an accident.
Therefore, they agreed that
the violation was non-S&S. The parties also agreed that a civil
penalty of $192 would be appropriate.
Section 104(a) Citation No. 3548448 alleges a violation of
30 C.F.R. § 75.1107-16(b), a mandatory safety standard pertaining
to the proper testing and maintenance of fire suppression
devices.
The citation states that the fire suppression system on
a scoop was inoperative because of a torn hose.
The parties
agreed that the violation was the result of the operator's
negligence but that it was non-S&S. They asserted that in the
event of a fire an alternative fire suppression hose attached to
the scoop could easily have been detached and used as fire
fighting equipment.
The parties further agreed that a civil
penalty of $126 would be app~9priate.
SETTLEMENT APPROVAL
In light of the facts as stated by the parties, as well as
the other relevant statutory penalty criteria set forth in the
parties joint motions to approve the settlements, I conciuae the
proposed settlements are in the public interest and should be
approved.
I will incorporate the terms of the settlements into
my ORDER at the end of this Decision.
CONTESTED VIOLATIONS
There remained for trial one alleged violation in Docket No.
KENT 92-42 and one alleged violation in KENT 92-65.
KENT 92-42
Mine Act
!Section
Section 104(a)

Citation No.
3551088

Date
07/18/91

30 C.F.R.
§

75.202

STIPULATIONS
Prior to the hearing the parties submitted for inclusion in
record the following stipulations:
1.

The Mine Safety and Health Review Commission
and its administrative law judges have
jurisdiction to entertain the instant case
and to enter a decision in the same.

1838

2.

Peabody Coal Company and its Camp No. 11 Mine
are subject to the Federal Mine Safety and
Health Act of 1977.

3.

The controlling entity, Peabody Coal Company,
produced eighty four million six hundred
eighty nine thousand nine hundred and two
(84,689,902} tons of coal during the calendar
year 1991.

4.

Camp No. 11 Mine of Peabody Coal Company
produced fifty thousand seven hundred and
thirty nine (50,739) tons of coal.

5.

The violation history for the subject mine is
15 assessed violations during the course of
96 inspection days.

Parties' Joint Stipulation of Fact 1-2.
DISCUSSION

The citation at issue arose out of an inspection of the
No. 2 Unit at Peabody's Camp No. 11 Mine by personnel of the Mine
Safety and Health Administration ("MSHA"}. The unit, which had
only recently turned off of the main entry, was being mined with
a continuous mining machine. MSHA Inspector Harold Gamlin, who
had begun a regular quarterly inspection of the mine in early
July 1991, became concerned about the condition of the roof on
the unit.
Gamlin's concern lead him to consult with MSHA roof
control specialist Larry Cunningham, among others. Cunningham
was sent to the mine with Gamlin and others and issued the
subject Section 104(a) citation alleging that Peabody violated
30 CoF.R. § 75.202 by failing to control the roof to protect
persons from hazards relating to falls of the roof . 1
Subsequently, the Secretary proposed a civil penalty of $174 for
the violation. Peabody answered that the violation as charged
had not in fact occurred.
The citation states~
The operator has failed to control the roof
to protect persons from the hazards related
130 C.F.R. § 75.202 states:
(a)
The roof, face and ribs of areas where persons work or travel shall
be supported or otherwise controlled to protect persons from hazards related to
falls of the roof, face or ribs and coal or rock burst.
(b)
No person shall work or travel under unsupported roof unless in
accordance with this subpart.

1839

to falls of the roof. This mine has had 11
roof falls since May 6, 1991. The falls are
centrally located on the mine map and are in
a valley which is posing poor roof conditions
The operator is trying different steps to
control the roof such as decreasing the width
of the entries on No. 2 unit from 20 1 to 18'
and decreasing the wide opening to 24 1 and
not 28 1 [ , ] five roof bolts are being
installed in a row instead of four.
Time is
allowed for abatement to further evaluate
these steps taken by the operator.
G. Exh. 5.
In addition to alleging a violation of Section 75.202
Cunningham also found that the violation was S&S, that injuries
resulting in lost workdays and restricted duty were reasonably
likely to occur and that the violation was due to Peabody's
moderate negligence. The sol.e. issue at trial was whether the
violation occurred.
THE SECRETARY'S WITNESSES

MSHA Inspector Gamlin testified that he began a regular
quarterly inspection of the mine on July 3, 1991. On that date
the mine had one operating unit developing the main entry and
work was beginning on starting a second unit, the No. 2 Unit.
This unit was turning off the main entry.
Inspector Gamlin stated that prior to inspecting the mine he
examined MSHA records pertaining thereto and noticed reports of
roof falls
the main entry. He described the roof in the main
entry as looking "very fragile" on the first day of his
inspection. Tr. 78. He further stated that when he inspected the
No. 2 Unitr the roof there also looked 11 very fragile.n Tr. 78.
Gamlin stated that on July 17 9 1992, during an inspection of
the No. 2 Unit, he found that some of the entries on the unit
exceeded the 20 feet width allowed under the roof control plan?
and he issued a citation for a violation of Section 75.220, the
mandatory safety standard requiring mine operators to adopt and
follow a roof control plan approved by the Secretary. Tr. 79-80 2

2The citation states:
The roof control plan was not being followed in the No. 2 Unit • . • The
South East Nos. 4 and 6, No. 2 Unit was driven in excess of 21 feet appro:;:imately
70 feet outby the working face inby the second open crosscut. The roof control
plan states the entries shall be driven 20 feet in width.
A roof fall had
occurred in No. 7 entry at engineer spad 1 + 40 third open crosscut outby working
(continued .•• )

1840

Gamlin testified that his concern about the roof conditions
led him to speak about controlling the roof with mine officials,
including Douglas Rowlans, the mine superintendent, and Paul
Sparks, the mine safety manager. Gamlin believed better control
could be obtained by using 4-foot, fully-grouted roof bolts,
rather than the 6-foot, point anchor bolts then in use.
According to Gamlin, Rowlans explained that his supervisors would
not allow him to use fully-grouted roof bolts. Tr. 81-82 3
Gamlin further testified that on July 17 he called William
Dupree, an MSHA supervisor and roof control specialist, and they
discussed the roof conditions that Gamlin had observed. Tr. 85.
The conversation lead to a subsequent mine visit by Gamrin,
Cunningham and Dupree. At the mine, Gamlin spoke with Rowlans
and Sparks, as well as with David Fuson, a mine foreman, and told
them that because of his concern about the roof he had felt the
need to ask the MSHA roof control specialists to assist him.
Tr. 90-91.
The MSHA personnel then went underground, accompanied by
Peabody representatives. During tbeir time underground ,~-Gamlin,
who was observing the pattern of the roof bolts, measured two
places on the unit where roof bolts were spaced 10 feet apart
rather than five feet as required by the roof control plan.
Gamlin therefore cited Peabody for another violation of
Section 75.220. 4
Gamlin testified that on July 18, he did not observe any
practices over and above those required by the roof control plan
that were being used by Peabody to try to better control the roof
(Tr. 92) and that he, Cunningham and Dupree discussed with
Rowlan, Sparks and Fuson, the additional steps that the MSHA
personnel believed Peabody should be implementing. These steps

2

( ••• continued)

face.

G. Exh. 3.

3

Sparks, testified the decision to forego the use of the fully-grouted bolts
was made by one of Rowlan's bosses who believed the 6-foot, point anchor bolts
were the best bolts on the market and who wanted to continue them in use.
Tr. 214-216.
4

The citation states:

The roof control plan was not being followed on the No. 2 Unit • . • in that a
pin in the crosscut between entry No. 4 and 5 when measured was 10 feet apart and
one pin in the last open crosscut of No. 4 entry when measured was 10 feet apart.

G. Exh. 4

1841

included the need to narrow the width of the entries to 18 feet,
to add additional roof bolts to the bolting pattern, and the
'
possible use of truss roof bolts in some instances.
Tro 91-92, 95-96, 100-101. (As Gamlin recalled, the Peabody
personnel agreed to narrow the entries. Gamlin could not recall
whether there was any agreement about roof bolt spacing.
Tr. 107.) Gamlin believed that all of these things should have
been done by Peabody before July 18 -- indeed, in his opinion
they should have been done when the No. 2 Unit was first
turned -- because Peabody knew that it had encountered adverse
roof conditions prior to starting the No. 2 Unit and that
procedures required by the roof control plan were ineffective in
controlling these conditions. Tr. 120.
Cunningham, a MSHA roof control specialist, stated that
Gamlin had called him on Friday, July 12 and said that he needed
Cunningham's assistance with roof control problems at the mine .
. On the following Monday, July 15, Cunningham discussed Gamlin's
request with his supervisor, Dupree, and told Gamlin that he and
Dupree would come to the min~.later in the week. On July 18,
Cunningham and Dupree met Gamlin at the mine. Cunningham stated
the MSHA personnel went underground and formed an inspection
party with the Peabody representatives, including among others,
Rowlans, Sparks and Larry Stanley, a Peabody foreman.
Cunningham described the conditions that he found on the
unit. Cunningham stated that he noticed an area where a roof
fall had occurred. Although the fall had been cleaned up, the
brows were not properly supported in that loose rock remained
around the brows. He also recalled seeing an overcast area,
approximately 100 feet in length, where the entry width of 22
to 23 feet exceeded the 20 f~et width allowed by the approved
roof control plano He stated that in addition to these areas,
believed that there were two locations where Inspector Gamlin
found the spacing of the roof bolts to be too wide and where
improper grouting was used when installing the bolts.
Tr. 129-130.
Cunningham went on to describe the "adverse roof
conditions 11 that, in his opinion, were causing the roof control
difficulties.
The
• . shale roof was causing a lot of
problems with . . • bolting that they were
using o . . It was not consistent using
header bolts on the roof to try to alleviate
some of the shale rock falling out between
the bolts. And also . o . there was some
timbers that was scattered in the areas that
would have served a whole lot better purpose
if they had been set properly, but they was
just lying on the ground.

Tr .

a. 3 0-131.

1842

Cunningham stated his belief that Section 75.220 requires an
operator to develop and follow a roof control plan suitable to
the mine but that the roof control plan is a minimum plan and
that roof conditions may require an operator to take protective
roof control measures additional to those mandated by the plan.
Cunningham noted that Section 75.202 requires an operator at all
times to control the roof, face and ribs of areas where miners
are required to work or travel. Tr. 132-133. Because there had
been eleven reported roof falls in two months and three reported
roof fall injuries on the unit, as well as because he had
observed "loose shale falling out between bolts . . . wide places
being mined, and . . . bolt spaces being too wide", he believed
Peabody was not protecting persons working on the unit from the
hazards of roof falls. Tr. 132. (Cunningham stated that he had
with him copies of the accident reports when he went to the mine
on July 18 and in addition that he was told at the mine by a
union safety committeeman about the roof fall injuries that had
occurred on the No. 2 Unit. Tr. 172-173.) Cunningham therefore
cited Peabody for a violation of Section 75.202.
Although he wrote on the citation form, "The operator is
trying different steps to control the roof such as decreasing the
width of the entries on the No. 2 Unit from 20' to 18' and
decreasing the wide opening to 24' and not 28'. Five roof bolts
are being installed in a row instead of four" {G. Exh. 5),
Cunningham was adamant that these steps were not being
implemented at the time he issued the citation but rather were
what Peabody agreed to do after the section had been inspected by
the inspection party. He stated that he included the statement
on the citation form in order to justify giving Peabody a week
to abate the alleged violation. Tr. 135-136, See also Tr. 156.
Cunningham maintained that the additional roof control procedures
he described were agreed to as the result of discussions between
himself, Dupreeu Gamlin 1 Paul Sparksp the safety director,
Jimmy Howard 1 the section foreman? Doug Rowlansp the mine
superintendentr and Larry Stanley, the mine foreman.
Tr. 135-136. Cunningham asserted that on July 18 he observed
nothing to indicate Peabody had undertaken anything beyond the
requirements of the roof control plan to control the roof.
Tr. 145v 162. On July 18 he measured the width of the entries
six or seven times and he found no entries that measured
18 feet or narrower. Further, he measured the spacing of some of
the roof bolts. He found no instances in which the roof bolt
pattern consisted of five bolts across rather than four"
Had he
found that the entries had been narrowed to 18 feet and the
bolting pattern had been tightened, he would have had no reason
to issue the citation. Tr. 291-293.

1843

Qunningham testified tha"t:Rowlans told him that the unit was
beingi'mined in a "bowl" (by this Cunningham understood Rowlans to
mean "an area where the surface is indented and therefore you
would have less overburden in the area underground where they
were mining" Tr. 144) and that once out of the "bowl" Rowlans
expected the roof conditions to improve. Id.
With regard to Peabody's negligence in allowing the
violation of Section 75.202 ~--(}exist, Cunningham believed Peabody
to be guilty of moderate negligence rather than high negligence.
Cunningham believed that with the number of roof falls that had
occurred, Peabody should have been aware it needed to do more to
protect its miners from the dangers of the roof (Tr. 166) and
that "the company had the means there to correct the conditions."
Tr. 143.
William Dupree, a MSHA roof control supervisor, testified
that Rowlans told him the company had hired two geologists to
evaluate1 the subject roof conditions and that they had told
Rowlans that the area in wh~wwwcn the poor roof occurred was an old
washout. 4 After reviewing a mine map (G. Exh. 10), Dupree
testified that the No. 2 Unit was encompassed by this washout or
"bowl." Tr. 198, See also G. Exh. 10 (areas marked by Dupree in
blue and green). With regard to whether any precautions over and
above those required by the roof control plan had been taken by
Peabody prior to July 18,--Dupree testified that although one of
the roof fall reports telephoned to MSHA on June 12, 1991,
indicated that the compan;¥-had "Called in 2 Roof Specialists,
Narrowed Entry Width - Tightened Bolt Pattern" (G. Exh. 7 at 4),
on July 18 he did not see any evidence the width of the entries
had been narrowed to less than the 20 feet required by the roof
control plan. Tr. 204-205. When asked how wide the entries
wereu Dupree statedr 96 ! helped Cunningham measure some [of the
entries]. Some of them ~e%e22 to 23 feet wide and that would be
3 or 2 fee~ more than what the plan called for under normal
circumstan6es." Tr. 205. He also stated his understanding that
Gamlin had measured two areas-where the roof bolts were as much
as 10 feet apart. Tr. 205-206.
PEABODY 9 S WITNESSES

Safety Manager Paul Sparks confirmed that prior to
July 1991v the mine had experienced an unusually large number of
roof falls in the southwest main entries, although, at that time,
the roof falls were concentrated in an area outby the No. 2 Unit.

4The terms· "washout" and "bowl" were used to describe the same general area.
See Tr. 198, 202.
The Dictionary of Mining Mineral and Related Terms defines
"washout", inter alia, as "[b]arren, thin, or jumbled areas in coal seams." U.S.
Department of the Interier, DMMRT (1968) 1217.

1844

this increase in the number of roof falls was first noticed in
May. Tr. 243. Sparks stated that he had at least one
conversation with Inspector Gamlin -- a conversation at which
Mine Superintendent Rowlan was present -- about the possibility
of using a different kind of roof bolt (a 5-foot, fully-grouted
bolt) to better control the roof. Sparks had agreed with Gamlin
that a 5-foot, fully-grouted bolt would probably improve control
because it would keep air and moisture for getting into the roof.
However, according to Sparks, Rowlans was not able to approve a
trial use of fully-grout~d roof bolts because Rowlans' boss
insisted on use of 6-foot, point anchor bolts. sparks stated
that under most circumstances, the point anchor bolt was regarded
as the best roof bolt on the market. Tr. 214-215.
Sparks also stated that mine management knew that there was
a problem controlling the roof because of the "bowl" effect, and
he maintained that management was trying different things to
solve the problem. Tr. 216. Referring to a reported roof fall
that had occurred on June 12 (G. Exh. 8 at 4), Sparks explained
that as a result of the fallc it was recommended that, in
addition to adding extra roof support (roof bolts or timbers) to
the area in which the fall had occurred, Peabody arranged to have
geologists examine the area and advise mine management as to what
was causing the roof to fall. Tr. 217, 245-246. The geologists
came in mid-June and Sparks explained:
The geologist ran compaction tests on the
area as far as the immediate roof above the
main roof. And we found it took to water
exceptionally more that what you really want
it to . . . This roof was really susceptible
to water and it would expand once the
moisture got to
, and once it expands, it
has no other choice but to
11.
218. To help alleviate the problem, Sparks further
explained, the geologists suggested the roof bolt holes be sealed
to prevent moisture-laden air from seeping into the roof and that
the best way to accomplish this was to use fully-grouted roof
bolts. Peabody decided to install fully-grouted bolts
approximately one month after July 18. Tr. 221, 227-228. Once
installed the fully-grouted bolts resulted in, 81 a whole lot less
falls mainly because (they] did keep the air and water out."
Tr. 237.
Tro

According to Sparks, Peabody also installed truss bolts and
timbers along the main and submain belt entries. Sparks stated
that this was being done during July in some areas. Tr. 221-222.
The trussing and timbering was in addition to the requirements of
the roof control plan. Tr. 223.

1845

Sparks also stated that around the third week of June,
Rowlans told the foremen of the No. 1 Unit that until mining
advanced out from under the bad top they were to narrow entries
to 18 feet and they were to cut the entries 24 feet wide when the
continuous mining machine turned a crosscut. Tr. 256. Sparks
added that Rowlans had told the No. 2 Unit face foreman and
section foreman essentially the same thing the last week in June
or the first week in July. Tr. 224-225.
In addition, the
foremen were told to put extra bolts in the roof and truss it, if
the roof required such measures. Tr. 224. Nonetheless, Sparks
admitted that three separate roof fall injuries had occurred
after the instructions were given (one on July 9 and two on
July 11), all of which injuries he had reported to MSHA.
Tr. 263, G. Exh. 9.
Sparks testified that on July 18, while at the mine with the
inspection party, Rowlans told MSHA roof control specialist
Cunningham and MSHA roof control supervisor Dupree the things
Peabody had done to try to better control the roof.
"We talked
to them about the geologists and what they had found as far as
the moisture and the roof . .',. different things of that type."
Tr. 230. As for the implementation of roof control procedures,
Sparks stated that some of the entries had been narrowed, but
that some had places that were "a little wide." Tr. 231, See
also Tr. 257. Also, Sparks was uncertain whether there had been
any truss bolting on the No. 2 Unit. Tr. 234. As Sparks
explained, on July 18, the unit had only been in production
approximately one week and the miners who worked on the unit had
been laid off from the mine for three, four or five years. Sparks
explained, "We were getting back to more or less a learning
process which • • . it just takes you a little while to get the
feel of it again, especially as far as the miner or roof bolter
or anything. ii Tr. 231.
With regard to Cunningham 0 s statement on the citation form
oithat Peabody is trying different steps to control the roof, 11
(G. Exh. 5), Sparks maintained that it accurately reflected what
MSHA understood Peabody was doing. "[I]t's written exactly the
way it was. That 9 s the reason they gave us further time to
evaluate them." Tr. 236, See also Tr. 273. Sparks stated that
Inspector Cunningham was told about the steps Peabody had
undertaken before he went to the mine on July 18. Tr. 258.
In
addition, Sparks stated that when Cunningham issued the citation
he had told Cunningham that the specified remedial steps already
were taking place. Tr. 265.
Eugene Howard, face foreman on the No. 2 Unit, recalled that
at some point around the time of the miners' vacation he was told
to narrow the entries and corners and to tighten the roof bolting

1846

pattern. Tr. 278. 5 He stated that the No. 2 Unit had begun
production on July 8. Tr. 279. Howard also testified that he
had instructed his crew with regard to these roof control
procedures, but admitted that there were times when entries were
cut too wide and roof bolts were not properly spaced. Tr. 284285.
"Nobody's perfect," he stated. Tr. 285. He was of the
opinion that roof control procedures improved on the No. 2 Unit
as his crew gained more experience. Id. Howard agreed with
Sparks that the citation, as written by Inspector Cunningham,
contained procedures that Peabody had already put into effect.
Tr. 287.
THE VIOLATION

Section 75.202 states in pertinent part:
(a)
The roof face and ribs of area where persons work
or travel shall be supported or otherwise controlled to
protect persons from hazards related to falls of roof,
face or ribs and coal or rock bursts. 6
Issues of liability for violations of this standard, and more
particularly, for violations of the standard's requirement that
the roof and ribs be supported or otherwise controlled
adequately, are resolved by reference to whether a reasonably
prudent person, familiar with the mining industry and the
protective purpose of the standard, would have recognized that
the subject roof or ribs were not adequately supported or
otherwise controlled. Canon Coal Co., 9 FMSHRC 667, 668
(April 1987); Quinland Coals, Inc., 9 FMSHRC 1614, 1617-18
{September 1987); See Southern Ohio Coal Co., 10 FMSHRC 138, 141
(February 1988). Put another way, were the roof and ribs
adequately supported and 1 if notu were there any objective signs
extant prior to July 18 that would or should have alerted a
reasonable prudent person to the danger of the inadequately
supported roof in the cited area of the mine? Because I find
that the answer to the first question is "No" and that the answer
to the second is "Yes'', I conclude the Secretary has established
the existence of the violation.

5
Howard testified the miners' vacation was the last week of June or first
week of July. Tr. 225.

6

There are two subsections of Section 75.202.
Subsection (b) prohibits
persons from working or traveling under unsupported roof. The subject citation
does not specify which subsection was allegedly violated. However, as Counsel
for Peabody notes, no evidence was offered concerning work or travel under
unsupported roof. Peabody Br. 10. Clearly, the alleged violation pertains to
Section 75.202(a).

1847

Inspector Cunningham cited Peabody for "failing to control
the roof to protect persons from hazards related to falls of the
roof." G. Exh. 5. On July 18, the date he issued the subject
citation, mining was taking place in the No. 2 Unit, and, as his
testimony indicated and as Paul Sparks essentially agreed
(Tr. 212-214, 216), the area being mined was well within the
"bowl," the area of faulty roof that was subject to more than
ordinary instability and chance of fall.
Peabody argues that it was not given fair notice of the
requirements of the standard. See Peabody Br. 10-12. However,
given the unambiguous mandate of the standard that the roof,
face and ribs of areas where persons work or travel be supported
to protect those persons from hazards related to roof falls and
the backdrop against which the citation was issued -- a backdrop
of prior reported roof falls, reported minor injuries due to
those falls and a geographic area marked by unusually unstable
roof -- I cannot find that a reasonably prudent person familiar
with mining industry and the goal of the standard to protect
miners from roof fall injuries would have failed to recognized
the hazardous nature of the r'Oof and the resulting requirement to
consistently implement steps to provide adequate roof support.
Indeed, and as Peabody's witnesses attest, Peabody itself fully
recognized by mid-June the hazard to miners presented by the
increasing number of roof falls in the "bowl" area and decided to
seek the opinion of experts about the problem. Tr. 221. This
lead to a recommendation that fully-grouts roof bolts be used, a
recommendation that Peabody did not adopt until approximately
mid-August.
Id.
Further, I credit Paul Sparks testimony that Rowlans was
aware of the hazardous nature of the roof and told the foremen
to narrow the entries to 18 feet and, where crosscuts were
turned, to take 24 feet rather than 28 feet of coal. Tr. 225.
I also credit his testimony that Rowlans told the foreman to
tighten the bolting pattern. Tr. 256. 7 Further, I credit his
testimony that the supervisors on the No. 2 Unit were told to
install truss bolts as needed. Tr. 234. Howard, a foreman on
the No. 2 Unit confirmed that Rowlans instructed him regarding
the steps to take to better control the roof and "always 0 asked
him if he were following these instructions. Tr. 288.
I
therefore conclude that Peabody recognized the hazardous nature
of the roof on the No. 2 Unit and the resulting requirement to
consistently implement steps to provide adequate roof support.

7

These instructions were given to the foremen of the No. 1 Unit and No.2
Unit. While the subject citation pertains to the No. 2 Unit, the roof conditions
were essentially the same on both units. Sparks agreed that both units referred
to the same general area of the mine, Tr. 254, and as already noted, the roof
conditions caused by the "bowl" prevailed for both units.

1848

Peabody's problem with compliance lay not in recognizing the
hazard but in remedying it. The day before the subject violation
was issued Gamlin testified that he cited Peabody for instances
where the width of the entries and the bolting pattern did not
conform to the requirements of the roof control plan. Peabody
did not contest these citations. Thus, Peabody was not
consistently complying with its plan, let alone with the
additional measures that were necessary for adequate roof control
when mining in the "bowl" area.
When the subject citation was issued mining was continuing
in the"bowl" area, and Cunningham testified that he found loose
shale falling out between bolts, wide places being mined and bolt
spacing that was too wide and in excess of the approved roof
control plan. Tr. 131-132. I credit this testimony.
Further,
Cunningham's testimony was essentially unrefuted that he tried to
find recently cut entries that were 18 feet across and
intersections that were cut less than the plan required and that
he could not remember finding any.
Cunningham's testimony is
given added credence by the statements of Howard, Peabody's
foreman on the No. 2 Unit, wh'O cand-idly described his problems
getting the No. 2 Unit crew to comply with Rowlans instructions
regarding the roof control measures that they were to carry out.
Tr. 284-285.
In addition to Cunningham's testimony, I note
Dupree's statement that on June 18, he helped Cunningham measure
the entries and that some exceeded the width allowed by the plan.
Thus, there is ample evidence to establish that Peabody
consistently failed to implement those extra-plan measures, such
as further narrowing the entries and tightening the roof bolting
pattern, that all agreed were necessary given the prevailing roof
conditions.
I conclude; therefore, the Secretary has established that on
0uiy 18v 1991 and as alleged in Citation No. 3551088 Peabody
violated Section 75.202.

GRAVITY AND NEGLIGENCE

The sole issue contested by Peabody is the existence of the
violation.
Inspector Cunningham testified that he believed
Peabody 9 s failure to control the roof on the No. 2 Unit so as to
protect persons from the dangers of roof falls subjected miners
on the unit to injuries from falling loose roof, injuries that
could range from minor to fatal.
Tr. 171. Having found that
the violation existed, I fully credit the inspector 1 s opinion and
conclude that it was a very serious violation. 8

8As previously noted, the inspector also designated the violation as S&S.
Peabody does not dispute this finding.

1849

Peabody's own witnesses testified that for a considerable
time before it was cited Peabody was well aware of the
potentially hazardous roof conditions in the subject area.
Moreover, Foreman Howard knew he had a "rusty" crew under his
command on the No. 2 Unit, knowledge that warranted increased
diligence to insure compliance, diligence the violation belies.
I find therefore that Peabody negligently failed to control the
roof to protect persons on the No. 2 Unit from the hazard of roof
falls.
CIVIL PENALTY

The Secretary proposed a civil penalty of $74, which I
consider inadequate in view of the very serious nature of the
violation, Peabody's negligence and Peabody's stipulated large
size. Rather, I conclude that a civil penalty of $500 is
appropriate, and in so doing I take into account Peabody's
stipulated history of prior violations and rapid, good faith
abatement of the subject violation. While both are commendable,
they do not compensate for the gravity of the violation and
Peabody's negligence. Roof control is, after all, of singular
importance in protecting the safety of underground coal miners.
KENT 92-65

Mine Act
section

section 104(a)

citation No.

Date

30 C.F.R.

3416937

08/07/91

50.10

STIPULATIONS

At the hearing the parties stipulated as follows:
lo
The Martwick Minef annually produces one
million five hundred ninety thousand (1,590,000) tons
of coal;
2.
The Martwick Mine has an effect on interstate
commercep as that term is used in the Mine Act;
3.
The commission has jurisdiction to hear and decide
the case;

4.
During the 24 months immediately prior to the
subject violation there were 195 assessed violations
during the course of 388 inspection days.

See Tr. 5.

1850

DISCUSSION

The citation at issue arose out of an inspection of the
Martwick Mine conducted by MSHA Inspector Lendell Noffsinger on
August 7, 1991. During the course of the inspection, Noffsinger
determined that Peabody had failed to report a roof fall as
required by 30 C.F.R. § 50.10. 9 He further determined that an
injury was unlikely to result from the violation and that if an
injury did occur it would not result in lost workdays. He also
concluded that the violation was not S&S and that Peabody was
moderately negligent in failing to report the roof fall.
Subsequently, the Secretary proposed a $20 civil penalty for the
alleged violation.
The citation states in relevant part:
A roof fall has occurred in the No. 1 intake
on the No. 1 Unit . . . two crosscuts inby
spad No. 4918. The fall occurred either on
June 4 or June 5, 1991, timbers were set on
the 2nd shift June '5, 199"1. The fall was not
immediately reported to MSHA.
G. Exh. 1 10 Peabody's position is that the violation did not in
fact occur. The sole issue is whether the roof fall took place
in an area where miners are normally required to work or travel
and thus whether the roof fall was reportable.

930 C.F.R. § 50.10 states in part:
If an accident occurs, an operator shall immediately contact the MSHA
District or Subdistrict Office having jurisdiction over its mine.

30 C.F.R.

§

50.2(h)(B) defines an "accident" as:

An unplanned roof fall at or above the anchorage zone in active
workings where roof bolts are in use.

30 C.F.R.

S 75.2 defines "Active workings" as:

(A].ny place in a coal mine where miners are normally required to work
or travel.
10Noffsinger testified that he erred in writing June 4 and June 5, 1991,
that he had meant to write August 4 and August 5, 1991. Tr. 11-12, 25.

1851

THE TESTIMONY
THE SECRETARY'S WITNESS

Noffsinger stated that during the course of the August
7 inspection of the Martwick Mine he was asked by a miner whether
Peabody had reported a recent roof fall. When Noffsinger
responded "No," Noffsinger was asked to look at the area where
the fall had occurred. Noffsinger viewed the area and, because
the roof fall had not been reported, issued the subject citation.
Tr. 12.
Noffsinger stated that he observed the area of the roof fall
with Bob Gray, an MSHA trainee who accompanied Noffsinger on the
inspection. On the floor of the area he saw roof bolts and
fallen roof. He also saw a few 9-foot roof bolts that remained
in the roof but the roof had fallen out from around these bolts.
Tr. 13, 27. Noffsinger stated that the area around the fall had
been timbered in accordance with usual practice to keep the fall
area from spreading. Tr. 21-22, 23-29.
Noffsinger gave varying 'reasons why he believed the roof
fall should have been reported. He stated an unplanned roof fall
at or above the anchor zone of the roof bolts and in active
workings had to be reported, and he recited the regulatory
definition of active workings -- any place in a coal mine where
miners are normally required to work or travel. Tr. 13, 20.
Noffsinger agreed that the timbers were installed after the roof
fall and that such timbering around falls is a one-time activity,
but Noffsinger testified that he based his determination that the
fall had occurred in "active workings" on the fact that the
timbers had been set. Tr. 31.
Noffsinger also stated if the timbering had not taken place,
he still would have considered the roof fall to have occurred in
active workings and thus to be reportable. He explained that the
entry in which the fall had occurred was ventilated by intake air
and that he had spoken with his supervisor, Joe Parks, and with
MSHA roof control supervisor, Bill Dupree, before visiting the
area of the fall and they had indicated that where there are two
entries ventilated by intake
miners would normally travel in
1
one of the entrieso Tro 360 Thus, he believed the cited area to
have constituted "active workings," he stated, "because they
[meaning his two supervisors] said it was active workings."
Tr. 37"

Noffsinger also stated that he understood the definition of
"active workings" to mean that an area constitutes "active
workings if any work is ever done in an area or anyone ever
travels through the area". Tr. 32.

1852

Finally Noffsinger stated that for him not to have
considered the area where the fall occurred to be active
workings, the area would have had to be an abandoned area and to
have been sealed off so that people could not physically get to
it. Tr. 41.
PEABODY'S WITNESS

Steven Little, Safety Supervisor at the Martwick Mine,
testified on Peabody's behalf. Little identified Peabody's
Exhibit R-1 as a map that essentially depicts the panel where the
roof fall had occurred. As described by Little, at the time of
the fall there were five entries on the panel. Men and materials
reached the face area via the supply entry. Coal·was mined at
the faces, taken to the dumping point, transferred to a belt and
removed from the mine via the belt entry. The supply and belt
entries were immediately adjacent to one another and contained
neutral air. When facing inby there was a timbered return entry
to the immediate left of the supply entry. The return air in
this entry was kept separate from the neutral air of the supply
entry by permanent concrete J:5lock stoppings. When facing inby
and to the immediate right of the belt entry there was a timbered
entry that served as an escapeway. The intake air in this entry
was kept separate from the neutral air of the belt entry by
permanent concrete block stoppings. When facing inby and to the
immediate right of the intake escapeway was another timbered
intake entry. There were no stoppings separating these two
intake entries. Tr. 48-52, 61-62, See Exh. R-1. Little
maintained the intake escapeway was required to be examined on a
weekly basis but that the adjacent intake entry -- the entry in
which the roof fall occurred -- was not required to be examined
on a periodic basis and, in fact, was never required to be
examinedo Tro 54-550
Little acknowledged that once a roof fall occurs an operator
is required to support the area, if necessary, by setting timbers
and that once timbers have been set miners do not normally return
to work on them. Tr. 56. He indicated that miners working on an
unit would normally work and travel in the area where coal was
mined 9 an area away from the fall area 9 and that no other
employees at the Martwick Mine would ordinarily and on a routine
basis travel through the entry where the rock fall had occurred.
Tro 58, See Exho R-lo
During cross-examination, Little stated that in all
likelihood on August 5, the section foreman found the roof fall
and that to do so he would have had to be at least adjacent to
the fall, but Little would not say that the foreman had gone into
the area where the fall occurred. Little acknowledge that the
regulations in Part 75 require the weekly examination of an
intake air course, but because the regulations require that at
least one entry of each intake air course be examined and

1853

maintained Peabody had always examined the intake entry adjacent
to the one in which the fall occurred. Tr. 62-63. When asked
whether the intake entry where the fall occurred is ever
traveled, Little responded "No." When pressed with "Never?",
Little stated, "I can't say absolutely never, but it's not
regularly or normally traveled." Tr. 63. Little acknowledged
that following the fall no barricades were erected or signs
posted to prevent travel in the area where the fall had occurred,
but he maintained that any travel there would have been
inadvertent. Tr. 69. Taylor explained, "There's no way we can
continuously and constantly be with all the employees in the mine
to be sure that no one ever steps over there, but as a general
practice of mining, [the fall area is] not normally or ordinarily
traveled or worked in." Id.
Finally, Little stated his opinion that the area where the
fall had occurred was not a "working face", "working place",
"working section" nor an "abandoned area", as those terms are
defined in 30 C.F.R. § 75.2. Tr. 63-65.
THE VIOLATION

The Secretary bears the burden of proving that the alleged
violation existed.
In order to determine whether the Secretary
has met that burden, it is appropriate to first analyze the
wording of the pertinent regulations at issue, for it is this
language that imposes the mandatory requirements with which an
operator must comply. Here, the applicable language is
unambiguous. Section 50.10 requires an operator to immediately
contact the MSHA District or Subdistrict office "[i]f an accident
occurs." As has been previously noted, the meaning of "accident"
is defined in pertinent part. as "[a]n unplanned roof fall at or
above the anchorage zone in active workings where roof bolts are
use." There is no dispute that the roof fall occurring on
August 4 or August Sp 199lv was nat or above the anchorage zone
where roof bolts [were] in use" and that Peabody did not
Himmediately contact the MSHA District or Subdistrict Office"
when the fall occurred. The question is whether the fall
occurred in "active workings"?
Section 75.2(g) (4) of the regulationsv consistent with
Section 318(g) (4) of the Act 1 30 U.S.C. § 878 (a) (4), defines
"active workings" as iiany place in a coal mine where miners are
normally required to work or travel." Boiled down to its
simplest terms, the question is whether the Secretary proved that
miners are 11 normally required to work or travel" where the roof
fall occurred? I conclude that she did not.
The Secretary chose to prove the violation solely trough the
testimony of Inspector Noffsinger. It is clear to me that he was
confused as to why he found a violation of Section 50.20.
Initially, he stated that he had issued the citation because

1854

Peabody personnel had set timbers around the fall area. Tr. 31.
He explained this line of reasoning by indicating that if any
work is ever done in an area or if anyone ever travels through
an area, the area constitutes active workings. The problem
with this interpretation of "active workings" is that
Section 75.2(g) (4) does not state that "active workings" are any
place where miners are ever required to work or--travel, ,but
rather that "active workings" are where miners are normally
required to_workor travel. By modifying the requirement for
work or travel w:Lth the adverb "normally," the Secretary in
promulgating the regulation signaled that "active workings" are
those places where miners are required constantly or periodically
or with a certain degree of frequency to work or travel. The
record in this case simply will not support a finding that miners
constantly, periodically or with any degree of frequency worked
or traveled in the area where the fall occurred.
Indeed, the
evidence is quite to the contrary.
Inspector Noffsinger testified that timbering around falls
is usually a one-time activity. Tr. 31. Safety Director Little
agreed, stating that once such timbers are set miners do not
return to work on them. Tr. 56. Moreover, Little's testimony
that miners working on the No. 1 Unit would usually work and
travel where coal was mined -- an area some distance for the
entry in which the roof fell -- and that no other Peabody
employees would ordinarily or on a routine basis pass through the
roof fall area was essentially undisputed, as was Little's
opinion that weekly examinations were not required for the entry
where the fall occurred and that the entry was never examined or
traveled on a regular basis. Tr. 62-63. Further, although
Little acknowledged that it was likely the section foreman had
found the fall, Little's statement that he could not say the
foreman went into the subject entry when he found it does not
prove normal work or travel or provide a basis from which normal
work or t.ravel can-be inferred. 11

l!The Secretary argues that in order to ascertain that a roof fall occurred
the section foreman would have to have traveled in the area of the fall, but
Little's supposition that the foreman could have been in the entry adjacent to
the fall rather than in the entry in which it occurred seems more reasonable.
It is hard to imagine the foreman putting-himself purposefully under an area of
roof that had fallen and whose edges had not yet been supported. Of course, as
the Secretary notes, the foreman did not testify, and although the Secretary
requests that I be aware that the foreman "was conveniently absent from the
hearing" (Sec. Br. 8), I can hardly draw an inference adverse to Peabody from his
absence since the Secretary herself did not initiate pre-trial discovery
regarding the foreman nor seek to compel his testimony.
Perhaps it bears
repeating that it is the Secretary's burden to prove the alleged violation, not
the operator's.

1855

The Secretary argues that Little's opinion that the area was
not a "working face," "working place," "working section" or
"abandoned area" leaves active workings as the only way to define
the area.
Sec. Br. 6. As Peabody's counsel notes, the problem
with this argument is that it assumes that such definitions are
intended to encompass the entire mine.
Peabody Br. 7. They are
not. Rather, I agree with Peabody's counsel that definitions are
provided for those terms that are used in the mandatory safety
standards and which require definition. The definitions are not
intended to provide an exhaustive classification of all areas of
the mine, which leads back to the issue at hand -- whether, on
the basis of this record, the Secretary proved that the roof fall
occurred where miners normally are required to work or travel?
For the reasons stated above, I find that she did not. 12
ORDER

In light of my approval of the proposed settlements and my
conclusions regarding the contested violations, I enter the
following order:
KENT 92-42

Peabody is ordered to pay a civil penalty of
violation of Section 75.316 cited in Citation No.
Peabody also is ordered to pay a civil penalty of
violation of Section 75.202 cited in Citation No.

$20 for the
3548678.
$500 for the
3551088.

KENT 92-56

Peabody is ordered to pay a civil penalty of $227 for the
violation of Section 75.507 cited in Citation No. 3551054. The
Secretary
ordered to modify Citation No. 3551054 by deleting
inspector~s S&S finding.
JltENT 92-65

Peabody is ordered to pay a civil penalty of $192 for the
violation of Section 75.1710-1 cited in Citation No. 3416929, and
the Secretary is ordered to modify the citation by deleting the
inspector~s S&S finding.
Peabody is also ordered to pay a civil
penalty of $126 for the violation of Section 75.1107-16(b) cited

12

The Secretary also asserts that pursuant to 30 C.F.R. S 75.402 and
30 C.F.R. S 75.403 Peabody employees would have had to travel into the entry
where the fall occurred to ascertain the incombustible content of rock dust that
regulations require to be applied and maintained. Sec. Br. 7. Regardless of its
hypothetical merits, this argument has no support in the record.
Not one word
of testimony or documentary evidence was offered regarding it.

1856

citation No. 3548484, and the Secretary is ordered to modify the
citation by deleting the inspector's S&S finding.
Finally, the
Secretary is ordered to vacate Citation No. 3416937.
Peabody shall pay the civil penalties and the Secretary
shall modify and vacate the referenced citations within thirty
(30) days of the date of this Decision and, upon receipt of
payment, these matters are dismissed.

_])vi.//. d f [Jw.beu/L-

David F. Barbour
Administrative Law Judge
(703) 756-5232

Distribution:
W.F. Taylor, Esq., Office of the Solicitor, U.S. Department of
Labor, 2002 Richard Jones Roa'd, suite B-201, Nashville, TN 37215
(Certified Mail)
David Joest, Esq., Peabody Coal company, 1951 Barrett Court, P.O.
Box 1990, Henderson, KY 42420-1990
\epy

1857

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

22041

DISCRIMINATION PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF CLAYTON NANTZ,
Complainant

Docket No. KENT 92-259-D
BARB CD 91-24

v.
Gray's Ridge Job
NALLY & HAMILTON ENTERPRISES,
INCORPORATED,
Respondent
DECISION
Appearances:

MaryBeth Bernui, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
for the Complainant;
David o. Smith, Esq., Marcia A. Smith, Esq.,
Corbin, Kentucky, for the Respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns a complaint of alleged
discrimination filed by the Secretary of Labor against the
respondent pursuant to section 105(c) (2) of the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. 815(c) (2). The
complaint was filed on behalf of Clayton Nantz, a former employee
of the respondent who claims that he was discharged on or about
April 16, 1991, because he refused to continue to operate a
bulldozer that had the back window broken out, a condition which
he believed constituted a hazard to his health and safetyo
The respondent filed a timely answer denying any
discrimination, and contending that Mr. Nantz voluntarily quit
his job.
In its defense, the respondent asserted that the
refusal by Mr. Nantz to continue to operate the bulldozer in
question was not based upon a good faith reasonable belief that
his health or safety were threatened. The respondent also
contended that the initial complaint, and the amended complaint
seeking a civil penalty assessment for the alleged violation of
section 105(c) of the Act, were not timely filed as required by
the Act and the Commission's Rules.

1858

A hearing was held in Cumberland Gap, Tennessee, and the
parties filed posthearing briefs. I have considered their
respective arguments in the course of my adjudication of this
matter.
Issues
The issues is this case include the following:
(1) whether
the complainant was engaged in protected activity when he
complained about the bulldozer in question and refused to operate
it because he believed it was unsafe; (2) whether his work
refusal was reasonable; (3) whether he timely communicated his
safety complaints to mine management; and (4) Whether he quit or
was fired from his job. Additional issues raised by the parties
are identified and disposed of in the course of the this
decision.
Applicable Statutory and Regulatory Provisions
The Federal Mine Sa~E:tY and Health Act of 1977,
30 u.s.c. § 301, et seg.

1.

2. Sections 105(c) (1), (2) and (3) and llO(a) and (d) of
the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§ § 815 ( c) ( 1) , ( 2 ) and ( 3 ) .
3.

Commission Rules, 29 C.F.R.

§

2700.1, et seg.

Stipulations
The parties stipulated to the following (Exhibit J-1):
Commission has jurisdiction in this mattero
respondentu a Kentucky Corporation, engaged in the
production of coalu and is therefore an "operator" as
defined by the Act.
respondent 1 s Gray 1 s Ridge Job Mine, is a surface
u the products of which enter commerce within the
meaning of the Acto
3o

During the year 1990u the Gray 1 s Ridge Job Mine produced
203,536 tons of coal, and the respondent corporation, as
controller, produced 856,573 tons of coal in 1990.
4o

5o
Clayton Nantz was employed by the respondent as a
bulldozer operator at its Gray's Ridge Job Mine, and is a
"miner" within the meaning of the Act.

6. At the time he ceased to be employed by the respondent,
Clayton Nantz was being paid at the rate of $10.50 per hour

1859

for regular hours worked and $15.75 per hour for overtime
hours worked.
The Complainant's Testimony and Evidence
Clayton Nantz testified that he was employed by the
respondent on two or three occasions and that his most recent
employment period was from June, 1990, to April 16, 1991. He
stated that he has worked in the mining industry for 18 years as
a heavy equipment operator, including dozers, loaders, and
drills. He was laid off on the previous occasions because he had
less seniority and that during his last period of employment with
the respondent he operated a 08-L bulldozer, with an enclosed
cab, and he described his duties (Tr. 11-14). Mr. Nantz stated
that he was paid a regular rate of $10.50 an hour, and $15.75 an
hour for overtime, and that he worked, five and six days a week,
10 hours a day. The regular work week was 40-hours, and anything
over that was overtime. He worked the second shift from
3:30 p.m. to 3:30 a.m., moving dirt and rocks with the bulldozer
(Tr. 13-15).
Mr. Nantz stated that the back window of his bulldozer was
knocked out when a truck backed into the machine during the day
shift and he was not at work when this occurred. Mr. Nantz
stated that his shift foreman Henderson "Hen" Farley informed him
that the window had been broken out and that he would have it
replaced. The missing window resulted in problems which
Mr. Nantz described as "choking, dust coming in, smothering
headaches, just couldn't see" and he explained that the dust
generated by the trucks when materials were dumped made it
difficult for him to see the trucks backing in to him and that
before the window was knocked out "the dust wasn't near as bad"
(Tr o

17} o

Mro Nantz stated that foreman Farley was on the job for
approximately one week before he left for another job. However,
during the week that Mr. Farley served as foreman Mr. Nantz
stated that he complained to him two or three times about the
broken window and that Mro Farley told him that "We 1 l l try to get
itu he said he 0 d get a glass ordered to put it in 10 (Tro 18) o
Mro Nantz confirmed that the window was not fixed when Mr. Farley
left the job (Tro 19) o
Mro Nantz stated that Wayne Fisher took over as foreman
after Mr. Farley leftu and that he complained to Mr. Fisher on "a
regular basis every other day or so 11 about the broken window and
informed him that "I couldn't stand the dust and the choking,
smothering, gagging and going on from the dust" (Tr. 20).
Mr. Nantz stated that he wanted the window fixed "Because the
dust was so bad, it got in there and it just, you know, I
couldn't breath.
It was choking me to death, I was smothering,
and it was causing me, you know, health problems, damage, I

1860

couldn't take itn (Tr. 21). He also stated that he continued
having problems seeing the trucks and that Mr. Fisher assured him
that the window would be fixed (Tr. 20-21).
Mr. Nantz stated that four weeks passed from the time the
window was broken out and the last night of his employment when
he was discharged (Tr. 21-22). He described his appearance after
his work shift both before and after the window was knocked out,
and he stated that the water truck had a mechanical problem and
was not operated after the dozer window was broken out (Tr. 23).
Mr. Nantz stated that when he reported for work on April 16,
1991, he asked Mr. Fisher if the window had been repaired and
Mr. Fisher informed him that it had not. Mr. Nantz then informed
Mr. Fisher that he did not want to operate the machine in the
dust with the window broken out and asked for other work.
Mr. Fisher informed him that he had no other bulldozers and
suggested that Mr. Nantz might be able to operate a loader for an
hour or so, but that he would then have to operate the dozer with
the broken window. Mr. Nantz then informed Mr. Fisher that he
did not want to operate the ~qzer in the dust and gave Mr. Fisher
his phone number and asked him to call him when the window was
replaced because he did not want to operate the dozer without a
window because "it was just so dusty, I couldn't breathe, I
couldn't take it" (Tr. 26).
Mr. Nantz stated that he next returned to the mine one or
two nights later and again asked Mr. Fisher if the window had
been repaired. Mr. Fisher informed him that the window was not
repaired and stated "The dozer's out there, do you want to run it
like it is?" and "Either run it like it is or go to the house.
You're fired it you don't run it" (Tr. 27-28). Mr. Nantz stated
that he then picked up his check and went home and Mr. Fisher
never called to tell him that the dozer had been repaired
{Tro 27)
o

Mr. Nantz stated that after his last eveningvs employment
with the respondent he looked for other work and he explained his
efforts in this regard and confirmed that he found other work
(Tr. 27-30)0 He also confirmed that his hospitalization
benefits ended when he was discharged by the respondent and that
he has incurred medical expenses since that time (Tro 30-31).
On cross-examination, Mro Nantz testified about his prior
employment and earnings with the respondent (Tr. 31-33).
Mro Nantz confirmed that he has operated an open cab dozer for at
least nine years and that he would be exposed to dust while
operating such a dozer. He stated that an enclosed cab is more
comfortable because of the air conditioning and heating. He
confirmed that he wore dust masks while operating equipment
without a cab enclosure (Tr. 34-37).

1861

Mr. Nantz explained the work that he was doing with the
dozer in April 1991, and he confirmed that he had operated the
machine with the doors open when the batteries overcharged and
the doors would not stay shut, or when the air conditioning was
putting out hot air. He explained that he would strap the doors
together and denied that he ever operated the machine in dust
with the doors open. Mr. Nantz could not recall that he ever
told Mr. Farley that he strapped the doors open because he could
not stand to be enclosed in the cab, but he stated that "I could
have said that I don't like to be housed up, you know, when the
heater's hot or something, maybe I said something like that, but
I don't know" (Tr. 40-42).
Mr. Nantz stated that except for a possible absence for
illness he never "laid off" or missed work during the time the
window was broken because of any dusty conditions, and he stated
that "You didn't lay off up there, if you did, you didn't have a
job" (Tr. 42-43). Mr. Nantz confirmed that he never made any
notes of the specific days that he asked Mr. Farley about the
broken window, and that he did not document the specific number
of days that the window was broken out of the machine (Tr. 44).
Mr. Nantz further confirmed that when his deposition was taken he
stated that the window was out three to four nights before
Mr. Farley left, but that he was not positive about this and that
it may have been out for four to seven days before Mr. Farley
left. Mr. Nantz also stated that Mr. Fisher was on the job for
two weeks while he operated the dozer with the broken window
(Tr. 45-48).
Mr. Nantz confirmed that he filed a worker's compensation
claim for silicosis on May 24, 1991, against the respondent
claiming that he was totally .and permanently disabled and unable
to workp but that his claim was denied (Tro 49-55• Exhibits R-2
through R-4)o Mro Nantz further testified about his subsequent
employmentsp and he also confirmed that he drew some unemployment
benefits (Tro 56-63)0 Mro Nantz stated that during his
employment with the respondent he worked a fifty-hour regular
weekp and eight or eight and one-half hours on Saturday
(Tr 64-66)
o

o

Mro Nantz described the damage sustained by the dozer window
when it was knocked out. He stated that there was 11 very little"
frame damagev and he confirmed that within a day or two after the
window was damaged the mechanics ndone what they could do" to
straighten out the frame so that the glass would fit back in. He
believed that the mechanics on the job replaced the window, but
he did not know when this was done. Mr. Nantz confirmed that the
frame was straightened out while Mr.
Farley was still on the
job, and while it was not perfect, he believed that it would have
held a new window in place
(Tr. 68) •

1862

Mr. Nantz believed that he initially refused to operate the
bulldozer during his second shift on Monday, April 15, 1991, and
that he spoke to Mr. Fisher that evening. Mr. Nantz confirmed
that Mr. Fisher offered to let him run a highlift for an hour and
one-half 1 and he also offered to water his work area with one
load of water. Mr. Nantz characterized one load of water as
"like pouring a cup of coffee out in that much dust" (Tr. 70).
Mr. Fisher also mentioned the use of clear plastic over the back
window area of the dozer, but Mr. Nantz indicated that he had
tried this at another mining operation and could not see through
the plastic material, particularly at night with rain and muddy
conditions. He also indicated that he did like plexiglass
because it gets scratched up, and with the accumulated dust, he
cannot see through it (Tr. 70-72) Mr. Nantz stated that he did
not request a dust mask or ear plugs because he thought the
broken window would be replaced (Tr. 73). Mr. Nantz further
explained his refusal to operate the dozer as follows at
(Tr. 74-75):
A. (Interposing) I wasn!tgoing to operate in that kind of
dust, I couldn't take it, you know, it was just like turning
a blower in your face when them trucks come back through
there and fan that dust, and there was no way I could live
and stand that.
Q.

But you used these dust masks on other jobs?

A.

There was never dust on other jobs like that.

Q.

This is the dustiest job in your twenty (20) years?

A. We always used trucks on this job, on the other jobs,
nobody hardly ever used over one (1) truck years ago. And
this job had a lot of rubber tired equipment, and they moved
more dirt more than any other job I ever seed, because it
had more trucks.
Q.

Wellu there's two (2) trucks up there wasn't there?

A. Yeah 1 but everybody else I ever have worked foru would
haul maybe a mile down the road and dump into a fill.

Now, you could have operated the 980 loader that they
offered to you; couldnvt you?

Q.

A.

For an hour and a half.

Q.

But you didn't want to do that?

1863

A. Not get back out in that dozer, not the rest of the
night, eight (8) hours in that dust.
Q. And you didn't want to -- you weren't interested in them
watering the area with a water truck?

A.

One load wouldn't have even reached to me.

Mr. Nantz confirmed that sometime in June or July, 1991, he
spoke with Mr. Farley at the respondent's Leatherwood strip
mining operation, and that Mr. Farley had called and asked him to
come and look the job over. Mr. Nantz stated that Mr. Farley
asked him if he would like to go back to work running a 010
dozer, and indicated that he would speak with the respondent's
owner, Tommy Hamilton, about it. Mr. Nantz stated that he
informed Mr. Farley that he would go back to work if the
respondent paid his back wages, but that Mr. Farley never
contacted him again. Mr. Nantz confirmed that he was willing to
return to work if he received his back pay (Tr. 77-80; 82-83).
Mr. Nantz stated that during April 1991, he could not recall
that the water truck was operating in the "fill area on top of
the hill", and that during the entire time the dozer window was
missing Mr. Farley and Mr. Fisher did not have the water truck
operating around the dozer (Tr. 81). Mr. Nantz stated that he
worked in the dust "going into the fourth week" and that he did
not use a dust mask because "every day they was telling me we was
going to get a window put in - - we're going to get a window put
in.
I kept waiting every day to get my window put in, why would
I need a dust mask? If my window was in, I wouldn't have no
problem" (Tr. 81-82).
Mr. Nantz stated that when he left the respondent 9 s
employment on April 16u 199lu the dozer window was still missing
and he had no idea as to whether it was ever repaired, and he
believed that the dozer was sold (Tr. 84). He confirmed that he
did not want to operate the endloader for an hour and one-half as
offered by Mr. Fisher because he would have had to go back and
operate the dozer with the missing window and he did not want to
operate it in the dust (Tr. 84). He further explained as follows
at (Tr. 92-93) ~
Q.
Okayu and you told them that you were available to work
and that you would operate any other piece of equipment?

A.

I told the foreman that.

Q.

Okay.

But you would not operate the 980 loader?

A. That was only for one (1) hour, or something, until the
guy got ready to use it. I mean, I wasn't going to get to

1864

use it a shift, just one {l) hour, and then I'd have to go
back and start eating dust again.
Mr. Nantz confirmed that the mine is a non-union operation,
and that he was not aware of any MSHA inspection of the dozer
after the truck backed into it {Tr. 86). Mr. Nantz confirmed
that he never spoke to Mr. Tommy Henderson about the missing
dozer window, and that he was unable to speak to mine
superintendent Chuch Brock about the matter because he would
leave work in the evening when he (Nantz) began his work shift.
Mr. Nantz further confirmed that he only spoke to foremen Farley
and Fisher and they indicated that they would speak to higher
management about the matter. He also confirmed that he had never
filed any previous safety complaints against the respondent
(Tr. 90-91).
Ronnie L. Napier 1 testified that he has been employed by the
respondent for approximately 12 years. He stated that in April,
1991, he worked the second SQ~ft from 5:00 p.m. to 3:30 a.m. with
Mr. Nantz, and that he operated an endloader. Mr. Napier
confirmed that he has known Mr. Nantz since grade school and that
they drove to work together. He worked with Mr. Nantz on the
second shift for six or seven months before Mr. Nantz left on
April 16, 199L
Mr. Napier stated that he observed that the back window on
the bulldozer that Mr. Nantz operated was broken out, and that it
was in this condition for "a couple of weeks or more" before
Mr. Nantz left. Mr. Napier stated that he heard Mr. Nantz ask
shift foreman Wayne Fisher "a couple of times" about when the
window would be replaced, and he also heard him complain to
Mro Fisher about the dusto Mro Napier stated that he noticed a
difference in Mro Nantz 1 s appearance before and after the
bulldozer window was broken outo He confirmed that Mr. Nantz
appeared clean before the window was out 0 but he was dusty and
dirty after operating the machine with the missing window.
Mro Napier stated that he worked with Mro Nantz on the last
evening of his employment on April 16u 1991u and Mro Nantz asked
Mro Fisher
the window had been replaced, and Mro Fisher
informed him that it had not. Mr. Nantz then asked Mr. Fisher if
there was other equipment that he could operate and Mr. Fisher
replied Gino 9n. Mr Nantz then gave Mr. Fisher his telephone
number and asked him to call him when the window was fixed.
Mr. Nantz then left after stating that he "couldn't eat anymore
dust 11 o The window was repaired 3 or 4 evenings after Mr. Nantz
left, and Mr. Napier never observed Mr. Nantz operate the dozer
after the window was replaced (Tr. 94-102).
o

1865

on cross-examination, Mr. Napier stated that he did not see
Mr. Nantz when he returned to the job site to pick up his check
on April 17u 1991, and he never heard Mr. Fisher offer to let
Mr. Nantz operate a 980 loader instead of the dozer with the
missing window. Mr. Napier could not state that he ever heard
Mr. Fisher offer to cover the broken window area with plastic.
Harold Farler testified that he has been employed by the
respondent for four years as a mechanic, truck driver, and
service man fueling, oiling, and greasing equipment. He worked
the same shift with Mr. Nantz during his last employment at the
mine, and he rode to work with Mr. Nantz and Mr. Napier.
Mr. Farler stated that Mr. Nantz complained to him about the
missing bulldozer back window and also complained that the dust
was so bad that ~e couldn't stand it. Mr. Farler stated that
Mr. Nantz also complained to Mr. Napier, and he did not know
whether he complained to anyone else. Mr. Farler stated that
Mr. Nantz did not appear dirtier after work when the dozer window
was not broken out, but after, it was broken out, Mr. Nantz had
dust all over him and he appeared "muddy" (Tr. 110-115).
Mr. Farler believed that the dozer window was missing "going
on the fourth week" before Mr. Nantz left the job.

Mr. Farler did not ride to work with Mr. Nantz on the last
evening of his employment, but he was present during that shift.
Mr. Farler did not hear the conversation between Mr. Nantz and
Mr. Fisher on the evening that Mr. Nantz left the job, but he did
hear Mr. Nantz complain to Mr. Fisher about the missing window,
and he heard Mr. Nantz tell Mr. Fisher that the dust was so bad
that he could not stand it. The dozer with the missing window
was operated for three more shifts before it was repaired.
Mro Farler never observed Mr. Nantz operate the dozer after the
window was replaced (Tr. 116-118).
On cross-examinationv Mr. Farler stated that on the evening
before Mr. Nantz left the site on Tuesday, April 16, 1991,
Mro Nantz told him that he was going to work and if the window
was not replaced he would seek some other work to do. Mr. Farler
stated t.hat Mro Nantz operated the bulldozer on Mondayf April 15,
1991 9 and that Tuesdayv April 16v 1991, was the first time he did
not operate it. The dozer nsat for three nights" before a new
man came in to operate ito

Mro Farler could not recall if any repairs were started on
the dozer before Mr. Nantz left and he did not know if any
mechanics were working on the window frame. Mr. Farler stated
that Mro Fisher told him that the two water trucks at the site
°'were down", but he could not recall when this occurred.
Mr. Farler stated that the water trucks did not operate during
April (Tr. 119-123).

1866

Mr. Farler stated that he rode home with Mr. Fisher after
work on the evening that Mr. Nantz left the mine and that
Mr. Fisher told him that "he hated to let Clayton go because he
was a good worker" and that after informing Lewis Hamilton, the
day shift supervisor and foreman, on the radio that Mr. Nantz did
not want to operate the bulldozer with the window out of it,
Mr. Hamilton told him (Fisher) "to cut him loose, let him go, he
couldn't let him by with that. If he did, all the other men
would gripe" (Tr. 124-126).
Daniel Belcher testified that he has worked for the
respondent for tour years and that he works on the evening shift
from 6:00 p.m. to 4:30 a.m. operating an endloader. He worked
with Mr. Nantz on the same shift for approximately a year.
Mr. Belcher believed that the dozer back window operated by
Mr. Nantz was missing for about three weeks before Mr. Nantz
left, and that Mr. Nantz complained about the missing window and
the dust.
Mr. Belcher stated that Jie. heard Mr. Nantz complain to his
shift foreman Wayne Fisher about the missing dozer window and the
dust, and Mr. Nantz asked Mr. Fisher when the window would be
replaced.
Mr. Belcher stated that on the evenings that he drove
a truck when Mr, Nantz was pushing fill material with the dozer
with the missing window, the conditions were dusty. Mr. Belcher
stated that he asked Mr. Fisher to speak with Mr. Nantz about the
dust "getting so bad" and informed him that Mr. Nantz might quit
because of these conditions. Mr. Belcher confirmed that he heard
Mr. Nantz speak with Mr. Fisher about the missing window on the
last night that he worked and that after Mr. Fisher told
Mr. Nantz that the window had not been replaced Mr. Nantz wanted
to know if another machine, or work in the shop, was available
and Mro Fisher stated that "he didn 1 t have anything 11
Mr. Nantz
then gave Mro Fisher his telephone number and told him to call
him when the window was repaired. Mr. Belcher recalled that the
window was broken out for 01 around three weeks or something"
before Mro Nantz is last night of employment. Mr. Belcher stated
that during the time the window was broken he operated the water
truck two or three times spreading one load of water in the fill
area each time (Tr. 128-136).
o

On cross examination, Mr. Belcher confirmed that the water
truck was og a pretty good sized truck" u but he was not sure of
the tank capacity. He also believed that Mro Fisher operated the
water truck during the time the dozer window was broken out, and
he remembered only one water truck, but indicated that there may
have been two. He confirmed that Mr. Fisher offered to let
Mr. Nantz operate the 980 loader while he (Belcher) operated the
water truck to water the fill area. Mr. Belcher "guessed" that
Mr. Nantz did not want to operate the loader, but he did not know
what Mr. Nantz may have told Mr. Fisher in response to his offer.
Mr. Belcher stated that he had no need for the loader for two

1867

hours, but as soon he completed the watering task, and cleaning
coal, he would have resumed operating the loader for the
remainder of his shift (Tr. 136-140).
Mr. Belcher could not recall any conversation between
Mr. Nantz and Mr. Fisher concerning the use of plastic over the
dozer back window or the use of a dust mask. He confirmed that
dust masks were available on the job and that some of the drill
men use them and some do not. Mr. Belcher confirmed that he does
not use a dust mask because his highlift has an enclosed cab
(Tr. 141).
Johnnie Moore, testified that he previously worked for the
respondent from 1980 to 1991, and that he was employed as a first
shift mechanic in April, 1991. He knew Mr. Nantz as an evening
shift bulldozer operator. Mr. Moore stated that he performed
repair work on the 08 dozer operated by Mr. Nantz and he observed
that the rear window was missing but he did not know how long it
was missing.
Mr. Moore stated that he was working at the mine the last
evening that Mr. Nantz worked and that he overheard a
conversation over the company radio in his tool truck between the
night shift foreman, who he knew by his nickname "Fish", and
Mr. Lewis Hamilton, and he recalled the conversation as follows
(Tr. 146-147):
A. This has been over a year ago. He just told Lewis that
Clayton had refused to run the dozer on the count of the
window being out of it, and that if he had anything else for
him to do he would do it, but he didn't have anything else
for him to do. And Clayton went onto the house, I reckon,
and he told Lewis that he had another manff that he could
bring in another man tomorrow night to run the dozer if he
wanted him to.
Q.

Did Mr. Hamilton say a reply to that?

Ac

He told him whatever he wanted to do"

Nowu that night that you heard the conversation on the
radiou was the back window still out of the bulldozer, at
that time?

Qo

A.

Yes.

Mr. Moore stated that a week or so later, his shift foreman
Charles Brock instructed him to help "the window people" install
a new window on the dozer that Mr. Nantz refused to operate.

1868

Mr. Moore stated that the window frame had not been straightened
out prior to this time, and that it took him an hour or two to do
this work, and that the window was then installed in an hour
(Tr. 147-148).
On cross-examination, Mr. Moore stated that Mr. Brock
instructed him to straighten out the dozer window frame "a couple
of weeks" after Mr. Nantz left the job. Mr. Moore stated that
the dozer may have had a cracked door window and that a small
side window was also missing. He did not know if anyone else
worked on the window frame before he did, and he reiterated that
he and a welder worked on it after Mr. Nantz left the job. He
stated that the window was replaced by the Bell Glass Company at
the mine site, and that this is the way that broken windows were
always repaired. Mr. Moore stated that during the radio
conversation that he heard between Mr. Fisher and Mr. Hamilton,
he did not recall Mr. Hamilton say anything about firing
Mr. Nantz (Tr. 149-153).
Karen Nantz, the complainant's wife, testified that her
husband has worked for the respondent on several occasions, and
that he last worked for the respondent from July, 1990, to
April 16, 1991. Mrs. Nantz stated that her husband was always
dirty when he came home from work, which was not unusual, but she
noticed a change in his appearance sometime in mid-March of 1991.
She stated that he would be 11 caked with dust", and his clothes
and lunch bucket were filled with thick dust, which was "blueGrayish" in color (Tr. 153-156).
On cross-examination, Mrs. Nantz stated that when her
husband worked for other coal companies, and when he operated a
drill, his appearance was not as dusty and she did not notice as
much dust on his clothing. She did not know whether her husband
wore a dust mask.
to operating the dozer with the broken
window her husband was never Ilncakeanu with dustv and the dust did
not cover his nose mouthp and hair. She acknowledged that
ilngetting dirtyn was normal on strip mining jobs.
In response to questions concerning certain medical expenses
incurred by her husband after he left the respondent 1 s
employmentv Mro Nantz confirmed that the medical bills shown in
exhibits C-13 9 C=14v and C-15v were for treatment her son and
daughter received as the result of an accident in a four-wheel
vehicle which was not covered by insurance. She also confirmed
that a bill for $18.79 (exhibit C-6) was for medication for her
husband for pleurisy (Tr. 156-162)0
MSHA Special Investigator Ronnie Brock testified that he
conducted the investigation of Mr. Nantz's complaint, and he
confirmed that he prepared a back-pay computation based on the
information supplied to him by Mr. Nantz and his wife

1869

(Exhibit C-1) (Tr. 162-169). Mr. Brock also confirmed that he
did not document all of Mr. Nantz•s employments subsequent to his
termination, did not verify through company records the claimed
hours of regular and overtime pay by Mr. Nantz when he worked for
the respondent, and that he did not ask Mr. Nantz about any
unemployment payments or workers compensation benefits.
Mr. Brock further confirmed that his investigation did not
disclose any citations issued to the respondent as a result of
the broken bulldozer window, and that there was no MSHA
regulation requiring an enclosed cab for a bulldozer (Tr. 170,
182-188).

Respondent's Testimony and Evidence
Louis Hamilton testified that he is employed by the
respondent as the mine superintendent and that he served in that
position in April, 1991, and was familiar with the mining
operation where Mr. Nantz was employed at that time. He
confirmed that Henderson Farley was the second shift foreman, and
after he was moved to the Leatherwood operation, Wayne Fisher
became the foreman. Mr. Hamilton identified Exhibit R-5 as
summaries of Mr. Nantz's earnings and hours worked during 1991,
and he confirmed that the information was provided to him by the
company payroll clerk. Mr. Hamilton confirmed that the normal
work week is 50 hours, excluding any Saturday work, and that any
work over 40 hours is considered overtime (Tr. 189-197).
Mr. Hamilton stated that the window on the bulldozer in
question was broken out when a truck backed into it bending the
frame. The frame needed to be straightened, and some welding
work was required before the window glass could be replaced. The
mechanic on the first shift would normally repair any frame
damage but the glass would be replaced by a local glass company
the

site

o

198)"

Mro Hamilton stated that he was not aware of any complaints
by the first shift dozer operator about the broken window, and he

first became aware of Mr. Nantz's concern when he refused to
operate the dozer and Mro Fisher called him about the matter over
the two-way radio. Mr. Hamilton assumed that Mro Fisher called
him on the second evening when Mro Nantz came to the site to
check about the glass and he believed that Mr" Fisher told him
i1r Nantz was quitting and going home because "he would not run
the machine like that 11 (Tro 199). Mr. Hamilton told Mr. Fisher
00 that if he wouldn v t
run it that we would have to get someone
else,
he leftn (Tr. 200)0
o

Mr. Hamilton stated that Mr. Fisher told him that he had
offered to let Mr. Nantz operate the 980 loader but that
Mr. Nantz wanted his bulldozer fixed and wanted to run that
machine and nothing else. Mr. Hamilton denied that he told

1870

Mr. Fisher to fire Mr. Nantz or that he made any statement that
he could not allow Mr. Nantz "to get away with something like
that, because all the employees would start doing it" (Tr. 200).
Mr. Hamilton stated that Mr. Nantz would not have been replaced
or let go if he had operated the 980 loader, and that he would
not have been fired (Tr. 201).
Mr. Hamilton stated that he has 15 years of surface mining
experience, including the operation of loaders and bulldozers
with open and closed cabs. In his opinion, Mr. Nantz could have
avoided the dust coming in the back window by positioning himself
and the machine to avoid the dust. He also did not believe that a
short term, or four to six weeks exposure to dust, would be a
health hazard or harmful (Tr. 203-204). He also believed that
Mr. Nantz could have protected himself from the dust and he
explained the loading and dumping process and the methods for
operating the bulldozer (Tr. 205-207).
Mr. Hamilton stated that Mr. Nantz could have used an MSHA
approved dust mask which was __ available at the work site, and he
indicated that plastic is put on the machine back windows for
protection and he did not believe that it decreases visibility at
night. He stated that "we always try" to provide a light plant
for illumination in the shot and fill areas (Tr. 207-208).
on cross examination, Mr. Hamilton stated that he worked at
the mine on the same shift as Mr. Nantz and that he was there the
entire time the window was broken out of the bulldozer in
question. When asked if he ever mentioned to Mr. Nantz the ways
to move the machine to avoid any dust, Mr. Hamilton responded
"all operators know how to use it" (Tr. 210). In response to
further questions, Mr. Hamilton reiterated that he was unaware of
Mro Nantz 1 s complaints to Mro Fisher until Mr. Fisher called him,
and
did not know how long the window was broken (Tr. 216u
219) '

James Cornett testified that in April, 1991, he was employed
by the respondent as a second shift spare equipment operator and
that
knew Mr. Nantzo He stated that he operated a 09
bulldozer at t.he ioshotR• area 9 and that he recalled that the back
window of the DB dozer was broken out during the first shift.
Mr. Cornett stated that he overheard a conversation on the
parking lot between Mr. Nantz and Mr. Fisher prior to a work
shift. He heard Mr. Nantz complain "about wanting a window" and
that Mro Fisher offered him a loader to operate but Mr. Nantz
told Mr. Fisher that he could not operate the loader. He also
heard Mr. Fisher offer to install a piece of plastic in the back
window, but he could not recall exactly what Mr. Nantz said about
the plastic (Tr. 226).
On cross-examination, Mr. Cornett stated that he was
standing close to Mr. Fisher and Mr. Nantz during their

1871

conversation, but he could not specifically recall whether
Mr. Nantz said he could not, or would not, operate the loader
offered by Mr. Fisher (Tr. 227-228). Mr. Cornett could not
recall the exact date of the conversation, and he indicated that
it may have been 3 or 4 days before Mr. Nantz left the job.
Mr. Cornett stated that Mr. Nantz also told him that he left
because "the dust was bad" and Mr. Cornett confirmed that "we
were working in a real dusty shot at that time" (Tr. 229).
William H. Farley testified that he is employed by the
respondent as a foreman and that he was in that position when
Mr. Nantz worked in April, 1991. He confirmed that he
transferred from that particular job site on Friday, April 5,
1991, and reported to the "Leatherwood-Blue Diamond-Big Laurel"
site on Monday, April 8, 1991, when Mr. Fisher replaced him as
foreman. Mr. Farley stated that an accident involving the
bulldozer in question occurred "a day before I left, which was
probably on a Thursday". He stated that he operated the dozer
the day he left because Mr. Nantz was off, and he also operated
it the day before. When askec:I_if the glass was completely out
when he operated the dozer, Mr. Farley responded "No, it was
still in there, there was one little glass on the side that was
there, but the big glass in the back was still out" (Tr. 234).
He described the damage to the dozer as "bent the side of the
cabu just a little bit in, and knocked that one glass out"
(Tr. 234-236).
Mr. Farley stated that Mr. Nantz never operated the
bulldozer with the back window completely out, and that Mr. Nantz
never complained to him about any dust or the missing side window
(Tr. 236). He stated that Mr. Nantz would have operated the
bulldozer with the damaged window frame for only one shift while
he was foreman, and that the side window was the only one
ing. The :toack window was still intact but "it might have
a little gap
one corner of it, where the cab was bent"v
and he did not know when the window came out (Tr. 237).

Mro Farley stated that he observed Mr. Nantz operating the
dozer with the doors open prior to the window damage on more than
one occasion 0 °1 just about every day 11 u including the winter
seasono Mro Nantz told him that he had the doors open because "a
of times he can't stand to be cooped up in that, you know,
closed up and stuff" (Tr. 239-240). Mr. Farley also indicated
that he has ridden with Mr. Nantz in a pickup with three people
in the front seat 1 and that Mr. Nantz would get out and let the
third person sit in the middle, or he would ride in the bed of
the truck (Tr. 240).
Mr. Farley stated that Mr. Nantz never complained to him
about the dozer doors or the air conditioning not working
properly, and he did not know when the broken dozer window was
repaired (Tr. 241). He confirmed that Mr. Nantz came to the

187::::

Leatherwoood job site to speak with him about going to work for
him. Mr. Farley denied that he asked Mr. Nantz to come to the
site, and he stated that Mr. Nantz "just showed up one evening".
He stated that Mr. Nantz informed him that he did not want to
work with Mr. Fisher and "asked me if I had anything for him to
do" (Tr. 242). Mr. Nantz told him that he was interested in
going back to work and if there were an opening he would come
back. Mr. Nantz placed no conditions on his returning to work,
and he never called on him again about any openings, and
Mr. Farley never contacted Mr. Nantz again. Mr. Farley stated
that when Mr. Nantz was preparing to leave after the conversation, Mr. Nantz "told me that he had decided he didn't want to
work anyway, that he had the company sued and stuff, or something
of that naturen (Tr. 243-244).
Mr. Farley stated that he has worked in the surface mining
industry for 20 years, and has served as a foreman for the
respondent for eight years. He has operated open-cab equipment
and did not believe that it was reasonable to believe that anyone
operating in dust for a month,;wouldresult in serious health
consequences. Although he would not like doing it, he would not
object, and he has operated a dozer with an open cab in dust but
has never operated one with an enclosed cab with a missing
window. He stated that dozer fans and dust masks can minimize
any dust with the back window of the dozer out, and he confirmed
that he has used plastic around an open cab dozer to keep warm in
the winter and that it does not impair his visibility and is a
common thing with open cab equipment operators. He also believed
that Mr. Nantz could avoid the dust by operating his machine in
different directions and he confirmed that Mr. Nantz was an
experienced good operator (Tr. 244-248).
On cross-examinationv Mro Farley confirmed that he did not
document or note the date that the dozer back window was broken
out in the foreman's book and that his testimony is from memory
(Tr. 250). He also confirmed that he never personally offered a
dust mask to Mr. Nantz, and never suggested ways of avoiding the
dust by positioning his dozer in a certain way (Tr. 252).
In response to further questionsu Mr. Farley stated that he
operated the water truck every day during the last two weeks he
was on the job with Mr. Nantz. He confirmed that he considered
Mr. Nantz to be Qt sort of a friend" and that on a couple of
occasions in the past when .Mro Nantz became upset and quit his
job he talked him into coming back to work. Mr. Farley stated
that when the MSHA inspector took his prior statement he told the
inspector that the dozer window was broken two days before he
left to go to the Leatherwood site (Tr. 253).
Wayne Fisher testified that he was the night shift foremen
in April, 1991, and prior to that time worked as a loader
operator at the Leatherwood site for approximately six years. He

1873

stated that he was promoted to foreman on April 8, 1991, and had
not met Mr. Nantz prior to this time. He inspected Mr. Nantz's
08 dozer that evening and noticed that the back window was broken
out of it. He could not recall if Mr. Nantz complained to him
that evening, and he stated that "It seems like I told him that I
would get it put in" (Tr. 261). The next day on April 9,
Mr. Fisher spoke with the day shift boss and told him that the
window needed to be replaced, and that "he told me that they was
planning on putting it back in, but they was wanting to wait on a
weekend, or something, when the dozer was parked, to get it in"
(Tr. 262). Mr. Fisher stated that Mr. Nantz "may have said
something that night. I don't remember what was said, but they
may have been something said about the glass" (Tr. 262).
Mr. Fisher confirmed that Mr. Nantz worked for him from
April Sq through 12, 1991, and that everyone was off on Saturday
and Sunday, April 13 and 14. Mr. Nantz came back to work on
Monday, April 15, and during this entire time Mr. Fisher recalled
that Mr. Nantz complained one or two times that "the dust was
coming in the dozer pretty b,a,d" and that he offered to cover it
with plastic and told Mr. Nantz that "I would get the glass put
in today" (Tr. 263). Mr. Nantz refused his offer for the plastic
which was available in the shop. Mr. Fisher stated that it was
clear plastic that he could see through and that he used it to
cover open dozer cabs that he has operated in the past.
Mr. Fisher confirmed that the plastic would not keep the dust out
of an open cab, but dusk masks were available, and the plastic
did not affect visibility or the safe operation of the dozers
that he has operated (Tr. 264-265).
Mr. Fisher stated that Mr. Nantz would operate the dozer in
second gear at three to four miles an hour, and he was of the
opinion that placing plastic over the back window would not
create a safety hazard" He confirmed that dust masks are
available on the job but that Mr. Nantz never asked for one.
Mr. Fisher stated that Mr. Nantz operated his machine all of the
time with the doors open, but he never asked to him why he did
this (Tr. 266).

Mro Fisher stated that Mr. Nantz reported for work on
Tuesday, April 16 1 1991, but did not work that day. Mr. Fisher
explained what transpired after Mr. Nantz came to work as follows
(Tr. 267-268) ~

A. He come in and he told me he wasn 1 t going to run the
dozer. That if the glass wasn't put in he was going to go
back home, and when I got the glass out in the dozer, he'd
come back to work. And I offered to let him run a 980, and
I told him, I said, "Run the 980, and I'll run the water
truck and settle the dust, and then later on tonight, if I
have to have the 980 to clean coql with, you can run your
dozer."' And he said, "No, I'm not running the 980, I'm

1874

going home." He said, "You get the glass back in the dozer,
call me, and I'll come back to work."
Did you believe at that time, that you would have coal
that night, in the 980 to clean?

Q.

A. No, at that time, the 92 trucks was still in the pits
moving the rock off of it, and me and the day shift boss
done talked about if I could clean it, clean it, and if I
couldn't, we wouldn't haul the next day. It would be all
right.

Q. So, there was a possibility he could have run the 980
most of that shift?

A.

Yeah.

Mr. Fisher further explained that he intended to assign the
normal 980 loader operator (Danny Belcher) to the water truck and
that Mr. Nantz would have ope,:r;ated the loader at the fill area
where he normally operated the dozer. The loader could be used
to push fill material and Mr. Fisher believed that Mr. Nantz
understood that he would be working in the fill area and not the
shot area because he worked the fill all of the time and that was
his job (Tr. 269).
Mr. Fisher stated that after his conversation with Mr. Nantz
on April 16, he called Superintendent Hamilton and told him that
Mr. Nantz refused to operate the dozer and was going home.
Mr. Fisher stated that Mr. Hamilton did not say that he should
fire Mr. Nantz. Mr. Fisher recalled that Mr. Hamilton stated
"All right, just do what you have to do. If they're going to
worku they're going to work, you know, if they ain't we're just
going to have to get someone that will workn (Tro 269-270).

Mr. Fisher stated that Mr. Nantz next returned to the mine
on Wednesday, April 17, 1991, which was payday, and he recounted
the following conversation with Mr. Nantz (Tr. 270-271):
Ao Well 1 I give his check to him and he asked me if I got
the glass back in his dozer. I told him, "No,
wasn't
in. uu He said, "Well, I 0 m going back home, when you get it
put in, call me, I 0 11 come back to work.H I said, 81 Clayton 1
you know, 1eve got to run that dozer, and if you want to run
it, we 1 l l work it, if your don't, IGll get somebody up her
that will". And I think that was about all that was said
that night, and he left, and then I hired another man on the
dozer.
Q.

Was the decision to replace him, basically, left up to

you?

1875

A.

Yeah.

And, at (Tr. 286):
MR. FISHER:

He told me he was going home, and I said,
"Well, if you're going to go home, I have to take it
that you're quitting your job, and I'll have to get
somebody, you know, in here on the dozer."

Mr. Fisher stated that everyone was off for the holidays
from Thursday, April 18, 1991, until April 22, 1991, and that the
dozer window was replaced on Thursday and Friday, April 18 and 19
(Tr. 272). He confirmed that the new dozer operator Terry Doolin
operated the dozer for one shift before the window was replaced
and he did not complain about any dust (Tr. 273).
Mr. Fisher stated that from April 8, to April 16, 1991, he
operated one of the smaller water trucks and watered the fill
area when it was dusty, and he confirmed that a larger capacity
truck was not used because of a brake problem (Tr. 273-275).
Mr. Fisher also confirmed that dust·masks were available for the
asking, and that during the time Mr. Nantz worked for him he
never complained to him about the dozer doors not closing or
staying locked, inoperative fans, or that the air conditioning
was not working (Tr. 276).
Mr. Fisher stated that he spoke to the first shift foreman
after April 9, about fixing the dozer window and mentioned it to
him two or three times and that the foreman told him that "We're
going to fix it, it's going to be fixed" (Tr. 277). Mr. Fisher
could not recall if anyone was working on the window frame during
this time, and he confirmed that there was no mechanic on his
shift (Tr. 278). He stated that Mr. Nantz did not request to
operate other equipment when he returned to the mine on April 17,
and
would not have replaced Mro Nantz if he had agreed to
operate
980 loader (Tr. 28l)o
On cross-examination, Mr. Fisher stated that after Mr. Nantz
left
mine of April l6p he had to take a D9 dozer out of the
shot area and use it
the
area, and he confirmed that the
ID9 had a.11 of the windows in place, but that
was a different
machineo Mro Fisher also confirmed that he told Mr. Nantz that
he would let him operate the loader and then operate the dozer
later on in the shift "If I needed to, I would let him run the
loader all night, if I didn 1 t have coal to clean° 0 (Tro 283, 287).

Terry Doolin testified that he started working for the
respondent in April, 1991, a couple of days before Easter, as a
DS-L Dozer operator, and he confirmed that the dozer did not have
a back window (Tr. 293). He stated that he operated the dozer in
the fill when he first got the job, and while it was dusty he did
not have any problem turning the dozer around in the fill area.

1876

He stated that he operated the dozer with the doors closed, that
the locks were operable, the lights worked, and that he did not
turn on the fan or air conditioner (Tr. 293-294). He confirmed
that there was a "light plant" at the fill area, and that he
minimized the dust coming through the back window by turning the
dozer around to keep the dust from coming in the back window
(Tr. 295). Mr. Doolin did not believe that the fill area was
dustier than any normal strip mining operation, and that he
sometimes waited after the trucks dumped so that the dust could
clear before he started pushing the fill (Tr. 296). He confirmed
that the dozer window was installed within two or three shifts
after he initially operated the machine (Tr. 297).
Findings and Conclusions
The Timeliness of the Complaint and Amended Complaint, and the
Denial of the Respondent's Motion for a Continuance of the
Hearing.
The Secretary's initial,complaint of January 31, 1992,
included a proposal for an order assessing an appropriate
civil penalty against the respondent for a violation of
section 105(c) (1) of the Act. The Secretary stated that the
complaint would be amended to reflect the amount of the penalty
and the criteria used in determining the penalty. The
respondent's initial answer to the complaint, filed through
counsel Lloyd Edens, included an affirmative defense that the
complaint was not timely filed within the time limitations
found in sections l05(c) (2) and (3) of the Act, and Commission
Rules 40(a) and 4l(a), 29 C.F.R. § 2700.40(a) and 41(a).
On March 24u 1992v I issued a Notice of Hearing scheduling
the case for hearing on July 14 9 19920 On June 16; 1992 the
Secretary
led a motion to amend the complaint to include a
proposed civil penalty assessment of $8 000, for the alleged
discriminatory violationo In filing the motion, the Secretary's
counsel stated that she "has contacted Lloyd Edens, counsel for
the respondent, regarding this motion 1 and Mra Edens stated he
has no objection theretoi'" Under the circumstances 0 and absent
any objection from respondentus counsel 0 I granted the
Secretary's motion to amend the complainta
0

Respondentas counsel Edens withdrew from the case on July 1,
1992 2 and his motion for a continuance of the hearing in order to
obtain substitute counsel was granted, and the case was
rescheduled for hearing on August 12 1 19920 On July 17; 1992,
counsel Jo Po Cline III, an associate of Mra Edens, entered his
appearance as counsel for the respondent. Mr. Cline filed an
answer to the amended complaint asserting inter alia that the
amended complaint was untimely.

1877

On August 7, 1992, five days before the scheduled hearing,
counsel David and Marcia Smith, entered their appearance and
notified me that they were retained to represent the respondent.
At the same time, counsel filed a motion for a continuance of the
hearing until sometime in September, 1992, so that they could
prepare for the hearing. In view of the pending hearing, the
fact that it had been previously continued at the request of the
respondent, the substitution of three different attorneys, and in
order to preclude any additional delay, the motion for a continuance was denied and the matte~ proceeded to trial on August 12,
1992.
During opening remarks at the hearing, counsel Marcia Smith
suggested that the respondent may have been prejudiced by my
denial of the motion to continue the hearing, and she indicated a
desire to preserve my ruling for the record (Tr. 5). Counsel
asserted that at least two former employees, "the foreman that
was involved and the mechanic that did the repair work",
identified as "chuck and somebody else", were out of the area and
could not be found to testify (Tr. 6, 7). Counsel further
asserted that the mine superfritenderit would testify as to any
prejudice to the respondent as the result of the absence of two
key witnesses and the fact that they could not be located
(Tr. 9).
In his posthearing brief, and citing transcript pages 208209, counsel David Smith asserts that mine superintendent Lewis
Hamilton testified that Chuck Brock was the first shift foreman
in charge of bulldozer repairs and that his whereabouts were
unknown at the time of the hearing, since he had moved to
California (Brief, pgs. 12-13). At page 27 of his brief,
Mrc Smith states that "Since the mechanic in charge, Chuck Brock,
had left the state and was not available to testify at the
hearing on behalf of Nally & Hamiltonu it is impossible for Nally
Hamilton
know at this point in time why the window was not
fixed on the weekend of April 12, 1991, rather than on the
following weekend"" Finally, at page 41 of the brief, counsel
asserts in part that in view of the Secretary's delay in bringing
the complaintu Mro Nantz 1 s backpay claim should be denied.
~ have reviewed the testimony of Mro Hamilton, and while it
is true that he testified that Mrc Brock was no longer employed
by the respondent and had moved to California, Mr. Hamilton
further stated that uur think he came back in this area in the
last week 00 r (emphasis supplied),and that it was rumored that
0
@he us gone to work for Clover Fork" (Tr. 209) . The record
reflects that Mr. Nantz worked for the Cloverfork Mining and
Excavation Company after he left the respondent's employ, and it
would appear to me that this company would have been conveniently
located to the respondent had it endeavored to pursue the rumor
that Mr. Brock had returned from California and was working
there, particularly since Mr. Hamilton believed that Mr. Brock

1878

had returned to the area at least a week prior to the hearing.
Thus, it would further appear to me that Mr. Brock may have been
available for testimony had the respondent made some attempts to
locate him, or at least made an effort to obtain his deposition.
The respondent apparently did neither.
The respondent's suggestion that Mr. Brock was the only
witness who could testify as to why the broken window in question
was not repaired sooner is not well taken. I initially take note
of the fact that Mr. Brock worked the first day shift, and that
Mr. Nantz operated the bulldozer with the missing window on the
second, or night shift. Insofar as any repairs to the bulldozer
are concerned, superintendent Hamilton and second shift foremen
William Farley and Wayne Fisher all testified for the respondent,
and they all presented testimony regarding the condition of the
broken window and framework, and the efforts made by the
respondent to make the necessary repairs. First shift mechanic
Johnny Moore, who was subpoenaed to testify for the Secretary,
and who was cross-examined by counsel Smith, testified about the
repairs which he and a welder named "Wayne" made to the window
frame, as well as when the window glass was replaced. Under the
circumstances, I conclude and find that the absence of Mr. Brock
was not critical or prejudicial to the respondent's case. The
respondent could have called the welder who assisted mechanic
Moore, as well as the glass contractor who installed the dozer
window, but it did not do so.
In view of the foregoing, and after further consideration of
the respondent's assertions concerning the claimed prejudicial
denial of its motion to continue the hearing, I conclude and find
that the respondent was not prejudiced and that its counsel had a
full and fair opportunity to defend the respondent's position
through the testimony of all of the knowledgeable witnesses who
appeared at the hearing. Indeed, the record attests to the fact
that counsel Smith was well-prepared, conducted a thorough and
competent examination of all witnesses, and submitted a brief
which I believed reflects his grasp of the issues as well as his
knowledge of the applicable case law.
With regard to the alleged failure by the Secretary to
timely file the complaint, I take note of the fact that
section 105(c) (3) of the Act requires the Secretary to proceed
with expedition in investigating and prosecuting a minervs
discrimination complainto Sections 105(c) (2) and (c) (3)p require
the Secretary to act within the following time frames~
lo Commence the investigation of the complaint within 15
days of its receipt from the miner.

2. Within 90 days of the receipt of the complaint, notify
the complaining miner of any determination as to whether a
violation has occurred.

1879

3. If a determination is made that a violation has
occurred, immediately file a complaint with the Commission.
The Commission's Rules, at Part 2700, Title 29, Code of
Federal Regulations, implement the statutory time provisions.
Rule 40(a), 29 c.F.R. § 2700.40(a) requires the Secretary to file
a complaint after an investigation if she finds that a violation
has occurred. Rule 4l(a), 29 C.F.R. § 2700.41(a), requires the
Secretary to file the complaint within 30 days after her written
determination that a violation has occurred.
The record in this case establishes that Mr. Nantz•s
employment with the respondent ceased on or about April 16, 1991,
and that he subsequently went to MSHA's Harlan, Kentucky field
office where he gave his initial statement of alleged
discrimination on May 29, 1991 (Nantz Deposition of June 15,
1992, and Deposition Exhibit No. 2). MSHA Special Investigator
Brock's investigation of the complaint followed shortly
thereafter, and the Secretary's counsel confirmed that the
investigation was completed on October 1, 1991, and that the
Secretary made her determination that a complaint should be filed
on January 15, 1992 (Tr. 7-8). The complaint was received by the
Commission on January 31, 1992.
In David Hollis v. Consolidation coal Company, 6 FMSHRC 21
(January 1984), Aff 'd mem. 750 F.2d 1093 (D.C. Cir. 1984)
(table), the Commission affirmed a dismissal of a miner's
complaint filed six months after his discharge, and stated that
"Tardiness questions must be resolved on a case-by-case basis,
taking into account the unique circumstances of each situation",
6 FMSHRC 24.
In Joseph W. Herman Vo Imco Services, 4 FMSHRC 2135 8 2139
{December 1982)v the Commission upheld a dismissal of a miner 1 s
complaint filed 11 months after the alleged act of discrimination" Although the Commission found no mitigating
circumstances excusing the delay, and found that the record was
91
replete with examples of faded memories as well as the
unavailability of potentially relevant evidence ", it also
suggested that any mine operator prejudice resulting from lost
evidenceu faded memories, and witnesses who have disappeared must
be balanced against the vindication of a complainant's rights in
a particular case.
In Walter A. Schulte v. Lizza Industries, Inc., 6 FMSHRC 8
(January 1984), the Commission found that the miner's filing of
his complaint 30-days out of time was excusable because he was
unaware of the filing time limitations and the mine operator
failed to demonstrate the kind of legal prejudice recognized in
Joseph W. Herman v. Imco Services, supra, namely, tangible
evidence that has since disappeared, faded memories, or missing
witnesses. See also: Bruno v. Cyprus Plateau Mining Corp.,

1880

10 FMSHRC 1649 (November 1988) aff'd., No. 89-9509 (10th Cir.,
June 5, 1989) (unpublished). I take note of the fact that all of
these "time limitation" cases concerned untimely delays by pro se
complaining miners, while the instant proceeding involves alleged
untimely delay by the secretary and not by Mr. Nantz.
In Secretary of Labor, MSHA ex rel Donald R. Hale v. 4-A
Coal Company. Inc., 8 FMSHRC 905 {June 1986), the Commission
reversed a judge's decision dismissing a Secretarial complaint
filed with the Commission more than two years after the miner's
complaint was filed with MSHA. Recognizing the fact that the
Secretary seriously delayed the filing of the complaint, the
Commission nonetheless held that in the absence of any showing
that the respondent mine operator was prejudiced by the delay,
the complaint should not have been dismissed. In speaking to the
requisite time frames found in section 105(c) of the Act, the
Commission stated as follows at 6 FMSHRC 908:
While the language of section 105(c) leaves no doubt
that Congress intended these directives to be followed
by the Secretary, the j:fertinent legislative history
nevertheless indicates that these time frames are not
jurisdictional:
The Secretary must initiate his investigation within
15 days of receipt of the complaint, and immediately
file a complaint with the Commission, if he determines
that a violation has occurred. The Secretary is also
required under section 105(c)(3} to notify the
complainant within 90 days whether a violation has
occurred. It should be emphasized, however that these
time-frames are not intended to be jurisdictional. The
failure to meet any of them should not result in the
dismissal of the discrimination proceedings; the
complainant should not be prejudiced because of the
failure of the Government to meet its time obligations.
(Emphasis added) .

s. Rep. No. 181, 95th Cong., 1 Sess. 36 (1977)

1

reprinted in Senate Subcommittee on Labor, Committee on
Human Resources, 95th Cong. 1 2 Sess., Legislative
History of the Federal Mine Safety and Health Act of
1977 at 624 (1978) ("Legis. Hist. "). Plainly,
Congress clearly intended to protect innocent miners
from losing their causes of action because of delay by
the Secretary. (Emphasis added).
Related passages of legislative history make equally
clear, however, that Congress was well aware of the due
process problems that may be caused by the prosecution
of stale claims. See Legis. His. at 64 (discussion of

1881

60-day time limit for the filing of miner's discrimination complaint with the Secretary). The fair
hearing process envisioned by the Mine Act does not
allow us to ignore serious delay by the Secretary in
filing a discrimination complaint if such delay
prejudicially deprives a respondent of a meaningful
opportunity to defend against the claim.
(Emphasis
added).
Accordingly, we hold that the Secretary is to make his
determination of whether a violation occurred within
90 days of the filing of the miner's complaint and is
to file his complaint on the miner's behalf with the
Commission "immediately" thereafter -- i.e., within
30 days of his determination that a violation of
section 105(d) (1) occurred. If the Secretary 1 s
complaint is late-filed, it is subject to dismissal if
the operator demonstrates material legal prejudice
attributable to the delay. Cf. David Hollis v.
Consolidation Coal Co., 6 FMSHRC 21, 23-25 (January
1984}, aff'd. mem., 750 F:2d 1093 (D.c. cir. 1984)
(table): Walter A. Schulte v. Lizza Industries, Inc.,
6 FMSHRC 8, 12-14 (January 1984).
As noted earlier, the record reflects that Mr. Nantz filed
his initial complaint with the Secretary well within the 60-day
time frame found in section 105(c) (1) of the Act, and I find no
evidence that the Secretary unduly delayed the initiation of an
investigation of Mr. Nantz's complaint after it was filed, or
that the four months that it took to complete the investigation
constituted an unreasonable delay. Further, once the Secretary
made a determination on January 15, 1992, that a complaint should
be filed 0 it was filed Janua·ry 3lv 1992 p well within the 30 days
provided by Commission Rule 41(a)o
After careful consideration of the entire record in this
caseu I find no persuasive evidence to establish that the
respondent has been adversely affected or prejudiced by any
secretarial delays in this case. Any delays in the case after
the case was docketed with the Commission came about as a result
of three changes of attorneys representing the respondentu and
one hearing continuance granted at the respondentvs request due
to a change in counsel. Insofar as any prejudice to the
respondent as a result of delay by the Secretary in filing the
complaint is concerned, I take particular note of the fact that
prior to, and up to the day of the commencement of the hearing,
none of the attorneys representing the respondent advanced any
arguments or claims that the delay prejudiced the respondent's
ability to defend itself because of the unavailability of
critical witnesses, loss of evidence, or faded memories.

1882

In my view, the respondent's present counsel did a
commendable job in defending the discrimination complaint,
notwithstanding my denial of his motion for a continuance of the
hearing. The hearing transcript record of the testimony of all
of the witnesses who had knowledge of all relevant and material
facts incident to the complaint, attest to the fact that the
respondent's counsel had a full and fair opportunity to present
his case, and to test the case made by the Secretary on behalf of
Mr. Nantz. Under these circumstances, the respondent's
suggestions that it has been prejudiced by the Secretary's delay
in filing the complaint ARE REJECTED, and its requests to dismiss
the complaint and the proposed civil penalty assessment on this
ground ARE LIKEWISE REJECTED AND DENIED.
With regard to the respondent's assertions concerning the
delay by the Secretary in filing the amended complaint, I take
note of the fact that the complaint was simply amended to include
a proposal for a specific amount of the proposed penalty, and to
inform the respondent of the particular statutory penalty
criteria followed by the Secretary in support of the proposed
penalty. The respondent was previously informed by the Secretary
in her initial complaint that an amendment would be forthcoming,
and it would appear from the record that the amended complaint
was unopposed by counsel of record at the time of filing.
It is well-settled that administrative pleadings may be
liberally construed and easily amended. National Realty and
Construction Company v. Occupational Safety and Health Review
Commission, 489 F.2d 1257 (D.C. Cir. 1973); Secretary of Labor v.
United States Steel Corporation, 6 FMSHRC 1908, 1916 (August
1984). Further, given the fact that civil penalty assessment
proposals by the Secretary are considered de novo by the
presiding judgev and the judge is not bound by the Secretary's
proposed penaltyv I am not persuaded that the respondent has been
prejudiced by the amendment in questionu and any claims to the
contrary ARE REJECTED AND DENIED.
Fact of Violation
In order
establish a prima facie case of discrimination
under section 105(c) of the Mine Act; a complaining miner bears
the burden of production and proof to establish (1) that he
engaged in protected activity and (2) that the adverse action
complained of was motivated in any part by that activityo
Secretary on behalf of Fasula v. Consolidation Coal Company,
2 FMSHRC 2768 (1980), rev'd on other grounds sub nom.
Consolidation Coal Company v. Marshall, 663 F.2d 1211 (2d Cir.
1981): Secretary on behalf of Robinette v. United Castle Coal
Company, 3 FMSHRC 803 (1981); Secretary on behalf of Jenkins v.
Hecla-Day Mines Corporation, 6 FMSHRC 1842 (1984): Secretary on
behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510-2511

1883

(November 1981), rev'd on other grounds sub nom. Donovan v.
Phelps Dodge Corp., 709 F.2d 86 (D.C . • Cir. 1983).
The operator may rebut the prima facie case by showing
either that no protected activity occurred or that the adverse
action was in no way motivated by protected activity. If an
operator cannot rebut the prima facie case in this manner it may
nevertheless affirmatively defend by proving that it was also
motivated by the miner's unprotected activities alone. The
operator bears the burden of proof with regard to the affirmative
defense. Haro v. Magma Copper Company, 4 FMSHRC 1935 (1982).
The ultimate burden of persuasion does not shift from the
complainant. Robinette, supra. See also Boich v. FMSHRC, 719
F.2d 194 (6th Cir. 1983); and Donovan v. Stafford Construction
Company, No. 83-1566 D.C. Cir. (April 20, 1984) (specificallyapproving the Commission's Pasula-Robinette test). See also NLRB
v. Transportation Management Corporation, ~- U.S. ~~' 76
L.ed.2d 667 (1983), where the supreme Court approved the NLRB's
virtually identical analysis for discrimination cases arising
under the National Labor Relations Act.
Protected Activity
It seems clear that Mr. Nantz had a right to make safety or
health complaints about the bulldozer that he was assigned to
operate, and that these complaints are protected activities which
may not be the motivation by mine management for any adverse
personnel action against him. Secretary of Labor ex rel Fasula
v. Consolidation Coal Co., 2 FMSHRC 2786 (October 1980), rev'd on
other grounds, sub nom. Consolidation Coal Co. v. Marshall,
663 F.2d 1211 (3d Cir. 1981), and Secretary of Labor ex rel.
Robinette Vo United Castle Coal Co.; 3 FMSHRC 803 (April 1981).
Safety complaints to mine management or to a foreman constitutes
protected activity 1 Baker Vo Interior Board of Mine Operations
Appealsv 595 Fo2d 746 (DoCo Ciro 1978) t Chacon, supra. The
miner 0 s safety complaints must be made with reasonable promptness
and in good faithu and be communicated to mine management, MSHA
ex rel. Michael Jo Dunmire and James Estle v. Northern Coal
Company, 4 FMSHRC 126 (February 1982); Miller Vo FMSHRC,
687 Fo2d 194 195-96 (7th Ciro 1982}; Sammons Vo Mine Services
ou 6 FMSHRC 1391 (June 1984)0
Complainant 0 s Safety Complaint Communication to the Respondent
In a number of safety related ovwork refusal n cases, it has
been consistently held that a miner has a duty and obligation to
communicate any saf ~ty complaints to mine management in order to
afford the operator with a reasonable opportunity to address
them. See: Secretary ex rel. Paul Sedgmer et al. v.
Consolidation Coal Company, 8 FMSHRC 303 (March 1986); Miller v.
FMSHRC, 687 F.2d 194 (7th Cir. 1982); Simpson v. Kenta Energy,

1884

Inc., 8 FMSHRC 1034, 1038-40 (July 1986:; Dillard Smith v. Reco,
Inc., 9 FMSHRC 992 (June 1987); Sammons v. Mine Services Co.,
6 FMSHRC 1391 (June 1984); Charles Conatser v. Red Flame Coal
company, Inc., 11 FMSHRC 12 (January 1989), review dismissed Per
curiam by agreement of the parties, July 12, 1989, U.S. Court of
Appeals for the District of Columbia Circuit, No. 89-1097.
Mr. Nantz testified that during the time Mr. Farley served
as his foreman, he complained to Mr. Farley at least two or three
times about the broken window and the dust and that Mr. Farley
assured him that it would be repaired (Tr. 18). Mr. Farley was
aware that the dozer had been damaged a day or two before he left
the job to take another assignment, but he denied that Mr. Nantz
ever complained to him about the broken window or the dusty
conditions. Mr. Farley also denied that Mr. Nantz operated the
dozer with the rear window completely out during the two days
immediately following the damage to the dozer. Mr. Farley stated
that he (Farley) operated the dozer for these two days before he
left the job, and although he responded 11 no 11 to the question "was
the glass completely out" (Tr. 234), he went on to explain that
"there was one little glass on the side that was there, but the
big glass in the back was still out" (Tr. 234). In response to a
question concerning the damage sustained by the dozer, Mr. Farley
stated "Bent the side of the cab, just a little bit in, and
knocked that one glass out" (Tr. 234). He later testified that
the side window was knocked out, but "the whole back window was
still there. Just might have been a little gap in one corner of
it, where the cab was bent" (Tr. 237).
I find Mr. Farley's testimony concerning the condition of
the dozer back window after the collision with the truck to be
contradictory. Mr. Nantz 1 s testimony that the back window was
completelv knocked out by the collision is consistent with the
·testimonyhe gave when his prehearing deposition was taken
on June 15 1992. He then testified that 91 I noticed my window
gonein and that the window area nwas all open; just gougey glass
all around the back where the truck had splattered it when it run
into the dozer", and he drew a diagram of the missing back window
area and explained it further (Deposition Tr. 22-25; Exhibit #1).
All of the other hearing witnesses who knew about the window
damageu
the exception of Mr. Farley, did not contradict
Mr. Nantz 0 s assertion that the rear window of the dozer was
knocked out as a result of a truck backing into it. In fact,
they confirmed it.
Mr. Nantz further testified that after Mr. Fisher replaced
Mr. Farley as his foreman, he complained to Mr. Fisher about the
broken window and his dust problems "on a regular basis every
other day or so" (Tr. 20). Mr. Nantz's complaints to Mr. Fisher
were corroborated by Mr. Napier and Mr. Belcher, as well as
respondent's witness James Cornett, and Mr. Fisher himself.
Superintendent Hamilton confirmed that he was informed of
1885

Mr. Nantz's complaint by Mr. Fisher at the time Mr. Nantz
initially refused to operate the dozer.
I conclude and find that Mr. Nantz timely communicated his
safety complaints to mine management and specifically informed
management of his health and safety concerns with respect to the
hazardous and dusty working conditions caused by the missing rear
window of the dozer which he was assigned to operate, and that
management had a reasonable opportunity to address these concerns
and take the necessary corrective action. I further conclude and
find that Mr. Nantz's safety and health complaint communications
to management met the requirements enunciated by the Commission
in Secretary on behalf of Dunmire and Estle v. Northern Coal Co.,
4 FMSHRC 126 (February 1982); Secretary ex rel John Cooley v.
Ottawas Silica Company, 6 FMSHRC 516 (March 1984); Gilbert v.
Sandy Fork Mining Company, supra; Sammons v. Mine Services Co.
6 FMSHRC 1391 (June 1984) .
The Complainant's Work Refusal
..

·~··

When a miner has expressed a reasonable, good faith fear of
a safety or health hazard, and had communicated this to mine
management, such as a foreman, management has a duty and
obligation to address the perceived hazard or safety concern in a
manner sufficient to reasonably quell his fears, or to correct or
eliminate the hazard. Secretary v. River Hurricane Coal Co.,
5 FMSHRC 1529, 1534 (September 1983); Gilbert v. Sandy Fork
Mining Company, 12 FMSHRC 177 (February 1990), on remand from
Gilbert v. FMSHRC, 866 F.2d 1433 (D.C. Cir. 1989), rev'g Gilbert
v. Sandy Fork Mining Co., 9 FMSHRC 1327 (1987).
The focus in work refusal cases is the complaining miner's
belief that a hazard exists, and the critical issue is whether or
not that bel
held in good faith and
a reasonable one"
Secretary ex relo Bush Vo Union Carbide Corp"v 5 FMSHRC 993, 997
(June 1983)~ Miller Vo FMSHRC, 687 fo2D 1984 (7th Ciro 1982). In
analyzing whether a miner 1 s belief is reasonable, the hazardous
condition must be viewed from the miner's perspective at the time
of the work refusal, and the miner need not objectively prove
t.hat cm actual hazard existed. Secretary ex rel" bush v" Union
Carbide Corp" 5 FMSHRC 993, 997-98 (June 1983)' Secretary ex rel.
Pratt v. River Hurricane Coal Co. 5 FMSHRC 1529r 1533-34
(September 1983) ~ Haro Ve Magma Cooper Co. 4 FMSHRC 1935, 1944
(November 1982) v Robinette, suprav 3 FMSHRC at 810" Secretary on
behalf of Hogan and Ventura Vo Emerald Mines Corp., 8 FMSHRC 1066
(July 1986). The Commission has also explained that "good faith
belief simply means honest belief that a hazard existsn.
Robinette, supra at 810.
The respondent maintains that the Secretary has failed to
prove that it caused a work condition which presented an
intolerable hazard to Mr. Nantz's health. The respondent asserts

1886

that it repaired the dozer window in a much shorter period of
time than claimed by Mr. Nantz at the hearing where he testified
that he had to operate the dozer without the back window "going
into the fourth week". The respondent asserts that this
testimony was virtually parroted, "going into the fourth week",
by Mr. Nantz's witnesses, but that when pinned down to the
actual sequence of events, Mr. Nantz agreed that in an earlier
deposition he had testified that the window was only out two or
three days before foreman Farley left the job, and at the hearing
he gave vague testimony that the window had been broken over a
period ranging from two to seven days.
The respondent further maintains that it has established
through the testimony of foreman Farley and company business
records that it was two days, Thursday and Friday, April 4 and 5,
1991, that the window was out before Mr. Farley left the job,and
that foreman Fisher's first day on the job was Monday, April 8,
1991. Respondent points out that it is undisputed that Mr. Nantz
did not work on Friday, April 5, 1991, and that there was no work
on the weekend of April 6 anct13, 1991. Under these
circumstances, the respondent concludes that Mr. Nantz had to
operate the dozer without the back window seven (7) working
days, Thursday, April 4, 1991, Monday through Friday, April 8
through 12, 1991, and Monday, April 15, 1991, prior to his
leaving work on April 16, 1991. Respondent further argues that
it is undisputed that the dozer back window was replaced during
the period Thursday, April 18, 1991, through Sunday, April 21,
1991, during which time the job was shut down. Under these
circumstances, respondent concludes that Mr. Nantz would have
only had to work two more days, Tuesday and Wednesday, April 16
and 17, 1991, with the back window out had he chosen not to leave
the job.
respondent asserts that the broken dozer window was
repaired within ten working days of the accident which caused the
damage 1 and that its witnesses explained that its mechanics had
to do certain frame work so that a new window would fit, that
people from a glass company put the window in, and that this work
needed to be done on a weekend when the dozer was not operating.
The respondent argues that it attempted to alleviate the
dust problem by offering to put a clear plastic material over the
exposed back window to reduce the amount of dust, took measures
to keep the fill area where Mr. Nantz worked watered to keep the
dust down, and had dust masks available for Mr. Nantz's use while
operating the dozer. Respondent also suggested that Mr. Nantz
could have avoided the dust by availing himself of alternate
methods of operating the dozer to reduce the dust exposure.
However, since Mr. Nantz refused the offer of plastic covering,
chose not to wear a face mask, and made no attempts to avoid the
dust by maneuvering the dozer in different directions away from
the dust, or turning on his air conditioning blowers, the

1887

respondent concludes that his refusal to operate the machine was
unreasonable and lacking in good faith, and that any health
hazard that may have been caused to him as a result of operating
the dozer without the back window intact was the result of his
own stubborn refusal to attempt to do anything to alleviate the
problem.
The respondent is correct in its assertion that Mr. Nantz•s
testimony concerning the duration of the missing back window was
equivocal. However, having viewed Mr. Nantz during the course of
the hearing, I find him to be a credible witness and I have no
reason to believe that he lied or deliberately attempted to
misstate the facts. His deposition testimony reflects that
Mr. Nantz has a ninth grade education, and he candidly stated
during the hearing that he did not document the specific number
of days the dozer window was out and that he was not positive
about the number of days which passed from the day the damage
occurred and the last day he worked.
The respondent's assertion that Mr. Nantz's witnesses
"parroted 11 his "going into the fourth week" testimony" is not
well taken. The only witness who made that statement was
Mr. Farler (Tr. 115). Mr. Napier testified that "a couple of
weeks or more°' passed from the time the window was broken out
until the last day Mr. Nantz was on the job (Tr. 98).
Mr. Belcher testified that he did not know when the window was
knocked out, and was not sure of the elapsed time, but estimated
it at "around three weeks or something" (Tr. 130). Mr. Moore did
not know when the window was knocked out, had no idea how long it
was out before it was repaired, and stated that "it had been out
for awhile" (Tr. 145).
Superintendent Henderson did not believe the window was
broken for four weeksf but he confirmed that he did not know how
long it had been broken (TrQ 219)0 Mr. Henderson confirmed that
he was not involved in the repair of the window, but he explained
that the first shift foreman or mechanic would have made the
repairs, and the repairs would have entailed the straightening
and welding of the frame to keep the window from falling out
(Tro 198)
Foreman Farler did not know when the window was
repairedu and as stated previously, he testified that it was
damaged a couple of days before he left the job (Tr. 241).
Foreman Fisheru who reported to the job after the window was
damaged, testified that he had no mechanic assigned to his second
shift for repairs, but that he spoke to the first shift foreman
about fixing the window two or three times, and the foreman told
him each time that "We're going to fix it, it's going to be
fixed". Mr. Fisher could not remember whether any repair work
was being done on the window frame during this time. He
confirmed that the mine was on holiday from Thursday, April 18,
through Sunday, April 21, 1991, and that the window was replaced
o

1888

on Thursday and Friday, April 18 and 19, and that it was in when
work resumed on Monday, April 22, 1991 (Tr. 272, 282, 284).
First shift mechanic Johnnie Moore testified that "a week or
so" after Mr. Nantz left the job, his shift foreman {Brock)
instructed him to assist "the window people" in installing a new
dozer window, and that he and a welder repaired the window frame
which had not previously been straightened. Mr. Moore stated
that it took "an hour or two" to do the repair work, and an hour
to install the window.
After careful consideration of all of the testimony and
evidence, I conclude and find that approximately 13 or 14 days
passed form the time the dozer window in question was damaged
when a truck backed into it on or about April 3 or 4, 1991, until
Mr. Nantz left the job site on Tuesday, April 16, and again on
Wednesday, April 17, 1991, and that approximately 15 days passed
from the time the window was initially damaged until it was
ultimately repaired on or about April 18 or 19, 1991. I further
conclude and find that during all of this time, little or no work
was done to repair the dozer-window frame or to replace the
missing window.
Although the respondent's assertion that its mechanics had
to do certain frame work so that a new window would fit and that
people from a glass company put the window in is true, I am not
convinced that this work needed to be done on a weekend when the
dozer was not operating. As a matter of fact, the mine was down
for the weekends of April 6 and 13, 1991, and no work was done to
repair the broken window. Under the circumstances, and given the
fact that there is no evidence of any repair work to the dozer
during at least two successive weekend periods when the mine was
down and the dozer was not operating, I find the respondent's
assertion that it could only repair the dozer on a weekend when
the dozer was not operating to be less than credible. Furtheru
the respondent~s suggestion that the repair work necessary to
replace the missing window was some monumental task is also
lacking in credibility, and the unrebutted and credible testimony
of the mechanic who did the work establishes that the repairs
were made and the window was replaced in three hours during a
normal working shifto
Respondent asserts that all of the other witnesses who were
questioned concerning whether, in their opinion, operating this
bulldozer without the back window for a limited period of time,
even up to a month, would constitute a hazard to a miner 1 s
health, unanimously said "no." Respondent suggests that this is
relevant to the issue and good faith of Mr. Nantz's belief to the
contrary. Respondent further submits that it is also relevant
that the dozer operator on the first shift did not complain or
see fit to quit, and that Mr. Doolin, who operated the dozer on
April 16 and 17, 1991, before it was repaired, testified that he

1889

did not have any problems from the dust because he manuevered the
dozer to avoid the dust.
I have carefully reviewed the testimony of all of the
witnesses in this case, including the five witnesses called by
the respondent (superintendent Hamilton, foremen Farley and
Fisher, and dozer operators Cornett and Doolin). Except for
Mr. Hamilton and Mr. Farley, none of the other witnesses called
by the respondent, or the four witnesses called for Mr. Nantz,
were asked or testified about their opinion concerning the
operation of a dozer in a dusty environment with the back window
missing.
su.perintendent Hamil ton was of the opinion that a "short
term, four to six weeks" exposure to dust while operating a dozer
with a missing back window would not cause him a health problem
(Tr. 203-204). Foreman Farley did not believe that he would
suffer serious consequences from operating a dozer in heavy dust
for a period of one month, and although he stated that he would
not object to doing so, he indicated that he would not like it
(Tr. 244-245). Further, although Mr. Farley stated that he has
operated a dozer with an open cab in dust in the past, the
confirmed that he had never operated a dozer with a closed cab
with the back window broken out (Tr. 246).
The respondent's reliance upon the opinions of Mr. Hamilton
and Mr. Fisher in support of its assertion that it is relevant to
the question of Mr. Nantz's reasonable good faith refusal to
operate the dozer is rejected. The critical question here is
whether or not Mr. Nantz reasonably and honestly in good faith
believed that the operation of a dozer with a missing back window
would be injurious and hazardous to his health and safety because
the dust to which he was subjected and exposed to because of
missing windowff and whether or not Mr. Nantz reasonably and
good faith believed that he would be required to operate the
dozer with the missing back window at the time of his initial
work refusal on Tuesday, April 16, 1991, and his subsequent work
refusal of Wednesday, April 17, 1991.
The respondent"s suggestions that the use of plastic
material
routinely used to keep out cold and dust in dozers
with open cabs, that its use does not impair visibility 1 and that
Mr. Nantzis testimony that it does impair his visibility was
contradicted by virtually every witness who was questioned about
it, must be viewed in context, and I have given it little weight.
Except for Mro Nantz, none of the four witnesses called by the
Secretary, which included two endloader operators, a mechanic,
and an equipment serviceman, testified about the use of plastic
coverings. Dozer operator Cornett, called by the respondent as a
witness, said nothing about the use of plastic coverings or
whether or not it might impair his ·visibility.

1890

The only witnesses who testified about the use of the
plastic material were superintendent Hamilton, and foremen Farley
and Fisher. Mr. Hamilton simply stated that plastic material has
been placed Q.D. the back window of lifts for protection, and he
did not believe that it decreased visibility at night because
extra illumination is provided in the shot and fill areas
(Tr. 207-208).
Foreman Farley testified that the has used plastic c~verings
on open cab equipment that he has operated "to keep the air
knocked off" in the winter time in order to stay warm, and that
his was a common practice for open cab equipment operators
(Tr. 247). Mr. Farley conceded that Mr. Nantz would have a dust
problem if the front window of his dozer were missing
(Tr. 256-257).
Foreman Fisher testified that he used plastic covering while
operating open cab dozers during the winter time, and that the
plastic was wrapped around the opened cab to keep the heat
generated by the radiator inside the cab. When asked if the
plastic would keep the dust out, he responded "No, it wouldn't
keep it out, but it would help, I mean, I never didn't even think
about that dust really . . • if the dust got too bad I always got a
rag or something and tie over my mouth, or nose, or get me a dust
mask or something". Mr. Fisher did not believe that the plastic
impeded his visibility (Tr. 265).
There is no evidence that Mr. Nantz's foreman, or the mine
superintendent, offered to show Mr. Nantz how to maneuver his
dozer to avoid the dust, nor is there any evidence that the
respondent required its personnel to use dust masks while working
in dusty areas" Highlift operator Belcher testified that some
drill operators use dust masks, and others do not, and that he
does not use one because his machine has an enclosed cab .
With
respect to the use of plastic coverings for equipment with open
cabs, I take note of the fact that the dozer that Mr. Nantz was
assigned to operate had an enclosed cab, and I believe that it is
was not unreasonable for Mr. Nantz to expect such a piece of
equipment to be maintained in a serviceable condition, including
the timely repair or replacement of a broken window that is
obviously intended to maintain the cab area as an enclosed
working environment.
I am not persuaded that the use of the plastic covering was
routinely used by the respondent as a specific preventive measure
against dust exposure. The respondent's testimony reflects that
plastic coverings are sometimes used by operators in the winter
time to keep their open cab areas warm. Mr. Nantz was operating
the dozer during the month of April and it had an enclosed cab
area. Nor am I persuaded that the respondent's available water

1891

trucks adequately kept the fill area wet enough to control the
dust generated by the trucks working in the fill area where
Mr. Nantz was required to operate the dozer with the missing rear
window. In the final analysis, had the respondent addressed
Mr. Nantz's safety and health complaints concerning the missing
window and the resulting dust exposure in a more timely fashion
by replacing the window, or taking the dozer out of service until
it was repaired, there would be no need for makeshift coverings,
dust masks, water trucks, or the maneuvering of the dozer to
avoid the dust.
I conclude and find that the respondent failed to reasonably
and timely respond to Mr. Nantz's communicated safety and health
complaints with respect to the hazardous dust conditions to which
he was exposed as a result of the missing rear window of the
dozer that he was assigned to operate. Although the evidence
clearly establishes that Mr. Nantz communicated his complaints to
foreman Fisher, and that Mr. Fisher assured him that the window
would be repaired each time Mr. Nantz complained about it,
Mr. Fisher reacted by simply speaking to the day shift foreman
two or three times about fixing the window. Rather than insuring
that repairs were made timely, Mr. Fisher simply accepted the day
foreman's assurance that it would be done.
In my view, since Mr. Fisher was Mr. Nantz's first-line
supervisor, he had a duty and obligation, as part of his
supervisory and managerial responsibilities, to respond in a
more positive manner by insuring that the window was promptly
repaired, or by tagging or removing the dozer from service until
it was repaired. Instead of doing this, Mr. Fisher played a
passive role, even though the means of addressing Mr. Nantz's
health and safety concerns were directly within his supervisory
and managerial controlo Under the circumstances, I conclude and
find
shifting the burden to Mr. Nantz by expecting him to
protect himself from the dust hazards to which I believe he was
exposed to, asking him to accept a makeshift plastic covering,
expecting him to shake the dust from the covering with his hands
while at the controls of his dozer, using his air conditioning
blower wearing a dust mask, or expecting him to maneuver his
dozer
different directions to avoid the dust, were
unacceptable and unreasonable responses to Mr. Nantz is safety and
health concerns.
Although the respondent may not reasonably be expected to
provide an absolutely clean working environment free of any dust,
on the facts of this case where it seems clear to me that the
source of the dusty conditions which Mr. Nantz had to endure
while operating the dozer with a missing back window, was within
the direct control of the operator, and were easily correctable,
I cannot conclude that Mr. Nantz acted unreasonably when he
refused to operate the dozer until the window was replaced. In
view of all of the foregoing, and after careful consideration of

1892

all of the credible testimony and evidence in this case, I
conclude and find that Mr. Nantz's refusal to operate the dozer
with the missing back window on the two final days of his
employment with the respondent was reasonable, and that his
decision in this regard was prompted by his safety and health
concerns related to the hazardous exposure to dust resulting from
the missing window, and a reasonable good faith belief that to
continue to operate the dozer in the condition that it was in
would place him at risk. I further conclude and find that
Mr. Nantz's work refusals constituted protected work refusals
pursuant to the Act.
The Alternate Work Refusal
The respondent argues that inasmuch as Mr. Nantz refused
Mr. Fishervs offer to operate a loader in lieu of the dozer with
the missing back window on the evening of April 16, 1991, and
since Mr. Nantz did not contend that he was unable to operate the
loader, or show that the loader was not safe to operate, his
refusal to operate the loader was unreasonable.
The respondent
concludes that Mr. Nantz left work after refusing to operate the
loader because he believed that he would have to go back to
operating the dozer.
In support of its position, the respondent emphasizes the
fact that both Mr. Fisher and Mr. Hamilton testified that had
Mr. Nantz agreed to operate the loader he would not have been let
go. The respondent points out that Mr. Nantz refused to operate
the loader on April 16, 1991, and that when he returned to the
mine on April 17, 1991, he simply came back to get his paycheck
and find out if the dozer window had been repaired and to leave
his phone number so that Mr. Fisher could call him when it was
repaired. The respondent asserts that Mr. Nantz made no offer
whatsoever to do other work that day and simply
the job
site.
Based on Mr. Nantz's refusal to operate the loader on
April 16, 1991, and his failure to report for work on April 17,
1991 0 showing up only to find out if the dozer had been repaired
and to leave his phone number, the respondent concludes that it
had sufficient reason not to call Mr. Nantz back to work after
the window was repaired and to consider that he had voluntarily
quit his job" The respondent suggests that since there were two
incidents involved in this case, namely 1 Mr. Nantz 1 s refusal to
operate his own dozer, and his refusal to operate the loader
offered to him, there may have been a mixed motive situation
presented in this case.
The respondent submits that it has met its burden of proving
that its failure to call Mr. Nantz back to work was motivated by
his total lack of willingness to perform any job that was
requested of him, not just the running of his own dozer. The
1893

respondent concludes that it had a legitimate interest in having
its operations continue, and that it was not reasonable for
Mr. Nantz to refuse to operate the loader so long as it was
available to him so that at least the operations could continue
rather than refusing to do so and walking off the job. In these
circumstances, the respondent further concludes that its refusal
to call Mr. Nantz back to work was reasonable and did not
constitute a discharge on the basis of protected activity.
I take note of the fact that the Secretary's complaint in
this case does not allege that the respondent's failure to call
Mr. Nantz back to work after the dozer window was repaired
constituted another act of discrimination, and the Secretary's
posthearing brief does not address this issue.
Mr. Nantz testified that when he reported for work on
April 16, 1991, Mr. Fisher confirmed that the dozer window had
not been repaired, and he then informed Mr. Fisher that he did
not want to operate the dozer, but would be willing to "run the
nine(9) or go out here somewhere and reclaim, out of the dust,
and let someone else run the fill til I get my window in. Or,
you know, run the sweeper broom or whatever else you got nobody
else on so I could run to where I won't have to eat that dust
another night, til he got the window in" (Tr. 25).
Mr. Nantz stated that Mr. Fisher informed him that he had no
other dozers for him to operate, but there was "a chance" that he
could run the loader for an hour or an hour and a half, but that
he would then be sent back to the fill to operate the dozer since
the loader may be needed in the shot area. Mr. Nantz stated that
he did not want to run the loader because he believed that the
regular loader operator would get his loader back in an hour and
half to start loading coal, ·and he (Nantz} believed that he would
have to go back on the dozer and continue operating it with the
missing window in the dust for the rest of the shift (Tro 84) o
Mr. Nantz testified further that when he next returned to
the mine on April 17, 1991, Mr. Fisher again confirmed that the
dozer window had not been repaired, and told him that he could
00
either run it like it is or go to the house. You're fired if
you don 1 t run it 10 (Tro 26-27) o Mro Nantz then picked up his
paycheck and went homeo
Mro Napier and Mr. Belcher, both of whom where present on
the same work shift with Mr. Nantz on the first evening that
Mro Nantz refused to operate the dozer with the missing window,
both testified that they heard Mr. Nantz offer to run any other
available equipment so that he would not have to work in the dust
with his dozer, and that Mr. Fisher told Mr. Nantz that the had
nothing available for him to do that evening (Tr. 101, 133-134,
138) .

1894

Mr. Napier had no particular knowledge of the events of the
second evening when Mr. Nantz again refused to operate the
loader, and he confirmed that he never heard Mr. Fisher offer to
let Mr. Nantz run the 980 loader (Tr. 105). Mr. Belcher, the
regular loader operator, testified about a conversation he heard
between Mr. Fisher and Mr. Nantz which he believed took place on
the first evening in question, but was not sure. Mr. Belcher
stated that Mr. Fisher offered to let Mr. Nantz run the loader
"for awhile", but he did not know if Mr. Nantz informed
Mr. Fisher that he did not want to run the loader, or could not
run it. Mr. Belcher explained that he ran the loader for a full
10-hour shift most of the time, but that on the evening in
question he was going to fill the water truck with water so that
Mr. Fisher could water the fill area, and that he would have
resumed cleaning coal in the pit later that evening with the
loader for the remainder of the shift. Mr. Belcher estimated
that he would not need to use the loader for "a couple of hours",
but that after he finished with the water truck he would have to
use the loader again (Tr. 136-140).
Mr. Hamilton testified 'that when Mr. Fisher called him the
first evening to inform him that Mr. Nantz did not want to run
his dozer, Mr. Fisher told him that he had offered the use of the
loader to Mr. Nantz, but that Mr. Nantz wanted to run his dozer
and have it repaired and that he did not want to run any other
equipment (Tr. 200).
Mr. Cornett, who was also present during the Nantz-Fisher
conversation on the first evening, confirmed that Mr. Fisher
offered the use of the loader to Mr. Nantz, but Mr. Cornett was
nor sure whether Mr. Nantz told Mr. Fisher that he would not, or
could notf operate the loader (Tr. 225-228).
Mro Fisher testified that on the first evening of April 16u
199 v he offered
let Mr" Nantz operate the ~80 loaderu and he
informed Mro Nantz that he intended to use the water truck to
settle the dust in the fill area, and that if the loader was
needed later that evening for cleaning coal, Mr. Nantz could then
return to operating his dozer. Mr. Fisher explained that he told
Mro Nantz that he would let him run the loader all night
there
was no coal
be cleaned with the loader 1 but that if he needed
~Ou he would put Mr. Nantz back on his dozer (Tr. 283).
Mr. Fisher stated that Mr. Nantz 1 s response was "No, I'm not
running the 980v I im going home 1u and told him to have the glass
put back
the dozer and to call him when this was done, and
that he would then return to work (Tr. 267-268)0

Mr. Fisher believed that Mr. Nantz was qualified to operate
the loader and Mr. Nantz never told him otherwise.
Mr. Fisher
also believed that no coal would have been cleaned on the evening
of April 16, 1991, and that there was a possibility that
Mr. Nantz would have operated the loader for most of the shift

1895

had he accepted his offer. Although Mr. Nantz would have been
working in the same fill area with the loader, Mr. Fisher pointed
out that the loader had all of its windows intact. Mr. Fisher
confirmed that he did not consider assigning Mr. Nantz to drive
the water truck, and leaving Mr. Belcher on the loader, because
he did not know whether Mr. Nantz could drive the truck, but he
admitted that he did not ask Mr. Nantz whether he could operate
the truck (Tr. 267-269).
With regard to the events of the second evening of April 17,
1991, Mr. Fisher testified that after he informed Mr. Nantz that
his dozer window had not been replaced, Mr. Nantz informed him
that he was going home and he asked him to call when the window
was replaced and that he would return to work at that time.
Mr. Fisher confirmed that he informed Mr. Nantz that he needed to
run the dozer and that if he (Nantz) did not run it, he (Fisher)
would 11 get somebody up here that will" (Tr. 271). There ii:? no
evidence that Mr. Fisher made any further offers of alternate
work on this evening, nor is there any evidence that Mr. Nantz
asked for alternate work.
After careful review and consideration of all of the
testimony and evidence concerning the alternate work issue, I
conclude and find that the respondent's position is not well
taken and it is rejected. While it is true that Mr. Fisher
offered to allow Mr. Nantz the use of a loader which had all of
its windows intact while continuing to work in the dusty fill
area where Mr. Nantz had previously been operating his dozer with
the missing back window, I am not persuaded that this offer of
alternate work, which in the circumstances then presented was
equivocal and conditional, constituted an adequate and reasonable
response to Mro Nantz's complaints about the dust to which he was
exposed~ nor am I convinced that the offer sufficiently quelled
Mro Nantz's concerns about his hazardous exposure to dust.
I conclude and find that Mr. Nantz 9 s refusal to operate the
loader was based on a reasonably founded belief that after a
brief stint on the loader, he would soon find himself back on the
dozer with the missing window operating in the dust again.
Mr. Nantz testified that Mr. Fisher informed him that nthere was
a chance 1v that he could operate for an hour or so, but that he
would have to go back to the dozer because the loader would be
needed elsewhere. Mr. Belcher, the regular loader operator,
testified that he heard Mr. Fisher offer Mr. Nantz the use of the
loader u1 for awhile 11 , and Mr. Belcher estimated that after two
hours, he would again need the loader to resume loading coal in
the pit area.
Mr. Fisher initially testified that he did not believe that
coal would have been cleaned on the evening of April 16, 1991,
and that there was a possibility that Mr. Nantz could have
operated the loader for most of the shift. He also testified

1896

that he informed Mr. Nantz that if the loader were needed to
clean coal, he (Nantz) would have to resume operating the dozer
again (Tr. 267-268). Mr. Fisher reiterated this testimony when
he later testified that he would have let Mr. Nantz run the
loader all night if he did not have coal to clean, and .if he
needed to, he would have returned Mr. Nantz back to his dozer
later in the shift (Tr. 283).
I find Mr. Fisher's testimony to be rather equivocal and
lacking in credibility, and it is contradicted by the credible
testimony of loader operator Belcher who seemed confident that he
would only give up his loader for approximately two hours before
resuming his work in the pit cleaning coal with the loader. It
seems to me that if Mr. Fisher truly believed that no coal would
be cleaned during the shift in question, thereby freeing up the
loader for use by Mr. Nantz for the entire shift, he would have
made this clear to Mr. Nantz, particularly since Mr. Nantz had
complained to him about the dust and was about to leave the job
site and interrupt production. Instead, Mr. Fisher qualified his
offer of the use of the loade;:by making it conditional and
placing Mr. Nantz in the position of not knowing how long he
might be on the loader before again being required to operate the
dozer in a dusty work environment. Under the circumstances, I
conclude and find that Mr. Nantz was not unreasonable in refusing
to operate the loader, and the fact that he did does not render
his refusal unprotected activity.
The Complainant's Termination
Foreman Fisher testified that after he informed superintendent
Hamilton on April 16, 1991, that Mr. Nantz refused to operate the
dozer Mr. Hamilton instructed him "to do what you have to do", and
commented "if they 0 re going to work, they're going to work, o
if they ainat, we're going to have to get someone that will work 11
(Tr. 269-270)0 Mro Fisher confirmed that when Mro Nantz returned to
the mine on April 17, 1991, and found that he dozer was not
repaired, he informed him that he would not operate the dozer in
that condition. Mr. Fisher stated that he then told Mr. Nantz that
if he did not want to run the dozer "I would get somebody up here
that wi11un, and that uvr have to take it you~re quitting your job,
and I 0 11 have to get somebody in here in the dozer 11 (Tr. 271, 286)0
Mr. Fisher further confirmed that he immediately hired a replacement
dozer operator that same evening and that the decision to do so was
his (Tro 271v 286).
o

••

Mine Superintendent Hamilton confirmed that after Mr. Fisher
called him and informed him that Mr. Nantz had refused to operate
the dozer and was going home, he told Mr. Fisher that if Mr. Nantz
would not operate the dozer and went home, "we would have to get
someone else" (Tr. 200). Mr. Hamilton indicated that Mr. Nantz
would not have been "fired", "replaced" or "let go" if he had
remained at work and operated the 980 loader (Tr. 201).

189 7

Mr. Nantz testified that when he returned to the mine to pick
up his pay check the day after he initially refused to operate the
dozer and went home, foreman Fisher again confirmed that the window
had not been repaired and instructed him to "either run it like it
is or go to the house. You're fired if you don't run it"
(Tr. 27-28). I find Mr. Nantz's testimony that Mr. Fisher gave him
an option of operating the dozer with the missing rear window or
"going to the house" to be credible and I believe that this is what
Mr. Fisher told him. As noted by the Commission in Charles Conatser
v. Red Flame Coal Company, Inc., 11 FMSHRC 12, 14 (January 1989),
the phrase "go to the house" is synonymous with a discharge in the
mining industry. See: Moses v. Whitley Development Corp., 4 FMSHRC
1475, 1479 (August 1982), aff'd sub nom. Whitley Development Corp.
v. FMSHRC, No. 84-3375, slip op. at 2 (6th Cir.u July 31, 1985);
Secretary on behalf of Keene v. S&M Coal Co., 10 FMSHRC 1145, 1147
n. 5 (September 1988).
A constructive discharge occurs whenever a miner engaged in
protected activity can show that an operator created or maintained
conditions so intolerable th~~ a reasonable miner would have felt
compelled to resign. Simpson v. FMSHRC, 842 F.2d 453 (D.C. Cir.
1988) at 461-463. Whether such conditions are so intolerable is a
question for the trier of fact. Supra, at 463. See also: Stenson
Begay b. Liggett Industries, Inc., 11 FMSHRC 887 (May 1989), aff'd,
Liggett Ind. v. FMSHRC, 923 F.2d 150 (10th Cir. 1991) of Secretary
ex rel. Harry Ramsey v. Industrial Constructors. Inc., 11 FMSHRC
1585 (August 1989), rev'd, 12 FMSHRC 1587 (August 1990).
I conclude and find that the credible and unrebutted testimony
of Mr. Nantz, corroborated by the co-workers who worked with him on
the same shift, supports his contention that during the time he was
assigned to operate the dozer with the missing rear window, he was
exposed to hazardous dust conditions which made it difficult for him
to clearly see the trucks operating in the fill area where he was
pushing fill with the dozerv and more significantly, caused him
personal problems, including choking and breathing problems
resulting from the dust coming into his cab area through the missing
rear window. I further conclude and find that the adverse health
and safety hazards caused by the dusty conditions as described by
Mr. Nantzv and which stand unrebutted by the respondent 9 can
reasonably be characterized as ii intolerable".
In these
circumstancesv I further conclude and find that Mr. Nantz acted
reasonably when he left the job site on April 15u 1991u after
refusing to operate the dozeru and again on April 16u 1991. In both
instancesu the respondent had failed to take timely action to repair
the dozer, or to take it out of service so that it could be repaired
promptly, and foreman Fisher left Mr. Nantz with little hope of
reasonably addressing his safety and health complaints when he gave
him the option of operating the dozer with the missing window or
going home.

1898

Mr. Hamilton and Mr. Fisher maintained that Mr. Nantz quit his
job and that he was not fired. However, they also asserted that
Mr. Nantz would not have been let go had he opted to stay at work
and operate the loader offered by Mr. Fisher. I fail to see the
distinction between a "let go 11 and a "firing". On the facts of this
case, it seems rather obvious to me that after speaking with
Mr. Hamilton on April 16, 1991, after Mr. Nantz refused to opera~e
the dozer and went home, Mr. Fisher had the authority "to do what he
had to do" if Mr. Nantz continued to refuse to operate the dozer 9
and that he was prepared to summarily fire Mr. Nantz if he refused
to operate the dozer with the missing rear window.
I conclude and find that notwithstanding the offer of the
loader by Mr. Fisher to Mr. Nantz, in the circumstances then
presented, including the failure by the respondent to reasonably
respond to Mr. Nantz's prior complains by seeing to it that the
window was promptly replaced, a relatively simple matter which would
have corrected the dust conditions, Mr. Nantz acted reasonably when
he decided to leave the job site after refusing to operate the dozer
or the loader. I further conclude and find that Mr. Nantz had every
reason to believe that if he 'had stayed on the job operating the
loader for an hour or two, he would soon find himself back on the
dozer for the rest of the shift working in unhealthy and hazardous
dust conditions with no reasonable expectation that management would
eliminate these conditions. Under all of these circumstances, I
conclude and find that Mr. Nantz•s departure from the job site was
reasonable and justified and constituted a constructive discharge as
a result of protective work refusals. Accordingly, I further
conclude and find that Mr. Nantz was unlawfully discriminated
against in violation of section 105(c) of the Act, and the complaint
of discrimination IS SUSTAINED.

Civil Penalty Assessment

z·c seems clear to me from the statutory language found in
section 105(c) 3 of the Act that violations of the discrimination
prohibitions found in section 105(c) (1) are subject to the civil
penalty assessment sanctions pursuant to section llO(a), and the
respondent 0 s arguments to the contrary are rejectedo Further,
respondentijs assertions at pages 42-43 of
posthearing brief that
this action
been brought by the Commission and that the
Commission failed to advanced any evidence whatsoever as to the
appropriateness of any civil penalty assessment are erroneous. This
matter has been brought by the secretary, and the Commission's role
is to consider any appeal taken by any party in response to the
presiding judge~s adjudication of the case.
The burden of presenting evidence to establish an appropriate
civil penalty assessment based on the statutory criteria found in
section llO(i) of the Act lies with the Secretary. As noted
earlier, the presiding judge is not bound by the Secretary's
proposed penalty assessment, nor is he bound by MSHA's regulatory

1899

penalty assessment criteria found in Part 100, Title 30, Code of
Federal Regulations. Any penalty assessment made by the judge is on
a de novo basis, taking into account the record before him and the
statutory criteria found in section llO(i) of the Act.
The respondent is correct in its assertion that the Secretary
failed to present any hearing testimony or evidence in support of
the proposed civil penalty assessment of $8,000, and the
Secretary's brief does not address the civil penalty proposal or any
of the criteria upon which the Secretary made the determination that
$8,000, is an appropriate penalty assessment for the discrimination
violation in question. The only information submitted by the
secretary is found in Exhibit "A" of the amended complaint. That
information includes the mine and company coal production tonnage
for 1990 (203,536 and 856,573), the number of assessed violations
for the 24-month period prior to the violation in question (26), the
number of inspection days during this period (20), the number of
violations per inspection day (1.3), and the number of previously
assessed section 105(c) violations (None), and some meaningless and
unexplained "points" pursuant to 30 C.F.R. § 100.3(b) and (c).
Although MSHA special investigator Brock testified in this case, his
testimony was mostly limited to an explanation of his backpay
computations, and he offered no testimony or evidence concerning any
of the civil penalty criteria.
The respondent's suggestion that no civil penalty should be
assessed because of Mr. Nantz's contributory negligence for failing
to avail himself of the dust protection offers made by the
respondent, and failing to taken precautions to avoid the dust, is
rejected. I have previously rejected the respondent's attempts to
shift the burden of correcting or mitigating the hazardous
conditions which prompted the work refusal in this case to
Mro Nantz, and it seems well settled that a mine operator 1 s
negligence may not be imputed to the miner, and that the Mine Act
a strict liability statute.
Evaluation of the relevant criteria pursuant to section llO(i)
of the Act is necessary to determine an appropriate penalty
assessment in this case. I conclude and find that the respondent is
a small mine operator with no prior history of section 105(c)
violations. I further conclude and find that pursuant to the Actr a
mine operator such as the respondent has a high duty of care to
correct or prevent conditions or practices hazardous to the health
or safety of its miner workforce. In this case, the evidence
establishes that Mr. Fisher was well aware of the missing dozer back
window, and Mr. Nantz vs complaints concerning the dust, yet he chose
not to insure that the window was replaced promptly, or to remove
the dozer from service. Instead, he gave Mr. Nantz the option of
running the dozer with the missing window in the dust, or going
home. Under the circumstances, I conclude and find that the
violation resulted from a high degree of negligence on the part of
foreman Fisher which is imputed to the respondent.

1900

In Consolidation coal Company, 8 FMSHRC 890, 895-899 (June
1986), the Commission took note of the concern expressed by Congress
in eliminating respiratory dust illnesses and other mine occupationrelated diseases. Although that case concerned the Secretary's
underground respirable dust standards, I find the Commission's
observation that prevention of occupational illnesses was among the
fundamental purposes underlying the Mine Act to be equally
applicable in this case. The fact that Mr. Nantz did not prevail in
his pneumoconiosis workers• compensation claim is irrelevant to any
gravity finding, and the actual existence of a hazard need not be
proved by the miner to establish that he had a reasonable and good
faith belief that a hazard existed at the time of the work refusal.
On the facts of this case, I have accepted Mr. Nantz•s credible and
unrebutted testimony with respect to the hazardous and unabated dust
conditions to which he was exposed to while operating the dozer with
the missing window, and it seems clear to me that his employment
termination was the direct result of these conditions. Under the
circumstances, I conclude and find that the discrimination violation
was serious. Further, given the fact that the respondent failed to
reasonably respond to Mr. Nantz•s dust complaints, the relatively
extended period of time which"passed with no corrective action by
the respondent, and the fact that repairs were made after Mr. Nantz
was forced to leave his job, I cannot conclude that respondent acted
in good faith to correct the conditions, or that it rapidly
addressed Mr. Nantz's complaints.
I find no credible evidentiary support for the Secretary's
proposed civil penalty assessment of $8,000, particularly for a
small mine operator with no prior history of discriminatory
practices or violations, and the proposed penalty IS REJECTED.
However, based on my consideration of the record before me, and my
de novo consideration of the criteria found in section llO(i) of the
Actv and in the absence of any showing by the respondent that any
civil penalty assessment will adversely affect its ability to
continue in businessu I conclude and find that a penalty assessment
$1,000u is reasonable and appropriate in this case.
Relief and Remedies
The amount of compensation due Mr" Nantz is in dispute. The
Secretary has filed a claim of backpay in the amount of $32,355.15,
through August 12, 1992 (Exhibit C-1), and Inspector Brock testified
with respect to the computations which are reflected in that
document. The respondent disputes this amount of backpay and points
out that it was computed upon Mr. Nantz 1 s purported working an
average of 58 1/2 hours per week, whereas its evidence reflects that
Mr. Nantz worked an average of 39.6 hours per week and that there
was a layoff to which Mr. Nantz would have been subject from
August 14, 1991, until October 1, 1991 (Exhibit R-5, posthearing
brief, pgs. 39-40).

1901

I find Mr. Nantz's testimony concerning his normal work week
and overtime to be somewhat confusing. He initially testified that
he was paid $10.50 per hour straight time and $15.75 per hours
overtime, and that he worked five and six days a week, ten hours a
day. He confirmed that he worked 40 hours a week at the regular
time hourly rate, and that any hours over 40 was overtime
(Tr. 14-15). In subsequent responses to certain questions
concerning what he may have told Inspector Brock, Mr. Nantz
testified that he worked "five days a week, ten hours a day, and a
lot on Saturdays, •.. maybe eight and one-half hours", and one of the
questions asked of him inf erred that he may have worked a fifty-hour
regular week, and overtime only on Saturdays (Tr. 63-65).
I take note of the fact that a copy of a workers' compensation
application executed by Mr. Nantz on June 28, 1991, and submitted by
the respondent, contains a statement that Mr. Nantz's wage while
employed by the respondent was 11 $10.50 an hour for 58 hours a week
(Item M of application). The respondent has submitted additional
information, including copies of payroll and work attendance records
in support of its rebuttal tothe Secretary's backpay claims based
on Inspector Brock's computations. Inspector Brock confirmed that
Mr. Nantz's initial complaint stated that he worked 58 hours a week
in 1991 (Tr. 172-173).
Mr. Hamilton testified that 50 hours a week
was a normal work week, and that anything over 40 hours is overtime

(Tra 195) o

The respondent further asserts that Mr. Nantz failed to give
Inspector Brock any verification of the wages he had earned since
his termination or any information concerning his unemployment
insurance benefits he had received during this period of time. The
parties are in agreement that any reduction of back pay compensation
due for unemployment payments is a matter of discretion with the
presiding judge Boich Vo FMSHRCu 719 F.2d 194 (6th Cir. 1983).
Mro Nantz
fied
a logging job and employment with Clover
Fork Mining company after his termination, as well as his
unemployment compensation (Tr. 27-30~ 57-62)0 His deposition of
June 15, 1982 also makes mention of work with L.C. logging
(Tro 18-19)v and other losses he allegedly incurred (Tr. 60-63).
0

It
incumbent on the parties, not the judge 1 to evaluate this
information and reduce it to specific time periods and dollar
amounts 0 with credible evidentiary support 0 in support of their
respective claims as to precisely what Mr. Nantz may be entitled to
terms of compensation. The parties were specifically advised in
the course of the hearing that they were expected to support and
ogwork outug among themselves the remedial compensation due Mr. Nantz
in the event he prevailed in this matter (Tr. 166-167).
The record contains several exhibits concerning certain medical
expenses incurred by Mr. Nantz pursuant to his employee insurance
benefits provided by the respondent (Exhibits C-3 through C-15).
During opening arguments, the Secretary's counsel asserted that

1902

Joint Exhibit J-2, contains the stipulated benefit amounts that
Mr. Nantz would otherwise be entitled to under the company provided
medical insurance policy (Exhibit J-3; Tr. 3-4).
citing the Commission's decisions in Metric Constructors. Inc.,
4 FMSHRC 791 (April 1982 (Judge Lasher), aff'd by the Commission at
6 FMSHRC 226 (February 1984), aff'd, Brock v. Metric Constructors,
Inc. 766 F.2d 469 (11th Cir. 1985), and relying on Mr. Nantz's
testimony (Tr. 27), that he waited two or three weeks after his
termination on April 16, 1991, waiting to see if the respondent
would call him back to work, before attempting to find other work,
the respondent argues that at least three weeks should be deducted
from any back pay award to Mr. Nantz for his failure to immediately
seek other employment.
The respondent asserts that since Mr. Nantz made no reasonable
efforts to seek reemployment with the respondent, and that he
0 basically refused to consider any reemployment by the respondent
unless he was paid his back pay", he should be denied any back pay
in this case. The respondent's suggestion that it made an "offer"
of reemployment to Mr. Nantz is unsupported, and I find no evidence
that this was the case. The respondent's arguments are rejected.
ORDER
1. The respondent IS ORDERED to reinstate Mr. Nantz to his
former position with full backpay and benefits, with interest,
from April 16, 1991, to the date of his reinstatement, at the
same rate of pay, on the same shift, and with the same status
and classification that he would now hold had he not been
unlawfully discharged. Interest shall be computed in
accordance with the Commission's decision in Secretary/Bailey
Vo Arkansas-Carbonap 5 FMSHRC 2042 (December 1983)~ and at the
adjusted prime rate announced semi-annually by the Internal
Revenue Senrice
the underpayment and overpayment to taxes"
2" The respondent IS ORDERED to compensate Mr. Nantz for all
legitatimate medical expenses incurred by him since the date of
termination which would have been covered by any employee
medical insurance carried by the respondent for his or his
family member 0 s benefitr reimbursement or coverage of which
would have been afforded him had he not been terminated.
3o
The respondent IS ORDERED to expunge from Mr. Nantzvs
personnel file and/or company records all references to the
circumstances surrounding his employment termination of
April 16, 1991.

4. The respondent IS ORDERED to pay a civil penalty assessment
of $1,000, for the discriminatory violation which has been
sustained.

1903

Counsel for the parties ARE ORDERED to confer with each other
during the next fifteen (15) days with respect to the aforesaid
remedies due Mr. Nantz, and they are encouraged to reach a mutually
agreeable resolution or settlement of these matters, and any
stipulations or agreements in this regard shall be filed with me
within the next thirty (30) days.
In the event counsel cannot agree, they are to notify me of
this within the initial fifteen (15) day period. If there are any
disagreements, counsel ARE FURTHER ORDERED to state their respective
positions on those compensation issues where they cannot agree, with
supporting arguments or specific references to the record in this
case, and they shall submit their separate proposals, with
supporting arguments and specific proposed dollar amounts for each
category of relief (basic backpay, overtime, medical insurance
claims, other claims), within thirty (30) days. If the parties
believe that a further hearing may be required on the remedial
aspects of this matter, they should so state.
I retain jurisdiction in_j:.his matter until the remedial aspects
of this case are resolved and finalized. Until those determinations
are made, and pending a finalized dispositive order by the
undersigned presiding judge, my decision in this matter is not
final. In addition, payment by the respondent of the civil penalty
assessment made by me in this matter is held in abeyance pending a
final dispositive order.

Distribution~

MaryBeth Bernui, Esq., Office of the Solicitor, U.S. Department of
2002 Richard Jones Road, Suite B-201, Nashville, TN 32715
f ied Mail)
David o. Smith, Marcia A. Smith, Esqs., 100 West Center Street, P.O.
Box 699 1 Corbinu KY 40702 (Certified Mail}

1904

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

NOV 2 31992
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. KENT 92-136

A. C. No. 15-11620-03527

v.
Docket No. KENT 92-340
A. C. No. 15-11620-03528

PYRAMID MINING, INCORPORATED,
Respondent

Docket No. KENT 92-341
A. C. No. 15-11620-03529
Hall No. 2 Mine
DECISION
Appearances:

Before~

Mary Sue Taylor, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
for Petitioner;
Frank Stainback, Esq. Holbrook, Wible, Sullivan,
and Mountjoy, Owensboro, Kentucky for Respondent.

Judge Weisberger

These consolidated cases are before me based on petitions
for assessment of civil penalty filed by the Secretary of Labor
(Petitioner) alleging violations of various mandatory safety
standards" Pursuant to noticet Docket No. KENT 92-136 was
scheduled for hearing for April lg 1992.
At the hearing, the
parties settled Citation Noo 98978400 A Partial Decision was
subsequently issued regarding these citations. Also, further
proceedings regarding Citation No. 3416898 were stayed pending
the filing of a Petition for Assessment of civil penalty with
regard to Citation No. 3416897. Subsequently, petitions were
led regarding this citation (KENT 92-340), and a companion
Citation No. 3416991 (KENT 92-341). The parties engaged in
pretrial discovery, and on November 12, 1992, filed a Joint
Motion to Approve Settlement regarding citation No. 3416898
(KENT 92-136) as well as citation Nos. 3416897 and 3416991
(Docket Nos. KENT 92-140 and KENT 92-141 respectively).
Initially, in the respective Petitions for Assessment of
Civil Penalty, Petitioner had sought civil penalties totaling
1905

$1,726.
In the Motion, the parties seek approval of a reduction
of penalties to $294. Based on the representatives and
assertions set forth in the Joint Motion, I conclude that the
proffered settlement is appropriate considering the factors set
forth in Section llO{i) of the Federal Mine Safety and Health Act
of 1977. I therefore approve the settlement, and grant the joint
motion.

It is ORDERED that, within 30 days of this Decision,
Respondent shall pay civil penalties totalling $294.

bwe~er

Administrative Law Judge

Distribution:
Mary sue Taylor, Esq., Office of the Solicitor, U.S. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215 (Certified Mail)
Frank Stainback, Esq., Holbrook, Wible, Sullivan, & Mountjoy,
P.S.C., 100 St. Ann Street, P.O. Box 727, Owensboro, KY 423020727 (Certified Mail)
nb

1906

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

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
FAITH COAL COMPANY,
Respondent

CIVIL PENALTY PROCEEDINGS
:
:

..

Docket No. SE 92-145
A.C. No. 40-02755-03533
Docket No. SE 92-146
A.C. No. 40-02755-03534

.

Docket No. SE 92-252
.... A.C.
No. 40-02755-03535
No. 15 Mine
DECISIONS

Appearances:

Anne T. Knauff, Esq., Office of the Solicitor,
u.s. Department of Labor, Nashville, Tennessee,
for the Petitioner;
Lonnie Stockwell, Owner, Faith Coal Company,
Palmer, Tennessee, pro se, for the Respondent.

Before~

Judge Koutras
statement of the Proceedings

These proceedings concern proposals for assessment of civil
penalties filed by the petitioner against the respondent pursuant
to section llO(a) of the Federal Mine Safety and Health Act of
1977v 30 U.S.C. § 820(a)Q seeking civil penalty assessments of
$876 for twelve (12) alleged violations of certain mandatory
safety and health standards found in Parts 48, 70, and 75q
Title 30v Code of Federal Regulations.
The respondent filed answers denying most of the violations,
and advancing certain mitigating circumstances with respect to
the cited conditions or practices, including a claim that the
financial condition of the company, which is a sole proprietorship owned and operated by Mr. Lonnie Stockwell, as well as
Mr. Stockwell's personal financial situation, precludes the
payment of any civil penalty assessments for the violations in
question.
A consolidated hearing was convened in Chattanooga,
Tennessee, and the parties appeared and participated fully
therein. The parties waived the filing of posthearing briefs,
1907

and they were permitted to present arguments on the record in the
course of the hearing in support of their respective positions.
I have considered their arguments in the course of my
adjudication of these matters.
Applicable Statutory and Regulatory Provisions
1.

The Federal Mine Safety and Health Act of 1977,
Pub. L. 95-164, 30 u.s.c. § 801, et seg.

2.

Sections llO(i) of the 1977 Act, 30 u.s.c.

3.

Commission Rules, 29 C.F.R.

§

§

820(i).

2700.1, et seg.

Issues
The issues presented in these proceedings are (1) whether
the cited conditions or practices constitute violations of the
cited mandatory safety or health standards, (2) whether several
of the alleged violations were "si~nificant and substantial''
(S&S), and (3) the appropriate civil penalties to be assessed for
the violations, taking into account the statutory civil penalty
assessment criteria found in section llO(i) of the Act. The one
principal issue presented is whether or not the respondent has
established that it is financially unable to pay any of the civil
penalties assessed in these proceedings, and whether the payment
of such penalties will affect its ability to continue in
business.
Stipulations
The parties stipulated to the following (Tro 4-6v

20)~

The respondent and the Noo 15 Mine are subject to the
jurisdiction of the Actp and the presiding judge has
jurisdiction to hear and decide these matters.

The respondent 9 s annual coal production is approximately
11 691 production tonsp and the Noo 15 mine has an annual
coal production of 8v016 tons.
2o

3o
The respondent is a small underground coal mine operator
and presently operates only one minev namely the No. 15

mine.
4. All of the citations issued in these proceedings were
timely abated by the respondent in good faith either within
or prior to the times fixed by the inspectors who issued
them.

1908

Discussion
Docket No. SE 92-145
This case concerns two alleged violations issued by MSHA
Inspector Archie L. Coburn, Jr., on November 19, 1991, and they
are as follows:
Section 104(a) non-"S&S" citation No. 3395619, cites an
alleged violation of 30 C.F.R. § 70.204(d) (1), and the cited
condition or practice states as follows (Exhibit J-2):
Suitable examinations of the respirable dust pump are not
being made by the certified person.
A voltage meter is not
available to test the battery of the respirable dust pump to
assure that proper voltage is provided. This was learned
through the interview with the operator during a CBE type
inspection.
Section 104 (a) non-"S&S'~. Citation No. 3395620, cites an
alleged violation of 30 C.F.R. ~ 1~~1712-4, and the cited
condition or practice states as follows (Exhibits J-3 and P-1):
The bathhouse waiver for this mine was not being
complied with in that no sanitary toilet facilities
were provided. As stipulated on cover sheet of
bathhouse waiver.
Docket No. No. SE 92-146
This docket includes six (6) alleged violations issued by
MSHA Inspector Archie L. Coburn, Jr., and they are as follows:
Section 104 (a) uus&sn Citation No. 3395610, November 5, 1991,
as modified, cites an alleged violation of 30 C.F.R.
§ 75.1704-2(c) (2), and the cited condition or practice states
as follows (Exhibit J-4) ~
The results of examinations of emergency escapeways and
facilities fire doors and for smoking articles were not
recorded in the approved book. Last entry 10-21-91.
Section 104(a) ns&su Citation No. 3395611, November 5, 1991,
cites an alleged violation of 30 C.F.R. § 75.306, and the cited
condition or practice states as follows (Exhibit J-5) ~
The results of weekly examinations for methane and
hazardous conditions were not recorded in the approved
book. Last entry 10-24-91.

1909

Section 104(a) "S&S" Citation No. 3395612, November 5, 1991,
as modified, cites an alleged violation of 30 C.F.R. § 75.512,
and the cited condition or practice states as follows
(Exhibit J-6):
The required record book for examination of electrical
equipment was not available at the mine for inspection
by an authorized representative of the Secretary and to
the miners.
Section 104(a) "S&S" Citation No. 3395613, November 5, 1991,
cites an alleged violation of 30 C.F.R. § 70.210(b), and the
cited condition or practice states as follows (Exhibit J-7):
The results of the last bi-monthly respirable dust
survey run at the mine was not posted on the mine
bulletin board.
Section 104(a) "S&S" Citation No. 3395617, November 18,
1991, cites an alleged violatfori of 30 C.F.R. § 75.316, and the
cited condition or practice states as follows (Exhibit J-8):
The No. 2 entry on the 001-0 section was advanced
20 feet inby the last open crosscut, and a deflector
curtain was not provided as required by the approved
ventilation methane and dust control plan.
Section l04{a) "S&S" Citation No. 3395618, November 18,
1991, cites an alleged violation of 30 C.F.R. § 75.301, and the
cited condition or practice states as follows (Exhibit J-9):
The required 3p000 CFM of air was not maintained in the
Noo 3 entry on the 001-0 section where coal was being
loaded with a Elkhorn AR4 scoop, in that only 2,430 CFM
could be measuredo
MSHA Inspector Larry Jo Anderson issued the following two
violationso
Section 104 (a) ois&S 0G Citation Noo 3395347 1 December 2, 1991 1
cites an alleged violation of 30 C.F.R. § 75.1704-2(c) (2), and
the cited condition or practice states as follows {Exhibit J-10) ~
Dates, time and initials had not been placed at various
locations in the 001 section immediate return escapeway
which would indicate the area had been examined by a
certified person.

1910

Section 104(a) "S&S" Citation No. 3395348, December 3, 1991,
cites an alleged violation of 30 C.F.R. § 75.523, and the cited
condition or practice states as follows (Exhibit J-11):
The panic bar installed on the Elkhorn battery powered
tractor S.N. 73-87 was not maintained in an operative
condition in that the panic bar had been damaged and
could not be depressed enough to deenergize the tram
motor on the machine.
MSHA Inspector Clyde J. Layne issued Section 104(a) "S&S"
citation No. 3395579, on December 2, 1991, citing an alleged
violation of 30 C.F.R. § 75.208, and the cited condition or
practice states as follows (Exhibit J-12):
Safety precautions were not being maintained to prevent
persons from traveling inby permanent supports in the
first left place in the No. 1 entry. The cut of coal
had been cleaned up and a visible warning or a physical
barrier was not posted at the end of the permanent roof
supports. The face of the place was approximately
9 feet inby the last permanent support.
Docket No. SE 92-252
Section 104(g) (1) Order No. 3395455, issued by MSHA
Inspector Tommy D. Frizzell on September 26, 1991, cites an
alleged violation of mandatory training standard 30 C.F.R.
§ 48.28(a), and the cited condition or practice states as
follows:
James Stockwell, observed performing duties at the
surface area of the underground mine, has not received
the requisite safety training as stipulated in
section 115 of the Acto Mro Stockwell has not received
the annual refresher trainingo
In the absence of such
training, James Stockwell is declared to be a hazard to
himself and others and is to be immediately withdrawn
from the mine until he has received the required
training a
Testimony and Evidence. Docket No. SE 92-145
Citation Noo 33956190 30 C.F.R. § 70.204(d) (1) o
MSHA Inspector Archie Coburn testified about his experience,
including ten years of private industry coal experience as an
electrician and equipment operator. He confirmed that he was at
the mine on November 19, 1991, to perform a respirable dust
technical investigation, and during an interview with mine
operator Lonnie Stockwell it was revealed that he did not have a
volmeter to check the battery voltage on the respirable dust

1911

sampling pumps as required by the regulation. The pumps are
owned by the Tennessee Consolidated Coal Company, but
Mr. Stockwell maintains them. The regulation requires that the
pumps be maintained and calibrated by a certified person, and
Mr. Stockwell is certified to take care of the pumps. The
voltage meter serves to check the voltage on the pumps prior to
and after a respirable dust survey is made. Mr. Coburn did not
know how long the violation existed, and he stated that
Mr. Stockwell admitted that he did not have the type of meter
necessary to check the pumps (Tr. 13-15).
Mr. Coburn believed that Mr. Stockwell would be expected to
know about a voltage meter because he is certified by MSHA to
taken respirable dust samples, is a certified electrician, and
has been trained to use and calibrate the pumps (Tr. 15).
Mr. Coburn explained the importance of maintaining the pumps and
insuring the proper voltage. He confirmed that different types
of voltage meters are used at mines that could be equipped with a
charging plug to check the pump voltage, but no such meter was
available at the time the citation was issued (Tr. 16).
Mr. Coburn confirmed that there were no dust pumps at the
mine at the time of the inspection because Mr. Stockwell had
already submitted his bimonthly samples and returned the pumps to
Tennessee Consolidated. He also confirmed that Mr. Stockwell had
requested that company to examine the pump batteries from the
last calibration date, but had not as yet received the
examination records (Tr. 16-17). Mr. Coburn stated that he used
a spare pump to check the pump calibration and Mr. Stockwell's
ability to calibrate the pumps (Tr. 18).
Mr. Coburn confirmed that the violation was not significant
and substantialp that it resulted from a moderate level of
igencep and that it was abated within an hour and fifteen
minutes with a minimal amount of time and cost (Tr. 19)o
On cross-examination, Mr. Coburn could not recall
Mr. Stockwell advising him that he did not understand the
question asked of him concerning the availability of a voltage
meter" Mro Coburn stated that Mr. Stockwell told him that he did
not have a voltmeter capable or adapted to charge a dust pump 1
but that after he had written the citation Mr. Stockwell produced
a voltmeter with a charging plug, and proceeded to test the pump
to his satisfaction. Mr. Coburn then terminated the citation
(Tr. 21=27).
Mine Operator Lonnie Stockwell testified that he keeps all
of his electrical equipment, including test meters, at the "stove
room building" at the mine site, and he contended that he
misunderstood Mr. Coburn's inquiry about the availability of a
voltmeter for testing the respirable dust pumps. Mr. Stockwell
stated that after their initial conversation, Mr. Coburn left the

1912

mine office, which is in a separate building, and went to his
truck. Mr. Stockwell stated that he then realized what
Mr. Coburn had asked him and he proceeded to the electrical
storage building, picked up a meter, and went to the truck and
showed it to Mr. Coburn and demonstrated to him that it would
work. Mr. Coburn described the meter as an inexpensive "radio
shack item" which was in the shop (Tr. 33-35).
on cross-examination, Mr. Stockwell explained the different
methods used to test the dust pumps, and he confirmed that he had
to unplug one set of leads from the voltmeter he produced for
Mr. Coburn and replace them with another set of leads, and he
explained how that meter is used, and confirmed that Mr. Coburn
may have given him suggestions as to how to adapt the voltmeter
so that he could use it to test the dust pump voltage
(Tr. 38-42) •
Citation No. 3395620, 30 C.F.R.

§

75.1712-4.

Inspector Coburn stated that he issued the citation because
sanitary toilet facilities were not provided at the mine as
required by the bathhouse waiver granted to the respondent on
October 15, 1990 (Exhibit P-1). He confirmed that the mine
operates one shift per day and that six to ten people work on the
shift (Tr. 44). He testified that the nearest sanitary toilet
facility was located 300 to 400 yards off mine property at
another adjacent mine site operate by the T&G Coal Company. He
confirmed that pursuant to the waiver, the respondent was not
required to have a full shower or bathhouse facility, but had to
have a sanitary toilet facility consisting of a fully flush
toilet or a chemical toilet known as a "Port-o-pot" (Tr. 46).
Mr. Coburn stated that there was no flush toilet facility at
the mineu but he did observe a "Port-o-pot" chemical toilet that
was still in the shipping boxv and it was not in place or
operational so that it could be used (Tr. 47). He observed that
Mr. Stockwell had begun to install a partition in the trailer
where the "stove room" was located in order to provide privacy
when the toilet was set up, and Mr. Coburn confirmed that he
terminated the citation when Mro Stockwell began working on the
partition. He confirmed that Mr. Stockwell now rents a sanitary
toilet facility for the mine (Tr. 48).
Mr. Coburn confirmed that the violation was not significant
and substantialv and that it resulted from a moderate negligence
level. He confinned that when he asked to see the sanitary
toilet facility, Mr. Stockwell showed him the "Port-o-pot" which
was still in the box. The top was off the box, but the toilet
was still wrapped in plastic and there were no chemicals to
activate it. He confirmed that the partial walls and a roof were
under construction to provide privacy for the men once the toilet
was installed and made operational (Tr. 50).

1913

on cross-examination, Mr. Coburn stated that he did not see
the toilet paper which Mr. Stockwell contended was on top of a
refrigerator in the trailer (Tr. 52). In response to further
questions, Mr. Coburn stated that he issued the citation because
of the lack of toilet privacy and chemicals, and the fact that
the portable facility was not in service and ready for use. He
believed it had to be ready for use at any time, and not just
when someone wished to use it. He confirmed that the portable
toilet which he observed was still in the crate, and it was the
only one he saw on the mine surface (Tr. 55).
Mr. Stockwell testified that a roll of toilet paper was on
top of the refrigerator in the building where the portable toilet
was located, and he stated that water was available for use with
the toilet but that none was placed in it at the time because it
was winter and the building is not heated at night and the water
could freeze. He believed that privacy could be maintained by
simply closing the door to the building, and that heat and soap
and water are provided during the work shift. He stated that he
knew of nothing else that he could do to be in compliance with
the law (Tr. 56-57).
Mr. Stockwell denied that the portable toilet was still in
the shipping crate as contended by the inspector. He stated that
he purchased the toilet used and that it was not in a box. He
had it wrapped in a "green garbage sack" as a convenient way to
keep it clean and dust free, and when it needed to be used "you
just pull the garbage sack away from the side of it and you got a
clean facility to use" {Tr. 57). He described the toilet as a
self-contained device that can be lifted by one person, and when
it is used, water and a deodorizer are poured inside. He stated
that no chemicals are used, and that after someone uses the
toilet, the contents are taken out and disposed of, and it is
washed out and made ready for use again. He confirmed that there
is no running water available, but that a bucket of water is made
availablev and he is in the process of trying to obtain running
water (Tro 58-59) o
on cross-examination, Mr. Stockwell explained his understanding of a nsanitary toilet facility 91 p and he believed that
the portable toilet in question satisfied the waiver requirements
(Tr. 62-64)0 He reiterated that he purchased the toilet as a
used device from another mine operator and that he took it home
and cleaned it up and placed it in the garbage bag to keep it
clean (Tro 70-71).
Inspector Coburn was recalled by the presiding judge, and he
did not dispute Mr. Stockwell's assertion that the toilet was in
a green bag. Mr. Coburn confirmed that it was not in a wooden
crate, and he saw no packing materials, but he reiterated that
the toilet was not set up for use. He confirmed that the toilet
could have been used if chemicals were provided (Tr. 73).

1914

Testimony and Evidence. Docket No. SE 92-146
Citation No. 3395612
Mr. Stockwell conceded that the electrical equipment
examination record book in question was not at the mine at the
time of Mr. Coburn's inspection on November 5, 1991.
Mr. Stockwell asserted that he had taken the book home with him
in order to make certain entries after completing a prior work
shift and that he inadvertently forgot to bring· it back to the
mine with him when he returned to work. He further asserted that
he told the inspector that he could drive home to obtain the
record book and immediately return to the mine with the book but
that the inspector took the position that since the book was not
available at the mine the violation existed and a citation would
have to be issued.
RSHA's counsel asserted that if called to testify the
inspector would testify that he had no recollection that
Mr. Stockwell offered to drive home to retrieve the record book
in question and that since the book was not at the mine site for
his review a violation occurred (Tr. 76-78).
After further discussions, the parties decided to settle
this alleged violation, and the solicitor agreed that the
citation should be further modified to reflect a non-"S&S"
citation (as originally issued ) and that the proposed $54
penalty assessment would be reduced to $20. Both parties agreed
to this proposed disposition (Tr. 78).
Citation No. 3395613
Mr. Stockwell conceded that the results of the last
bimonthly respirable dust survey were not posted on the mine
bulletin board at the time of the inspection by Mro Coburn on
November 5 0 19910 HoweverP Mro Stockwell asserted that the
survey results were posted on the bulletin board prior to the
inspection but that he removed the document in order to prepare a
response and to communicate an error in the test results to
MSHAus Birmingham 0 Alabama officeo Mro Stockwell further
asserted that the document was in his vehicle parked outside the
mine and that he informed the inspector of this but the inspector
took the position that since the results were not posted on the
bulletin board as required when he conducted his inspection the
violation existedo
After further discussion and consultation by the parties,
they informed me that they proposed to settle this citation and
they agreed it should be modified to a non-"S&S 11 citation, and
that the penalty should be reduced from $54 to $20 {Tr. 78-80).

1915

With regard to the remaining citations in this case,
Mr. Stockwell stated that he did not wish to dispute the fact of
violations, and he agreed that all of the conditions and
practices described by the inspectors on the face of each of the
citations accurately reflect the conditions cited by the
inspectors as violations. Further, Mr. Stockwell waived the
presentation of any evidence or testimony rebutting the
inspector's findings concerning each citation, and he stated that
he would accept them as written, and that he wished to rely on
his contention that he is financially unable to·pay any civil
penalty assessments, and that the payment of said penalties will
adversely affect his ability to continue in business (Tr. 80-82;
85-87; Exhibits J-4, J~5, J-8 through J-12, P-3).
Testimony and Evidence. Docket No. SE 92-252.
MSHA Inspector Tommy o. Frizzell testified as to his
experience and training, and he confirmed that he issued the
section 104(g) (1) order withdrawing James Stockwell from the mine
until he received his required annual refresher training (Exhibit
J-13; Tr. 189-90). He explained that on September 25, 1991, he
observed Lonnie Stockwell's brother James performing mine duties
that he had not been trained to do, and he confirmed that when he
reviewed the training records at the mine he could not find a
form verifying that James had received his annual refresher
training. Mr. Frizzell stated that Lonnie Stockwell informed him
of his belief that the training Forms 5023 were at his home and
that he had a need for the forms in connection with some court
litigation, and that he would bring them to the mine the next
day. Mr. Frizzell was aware of the litigation and he gave Lonnie
Stockwell an opportunity to produce the records the next day
(Tr. 91-91).

Mr.
zzell stated that on September 26v 199lp he again
asked Mro Stockwell to produce the training records; and
Mr. Stockwell informed him that he did not know what he had done
with themo Mro Frizzell stated that he called the state training
office which trains miners for Mr. Stockwell and most of the
other area minesv and he was told that there was no record that
James Stockwell had received any training the prior year.
Mr. Frizzell confirmed that James Stockwell would normally
receive a training card and a copy of Form 5023, but he could not
produce any evidence that he had received training. Mr. Frizzell
further confirmed that he did not ask James Stockwell if he had
been trainedv but that another inspector who was with him did,
and James stated that he had received no training for
approximately two years (Tro 94).
Mr. Frizzell stated that he observed James Stockwell
operating a front end loader, and that he was also dumping coal
cars and had to walk between them to uncouple them. He was also
performing surface maintenance work.
After informing Lonnie

1916

that James could not work until he received his training, James
became upset and left the mine, and Lonnie stated that he could
not work the mine without James on the surface. Lonnie offered
to train James at his home, but Mr. Frizzell informed him that he
would have to monitor the training because he did not know if
Lonnie had the required training materials (Tr. 95-96).
Mr. Frizzell stated that Lonnie Stockwell has a training
instructor's card, but does not have the training facilities or
the necessary videos and materials, and he only, does task
training and newly employed miner training. Annual refresher
training is done by the state (Tr. 97). Mr. Frizzell reiterated
that Lonnie Stockwell could not produce any records verifying
that James had received the required annual refresher training.
He confirmed that the order was terminated on September 30, 1991,
after Lonnie brought him a copy of the training forms from the
state training department verifying that James had been trained
(Tr. 98) •
Mr. Frizzell stated that he based his "S&S 11 finding on his
belief that without the requl·red training, James would be a
hazard to himself or someone else, and that if he continued
working and an accident occurred, it would be serious because he
performs hazardous surface work (Tr. 98). Mr. Frizell confirmed
that he based his "high negligence" finding on the fact that
Lonnie Stockwell has known about the training requirements for
several years, has trained his men, and had everyone else take
annual refresher training except James. Mr. Frizzell believed
that Lonnie knew or should have known that James had not been
trained (Tr. 99).
In response to further questions, Mr. Frizzell stated that
Mro Lonnie Stockwell had training records at the mine for all of
his other employees except for his brother James, and after
initial
telling him that he had the records at home~ Lonnie
could not produce them the next day (Tro 102)0

on cross-examination, Inspector Frizzell confirmed that
Mro Lonnie Stockwell was qualified to provide the full range of
training for his employees, including retraining (Tro 103)
In
the course of further cross-examination, Mr. Stockwell produced
his mine training record books, and pointed out that when he
moved to the Noa 15 mine on May 14, 1990, from another mine, he
was told that he would have to give the employees newly employed
experienced miner training because they were working at a new
site, and that this retraining would be good for one year. He
produced a copy of an MSHA Certificate of Training From 5000-23,
showing that James Stockwell received Newly Employed, Experienced
Miner training on May 14, 1990, and another training certificate
form showing the James Stockwell received annual refresher
training on November 17, 1990, which would have been well within
0

1917

the 12-month period expiring on November 17, 1991, approximately
two months after the order was issued by Mr. Frizzell.
Mr. Stock.well confirmed that the copies he produced were made
from the original training record books that he produced for
examination by Mr. Frizzell and MSHA's counsel, as well as the
presiding judge (Tr. 103-107: Exhibit R-1). Mr. stock.well
further explained his training record keeping procedures
(Tr. 107-109).
Inspector Frizzell confirmed that he had not previously seen
the training records produced by Mr. Stockwell in court, and he
confirmed that had the records been produced by Mr. Stockwell at
the time of the inspection, he would not have issued the
violation in question because the respondent still had two months
to go before the training certificate for James Stockwell expired
(Tr. 111). Mr. Frizzell further confirmed that the violation
would have been vacated during the conference stage had
Mr. Stockwell produced his records at that time (Tr. 118).
Mr. Stockwell explained that he could not produce the
training books in question at'the time of the inspection because
he was in the midst of litigation over a training grievance and
the records were with his attorney at that time, rather than at
his home as he had initially thought, and it took him some time
to find the record books (Tr. 111). Mr. Stockwell described his
brother James as "contrary" and "doesn't like people telling him
what to do" (Tr. 112). From these reasons, he decided to train
James himself to avoid problems, and he believed that he trained
him adequately (Tr. 113).
Mr. Stockwell further explained his failure to produce his
training records earlier in this litigation, including the time
when he and the solicitor were in pretrial discussions, and he
stated that he failed to do so because he had no confidence that
he would be treated fairly, and his lack of trust in the 11 system' 9
because he had previously been unsuccessful in pleading his case
to the inspector's superiors on two occasions when he participated in MSHA conferences (Tr. 114-120). Mr. Stockwell
reiterated that he could not find his training records at the
time Inspector Frizzell issued the orderp and in order to
terminate the order so that he would not lose the crucial work
performed by his brother James, his brother was again trained on
September 30, 1991 (Tr. 121, Exhibit R-l)o
After an opportunity to examine the training records
produced in court by Mr. Stockwell, the Solicitor questioned
Mr. Stockwell about his record keeping practices, the entries
made on the training certificate forms kept in the books, the
training that he administered to his employees at the mine, and
the training they received from the state training office

1918

(Tr. 125-130). Mr. Stockwell conceded that he "was wrong" in not
apprising the solicitor earlier that he had found the records
(Tr. 130). Mr. Stockwell further explained as follow at
(Tr. 131) :
A.
I didn't have any place -- I had never met you until
this morning, I talked to you on the phone several occasions
and your predecessor I talked to on the phone the same way,
I shared a lot of information with, that come when we had
the other hearing in court and it was -- I·give my defense
to the end, that's the way I looked at it, and so, I was
afraid to give it to you. I guess the bottom line is I had
already been through Mr. Frizzell's supervisor on two or
three occasions and not got any help, and I had a bad
experience with the Solicitor's Office and I guess I grouped
you in with it and I apologize fore that, I shouldn't have
done that, because I should have trusted you on your own
merit and I didn't do it.
And, at (Tr. 186):
MR. STOCKWELL: Again I apologize for the way I
mishandled the last citation, not trusting the system and I
guess that's really what it boils down to and I apologize to
you and I will apologize to Mr. Frizzell. I am sorry I
handled it so crudely and I hope you will accept my apology.
Mr. Stockwell further explained his failure to produce his
training records earlier, and he denied that he withheld the
records until the day of the trial in this case "to get even"
with MSHA (Tr. 136-140). The solicitor asserted that she had no
reason to believe that the training records and documents
produced by Mro Stockwell for the first time in court were not
legitimatev and she had no reason to believe that they had been
sified (Tro 135-136)0 However, counsel pointed out that
Mro Stockwell chose not to share these records with her or the
inspector prior to the hearing, and that if he had done so, the
order would have been vacated and she would not have expended
trial preparation time in prosecuting the case. Under the
circumstancesu counsel requested that Mr. Stockwell be assessed
costs for the time she spent in litigating the contested order
Tr.

135).

Findings and Conclusions
Docket No. SE 92-145
Fact of Violation.

Citation No. 3395619.

The respondent is charged with a failure to make suitable
examinations of its respirable dust pumps in that it failed to
provide a voltage meter for the testing of the pump batteries to

1919

assure that proper voltage was provided. The cited mandatory
standard, section 70.204(d) (1), requires the testing of the
respirable dust testing device (pump) battery while under actual
load to assure that the battery is fully charged. Since
Mr. Stockwell could not initially produce a voltage meter capable
of testing the pump batteries at the time the inspector inquired
about the availability of the meter, and apparently indicated to
the inspector that he did not have one, the inspector assumed
that a meter was not available for use in testi~g the pumps
during the required testing cycle, and that the pump batteries
were not being testing as required by the standard. Under these
circumstances, the inspector proceeded to issue the citation.
The inspector confirmed that Mr. Stockwell showed him a
voltage meter after the citation was written, but he indicated
that the meter was a normal production ohm meter used for testing
circuits, and that following his suggestions, Mr. Stockwell had
to make certain modifications to render the meter capable of
testing a dust pump battery. After satisfying himself that
Mr. Stockwell was capable of testing a pump battery with the
modified voltage meter, the inspector accepted this as abatement
and terminated the violation before leaving the mine. The
inspector confirmed that the meter was not in its modified form
when he issued the citation (Tr. 27).
Mr. Stockwell admitted that he told the inspector that he
did not have a voltage meter capable of testing a dust pump
battery available at the mine, but he claimed that he
misunderstood the inspector's inquiry. He stated that after he
realized what the inspector was looking for, he obtained a
voltage meter from his electrical supply building, and after
equipping it with a charging plug suitable for testing a pump
batteryu he took it to the inspector and showed it to him.
Mr. Stockwell admitted that he had to modify the meter by
changing the test leads and wires and rotating the meter dial to
the proper voltage and current, and he did not deny that the
modifications were made at the suggestion of the inspector
(Tr. 39-40).
After careful consideration of all of the evidence and
testimony 8 I conclude and find that the petitioner has
established a violation. I cannot conclude that the inspector
acted unreasonably in issuing the citation after Mr. Stockwell
informed him that he did not have a voltage meter capable of
testing a dust pump battery. Although I do not totally
disbelieve Mr. Stockwell 1 s testimony that he was confused about
the question asked of him by the inspector, as a qualified
electrician and an MSHA approved qualified person to make the
tests, I am not convinced that Mr. Stockwell was totally
oblivious to what was required under the law. Further, since the
available voltage meter which was produced by Mr. Stockwell had
to be modified to render it capable of testing the voltage on the

1920

dust pump batteries, and since it was not in its modified state
ready for use for that purpose at the time the inspector
proceeded to issue the citation, I conclude and find that a
violation has been established. Accordingly, the contested
citation IS AFFIRMED.
Citation No. 3395620
The respondent here is charged with a violation of mandatory
standard section 75.1712-4, for failing to provide a sanitary
toilet facility in accordance with a previously obtained
bathhouse waiver for the mine. Section 75.1712-4, provides for
the waiver of any or all of the bath house and toilet facilities
standards found in sections 75.1712-1 through 75.1712-3, and it
states as follows:
The Coal Mine Safety District Manager for the district
in which the mine is located may, upon written
application by the operator, waive any or all of the
requirements of §§ 75.1712-1 through 75.1712-3 if he
determines that the operator· of the mine cannot or need
not meet any part or all of such requirements, and,
upon issuance of such waiver, he shall set forth the
facilities which will not be required and the specific
reason or reasons for such waiver.
The respondent was granted a waiver pursuant to section
75.1712-4, on October 15, 1990 (Exhibit P-1). The waiver was
granted because (1) the development of a private water supply and
sanitary waste disposal program was not practical, (2) it was not
practical to construct a central bathhouse and change room, (3)
all employees signed a statement agreeing that the waiver should
be grantedQ (4) facilities were not available through a third
party, and ( 5}. adequate drainage facilities were not available or
practical to provide. However, the waiver was subject to the
following stipulation which appears in a Note under Item #8, and
it states as follows:
This waiver is issued because it is impracticable for
the operator to construct the necessary facilities nowo
This waiver is issued with the stipulation that
sanitary toilet facilities approved under
Section 71.500(a), 30 C.F.R. § 71, will be provided
at each surface worksiteo
Section 71.500(a), requires a mine operator to provide and
install at least one sanitary toilet, together with an adequate
supply of toilet tissue, in a location convenient to each surface
work site. During oral argument, petitioner's counsel took the
position that the portable toilet was still in its packing box
and was not available or installed and ready for use. In support

1921

of this position, counsel asserted that the toilet was still in
its packing crate with plastic packing around it and styrofoam
packing material on top of it, and that it was sealed as if ready
for shipping. Counsel also pointed out that the inspector found
no toilet paper available, that privacy was not provided for
anyone using the toilet, and the toilet was not provided with
chemicals to treat the sewage (Tr. 64-70).
Inspector Coburn initially testified that when Mr. Stockwell
showed him the portable toilet, it was still in'the shipping box,
but the box was not sealed and the top was off, and the toilet
was wrapped in plastic (Tr. 47, 49). Mr. Coburn also testified
that he observed no toilet paper in the trailer where the toilet
was located, there were no chemicals added to the toilet, and
there was no place to use the toilet in private. Under these
circumstances, the inspector did not believe that the toilet was
· in service and ready for use at any time, and he concluded that
it did not constitute an installed sanitary toilet facility
pursuant to section 7i.5oo(a), as provided in the waiver.
I find nothing in sectiori.71.500, that defines or explains
what constitutes an installed sanitary toilet facility, nor do I
find any regulatory requirement that such a facility must be
installed to afford privacy, or that chemicals must be provided
to treat any toilet waste. Although the "Note" found in
section 71.500, states that sanitary toilet facilities for
surface work areas of underground mines are subject to the
provisions of section 75.1712-3, those requirements are included
in the waiver granted the respondent. In any event, section
75.1712-3, only requires that a sanitary toilet facility be
provided with adequate light, heat, and ventilation so as to
maintain a comfortable air temperature and to minimize the
accumulation of moisture and odors, and that it be maintained in
a clean and sanitary conditiono
Inspector Coburn defined a "sanitary toilet facility" as
either a "fully flush toilet or a chemical toilet facility"
commonly known as a "Port-a-Pot" (Tr. 46). In response to a
question as to what needed to be done to install such a toilet
for use, he explained that chemicals needed to be added, and a
place had to be provided for its use ~because the building that
Mro Stockwell is referring to is a van trailer where men stay in
the morning to try and stay warm" (Tr. 72). Petitioner's counsel
stated that "If it was in a green bag for toting in and out then
perhaps it was installed, but if it was still in the packing
crate with the original packing materials and stabilizing
material for shipping it then it is our position it wasn't
installed" (Tr. 70). Mr. Coburn confirmed that he terminated the
citation after Mr. Stockwell started construction of a wall to
provide privacy for the use of the toilet, and provided water and
chemicals to be used with the toilet (Tr. 74).

1922

Mr. Stockwell testified that a roll of toilet paper was
available in the trailer where the toilet was located, and he
confirmed that the toilet was the same kind that he had available
underground and on the surf ace for at least two years prior to
the inspection by Mr. Coburn, and that it was the kind of toilet
that "has been accepted for years at every mine around there"
(Tr. 63). He further testified that water was available for the
toilet when it was used, and that he provided soap and water for
hand washing, and that the trailer had heat and light, and that ·
privacy could be provided by simply shutting trailer the door
(Tr. 56). Mr. Stockwell denied that the toilet was still in a
shipping crate, and he explained that he purchased it in a "used"
condition and cleaned it up and placed it in a plastic garbage
bag to keep it clean and dust-free. He also explained that it
was not a chemical toilet as such, and that in order to use it,
water and a deodorizer would be poured into the self-contained
toilet, which could be lifted by one person, and after it was
used, it would be emptied and washed out and made ready to be
used again (Tr. 58).
Inspector Coburn admitted that the portable toilet was not
packed in a shipping box or crate (Tr. 72), and he did not rebut
Mr. Stockwell's contention that he had purchased the toilet as a
used unit and that he cleaned it up and placed it in a garbage
bag to keep it clean and dust-free. Although Mr. Coburn
testified that he did not see any toilet paper available, I find
Mr. Stockwell's testimony to the contrary to be more credible and
believable.
As noted earlier, the respondent is charged with a violation
of section 75.1712-4. However, I find nothing in that regulation
which imposes any mandatory duties or obligations on a mine
operator with respect to a sanitary toilet facilityo The
regulation simply authorizes MSHA's district manager, upon
application by the mine operator, to grant a waiver, and if he
does, the manager is required to identify the facilities which
are not required and the reasons for the waiver.
The cited condition or practice alleges that the respondent
failed to comply with the waiver granted by the district manager
by not providing a sanitary toilet facility as stipulated on the
cover sheet of the waivero The waiver signed by the district
manageru MSHA Form 2000-88, contains a stipulation indicating
that the waiver was issued on the condition that the respondent
would provide a sanitary toilet facility approved under
section 71.500(a). Although the respondent has not been charged
with a violation of section 71.500(a), I assume that the theory
of the petitioner's case is that the alleged failure by the
respondent to provide a sanitary toilet facility which meets the
requirements of section 71.500(a), constitutes a violation of the
waiver which was conditioned on compliance with that regulation,
as well as a violation of that regulation itself.

19 23

The mandatory language found in the first sentence of
section 71.SOO(a), requires an operator to provide and install an
approved sanitary toilet, together with an adequate supply of
toilet tissue, in a location convenient to each surface work
site. On the facts of this case, I find no evidence to establish
that the portable toilet or"Port-o-pot" in question, was not an
approved piece of equipment. I conclude and find that the
credible testimony of the respondent establishes that the
portable toilet was provided, and that it was located in a
convenient surface work site location, and that.an adequate
supp~ of toilet tissue was provided.
However, absent any
credible evidence of any MSHA guidelines or regulatory
requirements dealing with the installation of a sanitary toilet,
I cannot conclude that the petitioner has carried its burden of
proof and has established a violation of the waiver granted the
respondent. In short, I am not convinced by the petitioner's
evidence that the portable toilet in question was not installed
as required by the waiver which incorporates section 71.SOO(a),
by reference. Under the circumstances, the citation IS VACATED.
Docket No. SE 92-146
Fact of Violation.

Citation No. 3395612.

Mro Stockwell did not rebut the fact that the required
electrical inspection book was not at the mine and available for
the inspector's review as required by the cited section 75.512.
I conclude and find that the petitioner has established a
violation and the citation IS AFFIRMED.
The parties agreed to a proposed settlement of this
violation, and they agreed that the citation should be modified
a non- 91 S&s 1u citation, and that the initial proposed civil
penalty assessment of $54 should be reduced to $20 (Tr. 78)
The
proposed settlement IS APPROVED 1 and the citation is modified as
a non-S&S citation.
o

Citation No. 3395613.
Mr. Stockwell conceded that the results of the last
bimonthly respirable dust survey were not posted on the mine
bulletin board at the time of the inspection. The cited
section 70o210(b)v requires the posting of the results of the
survey upon receipt by the operator, and for a period of 31 days.
Since they were not posted, I conclude and find that a violation
has been established, and the violation IS AFFIRMED.
The parties agreed to a proposed settlement of this
violation, and they agreed that the citation should be modified
to a non-S&S citation, and that the proposed penalty assessment
of $54 should be reduced to $20. The proposed settlement IS
APPROVED, and the citation is modified to a non-S&S citation.

1924

citation Nos. 3395610, 3395611. 3395617. 3395618. 3395347,
3395348, and 3395579.
As noted earlier, the respondent waived its right to present
any evidence or testimony to rebut the findings of the inspectors
with respect to these citations. Mr. Stockwell stated that he
accepts the citations as written and issued by the inspectors,
and that he does not dispute the violations and agreed that all
of the conditions and practices noted by the inspectors
accurately reflect the prevailing conditions or·practices at the
time of the inspections. Under the circumstances, all of these
citations and violations ARE AFFIRMED.
Docket No. SE 92-252
Fact of Violation.

Order No. 3395455.

In this case, the respondent is charged with a violation of
the training requirements found in 30 C.F.R. § 48.28(a) ·because
of its alleged failure to retrain James Stockwell. The cited
standard requires each miner'to receive a minimum of a hours of
annual refresher training, and the burden of proof lies with the
petitioner. I conclude and find that the credible evidence
presented by the respondent at the hearing establishes that James
Stockwell did in fact receive the requisite training and that the
respondent has rebutted the petitioner's allegations to the
contrary. Accordingly, the contested order IS VACATED, and the
petitioner's proposal for assessment of civil penalty IS DENIED
and DISMISSED.
After further consideration of the petitioner's request for
an assessment of costs against the respondent because it waited
until the day of the hearing to disclose the training records
the petitionerns counsel agreed would have exonerated the
respondent
ierv IS DENIEDo I take note of the fact that
Mro Stockwell apologized to the petitioner 1 s counsel and the
presiding judge in open court and expressed his regrets for not
advancing his defense in a more timely manner. Further,
considering the fact that Mro Stockwell is not represented by
counself and taking into account his reasons for waiting until
the hearing to put on his evidence, I cannot conclude that
Mro Stockwell 0 s actions were particularly egregious.
See:
Francis A. Marin v. Asarco, Inc.p 14 FMSHRC 1269 (August 1992).
History of Prior Violations
The respondentvs history of prior violations is shown in a
computer printout submitted by the petitioner (Joint Exhibit 1).
The information submitted reflects that for the period
November 19, 1989, through November 18, 1991, the respondent was
assessed $9,423 for seventy-one (71), violations, and that it
paid $477, for eleven (11) of these violations. The petitioner

1925

issued delinquency letters for thirty-three (33) of the
violations which the respondent has not paid. Under the
circumstances, and for an operation of its size, I cannot
conclude that the respondent has a particularly good compliance
record. However, the respondent's financial condition may
account for his failure to pay the prior civil penalty
assessments, and this would be a matter within the petitioner's
enforcement jurisdiction.
Negligence
I concur with the inspector's findings that all of the
violations which have been affirmed in these proceedings resulted
from a moderate degree of negligence on the part of the
respondent, and I adopt these findings as my findings and
conclusions with respect to each of the violations.
Gravity
Except for Citation Nos.·-3395612, 3395613, and 3395619,
which have been affirmed as non-"S&S" violations, I conclude and
find that all,of the other citations which have been affirmed as
significant and substantial violations in these proceedings were
serious violations.
Good Faith Abatement
The parties stipulated that all of the citations in these
proceedings were timely abated by the respondent either within or
before the time fixed by the inspectors for abatement.
I adopt
this stipulation as my finding and conclusion on this issue and
have taken it into consideration in assessing the civil penalty
assessments for the violations which have been affirmedo
Size of Business and Effect of Civil Penalty Assessments on the
Respondent's Ability to Continue in Business
The parties have stipulated that the respondent operates one
active small underground mine with an annual production of 8v016
tonsv and Mro Stockwell testified that his mining operation is a
family operation which includes his father, and two of his
brothers (Tro 32)o Inspector Coburn testified that the respondent is a ~contract operator" for the Tennessee Consolidation
Coal Companyv and the mine operates one shift a day and employs
six to ten people (Tro 19, 44) o Under all of these circumstances, I conclude and find that the respondent is a small mine
operator.
In a contested civil penalty case the presiding judge is not
bound by the penalty assessment regulations and practices
followed by MSHA's Office of Assessments in arriving at initial

19 26

proposed penalty assessments. Rather, the amount of the penalty
to be assessed is a de novo determination by the judge based on
the six statutory criteria specified in section llO(i) of the
Act, 30 u.s.c. 820(i), and the information relevant thereto
developed in the course of the adjudicative hearing. Shamrock
Coal Co., 1 FMSHRC 469 (June 1979), aff'd, 652 F.2d 59 (6th Cir.
1981); Sellersburg Stone Company, 5 FMSHRC 287, 292 (March 1983).
As a general rule, and in the absence of evidence that the
imposition of civil penalty assessments will adversely affect a
mine operator's ability to continue in business, it is presumed
that no such adverse affect would occur. Sellersburg stone
Company, 5 FMSHRC 287 (March 1983), aff'd 736 F.2d 1147 (7th Cir.
1984). Conversely, the size and documented financial condition
of a mine operator is required to be considered in any determination as to whether or not the payment of civil penalties will
adversely impact on a mine operator's ability to continue in
business.
In several early decisi0ns pursuant to the 1969 Coal Act,
the former Interior Board of Mine Operations Appeals held that
congress intended a balancing process in arriving at an
appropriate civil penalty assessment in any given case, including
consideration of the size of the mine and the ability of a mine
operator to stay in business. See: Robert G. Lawson Coal
Company, 1 IBMA 115, 117-118 (May 1972), 1 MSHC 1024; Newsome
Brothers, Inc., 1 IBMA 190 (September 1972), 1 MSHC 1041 1041;
Hall Coal Company, 1 IBMA 175 (August 1972), l MSHC 1037.
In several cases adjudicated by me pursuant to the 1977 Mine
Act, I followed and applied the Robert G. Lawson Coal Company,
line of decisions, supra, and concluded that the reduction of the
initial penalty assessments were justified because the mine
operators were small and in serious financial difficulties, and
that the initial assessments in the aggregate would effectively
put the operators out of business. See: Fire Creek Coal Company
of Tennessee, 1 FMSHRC 149 (April 1979), 1 MSHC 2078; Fire Creek
Coal Company of Tennessee, 2 FMSHRC 3333 (November 1980): Davis
Coal Company, 4 FMSHRC 1168 8 1192-1196 (June 1982); G & M coal
Companyv 2 FMSHRC 3327 (November 1980) and 3 FMSHRC 889 (April
1981}
See also~ Davis Coal company, 2 FMSHRC 619 (March 1980),
where the Commission reviewed and affirmed several settlement
decisions approving proposed civil penalty reductions based on
the detrimental effect that assessment of the originally proposed
penalties would have had on the mine operators ability to remain
in business.
o

Mr. Stockwell submitted the following documentation
concerning his financial condition (Exhibits ALJ-1):
1. A 1991 Federal joint income tax return reflecting a net
operating loss of $270,779, including a loss of $26,499, for

1927

the Faith Coal Company, a $280 loss in rental income from a
home, and a $21,017, loss from the operation of a hay/corn
farm.
2. A 1990 Federal joint income tax return reflecting a net
operating loss of $109,969, inc~uding a loss of $83,669, for
the Faith Coal Company, a $3,720, loss from a rental home, a
$24,803, loss from the operation of a farm, and a casualty
loss of $145,533, as the result of an uninsured home fire.
3. An itemized list of outstanding 1991 and 1992 accounts
payable by the Faith coal company to twenty-eight (28)
creditors, totalling $36,667.55.
4. A copy of a June 15, 1992, letter from the First
National Bank, Tracy City, Tennessee, to Mr. and
Mrs. Stockwell, informing them of their failure to make
a payment due on a promissory note in the amount of
$160,495.45, and advising them that they were in
default, and making a formal demand for payment in full
for the balance of the indebtedness, plus interest,
attorney's fees, and costs incurred in collecting the
debt.
So
A copy of a July 28, 1992, letter from the U.S.
Department of Agriculture, Farmers Home Administration, to
Mr. and Mrs. Stockwell informing them that they were three
months delinquent in their loan payments and informing them
of their options and possible loan foreclosure.

6. Copies of past due 1992 tax notices from local county an
city tax officials, Dunlap, Tennessee, advising Mr. and
Mrso Stockwell of past due taxes owed on their farm and two
~esidencesf in amounts totalling $541.940
7o
A copy of a note executed by the Faith Coal Company and
Mr. and Mrso Stockwell with the First National Bank,
Shelbyvilleu Tennessee, in the amount of $160,495.45. The
listed security for this note includes all of the coal
mining equipment and machinery of the Faith Coal CompanyQ
and the maturity date of the note is shown as June 6, 1996
(posthearing letter and attachment dated October 17u 1992).

Mr. Stockwell testified and explained the documentary
evidence he submitted with respect to his personal financial
condition as well as that of his mining company, and the
Secretary 1 s trial counsel conducted a most thorough and detailed
questioning of Mr. Stockwell regarding all of his financial
affairs, assets, a farming operation, checking accounts, rental
income, accounts payable and receivable, company and personal
debts, mining expenses and sales, etc.
In addition,

1928

Mr. Stockwell's wife Christine, who was present in the courtroom,
was called to testify regarding the financial condition of the
family, including their joint assets and liabilities
(Tr. 143-179).
With regard to the current viability of his mining
operation, and his financial condition, Mr. Stockwell stated as
follows at (Tr. 179-180):
Q.

Do you have miners working most days? .

A. We try to work five days a week, occasionally on
Saturday, I can't afford the overtime.
Q. So is it your statement that you're making enough money
with the mine to keep the doors opened and keep things
running?

A. I have been up until just -- I'm gradually getting
further -- a little further. behind. I kept hoping for
better days for better than a year and they have not
come yet. I keep hoping tomorrow is going to be
better, the potential is out there for it to be better,
but we're just having one difficulty after another that
has kept us from doing it.
MS. STOCKWELL: If we don't make some profit by
December we will have to end it.
A. I am about ready to give it -- there is an old
saying give it to the end because I just -- I hate to
think about going -- I know that everything I got is
mortgagedv the houseQ she put the house we 1 re living up
as security on the $160,000 loanv if we have to default
we have got to find a place to live and that 0 s serious"
After careful consideration of all of the evidence adduced
in these proceedings concerning the respondent's financial
conditionu which I find credible and unrebutted, I conclude and
find that the imposition of the full amount of the initial civil
penalty assessments proposed by the Secretary in these cases
would have an adverse impact on the respondent's ability to
continue the operation of the mine. Considering the fact the
respondent is a small operator and appears to be in serious
financial difficulties, I find that the imposition of the full
amount of the proposed penalties would, in the aggregate,
jeopardize the respondent 1 s ability to remain in business.
Penalty Assessments
In view of the foregoing findings and conclusions, and
taking into account the civil penalty criteria found in

1929

section llO(i) of the Act, I conclude and find that the following
civil penalty assessments for the violations which have been
affirmed are reasonable and fair, and that the respondent can
afford to pay them.
Docket No. SE 92-145
Citation No.

Date

3395619

11/19/91

30 C.F.R. Section
70.204 (d) (1)

Assessment
$10

Docket No. SE 92-146
citation No.

Date

3395610
3395611
3395612
3395613
3395617
3395618
3395347
3395348
3395579

11/5/91
11/5/91
11/5/91
11/5/91
11/18/91
11/18/91
12/2/91
12/3/91
12/2/91

30 C.F.R. Section
70.204(d) (1)
75.306
75.512
70.210(b)
75.316
75.301
75.1704-2(c) (2)
75.523
75.208

Assessment
$10
$20
$20
$20
$20
$20
$15
$20
$25

ORDER
The respondent IS ORDERED to pay the aforesaid civil penalty
assessments within thirty (30) days of these decisions and Order.
Payment is to be made to MSHA, and upon receipt of payment, these
matters are dismissed.
Section 104(a) non 11 S&S" Citation No. 3395620, November 19 1
1991ff 30 C.F R § 75.1712-4, issued in Docket No. SE 92-145, IS
VACATED, and the proposed civil penalty assessment is DENIED AND
DISMISSED.
Section 104(g) (1) Order No. 3395455, September 26, 1991,
30 C.F.R. § 48.28(a), issued in Docket No. SE 92-252, IS VACATED,
and the proposed civil penalty assessment IS DENIED AND
DISMISSED.

kKfuL~
Administrative Law Judge

Distribution:
Anne T. Knauff, Esq., Office of th7 Solicitor, u.s. Department of
Labor, 2002 Richard Jones Road Suite B-201, Nashville, TN 37215
(Certified Mail)
'
Mr. Lonnie Stockwell, Owner, Faith Coal Company Route 1,
Box 948, Palmer, TN 37365
(Certified Mail)
'
/ml
1930

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

/

)

"

CIVIL PENALTY PROCEEDING

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

Docket No. CENT 92-113-M
A.C. No. 16-01094-05514

v.
ACME GRAVEL COMPANY, INC.,
Respondent

Tynes Island Mine

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

CIVIL PENALTY PROCEEDING

v.

BARBER BROTHERS CONTRACTING
COMPANY,
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)u
Petitioner

..

Docket No. CENT 92-118-M
A.C. No. 16-01201-05504
Asphalt Plant #5
Rock Crusher

CIVIL PENALTY PROCEEDING
Docket No. CENT 92-153-M
A.C. No. 16-01217-05507
Kent #2

ACME GRAVEL COMPANY
INCORPORATED,
Respondent
DECISIONS
Appearances~

Ernest Burford, Esq., Office of the Solicitor,
U.S. Department of Labor, Dallas, Texas, for the
Petitioner;
John N. Fetzer, III, Esq., Baton Rouge, Louisiana,
for the Respondents.

Before:

Judge Koutras
Statement of the Proceedings

These proceedings concern proposals for assessments of civil
penalties filed by the petitioner against the respondents
pursuant to section llO(a) of the Federal Mine Safety and Health

1931

Act of 1977, 30 u.s.c. § 820(a), seeking civil penalty
assessments for three (3) alleged violations of certain mandatory
safety standards found in Part 56, Title 30, Code of Federal
Regulations. The respondents filed timely contests and answers
denying the violations, and the cases were heard in Baton Rouge,
Louisiana. The parties were afforded an opportunity to file
posthearing briefs, but they did not do so.
Issues
The issues presented in these proceedings are (1) whether
the conditions or practices cited by the inspectors constitute
violations of the cited mandatory safety standards, (2) whether
two of the alleged violations were "significant and substantial"
(S&S) and resulted from an "unwarrantable failure" to comply with
the cited standards, and (3) the appropriate civil penalties to
be assessed for the violations, taking into account the statutory
civil penalty criteria found in section llO(i) of the Act.
Applicable Statutory_dand Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 301, et seg.
2.

Sections llO(a), llO(i), and 104(d) of the Act.

3.

Commission Rules, 29 C.F.R.

§

2700.1, et seq.

stipulations
The parties stipulated to the following (Tr. 6-11):
l. The respondents and the mines in question are subject to
the jurisdiction of the Act.
2. The presiding Judge has jurisdiction to hear and decide
these matters.
3.
The assessment of civil penalties for the violations in
question will not adversely affect the ability of the
respondents to continue in business.

4. The respondents exercised good faith in timely abating
all of conditions or practices cited as violations.
5. The history of prior violations for the mines in
question are reflected in three MSHA computer print-outs
identified and received as hearing exhibits P-1 through P-3.

With regard to the settlement disposition of two of the
cases, the parties agreed that the following language should be

1932

included as part of the settlement agreements reached by the
parties and approved by the presiding Judge (Tr. 24, 40):
Except for these proceedings and matters arising out of
these proceedings, and any other subsequent MSHA
proceedings between the parties, none of the foregoing
agreements, statements, findings, and actions taken by
the respondent shall be deemed an admission by the
respondent of the allegations contained within the
citations and the petition for assessment of penalty.
The agreements, statements, findings, and actions taken
herein are made for the purpose of compromising and
settling this matter economically and amicably and they
shall not be used for any other purpose whatsoever
except as herein stated.
Discussion
Docket No. CENT 92-113-M
This case concerns a section 104(d) (1) Citation No. 3896665,
issued on September 19, 1991, by MSHA Inspector Stephen c.
Montgomery, citing an alleged violation of mandatory safety
standard 30 C.F.R. § 56.11001. The cited condition or practice
is described as follows:
Safe access to the six (6) inch dredge was not
provided. A four (4) feet by eight (8) feet starfoam
pontoon was being used by the dredge operator to get to
and from the dredge. The dredge was approximately
forty (40) feet to fifty (50) feet from the pit bank
and the depth of the water was approximately fifteen
{15) feeto The dredge operator would "hand-pull"
himself to and from the dredge with a rope that was
anchored to the ground and tied to the dredge. The
flat bottom aluminum boat that had been used for
transportation, had been lost several months ago when
the river had risen and flooded the property. The
dredge operator said he always wore a life jacket when
he was on the pontoon. A life jacket was lying on the
pontoon when it was observed next to the pit bank.
Mr. Frank Panepinto, Foreman, stated he had "told the
dredge operator to stop using the pontoon", for
transportation, ijisometime ago". Mr. Panepinto stated
the "10 inchH dredge operator was supposed to carry the
ij1 6 inch 99 dredge operator back and fourth to the "6
inch" when needed. The 11 10 inch" dredge operator had a
flat bottom aluminum boat to use for transportation on
the water. The 11 10 inch dredge was approximately three
hundred (300) to four hundred (400) feet from the
11 6 inch" dredge.

1933

This was an unwarrantable failure on the company and
Mr. Frank Panepinto for not assuring the pontoon was
not still being used for transportation and not
providing a boat to be used for transportation for the
11 6 inch 0
dredge.
Docket No. CENT 92-153
Section 104(d) (1) "S&S" Citation No. 3896761, issued on
December 31, 1991, by MSHA Inspector Benny W. Lara, cites an
alleged violation of mandatory safety standard 30 C.F.R.
§ 56.14130(g), and the cited condition or practice is described
as follows:
The seatbelt was not being worn by the operator of the

06 Cat Dozer, serial No. 3N61185. The operator assumed
the buckle was missing. It was discovered wedged
behind the seat. The employee stated he had only been
working for this company about 6 months and had no
training when hiring on., .. He stated it had a buckle one
month ago and during operation one day a rag was tied
to the buckle position (no buckle observed). Thought
it was gone and used the rag. Frank v. Panepinto
stated he has never checked to see if the belts were
worn. The only time belts were discussed with the
employees was when MSHA held a safety meeting during
the last inspection. This is an unwarrantable failure.
This machine was being used to push sand which is 12 1
off the ground or more.
Docket No. CENT 92-118-M
Section 104(a) non-S&S Citation No. 3628839g issued on
September 18 199lu by MSHA Inspector Joe c. McGregoru cites an
alleged violation of mandatory reporting standard 30 C.F.R.
41ol2 and the cited condition or practice is described as
follows~

A change of person in charge of Health and Safety at
the mine occurred and notification of change was not
sent in to MSHA. MSHA Form 2000-7 is required to be
updated when such changes occur. A citation for this
violation was issued by another inspector 3/26/91.
Findings and Conclusions
Docket No. CENT 92-113-M
Counsel for the parties informed me that they reached a
proposed settlement in this case, and they jointly moved for my
approval of the settlement. The initial proposed civil penalty

19 34

assessment was $250, and the respondent agreed to pay a civil
penalty assessment of $200, with no changes in the citation as it
was originally issued (Tr. 11, 23) Inspector Montgomery, who was
present in the courtroom, explained the circumstances under which
he issued the citation in question (Tr 15-18). The respondent's
counsel pointed out that a boat was in fact being used to
transport miners to the dredge and that the inspector admitted
that he did not actually observe anyone using floatation devices
that are normally used to float pipeline as a means of access to
the dredge. Counsel further asserted that the respondent does
not condone the use of styrofoam pontoons by its employees as a
means of access to the dredges, and if an employee engaged in
such conduct he did it on his own without any direction or
instruction by the respondent. Counsel also indicated that the
respondent provided two boats for transportation to the dredges,
but that one was lost in a flood, and that a replacement boat has
been purchased and two boats are presently available at the site
for access to the dredges (Tr. 18-23).
After careful consideraJ::.ion of the information contained in
the pleadings, the stipulations with respect to the six statutory
civil penalty criteria found in section llO(i) of the Act, the
arguments and testimony presented in support of the proposed
settlement of this case, and pursuant to Commission Rule 30,
29 C.F.R. § 2700.30, the settlement was APPROVED from the bench
(Tr. 24, 28). My bench decision in this regard is herein
REAFFIRMED.
Docket No. CENT 92-153-M
The parties proposed to settle the seat belt violation which
in issue in this case, and the respondent agreed to pay a
penalty assessment of $450. The initial proposed penalty
was $6000 In support of the settlement 1 the petitioner 0 s counsel
stated that the equipment in question was being used on level
ground, and although a seat belt was provided, the equipment
operator was not using it (Tr. 29-31). The respondent's safety
director testified that the employee in question has been
discharged for failing to follow company written policy requiring
the wearing of a seat belt when the equipment is in operation
• 31)

0

MSHA Inspector Bennie Larav the inspector who issued the
citation and who was present in the courtroom, confirmed that a
seatbelt was present but that the equipment operator was not
using it. The inspector stated that the belt was found tucked
behind the seat and that the employee was using a rag to tie the
belt together, rather than the normal buckle used for that
purpose (Tr. 32-37).
After careful consideration of the pleadings and arguments
in support of the proposed settlement, including the fact that

1935

the respondent's history of prior violations does not include
prior seat belt violations, and pursuant to Commission rule 30,
29 c.F.R. § 2700.30, the settlement was APPROVED from the bench
(Tr. 38). My bench decision in this regard is herein REAFFIRMED.
Docket No. CENT 92-118-M
Fact of Violation. Citation No. 3628839.
Mandatory reporting standard 30 C.F.R. § 41.10, which
implements the statutory report filing requirement found in
Section 109(d) of the Mine Act, requires a mine operator to
submit a properly completed Legal Identity Report Form
No. 2000-?u to MSHA. Pursuant to the language found in section
41.10, the submission of this form constitutes adequate
notification of legal identity. One of the items required to be
included as part of the operator's legal identity notification
pursuant to section 41.11, is the name of the person in charge of
health and safety at the mine. If any changes are made with
respect to the person placed in charge of health and safety,
section 41.12, requires the operator to notify MSHA of the change
in writing within 30 days after the occurrence of the change.
Pursuant to section 41.13, any failure by an operator to notify
MSHA in writing of any change is considered a violation of
Section 109(d) of the Act and subject to a civil penalty as
provided in section 110 of the Act.
The evidence in this case reflects that Inspector McGregor
visited the plant site on September 13, 1991, and the plant was
not in operation. The inspector requested to speak to Mr. Dave
Jones, the individual purportedly in charge of safety and health,
and after being informed that Mr. Jones was no longer assigned to
the site, the inspector left. He next returned on September 18,
199lu and spoke with foreman Clint Johnson who confirmed that he
had replaced Mro Jones as the responsible health and safety
person in charge, and that this had occurred "two or more months 0
earliero Based on this information, and without further
documentation or verification of the actual date that Mr. Johnson
replaced Mr. Jonesu the inspector concluded that the change had
taken place more than 30 days earlier and had not been reported,
and for this reasonu he issued the citation (Tro 46-48u 53). The
inspector confirmed that Mro Johnson called the respondent 1 s risk
manageru Mr. Frank Panepinto, and advised him that the citation
was issued (Tro 53)"
Inspector McGregor identified a copy of a letter dated
September 17, 1991, addressed to MSHA's District Office in
Dallas, Texas, with a courtesy copy to the inspector's local MSHA
office
Denham Springs, Louisiana, from the respondent's Risk
Manager, Frank J. Panepinto, advising MSHA that Mr. Johnson
replaced Mr. David Jones as plant foreman on August 19, 1991
(Exhibit P=4). The inspector confirmed that the courtesy copy of

1936

the letter was received in his office, and he identified the
envelope the letter came in and confirmed that it is postmarked
September 19, 1991 (Exhibit P-5). He also confirmed that he made
the notation "Aug. 19 to Sept. 19 is 31 days" which appears on
the face of the envelope (Tr. 49-51). The inspector believed
that the respondent should have notified MSHA of the change in
question by September 18, 1991, which would have been within the
30-day notification requirement found in section 41.12. However,
since the envelope containing the notification letter was
postmarked September 19, 1991, one day later, the inspector
believed that this constituted a violation of section 41.12
(Tr. 49-50).
MSHA's counsel confirmed that the inspector received a fax
copy of the Panepinto letter of September 17, 1991, from MSHA's
Dallas office after he received the copy addressed to his local
field office (Exhibit P-4, Tr. 75). The inspector did not
contact the Dallas office to determine when it actually received
the letter which Mr. Panepinto mailed to that office.
At the
conclusion of the hearing, the inspector produced a copy of an
updated MSHA Legal Identity Report signed by Mr. Panepinto on
September 30, 1991, and the "Effective Date of Changes 11 shown on
the face of the report states "September 17, 1991" (Exhibit
AIJ-1). The respondent's counsel stipulated that this form was
submitted by Mr. Panepinto after the citation was issued in
response to MSHA's request, and that the September 17, 1991, date
may have been the date the report was prepared. Counsel stated
that MSHA took the position at that time that any changes must be
reported by using the MSHA Legal Identity Form and that a letter
was insufficient (Tr. 76). A copy of the inspector's "subsequent
action" terminating the citation on October 25, 1991, reflects
that it was terminated after "a new updated legal identity report
has been received in the district manager's office".
At the request of the respondentu the record in this case
was left open in order to afford the parties an opportunity to
inquire further as to precisely when the MSHA Dallas District
Office may have received the Panepinto letter of September 17,
1991 (Tro 60, 70). On October 1u 1992 1 I issued an Order
affording the parties additional time within which to submit any
further information or any posthearing briefs. However, the
parties failed to file anything further and my decision in this
case is based on the current record.
Mr. Panepinto produced a copy of a company employment and
promotion form which reflects that Clint Johnson was promoted to
plant foreman on August 19, 1991 (Exhibit R-1). Mr. Panepinto
identified a copy of his September 17, 1991, letter which he
addressed and mailed to MSHA's Dallas district office that same
day, with a copy to Inspector McGregor's local field office in
Denham Springs, Louisiana, advising MSHA of the change of the
person in charge of health and safety at the plant (foreman

1937

Johnson), and he confirmed that he signed and mailed the letter
within 28 or 29 days after the change (Tr. 54-58). Absent any
evidence to the contrary, I believe it is reasonable to conclude
that Mr. Panepinto mailed the letter after being informed of the
inspector's inquiry at the mine site during his inspection and
the fact that he issued a citation.
Respondent's counsel argued that although it seems clear
from the language found in regulatory section 41.12, that MSHA
must be notified of any changes "within thirty days after the
occurrence of any change", there is nothing in that regulation
that states that the notification must be received by MSHA's
District Office within 30-days after the change. Since the
unrebutted evidence establishes that the Panepinto letter of
September 17, 1991, was written and mailed within the 30-day
period, counsel concluded that the respondent has substantially
complied with section 41.12 (Tr. 65-67).
MSHA's counsel agreed that the issue in this case is whether
or not the filing of the September 17, 1991, letter by
Mr. Panepinto advising MSHA that Mr. Johnson replaced Mr. Jones
as the responsible health and safety person at the mine was
complete upon mailing, or upon receipt of the letter by MSHA
Tr. 51). Counsel further agreed that if Mr. Panepinto's letter
was received by MSHA'S Dallas office on September 18, 1991, the
respondent would be in compliance with the 30-day notification
requirement found in section 41.12 (Tr. 64). Counsel suggested
that in the event the respondent could establish that the Dallas
office timely received the letter by September 18, 1991, he would
move to withdraw the civil penalty proposal (Tr. 72).
The contested citation issued by Inspector McGregor cites an
alleged violation of section 4lol2p and included as part of the
description of the violative condition or practice is a statement
the inspector that 91 MSHA Form 2000-7 is required to be updated
when such changes occurno However 6 the theory of MSHAvs case is
that the respondent did not comply with section 41.12, because
the Panepinto letter of September 17 1 1991, was received in the
inspector 9 s field office on September 19u 1991, one day after the
30-day notice period for informing MSHA of the change in question
expired. Neither the inspector or MSHA 0 s counsel advanced any
testimony or arguments that the citation was based on the
respondent's failure to timely submit an updated MSHA
Form 2000=7u or that a notification by letter 0 rather than the
formu was insuffi9ient or unacceptable. Indeed, when this
question was raised by the presiding judge at the conclusion of
the hearing after Inspector McGregor volunteered a copy of the
updated From 2000-7, which apparently served as the basis for the
termination of the citation, MSHA's counsel took the position
that notification of any changes transmitted by letter is
sufficient to comply with section 41.12, and that the submission
of the form is not necessary to achieve compliance (Tr. 78).

1938

I find nothing in section 41.12, that requires the use of an
MSHA report form to notify MSHA of any changes in the required
legal identity information provided by a mine operator. That
section simply requires written notification to MSHA within
30 days after the occurrence of any change. However, I take note
of the fact that section 41.20, requires an operator to file
"notification of legal identity and every change thereof" with
the appropriate MSHA district manager, "by properly completing,
mailing, or otherwise delivering Form 2000-7 legal identity
report".
The respondent is not charged with a violation of
section 41.20, for failing to submit an updated Form 2000-1,
reporting a change in the person responsible for health and
safety at the mine site in question. As noted earlier, MSHA's
case is based on its assertion that the respondent's letter of
notification, which MSHA concedes was an acceptable method of
notification pursuant to the cited section 41.12, was received
one day late. Assuming that section 41.20, can be interpreted to
apply to section 41.12, notification could still be accomplished
by simply completing and mail,!ng the form to MSHA 1 s district
manger.
On the facts of this case, and considering the position
taken by MSHA, I conclude and find that the evidence presented
establishes that the respondent provided the requisite written
notification of the change in question within 30 days after it
occurred, and that the preparation and mailing of the
notification letter.by Mr. Panepinto within this time frame
constituted adequate compliance with section 41.12, notwithstanding the fact the the letter was received more than 30 days
after the change took place, and that the method of transmitting
the information was by letter rather than an MSHA form. Under
the circumstancesu I further conclude and find that MSHA has
failed to establish a violationp and the citation IS VACATEDo
ORDER
In view of the foregoing findings and conclusions, IT IS
ORDERED AS FOLLOWS~
lo
Docket No. CENT 92-113-M. The respondent shall pay a
civil penalty assessment of $200, in satisfaction of
Section 104(d) (1) citation No. 3896665, September 19, l99lp
30 C.FoRo § 56.11001.

2. Docket No. CENT 92-153. The respondent shall pay a
civil penalty assessment of $450, in satisfaction of
Section 104(d) (1) Citation No. 3896761, December 31,
1991, 30 C.F.R. § 56.14130(g).

1939

3. Docket No. CENT 92-118-M. The contested Section l04(a)
Citation No. 3628839, IS VACATED, and the petitioner's
proposed civil penalty assessment for this alleged violation
IS DENIED AND DISMISSED.
Payment of the aforesaid civil penalty assessments shall be
made by the respondent to MSHA within thirty (30) days of the
date of these decisions and Order, and upon receipt of payment,
these proceedings are dismissed.

~K!~
Administrative Law Judge

Distribution:
Ernest A. Burford, Esq., Office of the Solicitor, u.s. Department
of Labor, 525 South Griffin Street, Suite 501, Dallas, TX 75203
(Certified Mail)
John H. Fetzer, III, Esq., P.O. Box 65121, Baton Rouge, LA
(Certified Mail)
Mr. Frank J. Panepinto, Barber Brothers contracting Company,
Inc., P.O. Box 66296, 2636 Dougherty Drive, Baton Rouge, LA
70896
(Certified Mail)
/ml

1940

70896

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
(303) 844-5266/FAX (303) 844-5268

CIVIL PENALTY PROCEEDING

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

Docket No. CENT 91-196
A.C. No. 29-00224-03563
Cimarron Mine

v.
Docket No. CENT 91-197
A.C. No. 29-00845-03540

PITTSBURG AND MIDWAY COAL
Docket No. CENT 91-202
A.C. No. 29-00095-03561

MINING COMPANY,
Respondent

York Canyon-Underground Mine
DECISION

Appearances:

William E. Everheart, Esq., Office of the Solicitor, U.S. Department of Labor, Dallas, Texas,
for Petitioner;
John W. Paul, Esq., THE PITTSBURG & MIDWAY COAL
MINING COMPANY, Englewood, Colorado,
for Respondent.

lSeforeg

Judge Morris

The Secretary of Labor, on behalf of the Mine Safety and
Health Administration ("MSHA") charges Respondent Pittsburg and
Midway Coal company ("P&M") with violating safety regulations
promulgated under the Federal Mine Safety and Health Act of 1977,
o u.s.c. § 801 et~ (the nAct").
A hearing on the merits was held in Alamosa, Colorado, on
April 1u 1992.
At the commencement of the hearing the ~arties stipulated as
follows:
r
J
•

•

I

1.
The York Canyon Surface Mine, mine I.D. No. 29-00845;
the Cimmaron Mine, mine I.D. No. 29-00224; and York Canyon Underground Mine, mine I.D. No. 29-00095, are subject to the jurisdiction of the Federal Mine safety and Health Act of 1977, and the
Federal Mine Safety and Heal th Review Co11uniss ion.

1941

2.
The Citations in CENT 91-197 numbered 3243235, 3243236,
and 324327 and citation No. 3243346 in CENT 91-196 were all properly served by a duly authorized representative of the Secretary
of Labor upon an agent of the Pittsburgh and Midway Coal Mining
Company and may be admitted into evidence for the purpose of
establishing their issuance, and not for the truthfulness or
relevancy of the statements asserted therein.
3.
The assessment of civil penalties in CENT 91-197, CENT
91-196, and CENT 91-202 will not affect Respondent's ability to

continue in business.
4.
The alleged violations contained in the Citations in
CENT 91-197, CENT 91-196, and CENT 91-202, were abated in a

timely fashion and Respondent demonstrated good faith in obtainabatement.
5.
The sizes of the three mines of the Pittsburg and
Midway Coal Company are as follows:

a.
York Canyon Surface Mine, I.D. No. 29-00845 company size 13,587,727 production tons; mine size 482,069 in
produced tons;

b.
Cimmaron Mine, I.D. No. 29-00224 - mine size
73,843 produced tons;
c.
York Canyon underground Mine, I.D. No. 29-0095 mine size is listed, the company size 13,587,727 produced tons.
CENT 91-196

Citation ~Oo ~243318 alleges P&M violated 30 C.F.R.
At the commencement of the hearing, the Secretary
withdrew the "Significant and Substantial" classification and
reduced the proposed penalty from $157 to $20.
§

75.316.

Respondent admitted the violation of the Citation as
amended.
The Citation and proposed amended penalty should be
affirmed.

1942

Citation Bo. 3243346 was modified to allege P&M violated 30
C.F.R. §75.1722(a). 1
Federal coal mine inspector ANTHONY DURAN, during an AAA
inspection, observed an auxiliary floor fan was inadequately
guarded. The pulley was exposed and a person could contact moving parts. The fan withdraws float coal dust from the face and
blows it into the return. the blower fan is chest high. The
inspector would be an arm's reach from the pulley if he was dumping rock dust into the hopper.
(P-17, P-18).
P&M admitted it violated§ 75.17223(a). At issue is whether
the violation should be classified as significant and
substantial. (Tr. 8).
A violation is properly designated as being S&S "if, based
on the particular facts surrounding the violation, there exists a
reasonable likelihood that the hazard contributed to will result
in an injury or illness of a reasonably serious nature." Cement
Division National Gypsum, 6 J''MSHRC 822, 825 (April 1981). In
Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the Commission
explained:
In order to establish that a violation
of a mandatory standard is significant and
substantial under National Gypsum the Secretary must prove:
(1) the underlying violation of a mandatory safety standard; (2) a
discrete safety hazard--that is, a measure of
danger to safety--contributed to by the violation; (3) a reasonable likelihood that the
hazard contribu~ed to will result in an injury; and (4) a reasonable likelihood that
the injury in ques-tion will be of a reasonably serious natureo
See also Austin Power Co. v. Secretary, 861 F.2d 99, 103-104 (5th
Ciro 1988)v aff 1 g, 9 FMSHRC 2015u 2021 (December 1987) (approving
Mathies criteria)o The question of whether any specific violaviolation is S&S must be based on the particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498, 500-501
§

75.1722

Mechanical equipaent guards.

(a) Gears; sprockets; chains; drive, head, tail,
and takeup pulleys; fly-wheels; couplings, shafts;
sawblades; fan inlets; and similar exposed moving
machine parts which may be contacted by persons, and
·. 11.~ch may cause injury to persons shall be guarded.

1943

(April 1988); Youghiogheny and Ohio coal Co. 9 FMSHRC 2007, 20112012 (December 1987).
In connection with Citation No. 3243346, the evidence shows
a violation of the underlying guarding regulation. There was a
measure of danger contributed to by the violation. Unguarded
equipment is reasonably likely to result in an injury. Becoming
entangled with unguarded parts such as shown in P-18 will cause a
reasonably serious injury. In sum, I agree with Inspector Duran
when he classified this as an S & S violation. (Tr. 51-52).
§

Citation No. 3243347 alleges P&M violated 30 c.F.R.
75.503.

P&M withdrew its contest to this Citation and accepted the
proposed penalty of $20.
(Tr. 8). Accordingly, the Citation and
proposed penalty should be affirmed.
CENT 91-197

§

citation No. 3243235 alleges P&M violated 30 C.F.R.
77.1605(k).

MSHA Inspector Donald L. Jordan testified as to the alleged
berm violation. At the conclusion of the hearing, P&M withdrew
its contest to the Citation. (Tr. 88).
P&M's motion was granted.
penalty should be affirmed.

The Citation and the proposed

Citation Nom 3243236 alleges P&M violated 30 C.F.R.
77o4l0o

2

MSHA Inspector DONALD JORDAN issued this citation for an
explosive truck that had a non-functioning backup alarm. The
truck is designed with large boxes on each side. (P-9).
Inspector Jordan opined that pickup trucks are required to
have a backup alarm if vision is not clear to the rear. He con2

§ 77.410

Mobile equipment; auto•atic warning devices.

Mobile equipment, such as trucks, forklifts, front-end
loaders, tractors and graders, shall be equipped with an
adequate automatic warning device which shall give an
audible alarm when such equipment is put in reverse.

1944

sidered the violation to be S&S. Workers were always around the
truck putting priming explosives in holes.
MICHAEL KOTRICK, P&M safety manager, produced photographs
that show a relatively clear view from front to rear of the
explosives truck. (R-1, R-2, R-3). In Mr. Kotrick's opinion,
the wire mesh on the truck permits a greater "see through" than
does a standard pickup with an ordinary tailgate.
In P&M's business, miners take detonators and primer cord
and drop them in holes. However, kneeling by the truck is not
part of the procedure.
The parties in this case injected an issue of "see through"
visibility, that is, if the driver of the truck could see workers
to the rear no backup alarm is required. However, the regulation
does not recognize this exception as it simply requires an audible alarm 'on mobile equipment when the equipment is put in
reverse.
Since P&M's truck had no alarm, the citation should be
affirmed•
I agree with Inspector Jordan's evaluation that this violation was S&S. The S&S criteria, set forth above, is established by the evidence. Specifically, there was a violation of
the mandatory safety standard and a measure of danger to safety
was contributed to by the violation. Further, it is uncontroverted that miners work in close proximity to the truck. The
final criteria is established: a truck backing into a miner
would cause reasonably serious injuries or a fatality.
P&M was negligent since it should have known the backup
alarm was inoperativeo Gravity has been discussed in connection
with the S&S criteria.
Citation No& 3243236 should be affirmed.
Citation Moo 3243231 alleges P&M violated 30 C.F.R.
§ 7701104

3

¢

Federal Coal Mine Inspector Donald Jordan issued this Citation in the PEPCO Buildings, a Class 2v Division 2 building.
In such a buildingu since there are no explosion-proof motors,

3

S 77.1104

Accumulations of combustible materials.

Combustible materials, grease, lubricants, paints, or
flammable liquids shall not be allowed to accumulate
where they can create a fire hazard.

1945

the operator agrees to keep the area free of combustibles such as
flammable liquids, oil, grease, coal dust, etc.
(Tr. 23).
Mr. Jordan saw an oil and float coal dust accumulation
averaging'l/16th of an inch thick.
(Tr. 24). The accumulation
was on a flat metal surface surrounding a 460-volt A.C. motor.
(P-11 shows the accumulation; P-14 shows tracks on the floor from
Mr. Jordan's shoes.)
Mr. Jordan believed the float coal dust in the presence of
oil created an insulating effect that prevented the motor from
adequately cooling. Under normal circumstances, Mr. Jordan
agreed that the probability of ignition or fire was highly unlikely. However, tests reveal that 64/100 of an inch accumulation on a flat surface would propagate ignition if given the
proper heat.
(Tr. 27}.
In Mr. Jordan's opinion, heat would come from the motor if
overheated because of excessive coal dust in the cooling fans.
In Mr. Jordan's opinion there,-was a strong probability that an
accident or serious injury couJ.d occur. An explosion would be
remote but he considered a fire to be a strong possibility.
Mr. Jordan concluded the violation was S&S.
Under § 77.1104, the Secretary must prove there were (1)
combustible materials, (2) such combustibles were allowed to
accumulate and (3) they created a fire hazard.
In Texasgulf, Inc., 10 FMSHRC 498 (April 1988), the Commission developed an analytical approach useful for determining
the reasonable likelihood of a combustion hazard resulting in an
ignition or explosion. The Commission established that there
must be a noconfluence of factors 19 to create a likelihood of ign1~1on0
o
Compare~ Eastern Associated Coal Corporation, 13
FMSHRC 178 (February 1991) involving Section 75.400.
In the instant case, I credit the testimony of P&M's safety
manager Michael Katrick who testified as to a fire triangle and
described the three legs as~ oxygen 0 ignition source 0 and fuel
in vaporized form.
(Tr. 64 0 65).
Further 0 a flash point is a point where sufficient vapors
are given off a substance for it to be ignited.
(Tr. 66). The
lowest flash point at P&M's site was the transmission fluid.
Its
flashpoint was 160 degrees Centigrade. P&M's lab tested coal
dust and the flash point was found to be in excess of 500 degrees
Fahrenheit.
(Tr. 69, 70).
Mr. Kotrick concluded the minimum flash point would be 160
degrees.
(Tr. 71). The motors were tested and their highest

1946

temperature was 55 degrees Fahrenheit. The motors are specifically designed to be used in a Class 2 Division 2 area.
Based on his research, Mr. Kotrick concluded the accumulations were a combustible mixture.
(Tr. 74-75). While the materials are classified as combustible in a definitional sense,
there were not present in a combustible state.
(Tr. 74). There
were no open flames nor electrical sparks in the area.
(Tr. 75).
The motor was not malfunctioning.
In addition, there were fire
extinguishers 10 to 20 feet away.
The Secretary's post-trial brief relies on Inspector
Jordan's qpinion.
{Tr. 28, 29). However, I am not persuaded.
Mr. Jordan agreed he did not know the flash point of the materials he observed in accumulation nor did he have any information regarding the heat given off the surface of the apparatus
where the dust and oil accumulated.
(Tr. 34). Further, there
was no short circuit or evidence of malfunction. Mr. Jordan
further agreed he had no way of knowing if the accumulation
caused excessive heat.
(Tr. ,35).
The Secretary failed to establish an ignition source and
fuel to support a fire.
Accordingly, Citation No. 3243237 should
be vacated.
Citation No. 3243342 alleges P&M violated 30 C.F.R.
P&M has admitted the occurrence of the violation.
The Secretary, upon the evaluation of new evidence provided by
P&M agreed to withdraw the classification from "Significant and
Substantial" and proposed a single assessment of $20.
(Tr. 7).
§ 77.1303(ii).

The motions were granted.
penalty should be
firmed.

The Citation and amended civil

CENT 91-202
Citation No. 3243321 alleges P&M violated 30 C.F.R.
P&M admits the violation. At issue are the S&S
allegations and the penaltyo
(Tr. 8).
§ 77.400(a) 4

Inspector DONALD JORDAN issued this Citation. He found the
west end of the feeder slide on the walkway side and the draw-off

4

§

77.400

Mechanical equipment guards.

{a) Gears; sprockets; chains; drive, head, tail, and
takeup pulleys; flywheels; couplings; shafts; sawblades;
fan inlets; and similar exposed moving machine parts
which may be contacted by persons, and which may cause
injury to persons shall be guarded.

1947

tunnel at the prep land where a person could be injured was not
guarded. The feeder slide is a moving machine part. (Tr. 31).
This is an area that must be examined several times a shift.
The area must be checked for methane, coal spillage and
accumulations.
There was a handrail parallel to the feeder slide. However,
the handrail does not prevent a person from reaching into the
slide.
Inspector Jordan considered the violation to be S&S because
a person could become entangled and incur serious injuries. An
injury could include the loss of a hand or arm.
(Tr. 32, 33).
MICHAEL KOTRICK, testifying for P&M, did not contradict
Mr. Jordan. He indicated the area is isolated. The 36-inch
walkway is made of a heavy metal grating.
(Tr. 77).
The railing, approximately40 inches high, is between a
feeder and the walkway. The hazard is 12 to 18 inches beyond the
railing . .(Tr. 78). The railing could be contacted by anyone who
might slip.
(Tr. 79).
In order to establish an S&S violation, the Secretary must
establish evidence to comply with the Commission mandate set
forth, supra.
Of the four elements required, I do not find there was a
reasonable likelihood that the hazard contributed to will result
in an injury. If a person were to slip on the walkway, he would
most likely steady himself on the adjacent guardrail. Further,
the unguarded feeder slide was 12 to 18 inches beyond the rail.
The S&S violations should be stricken.
P&M was negligent in failing to guard the feeder slide. This
was an open and obvious condition.
The gravity of this violation should be considered as low
since the unguarded equipment was 12 to 18 inches beyond the
railingo
CIVIL PENALTIES
P&M 1 s negligence and the gravity of the violations have been
previously discussed. The remaining statutory criteria to assess
civil penalties is contained in Section llO(i) of ·the Act.
The stipulation (~ 5) indicates P&M is a large operator.
Further, the penalties are appropriate and wi'l not affect the
company's ability to continue in business.

19 48

P&M's previous adverse history, as evidenced by Exhibits Pl, P-2, and P-3, is average.
The stipulation further indicated P&M promptly abated the
violative condition. The operator is entitled to statutory good
faith.
For the foregoing reasons, I enter the following:
ORDER
CENT 91-196
1.
Citation No. 3243318 and the penalty of $20, as
amended, are AFFIRMED.

citation No. 3243346 is AFFIRMED and a civil penalty of

2.

$100 is ASSESSED.
-,,,,.,.

citation No. 3243347 i.s AFFIRMED and a civil penalty of
$20 is ASSESSED.
3.

CENT 91-197
4.
Citation Ho. 3243235 is AFFIRMED and the proposed
penalty of $227 is ASSESSED.

Citation No. 3243236 is AFFIRMED and penalty of $200 is

5.

ASSESSED.
Citation No. 3243237 is VACATED.

6.
7,

20

citation Noo
ASSESSED. "

324334~

is AFFIRMED and a civil penalty of

CENT 91-202

80

The S&S allegations are STRICKEN from Citation Noa

~2433210

9o
Citation Noo 3243321, as amended, is AFFIRMED and a
civil penalty of $50 is ASSESSED.

1949

Distribution:
William E. Everheart, Esq., Deputy Regional Solicitor, 55 Griffin
Square Building, Suite 501, Dallas, TX 75202
(Certified Mail)
John W. Paul, Esq., THE PITTSBURG & MIDWAY COAL MINING CO., 6400
South Fiddler's Green Circle, Englewood, CO 80111-4991
(Certified Mail)

ek

1950

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
(303) 844-5266/FAX {303) 844-5268

CIVIL PENALTY PROCEEDING

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

Docket No. WEST 92-93
A.C. No. 05-00301-03671

v.

Roadside Mine

POWDERHORN COAL COMPANY,
Respondent
DECISION
Appearances:

Robert J. Murphy, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Edward Mulhall, Jr., Esq., Glenwood Springs,
Colorado,
for Respondent.

Before:

Judge cetti
statement of the Proceedings

This case is before me upon a petition for assessment of
civil penalties under Section 105(d) of the Federal Mine Safety
and Health Act of 1977v 30 u.s.c. § 801 et ~f (the "Act). The
Secretary of Labor, on behalf of the Mine Safety and Health Administration, (MSHA), charges the Powderhorn Coal Company
(Powderhorn), the operator of the Roadside Mine, with a 104(a),
non S&S, violation of the mandatory regulatory standard found in
30 C.F.R. § 77.207 and proposed a $20 civil penalty assessment.
The .operator filed a timely answer contesting the alleged
violation and the case was docketed for hearing.
Pursuant to notice, an evidentiary hearing on the merits was
held before me on the primary issue of whether or not there was a
violation of the mandatory safety standard 30 C.F.R. § 77.207.
Both parties filed helpful post-hearing briefs raising many
points and arguments that I have considered in deciding this
matter.
stipulations

The parties stipulated to the following:

1951

1.

The Mine Safety & Health Review Commission has
jurisdiction.

2.

Respondent is an operator within the meaning of and
subject to the Federal Mine Safety and Health Act
of 1977.

3.

citation No. 3582104 was issued by Mine Safety and
Health Inspector David L. Head on June 24, 1991,
charging a section 104(a) violation of 30 C.F.R.
§ 77.207.

4.

Powderhorn's total coal production was 187,167 tons
for the 12 month pried preceding the issuance of
the citation.

5.

Any determination in connection with this citation
will not adversely affect Powderhorn's ability to
continue in business.
Findings and Discussion

Federal Coal Mine Inspector David L. Head, an experienced
electrical inspector, was assigned by his supervisor to make a
complete electrical inspection of both the surf ace and underground area of the Roadside Mine located a few miles East of
Palisade, Colorado.
Inspector Head during his electrical inspection was accompanied by Mr. Henry Barbe of the Roadside Mine
Safety Department who later became and presently is the mine's
Safety Supervisor.
On June 24, 1991, Inspector Head issued the 104(a) non S&S
citation in question, Citation No. 3582104; which states~
No illumination was provided at electrical
substation (C) and switch panels located on
east side of the surface shops area.
No illumination was provided on the path or
walkway to the substation area.
The cited mandatory safety standard 30 C.F.R.
as

§

77.207 reads

follows~

§

770207

Illumination.

Illumination sufficient to provide safe
working conditions shall be provided in and
on all surface structures, paths, walkways,
.stairways, switch panels, loading and dumping
sites, and working areas.

1952

The testimony of Inspector Head that there was no illumination on the path or walkway to the surf ace substation in question
or at the substation or its switch panels, other than miner's cap
lamp that may or should be worn by a miner going to the substation, was undisputed.
Inspector Head testified that during his triple A inspection
of the mine, he observed the surface substation in darkness as
well as during daylight hours and he elaborated as follows:
Q.

And could you describe the conditions that you
observed both at 10:45 a.m. and also in the
darkness.

A.

In the darkness hours you could not see the
substation from the bottom of the walkway or the
pathway without knowing the substation was there.
There was no illumination provided at all in that
area.

Q.

Now, are you t~Iling us today that at the time you
wrote the citation there was abolutely no illumination whatsoever at the substation?

A.

That's correct.

Tr. 20.

With respect to the location of the surface substation and
purpose of the substation, Inspector Head testified that the
substation sits on a ledge above the other facilities with a 11 25
to 30 foot vertical drop-off." There was a high voltage transmission line ''directly across the substation approximately 15 to
20 feet high."
Inside the fenced area there is an "enclosed type
transformer and three disconnects of the 225 amps square D type.
Each one
a main disconnect for the warehousev the bath house 1
the office facilities and the shop area. iv
Inspector Head on being asked to explain in more detail what
he meant by a "vertical drop-off" in his description of the location of the substation testified as follows:
Q.

Nows in your description of the location of the
substation you said there was a vertical drop-off;
could you explain that in a little more detail.

A.

Yes, sir. The vertical pathway that used to be
used down there had a wire strung down from the top
that they used to pull their selves up on to check
the substation. That was immediately terminated at
the time. The pathway was then determined as the
direct route to the substation from the back of the
mine over the portal area, which started out as a
roadway. It's still cliff area, a vertical drop-

19 53

off, and drops down to a path. There is tripping
hazards, a lot of rocks, sagebrush, different types
of things, to the substation area.
Q.

So how would one traverse this pathway?

A.

He would start at the--across the canyonway on the
opposite side of the conveyor belt and start his
climbing to the elevation of the substation, which
would be on the opposite side of the canyon. You
make a horseshoe-type exit--or approach.

Q.

Could you describe in terms of difficulty how it is
to traverse this particular pathway.

A.

Without proper illumination at night, it would be
very hard to have visual sight to get to the
substation in the first place.
It would be a lot
of tripping hazards involved. You would have to
have some artifical lighting.

Q.

Would the elevation--you said there was a vertical
drop-off with the substation. Would the elevation
pose any particular difficulty for a person trying
to traverse this pathway in the dark.

A.

Yes, it would.

Tr. 18-19.

A miner would have to go to the substation not only for
monthly examination but also in an emergency, such as troubleshooting the problem of a breaker tripping out in one of the
facilities.
Inspector Head testified that a cap lamp worn by a
miner does not furnish sufficient illumination to provide safe
working conditions into the electrical substation with the
voltage that was present in the substation. A cap lamp does not
provide 01 sufficient quality of light 11 in the substation area to
meet the safety standard in question. Tr. 23, 57.
Powderhorn contends that since cap lamps are used underground for light, they should be satisfactory for surface illumination. With regard to this contention, Inspector Head was
questioned and testified as follows:
Q.

Okay. And also during your crossexamination you were asked a series
of questions why you thought it was
okay for an electrician using a
head lamp to work on a power source
or power panel underground, but in
your opinion that would not be
sufficient at this particular

1954

substation; do you recall that line
of questioning?
A.

Yes, sir.

Q.

Would you explain in your opinion
as to why there is a difference .

.A.

on the underground high voltage
circuit, the circuit would be
locked out at the source. It would
be grounded out from phase to
ground. There would be no incoming
power available to go into the
substation to do any kind of work
or troubleshooting at that time.

Q.

And I know I'm perhaps stating a
very obvious question, but the
weather conditions underground are
considerably different than on the
surface; is that not correct?

A.

Yes, sir. Underground would be a
constant atmosphere. On the
surf ace would be changes in the
weather. Tr. 56.

Inspector Head testified that the quality of light supplied
by a miners' cap lamp was not sufficient in the area in question
to provid~ a safe work environment. Tr. 57. He noted that
weather conditions underground are considerably different than on
the surface. Underground there is a constant atmosphere while
the surface is subject to weather changes.
At the time of the hearing, the mine was working a night
shift as well as a day shift and a maintenance shift. Mr. Barbe
testified that there have been night shifts since October or
November of 1991 but there was only a single day shift starting
at 7 aomo at the time the citation was issued on June 24, 1991.
He stated the miners; would get to the mine to get ready for the
day shift about 6 a.m.
Inspector Head recalled "there's been
power outages at the mine at different times "including a failure
during a night shift underground some time before the citation
involved here was issued. Tr. 49.
Respondent concedes that the substation was subject to
monthly inspections and that "typically, those inspections are
conducted during daylight hours when there is plenty illumination
from the sun." I accept this statement as well as Respondent's
statement that "only on rare occasions would there be any possibility of going up there to substation cat night." Tr. 7 line

1955

11-15. Clearly this is why the citation designated the violation
as a non S&S violation, injury unlikely, negligence low, and only
a $20 penalty proposed.
Inspector Head is an experienced, well qualified mine inspector.
I credit his testimony. Based upon his testimony and
on his informed judgment, I find that there was a violation of
the safety standard 30 C.F.R. § 77.207 as alleged in Citation No.
3582104.
See Secretary of Labor v. Clinchfield Coal Compan".
issued March 12, 1979, MSHC 2027, review denied by the Commission
in April 1979, affirmed in Clinchfield Coal Company v. Secretary
of Labor, 620 F.2d 292 (4th Cir. 1980), 1 MSHC 2337 (1980).
In
that case the Court of Appeals upheld a finding of insufficient
illumination based on the "informed judgment [of the inspector]
of what constituted sufficient illumination."
on consideration of the statutory criteria in section llO(i)
of the Act, I concur with MSHA's proposed $20 penalty assessment
for this non S&S violation. This is a modest but appropriate
penalty under all the facts and circumstances established at the
hearing.
ORDER

The Respondent is ORDERED TO PAY a civil penalty assessment
in the amount of $20, in satisfaction of the violation in
question.
Payment is to be made to MSHA within thirty (30) days
of the date of this decision and order, and upon receipt of
payment, this matter is dismissed.

Distribution~

Robert J. Murphy; Esq., Office of the Solicitor, U.S. Department
of Laboru 1585 Federal Office Building, 1961 Stout Street,
Denver, CO 80294
(Certified Mail)
Edward Mulhall, Jr., Esq., DELANEY & BALCOMB, P.C., P.O. Drawer
co 81602
(Certified Mail)

790, 818 Colorado Avenue, Glenwood Springs,

sh

1956

ADMINISTRATIVE LAW JUDGE ORDERS

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

OCT 29 1992
IN RE:

CONTESTS OF RESPIRABLE
DUST SAMPLE ALTERATION
CITATIONS

)
)
)

Master Docket No. 91-1

ORDER DENYING MOTION TO EXCLUDE CERTAIN
TESTIMONY OF ROBERT THAXTON
on October 7, 1992, Contestants, by the Lead Defense Counsel
Committee, filed a motion for an order precluding the Secretary
from offering at the common issues trial testimony of Robert
Thaxton relating to his March 1992 reclassification of the cited
dust filters according to his tamper codes. On October 19, 1992,
the Secretary filed a response to the motion asking that the
motion be denied. On October 22, 1992, Contestants filed a reply
to the Secretary's response. On the same day, Contestant U.S.
Steel Mining Company, Inc. (U.S.M.) filed a separate reply. On
October 26, 1992, the Secretary filed a motion to strike
Contestants' and U.S.M.'s replies and, in the alternative, to
accept the Secretary's response which she filed the same day.
I
am accepting and have considered the replies and the Secretary's
response thereto in deciding the pending motion.
~actual

and Procedural Background

The Secretary 1 s Document 405 in the document repository is a
computer data base providing information on each of the cited
filters, including the mine identification number, cassette
number, sampling date, weight, and the classification of the
filter under one of the twelve tamper codes devised by Thaxton.
Of the more than 5000 cited filtersu 652 were included under
tamper code 1, 4161 under tamper code 2u 36 under tamper code 3,
and the remainder under the other nine tamper codes, varying from
4 to 293" This classification apparently took place over a
period of time, but was certainly completed by July 1991,
when the document repository was opened. Thaxton prepared a
report entitled "'AWC' Citation Determination Report" on February
7v 1992, which was made available to Contestants shortly
thereafter.
The Secretary and Contestants have engaged expert witnesses
who analyzed the cited filters, compared them with experimental
filters, and prepared reports directed in part to the question of
the cause of the abnormal white centers and other phenomena
observed in the cited filters. Under the Discovery Plan, as
amended from time to time, expert witness reports were to be

19 57

exchanged by February 7, 1992, and expert witness depositions
were to be completed by October 16, 1992. The latter was
extended at Contestants' request to October 23, 1992. In March
1992, Thaxton made a "second review" of the cited filters, which
involved the separation of the filter media and backing pad,
apparently not done in the first examination. This second review
resulted in changes of the tamper codes for 464 filters. The
most significant changes were in tamper codes 2 and 3. Tamper
code 2 is entitled "cleaned"; tamper code 3 is entitled "cleaned
and coned". The number of filters included under tamper code 3
was increased from 36 to 440. The number of filters under tamper
code 2 was reduced from 4161 to 3742. Thaxton prepared a report
entitled '"AWC' Common Issues Report" on September 25, 1992,
describing the changes in the tamper code assigned to each
filter. This report also revealed that he reviewed approximately
5100 samples stored in the Pittsburgh Health and Technology
Center which had been received from mine operators in November
and December 1991 and June 1992 and which had not been cited. It
further included an analysis of the experimental filters prepared
by the R.J. Lee Group, Drs. Yao and Malloy, Dr. McFarland, and
Dr. Grayson, all of whom are Contestants' experts, and Dr.
Marple, an expert engaged by the Secretary. The report was made
available to Contestants on September 25, 1992.
Contestants' motion argues that the reclassification of the
filters was deliberately withheld from Contestants for more than
6 months, that the Secretary had the clear obligation to disclose
this information, and that her failure to do so undermines
Contestants' ability to prepare for the common issues trial.
They assert that they have been seriously prejudiced and that the
only appropriate sanction for the Secretary's misconduct is to
exclude the evidence that was withheld. The Secretary argues
that her burden is to establish that the weight of dust in the
cited filters was deliberately alteredu and the precise manner of
the alteration (the tamper code)
not part of her burden of
proof
The Secretary further assets that~
The tamper code assignment during the second
filter review did not ••o involve any
modification to any tamper codes during the
first review which are set forth in Document
405
all that occurred was that a column
was added to MSHA 1 s data base to reflect the
results of Thaxton 1 s observation of the cited
filters as they appeared in March 1992. This
recordation did not change Thaxtonvs
observations of the cited filters as they
appeared during his initial review.
oo•o

(emphasis in original). These assertions are further explained
by the statement that the changed classification in some
instances resulted from a change in the appearance of the filter

1958

caused by handling and by the passage of time, and in other
instances because Thaxton observed "coning" or "dimpling" on the
filter after the backing pad was removed. If the Secretary is
arguing that the March 1992 review did not result in a change in
Thaxton's conclusions as to the nature of the AWC phenomena on
the 464 filters which were reclassified, the argument is
incomprehensible and is rejected.
Rule 26(e)

Rule 26(e) (1) (B) of the Federal Rules of Civil Procedure
requires a party to seasonably supplement a response to a
discovery request to include information subsequently acquired on
the subject matter on which an expert witness is expected to
testify at trial. Rule 26(e) (2) (B) requires a party to
seasonably amend responses to discovery when the party learns
that a prior correct response is no longer true, where failure to
amend would result in knowing concealment. This requirement
applies to all evidence and is not limited to expert witness
testimony. Rule 26(e) (3) requires a party to supplement
responses to discovery upon request made by the opposite party.
In this proceeding Contestants have requested that the Secretary
update the document repository.
If Thaxton is an expert witness, the Secretary was obliged
by Rule 26(e) (1) (B) to seasonably disclose her March 1992
reclassification. Without regard to Thaxton's status, the
Secretary was required to seasonably disclose the
reclassification by Rule 26(e) (2) (B) and Rule 26(e) (3).
Disclosure on September 25, 1992, of the March 1992
reclassification was not seasonable, particularly in view of the
imminent completion of expert witness discovery. The failure to
disclose a significant change in Thaxton's consideration of the
filters for a period of more than 6 months was a clear violation
of Rule 26(e)
o

Discovery Plan
The Discovery Plan governing discovery in this proceeding
was amended on June 10 0 1992 0 and provided in part as follows~
(5) If any expert modifies or adds to the
opinions previously expressed, opposing
parties shall be promptly notified in writing
of the opinion to which the expert is then
expected to testify .... the opposing parties
shall be given an opportunity for a
reasonable time to depose that expert on such
additional or modified opinions.
Thaxton has apparently not been identified as a generic expert,
but as a case specific expert by the Secretary. Nevertheless,

1959

the Discovery Plan requires the Secretary to promptly notify
contestants of the modification or addition to his previously
expressed opinions. She failed to do so. I should note,
however, that because of her failure I extended by l week the
time for completion of Contestants' deposition of Thaxton which,
at least in part, remedies the violation of the Plan.

sanction
Contestants seek the exclusion of certain testimony of
Thaxton. Rule 26(e) does not require the exclusion of evidence
for a violation of the rule. However, if the trial judge deems
it appropriate he may exclude evidence at trial for a violation
of the rule's supplementation requirement which prejudices the
opposing party. See Notes of Advisory Committee on 1970
Amendment to Rule 26, Federal Rules of Civil Procedure.
The exclusion of evidence is an "extreme" sanction.

Dudley
In

v. South Jersey Metal, Inc., 555 F.2d 96, 99 (3d Cir. 1977).

deciding whether to apply this extreme sanction or fashion
another for the violation of the discovery rules, I must consider
a number of factors:
l.

The extent of the prejudice, if any, to the opposing
party;

2.

Whether the prejudice may be cured or lessened by a
less extreme sanction than exclusion;

3.

The importance of the testimony sought to be excluded
to a fair and complete trial of the relevant
facts and issues; and

4o

Whether the violation resulted from bad faith or
willfulnesso

See Meyers Vo Pennypack Woods Home Ownership Ass 1 n, 559 F.2d 894,
904-05 (3d Cir. 1977).

.,

Contestants argue that because they were not informed of
Thaxtonijs reclassification when it occurred, they were prejudiced
in preparing their expert witness reports. In particular, they
assert that the small number of cassettes originally classified
under tamper code 3 (36) caused them to spend less time on the
phenomenon of coning than they would have if they were aware of
the number of cassettes so classified following the "second
review" {440)
There is no question that the withholding of the
reclassification affected the way in which Contestants prepared
for their expert witness testimony. It also affected their
depositions of Mr. Thaxton. The prejudice is diminished however
because of the extension of l week for the completion of
Thaxton's deposition; by the fact that Thaxton's supplemental
o

1960

report was made available September 25, 1992, prior to the
completion of expert witness discovery; by the fact that the
question of coning was considered and discussed in the reports
and depositions of Contestants' experts; and by the fact that all
the cited filters were made available for Contestants' inspection
many months before Thaxton's supplemental report.
Contestants suggest that an alternative remedy would be to
permit further scientific research by the Contestants' experts on
the reclassification and allow the results of that research at
the common issues trial. The prejudice to Contestants certainly
would be lessened, if not cured, if they had the opportunity to
conduct further experimentation on the phenomenon of coning.
contestants state that the Secretary has made Thaxton a
critical witness in these proceedings; that she "rested the full
weight of asserting violations of the dust sampling regulations
upon his subjective judgment alone." For precisely this reason,
I would be reluctant to limit or exclude his testimony, lest in
penalizing the Secretary, I also limit my ability to fully
consider and understand the racts and the issues raised in these
proceedings.
contestants allege that the evidence of Thaxton's
reclassification was deliberately withheld and imply that it
resulted from bad faith. Bad faith on the part of counsel is not
lightly presumed and I do not find that the evidence establishes
it here. Contestants assert that Thaxton's reclassification was
made known to the Secretary's expert, Dr. Marple while it was
withheld from Contestants. The Secretary denies that she made it
known to Dr. Marple. Contestants point to the Secretary's
failure to disclose the existence of 5100 non-cited filters in
the Pittsburgh lab and her failure to notify Contestants of her
finding that snapping a cassette together could result in an AWC
as showing bad faitho These are factors peripherally related, at
best, to the subject of the motion before me. I do not conclude
that they show bad faith. U.S.M. asserts that it was prejudiced
in that its expert conducted little experimentation related to
coning because none of U.S.M.'s cited filters were classified
under tamper code Jo Following the March 1992 reviewu 5 filters
were reclassified as tamper code 3. Thus, Dr. McFarland was
deprived of the opportunity to conduct experiments related to the
causes of coningo U.S.M. suggests that the trial judge might
have accepted U.S.Mo 0 s offer at the prehearing conference to be
the subject of a bellwether trial had the reclassification been
known. In fact, I decided against holding a bellwether trial
involving any Contestant at that time, so the argument is
irrelevant. U.S.M. suggests a hearing on the questions raised in
the motion "not only regarding what has transpired, but to also
ensure that such conduct does not reoccur." I believe that such
a hearing would be counterproductive and is unnecessary to a
proper decision on the motion.

1961

Because the prejudice to the Contestants has been to some
extent mitigated, because there is time prior to trial to further
cure the prejudice, because the testimony is important to a fair
and complete trial, and because bad faith or willfulness in
failing to comply with the discovery requirements has not been
shown, I will deny the motion to exclude. However, in an attempt
to further cure the prejudice, I will permit Contestants to carry
out further scientific studies related solely to the Thaxton
reclassification and more specifically the coning phenomenon,
provided that the studies shall be completed and the expert
reports shall be served on the Secretary and filed with me 1 on
or before November 17, 1992.
ORDER

In accordance with the above discussion, IT IS ORDERED that
(1)

the motion to exclude certain testimony of Robert
Thaxton is DENIED.

(2)

contestants are grariled time to conduct further
scientific studies related solely to the Thaxton
reclassification. Such studies shall be completed and
reports shall be served on the Secretary and filed on
or before November 17, 1992.

t[;W~ s

j

1

/)

..

_µ1 t-V~/Vtc~

James A. Broderick
Administrative Law Judge

I have issued a separate order directing that copies of
all expert witness reports be filed with me by the same date.

1962

Distribution:
Douglas N. White, Esq., Carl c. Charneski, Esq., Office of the
Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard,
Arlington, VA 22203 (Certified Mail)
Timothy M. Biddle, Esq., Crowell & Moring, 1001 Pennsylvania
Avenue, N.W., Washington, D.C. 20004 (Certified Mail)
William I. Althen, Esq., Michael T. Heenan, Esq., Smith, Heenan &
Althen, 1110 Vermont Avenue, N.W., Washington, D.C. 20005
(Certified Mail)
Laura E. Beverage, Esq., Jackson & Kelly, P.
Charleston, WV 25322 (Certified Mail)

o. Box 553,

R. Henry Moore, Esq., Buchanan Ingersoll, 600 Grant street, 58th
Floor, Pittsburgh, PA 15219 (Certified Mail)
John C. Palmer IV, Esq., Robinson & McElwee, P.
Charleston, WV 25326 (Certified Mail)

o. Box 1791,

H. Thomas Wells, Esq., Maynard, Cooper, Frierson & Gale, 1901 6th
Avenue, North, suite 2400, Amsouth/Harbert Plaza, Birmingham, AL
35203 (Certified Mail)
All Others by Regular Mail
/fcca
Robert B. Allen, Esq.
John J. Polak, Esq.
Kingu Betts and Allen
PoOo BOX 3394

Charlestonu WV 25333
Karl Fo Anuta, Esq. (Co-counsel Crowell & Moring)
Western Fuels-Utah, Inc.
P.O. Box 1001
1720 14th Street
Boulderu CO 80306
Curtis Asbury, President
P.O. Box 600
Danville, WV 25053
John D. Austin, Jr., Esq.
Austin & Movahedi
2115 Wisconsin Ave., N.W.
Washington, o.c. 20007

1963

FEDERAL MINE SAFETY ANO HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHING"<ON. D.C.

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

v.

?CYX>C

, 1992
CIVIL PENALTY PROCEEDING
Docket No. CENT 92-240-M
A. C. No. 39-01282-05528
Annie Creek

WHARF RESOURCES USA
INCORPORATED,

Respondent
ORDER ACCEPTING LATE FILING
ORDER DENYING MOTION TO DISMISS

Before:

Judge Merlin

On August 18, 1992, the Solicitor filed the penalty petition
in the above-captioned case and a motion to accept late filing of
the penalty proposal. On September 21, 1992, the operator filed
its answer to the penalty proposal together with a motion in
opposition to the Solicitor's motion to accept late filing.
Commission Rule 27 requires that the Secretary file the
penalty proposal within 45 days of the date she receives an
operator's notice of contest for the proposed penalty. 29 C.F.R.
§ 2700.27.
An operator contests the proposed penalty by mailing
in the so called "blue card 11 which has been provided to it for
this purpose. The date of receipt by the Secretary is the date
the operator mailed the blue card,
3 FMSHRC 854
1
(1981). Assuming that in this case the blue card was mailed the
same day it was signed, June 18, 1992, the penalty proposal
became due on August 3. The proposal was mailed on August 14,
and received at the Commission on August 18~ It was therefore,
15 days late.
The Commission has not viewed the 45 day requirement as
jurisdictional or as a statute of limitation. Rather, the Commission has permitted late filing of the penalty proposal upon a
showing of adequate cause by the Secretary where there has been
no showing of prejudice by the operator. Salt Lake County Road
Department, 3 FMSHRC 1714, 1716 (July 1981)"
The Solicitor's motion to accept late filing represents that
the delay occurred because the case was not sent to her off ice
until August 3, 1992. In Salt Lake County Road Department,
supra, decided early in the administration of the Act, the
Commission held that the extraordinarily high caseload and lack
of personnel confronting the Secretary at that time constituted
adequate cause for late·filing. At the present juncture, I take
1964

note of the precipitous rise in the volume of contested cases
over the last few years, as indicated by the Commission's own
records.
I find these circumstances constitute adequate cause
for the short delay in the filing of the penalty petition.
Finally, the record does not indicate any prejudice to the
operator from the two week delay.
More serious is the time span between the issuance of the
citation on August 15, 1991, and the notification to the operator
of the proposed penalty assessment on June 1, 1992. Section
105(a) of the Act, 30 u.s.c. § 815(a), provides that after the
Secretary issues a citation or order under section 104, she shall
within a reasonable time notify the operator of the proposed
civil penalty to be assessed for the cited violation.
The Mine Act does not define "reasonable time". However,
the following statements of the Senate Committee are instructive:
To promote fairness to operators and miners and
encourage improved mine safety and health generally,
such penalty proposals miist be forwarded to the operator and miner representative promptly. The Committee
notes, however, that there may be circumstances, although rare, when prompt proposal of a penalty may not
be possible, and the Committee does not expect that the
failure to propose a penalty with promptness shall
vitiate any proposed penalty proceeding.

s. Rep. No. 95-181, 95th Cong., 1st Sess. 34, reprinted in,
Senate Subcommittee on Labor, Comm. on Human Resources, 95th
Cong., 2 Sess., Legislative History of the Federal Mine Safety
and Health Act, at 622 (1978).
It does not appear that the Commission has specifically
considered whether a penalty petition must be dismissed because
was not issued until several months after the citation had
been issued. However, I find relevant the principles adopted by
the Commission in Salt Lake County Road Department, supra, and
therefore, in the instant matter I will consider whether adequate
cause existed for the delay and if the operator has demonstrated
prejudice.
Note is taken of the few Commission judges 1 decisions where
delays in the issuance of the proposed assessments have occurred.
In Heldenfels Brothers, Inc., 2 FMSHRC 851 (April 1980), a judge
denied a motion to dismiss where there was a 220-day delay on the
ground that MSHA's assessment procedures required considerable
time and that the operator had not shown that it suffered any
actual harm. However, in Anaconda Company, 3 FMSHRC 1926 (August
1981) , another judge dismissed a case where there had been a two
year delay and the Secretary offered no reasons, but this same
judge subsequently refused to dismiss a case for a 132 day delay

1965

because the operator had not claimed prejudice.
Industrial
Construction Corp., 6 FMSHRC 2181 (Sept. 1984).
Delays of a year
and a half and two years have not been countenanced. Washington
corporation, 4 FMSHRC 1807 (October 1982).
In this case the delay was considerable, but within the
parameters previously allowed by judges in the cases cited above.
In addition, the file in this case shows that the alleged violation was the subject of an investigation of a non-fatal haulage
accident.
In discussing the requirement of reasonable promptness
for the issuance of citations, Congress made specific reference
to the time taken by accident investigations. S. Rep. No. 94181, supra, Legislative History supra, at p. 618. Just as accident investigations are to be taken into account in determining
timeliness for the issuance of citations, so they are germane in
deciding the analogous question of whether adequate cause exists
to justify a lag in assessing a penalty.
The operator has alleged prejudice because it will have to
reconstruct events as they were on August 15, 1991, and that it
must have witnesses who are available and recall the specific
facts.
However, there is no specific proffer that such witnesses
are in fact unavailable and that the operator is unable to
present its position sufficiently.
Informative with respect to the foregoing is the decision of
the Commission in Old Dominion Power, 5 FMSHRC 1886 (1984),
refusing to dismiss a citation because it was not issued until
one year after a violation occurred where in the interim there
had been a fatality investigation. The Commission found that the
operator had not been prejudiced and cited the legislative
history for the proposition that the "reasonable promptness"
requirement was not jurisdictional. Old Dominion Power at 1894.
So too, allowing the instant case to proceed is consistent with
the expressed Congressional mandate that a failure to propose a
penalty with promptness shall not vitiate the penalty proceeding.
MSHA
, however, forewarned that as a general matter tardiness
in assessments is troublesome and may in other contexts
irreparably hinder its enforcement of the Act.
In light of the foregoing, it is ORDERED that the
Solicitor 1 s motion to accept late filing be GRANTED and that
the operator 1 s motion to dismiss be DENIED.

Paul Merlin
Chief Administrative Law Judge

19 66

Distribution:
Tambra Leonard, Esq., Office of the Solicitor, U.S. Department
of Labor, 1585 Federal Office Building, 1961 Stout Street,
Denver, co 80294
(Certified Mail)
Joy Johnston, Esq., General Counsel, Mr. Pete Kostelecky, Safety
Director, Mr. Bruce Nygaard, SD Area Manager, Fisher Sand and
Gravel Co., P. o. Box 1034, Dickinson, ND 58601 (Certified
Mail)
/gl

1967

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW. 6TH FLOOR
WASHINGTON. O_C.

20006

November 13, 1992

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

CIVIL PENALTY PROCEEDING
Docket No. CENT 92-246-M
A. C. No. 39-01282-05501 D3H
Annie Creek

v.
FISHER SAND & GRAVEL COMPANY,
Respondent

ORDER ACCEPTING LATE FILING
ORDER DENYING MOTION TO DISMISS

Before:

Judge Merlin

On August 24, 1992, the Solicitor filed a penalty petition
in the above-captioned action and a motion to accept late filing
of the penalty proposal. On September 21, 1992, the operator
filed its answer to the penalty proposal together with a motion
in opposition to the Solicitor's motion to accept late filing.
Commission Rule 27 requires that the Secretary file the
penalty proposal within 45 days of the date she receives an
operator's notice of contest for the proposed penalty.
29 C.F.R.
§ 2700.27.
An operator contests the proposed penalty by mailing
in the so-called "blue card" which has been provided for this
purpose. The date of receipt by the Secretary is the date the
operator mails the blue card. J.P. Burroughs, 3 FMSHRC 854
(1981). Assuming that in this case the blue card was mailed the
same day it was signedv June 25v 1992 1 the penalty proposal
became due on August 10. The proposal was mailed on August 18,
and received at the Commission on August 24. It was therefore,
two weeks late.
The Commission has not viewed the 45 day requirement as
jurisdictional or as a statute of limitation. Rather, the
Commission has permitted late filing of a penalty proposal upon a
showing of adequate cause by the Secretary where there is no
showing of prejudice by the operator. Salt Lake County Road
Department, 3 FMSHRC 1714, 1716 (July 1981).
The Solicitor 1 s motion to accept late filing represents that
the delay occurred because the case was not sent to her off ice
until August 11, 1992. In Salt Lake County Road Department,
supra, decided early in the administration of the Act, the
Commission held that the extraordinarily high caseload and lack
of personnel confronting the Secretary at that time, constituted
adequate cause for late filing.· At the present juncture, I take
note of the precipitous rise in the volume of contested cases
over the last few years·as indicated by the Commission's own

1968

records.
I find that these circumstances constitute adequate
cause for the short delay in the filing of the penalty petition.
Finally, the record does not indicate any prejudice to the
operator from the two week delay.
More serious is the time span between the issuance of the
citations on August 15 and 16, 1991, and the notification to the
operator of the proposed penalty assessments on June 2, 1992.
Section 105(a) of the Act, 30 u.s.c. § 815(a), provides that
after the Secretary issues a citation or order under section 104,
she shall within a reasonable time notify the operator of the
proposed civil penalty to be assessed for the cited violation.
The Mine Act does not define 11 reasonable time". However,
the following statements of the Senate Committee are instructive:
To promote fairness to operators and miners and
encourage improved mine safety and health generally,
such penalty proposals must be forwarded to the operator and miner represen-tativepromptly. The Committee
notes, however, that there may be circumstances, although rare, when prompt proposal of a penalty may not
be possible, and the Committee does not expect that the
failure to propose a penalty with promptness shall
vitiate any proposed penalty proceeding.
S. Rep. No. 95-181, 95th Cong., 1st Sess. 34, reprinted
,
Senate Subcommittee on Labor, Comm. on Human Resources, 95th
Cong., 2 Sess., Legislative History of the Federal Mine Safety
and Health Act, at 622 (1978).
It does not appear that the Commission has specifically
considered whether a penalty petition must be dismissed because
was not issued until several months after the citation had
been issued" However 1 I find relevant the principles adopted by
the Commission in Salt Lake County Road Department, supra, and
therefore, in the instant matter I will consider whether adequate
cause existed for the delay and if the operator has demonstrated
prejudice.
Note
taken of the few Commission judgesv decisions where
delays in the issuance of the proposed assessments have occurred.
In Heldenfels Brothers, Inc., 2 FMSHRC 851 (April 1980), a judge
denied a motion to dismiss where there was a 220-day delay on the
ground that MSHA 1 s assessment procedures required considerable
time and that the operator had not shown that it suffered any
actual harm. However, in Anaconda Company, 3 FMSHRC 1926 (August
1981), another judge dismissed a case where there had been a two
year delay and the Secretary offered no reasons, but this same
judge subsequently refused to dismiss a case for a 132 day delay
because the operator had not claimed prejudice. Industrial
Construction Corp., 6 FMSHRC 2181 (Sept. 1984). Delays of a year

1969

and a half and two years have not been countenanced.
Corporation, 4 FMSHRC 1807 (October 1982).

Washington

In this case the delay was considerable, but within the
parameters previously allowed by judges in the cases cited above.
In addition, the file in this case shows that the alleged violations were the subject of an investigation of a non-fatal haulage
accident. In discussing the requirement of reasonable promptness
for the issuance of citations, Congress made specific reference
to the time taken by accident investigations. S. Rep. No. 94181, supra, Legislative History supra, at p. 618. Just as accident investigations are to be taken into account in determining
timeliness for the issuance of citations, so they are germane in
deciding the analogous question of whether adequate cause exists
to justify a lag in assessing penalties.
The operator has alleged prejudice because the witnesses are
unavailable, the record is not fresh and it is impossible for it
to present its case in the best possible light. However, the
operator has furnished no spec.if ics beyond these general assertions.
Informative with respect to the foregoing is the decision of
the Commission in Old Dominion Power, 5 FMSHRC 1886 (1984),
refusing to dismiss a citation because it was not issued until
one year after a violation occurred where in the interim there
had been a fatality investigation. The Commission found that the
operator had not been prejudiced and cited the legislative
history for the proposition that the "reasonable promptness"
requirement was not jurisdictional. Old Dominion Power at 1894.
So too, allowing the instant case to proceed is consistent with
the expressed Congressional mandate that a failure to propose a
penalty with promptness shall not vitiate the penalty proceeding.
MSHA isQ however forewarned that as a general matter tardiness in
assessments
troublesome and may in other contexts hinder its
enforcement of the Act.
In light of the foregoing, it is ORDERED that the
Solicitor 1 s motion to accept late filing be GRANTED and that
the operator~s motion to dismiss be DENIED.

Paul Merlin
Chief Administrative Law Judge

1970

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW. 6TH FLOOR
WASHINGTON. 0 c_

2CJOOI.:;

November 13, 1992
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDINGS

v.
LIVINGSTON MARBLE & GRANITE,
Respondent

Docket No. WEST 92-573-M
A. C. No. 24-00016-05503

Docket No. WEST 92-430-M
A. C. No. 24-00016-05504

Livingston Marble
Docket No. WEST 92-574-M
A. C. No. 24-00660-05512
Docket No. WEST 92-575-M
A. C. No. 24-00660-05513
:

Travertine Cutting & Polishing
Plant

ORDER DENYING MOTION TO DISMISS
ORDER ACCEPTING LATE FILING
Before:

Judge Merlin

On October 6 1 1992, the operator filed a motion to dismiss
the above-captioned cases. The operator asserts that the Commission lacks jurisdiction because the penalty petitions were not
timely
led. On August 3, 1992 1 the Solicitor had filed motions
to accept late
ling in WEST 92-430-M, WEST 92-573-M and WEST
92-574-M along with the penalty proposals. The proposal for WEST
92-575-M was received on August 10, 1992.
Commission Rule 27 requires that· the Secretary file the
penalty proposal within 45 days of the date she receives the
operator's notice of contest for the proposed penalty. 29 C.F.R.
§ 2700.27.
The operator contests the proposed penalty by mailing
in the so called "blue card" which has been provided to it for
this purpose. The date of receipt by the Secretary is the date
the operator mailed the blue card. J.P. Burroughs, 3 FMSHRC 854
(1981)" Assuming that in these cases the blue cards were mailed
the same day they were signed, the Secretary's subsequent penalty
proposals for WEST 92-430-M, WEST 92-573-M and WEST 92-574-M were
46 to 60 days late. The penalty proposal for WEST 92-575-M was
mailed to the Commission on the 45th day and therefore is timely.
The Commission has not viewed the 45 day requirement as
jurisdictional or as a statute of limitation. Rather, the
Commission has permitted· late filing upon a showing of adequate
1971

cause by the Secretary and where there is no showing of prejudice
by the operator. §alt Lake County Road Department, 3 FMSHRC
1714, 1716 (July 1981).
The Solicitor's motion to accept late filing represents that
the delay occurred because the cases were not sent to her off ice
until July 24. In Salt Lake County Road Department, supra,
decided early in the administration of the Act, the Commission
held that the extraordinarily high caseload and lack of personnel
confronting the Secretary at that time, constituted adequate
cause for late filing. At the present juncture, I take note of
the precipitous rise in the volume of contested cases over the
last few years, as shown by the Commission's own records.
In
view of the circumstances set herein, I find that adequate cause
exists for the relatively short delays of 46 to 60 days.
In
addition, the operator has not shown any prejudice by the delays.
In light of the foregoing, the Secretary's motion to accept
late filing of the penalty proposals in WEST 92-430-M, WEST 92573-M, and WEST 92-574-M is GRANTED.
It is further ORDERED that the operator's motion to DISMISS
in WEST 92-430-M, WEST 92-573-M, WEST 92-574-M and WEST 92-575-M
be DENIED.

Paul Merlin
Chief Administrative Law Judge
Distribution~

Tambra Leonard, Esq., Office of the Solicitor, U. s. Department
of Labor, 1585 Federal Office Building, 1961 Stout Street,
Denveru CO 80294
(Certified Mail)
Penelope Hayes-Brook, Esq. 1 P.
(Certified Mail)

o. Box 804u Livingston, MT

59047

Mr. Gregory D. strong, President, Livingston Marble and Granite
Works, Box 851, Livingston, MT 59047
(Certified Mail)

/gl

1972

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR

5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

22041

NOV 18 1992
CIVIL PENALTY PROCEEDING

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

Docket No. PENN 92-696-M
A.C. No. 36-08120-05504

Complainant

v.
CHESTNUT RIDGE SAND,
Respondent

Chestnut Ridge Sand

.
...
ORDER

Before~

Judge Feldman

The respondent, a division of Haines§ Kibblehouse, Inc.,
(H&K) has filed a motion seeking permission to have Mr. James F.
Sassaman represent it in this matter. H&K is a member of the
General Building Contractor's Association. Mr. Sassaman is the
association's Director of Safety and is reportedly familiar with
administrative proceedings as they pertain to safety and health
related issueso
The petitioner opposes the respondentijs motion on the
grounds that Mro Sassaman should be precluded from serving as
representative under Commission rule 3(b) (2) because "he is not
experienced or familiar with the Mine Safety and Health Act of
1977u the Commission 1 s rules of procedure, or Mine Safety issues
in generalo 00 In this regardf the petitioner asserts that the
seriousness and complexity of this case, which involves a 107(a)
imminent danger orderu requires a representative with mine safety
experienceo
Rule 3(b) (2) permits the appointment of a representative for
the limited purpose of a specific proceeding. The plain language
of this section does not preclude a representative solely because
the individual has no mine safety experience. Moreover, the
petitioner's reliance on the "complexity" of this case as a basis
for its opposition is without merit in view of the fact that the
respondent's answer admits the occurrence of the violations in
issue, and seeks to be heard only on the issues of the degree of
negligence and the appropriateness of the penalty assessment.

1973

ACCORDINGLY, the respondent's motion seeking permission for
Mr. James F. Sassaman to represent it in this proceeding IS
GRANTED.

r2.at~~"---..;.;;;;;;:::ii>

~:ld
Feldman
Administrative Law Judge
(703) 756-5233
Distribution:

John M. Strawn, Esq., Office of the Solicitor, U.S. Department of
Labor, 14480 Gateway Bldg., 3535 Market st., Philadelphia, PA
19104 (Certified Mail)
James F. Sassaman, Director of Safety, Chestnut Ridge Sand
Company, 36 S. 18th St., P.O. Box 15959, Philadelphia, PA 19103
(Certified Mail)
/vmy

1974