DECEMBER 1994
COMMISSION DECISIONS AND ORDERS
12 - 05-94
12-05-94
12 - 05 - 94
12 - 05-94
12-06-94
12-15-94
12-19-94
12 - 19- 94

Sandy Jones Construction
Meshach Coal Company, Inc.
Harlan Cumberland Coal Co.
Arthur Miller emp. by Mid-Wisconsin
Lakeview Ro~k Products, Inc.
Drillex, Incorporated
Fielding Hydroseeding
JEN Incorporated

CENT 94 - 104-M
KENT 94-436
KENT 94 - 408
LAKE 95 - 47-M
WEST 95-56-M
SE
93-130-M
WEVA 94-80
SE
93-262

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

2375
2378
2381
2384
2388
2391
2399
2402

WEVA 92-746
CENT 93-261-DM
WEVA 93-416-M
WEVA 93-471

Pg.
Pg.
Pg.
Pg.

2405
2416
2433
2441

SE
94-358-D
PENN 93-119
PENN 93-445
LAKE 94-158-M
PENN 94-591
PENN 95 - 11
SE
94-51 - RM
SE
94-74
WEST 94-289
WEVA 93-165-R
WEVA 94-260-R
PENN 93-420-R
KENT 94-57-D

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

2445
2450
2451
2466
2471
2473
2475
2477
2489
2500
2522
2555
2562

PENN 94-609
PENN 94-616
PENN 94-563

Pg. 2563
Pg. 2565
Pg. 2567

APMINISTEATIVE LAW JUPGE DECISIONS
12 - 01-94
12-05-94
12-05-94
12 - 05 - 94
12 - 08 - 94
12-09-94
12 - 09-94
12-14-94
12-14-94
12-16-94
12 - 20-94
12-21-94
12 - 22-94
12 - 27-94
12 - 27-94
12-28-94
12-29-94

W-P Coal Company
James D. Waters v. IMC Fertilizer
Thomas Detamore, et al.
Kennie-Wayne Incorporated
William Sinnott, II v. Jim Walter
Resources, Inc.
Susquehanria-Mt. Carmel, Inc.
New Warwick Mining Company
New Point Stone Company, Inc.
Homer City Coal Processing
Consol Pennsylvania Coal Co.
T. J. McKnight,. Inc.
Jim Walter Resources, Inc.
Amax Coal West Incorporated
Bluestone Coal Corporation
Consolidation Coal Company
Lion Mining Company
Larry E. Hatton v. Adena Fuels

ADMINISTRATIVE LAW JUDGE ORPERS
12-02-94
12-02-94
12 - 02-94

Rox Coal Incorporated
Tanoma Mining Company
Consolidation Coal Company

i

DECEMBER

1994

Review was granted in the following cases during the month of December;

Secretary of Labor, MSHA v. Buffalo Crushed Stone, Docket No. YORK 94-51-M.
(Judge Weisberger, October 24, 1994)
Secretary of Labor, MSHA v. Sandy Jones Construction, Docket No. CENT 94-104-M.
(Chief Judge Merlin, unpublished Default, October 27, 1994)
Secretary of Labor, MSHA v. Art hur Miller employed by Mid-Wisconsin Crushing
Co., Docket No. LAKE 95-47-M . (Request for Relief from Final Order)
Secretary of Labor, MSHA v. Harlan Cumberland Coal Co., Docket No. KENT 94-408.
(Chief Judge Merlin, unpublished Default, October 27, 1994)
Secretary of Labor, MSHA v. Meshach Coal Company, Docket No. KENT 94-436.
(Chief Judge Merlin, unpublished Default, October 27, 1994)
Secretary of Labor, MSHA v. Lakeview Rock Products, Docket No. WEST 95-56-M.
(Request for Relief from Final Order)
Secretary of Labor, MSHA v. Fielding Hydroseeding, Docket No. WEVA 94-80.
(Chief Judge Merlin, unpublished Default, July 14, 1994)
Secretary of Labor, MSHA v . JEN Incorporated, Docket No. SE 93-262, etc.
(Chief Judge Merlin, unpublished Default, May 9, 1994)
Secretary of Labor, MSHA v. Ambro~ia Coal & Construction and Wayne Steen,
Docket No. PENN 93-233, etc.
{Judge Fauver, November 14, 1994)
Secretary of Labor, MSHA v. Bridger Coal Company, Docket No. WEST 91-233.
(Judge Cetti, November 18, 1994 )
Secretary of Labor, MSHA v . ASARCO, Inc., Docket No. WEST 94-445-M.
Cetti, November 21, 1994)

There were no cases filed in which review was denied.

ii

(Judge

COMMISSION DECISIONS AND ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
December 5, 1994

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

Docket No. CENT 94-104-M

SANDY JONES CONSTRUCTION

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

ORDER
BY THE COMMISSION:

This civil penalty proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1988) ("Mine Act"). On October 27, 1994, Chief Administrative
Law Judge Paul Merlin issued an Order of Default to Sandy Jones Construction ("SJC") for
failing to answer the proposal for assessment of penalty filed by the Secretary of Labor on March
25, 1994, or the judge's Order to Show Cause of July 22, 1994. The judge assessed the civil
penalty of $4,000 proposed by the Secretary.
On November 7, 1994, the Commission received a letter from Ray Jones, SJC's owner, in
which Jones states that he had timely mailed SJC's answer, dated April 25, 1994, to the
Department of Labor's Regional Solicitor's Office in Dallas, Texas. He further s~tes that, after
receiving the show cause order, he immediately called and explained that he had sent SJC's
answer. 1 Jones also claims that on August 8, he sent a copy of the answer to the "Mine Safety
and Health Administration Commission" and, on subsequent occasions, approached the
solicitor's office in Dallas in an effort to obtain a copy of SJC's file and to negotiate a settlement.
The record does not contain a copy of SJC's answer.
The judge's jurisdiction in this matter terminated when his decision was issued on
October 27, 1994. 29 C.F.R. § 2700.69(b)(1993). Under the Mine Act and the Commission's
procedural rules, relief from a judge's decision may be sought by filing a petition for

1

Jones does not specify which agency he called.
2375

discretionary review within 30 days of its issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R.
§ 2700.70(a). We deem SJC's motion to be a timely filed petition for discretionary review,
which we grant. See, e.g., Middle States Resources, Inc., 10 FMSHRC 1130 (September 1988).
On the basis of the present record, we are unable to evaluate the merits of SJC's position.
In the interest of justice, we remand this matter to the judge, who shall determine whether default
is warranted. See Hickory Coal Co., 12 FMSHRC 1201, 1202 (June 1990).
For the reasons set forth above, we vacate the judge's default order and remand this
matter for further proceedings.

\

a~ ti~

Joyce A. Doyle, Commissioner

Arlene Holen, Commissioner

Marc Lincoln Marks, Commissioner

2376

Distribution:

Ray Carroll Jones
Sandy Jones Construction
HCRBox 155
Williamsburg, NM 87942
Nancy B. Carpentier, Esq.
Office of the Solicitor
U.S. Department of Labor
525 Griffin Street, Suite SO 1
Dallas, TX 75202
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

2377

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
Dec . 5, 1994

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. KENT 94-436

V.

MESHACH COAL COMPANY, INC.

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

ORDER

BY THE COMMISSION:

This civil penalty proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1988) ("Mine Act"). On October 27, 1994, Chief Administrative
Law Judge Paul Merlin issued an Order of Default to Meshach Coal Company, Inc. ("Meshach")
for failing to answer the proposal for assessment of penalty filed by the Secretary of Labor on
March 22, 1994, or the judge's June 30, 1994, Order to Show Cause. The judge assessed the civil
penalty of $2,000 proposed by the Secretary.
·
On November 7, 1994, the Commission received a letter dated October 29, 1994, from
Vernon Morris, president ofMeshach. Morris states that he settled this case for.$500 with Jason
Huff, an attorney in the office of Department of Labor's Regional Solicitor in Barbourville,
Kentucky. Morris states that he has paid that amount in full and he has attached to his letter a
copy of the settlement agreement and his correspondence with Mr. Huff. 1
The judge's jurisdiction in this matter terminated when his decision was issued on
October 27, 1994. 29 C.F.R. § 2700.69(b) (1993). Under the Mine Act and the Commission's
procedural rules, relief from a judge's decision may be sought by filing a petition for

1

Morris also attached a copy of a default order entered against Meshach by Judge Merlin
on October 27, 1994, in a separate case, Docket No. KENT 94-337.

2378

discretionary review within 30 days of its issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R.
§ 2700.70(a). We deem Meshach's motion to be a timely filed petition for discretionary review,
which we grant. See, e.g., Middle States Resources, Inc., 10 FMSHRC 1130 (September 1988).
On the basis of the present record, we are unable to evaluate the merits ofMeshach's
position. In the interest of justice, we remand this matter to the judge, who shall determine
whether default is warranted. See Hickory Coal Co., 12 FMSHRC 1201, 1202 (June 1990).
For the reasons set forth above, we vacate the judge's default order and remand this
matter for further proceedings.

Arlene Holen, Commissioner

Marc Lincoln Marks, Commissioner

2 3 79

Distribution:
Vernon Morris
President
Meshach Coal Co., Inc.,
H.C. 81, Box 1532
Hinkle, KY 40953
Donna E. Sonner, Esq.,
Department of Labor
Office of the Solicitor
2002 Richard Jones Road,
Suite B-201
Nashville, TN 37215
Paul Merlin
Chief Administrative Law Judge
1730 K Street, N.W., 6th Floor
Washington, D.C. 20006

2380

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
Dec. 5, 1994

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

CIVIL PENALTY PROCEEDING
Docket No. KENT 94-408

v.
HARLAN CUMBERLAND
COAL COMPANY

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

ORDER
BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1988) ("Mine Act"). On October 27, 1994, Chief Administrative
Law Judge Paul Merlin issued an Order of Default to Harlan Cumberland Coal Company
("Harlan") for failing to answer the proposal for assessment of penalty filed by the Secretary of
Labor on March 7, 1994, or the judge's July 1, 1994, Order to Show Cause. The judge assessed
the civil penalties of $534 proposed by the Secretary.
On November 9, 1994, the Commission received from Harlan a Motion to Vacate Order
of Default. Harlan's counsel explains that, on July 12, after receiving the show cause order,
Harlan mailed its answer to the Commission and that the Secretary's counsel has confirmed
receipt of the answer on July 13. Harlan attached to its motion a copy of its Response to Order to
Show Cause and Answer, which contains a certificate of service stating that the motion was
mailed to the Secretary's counsel on July 12. The record does not otherwise show receipt by the
Commission of Harlan's July 12 answer.

-

The judge's jurisdiction in this matter terminated when his decision was issued on
October 27, 1994. 29 C.F.R. § 2700.69(b) (1993). Under the Mine Act and the Commission's
procedural rules, relief from a judge's decision may be sought by filing a petition for
discretionary review within 30 days of its issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R.
§ 2700.70(a). We deem Harlan's motion to be a timely filed petition for discretionary review,
which we grant. See, e.g., Middle States Resources, Inc., 10 FMSHRC 1130 (September 1988).

2381

On the basis of the present record, we are unable to evaluate the merits of Harlan's
position. In the interest of justice, we remand this matter to the judge, who shall determine
whether default is warranted. See Hickory Coal Co., 12 FMSHRC 1201 , 1202 (June 1990).
For the reasons set forth above, we vacate the judge's default order and remand this
matter for further proceedings.

Arlene Holen, Commissioner

Marc Lincoln Marks, Commissioner

2 382

Distribution:

H. Kent Hendrickson,
Rice & Hendrickson
P.O. Box 980
Harlan, KY 40831
Marybeth Bemui, Esq.,
Department of Labor
Office of the Solicitor
2002 Richard Jones Road,
Suite B-201
Nashville, TN 37215
Paul Merlin
Chief Administrative Law Judge
1730 K Street, N.W., 6th Floor
Washington, D.C. 20006

· 2383

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
Dec 5 , 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. LAKE 9547-M
A.C. #47 - 02996-05506A

V.

ARTHUR L. "MILLER,
employed by
MID-WISCONSIN CRUSHING
COMPANY, INC.

BEFORE: Jordan, Chairman; Doyle, Holen and Marks, Conunissioners
ORDER
BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1988) ("Mine Act" or "Act"). On August 18, 1994, the
Department of Labor's Mine Safety and Health Administration ("MSHA") issued a notice of
proposed assessment to Arthur L. Miner, employed by Mid-Wisconsin Crushing Company, Inc.,
which charged him with individual liability under section 1lO(c) of the Mine Act, 30 U.S.C.
§ 820(c), for knowingly authorizing, ordering, or carrying out a violation of 30 C.F .R.
§ 56.15005. On October 21, 1994, the Conunission received a Petition from Final Order, in
which Miller states that, although he timely mailed a "Green Card" request for a hearing,
MSHA's Civil Penalty Compliance Office informed him by letter that his card had not been
timely mailed.
Section 1OS(a) of the Mine Act requires the Secretary of Labor to notify a party of "the
civil penalty proposed to be assessed" after issuing a citation or order for an alleged violation. 30
U.S.C. § 815(a). Section 105(a) allows the operator 30 days to contest the proposed penalty and
further provides that, if the party fails to contest it, the assessment "shall be deemed a final order
of the Conunission and not subject to review by any court or agency." Id.
The Commission's procedural rules permit a party to serve a request for a hearing by first
class mail. 29 C.F.R. § 2700.7(c) (1993). Here, Miller contends that he timely notified the
Secretary of his request by mailing the Green Card on September 26. He states that, although he
gave the Green Card to his secretary on August 29, it was not mailed until September 26 due to

2384

his secretary's absence related to her mother's terminal illness. In its October 11, 1994, letter to
Miller MSHA states that Miller's request was mailed on September 27, beyond the 30-day
period, and that, accordingly, it has become a final order of the Commission.
The Commission has held that, pursuant to Fed. R. Civ. P. 60(b) ("Rule 60(b)"), it
possesses jurisdiction to reopen uncontested assessments that have become final orders of the
Commission under section lOS(a). Jim Walter Resources, Inc., 15 FMSHRC 782, 786-89 (May
1993); see also, Rocky Hollow Coal Co., Inc., 16 FMSHRC 1931, 1932 (September 1994).
Relief from a final order is available in circumstances such as a party's mistake, inadvertence, or
excusable neglect.
On the basis of the present record, we are unable to evaluate the merits of Miller's
position. In the interest of justice, we remand the matter for assigrunent to a judge to determine
whether Miller timely notified the Secretary of his contest. If the judge finds that Miller timely
mailed the Green Card, this case shall proceed pursuant to the Mine Act and Commission's
Procedural Rules, 29 C.F.R. Part 270.0. If the judge finds that Miller failed to timely mail the
Green Card and that the proposed penalty became a final Commission order, the judge shall
determine whether Miller has met the criteria for relief under Rule 60(b). If the judge determines
that relief under Rule 60(b) is appropriate, this case shall proceed pursuant to the Mine Act and
the Commission's Procedural Rules.

2385

For the foregoing reasons, this matter is remanded for assignment to a judge for
consideration consistent with this order.

Arlene Holen, Commisioner

2386

Distribution:
Arthur L. Miller, Jr .,
5411 Academy Drive
Edgerton, WI 5353 4
C . Bryan Don, Chief
Civil Penalty Compliance Office
Off ice of Assessments
U. S. Department of Labor
4015 Wilson Blvd.
Arl ington, VA 22203
Chief Administrative Law Judge Pau l Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C . 20006

2387

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

Dec . 6 , !9~4:

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 95-56-M

v.

A.C. No . 42-01975-05510
LAKEVIEW ROCK PRODUCTS, INC.

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

ORPER

BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S .C.

§ 801 et seq. (1988) ("Mine Act"). On November 16, 1994, the Commission received from
Lakeview Rock Products, Inc. ("Lakeview") a request to reopen an uncontested civil penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Section 105(a) requires the Secretary of Labor to notify the operator of ''.the civil penalty
proposed to be assessed" after issuing a citation or order for an alleged violation. 30 U.S.C.
§ 815(a). Section 105(a) allows the operator 30 days to contest a proposed penalty and further
provides that, if the operator fails to contest it, the assessment "shall be deemed a final order of
the Commission anclnot subject to review by any court or agency." Id. Lakeview failed to
contest within 30 days a notice of proposed assessment of civil penalties in the amount of
$32,250 and, accordingly, it has become a final order of the Commission.
Lakeview states that.it failed to file with the Department of Labor's Mine Safety and
Health Administration ("MSHA") a "Green Card" notice of contest challenging MSHA's
proposed civil penalties within the 30-day period set forth in section 105(a), due to a mistake in
calculating that period. It asserts that it filed only one day late, that the Secretary was not
prejudiced by the delay, and that-"the existence of its business is threatened" by the amount of
2388

the penalties. Petition at 6. The Conunission has held that, in appropriate circwnstances and
pursuant to Fed. R. Civ. P. 60(b) ("Rule 60(b)"), it possesses jurisdiction to reopen uncontested
assessments that have become final under section 105(a). Jim Walter Resources, Inc., 15
FMSHRC 782, 786·89 (May 1993); see also, Rocky Hollow Coal Company, Inc., 16 FMSHRC
1931, 1932 (September 1994). Relief from a final order is available in circumstances such as a
party's mistake, inadvertence, or excusable neglect.
On the basis of the present record, we are unable to evaluate the merits of Lakeview's
position. In the interest of justice, we reopen the matter and remand it for assignment to a judge
to determine whether Lakeview has met the criteria for relief under Rule 60(b). If the judge
determines that relief under Rule 60(b) is appropriate and permits Lakeview to file its notice of
contest, this case shall proceed pursuant to the Mine Act and the Commission's Procedural Rules,
29 C.F.R. Part 2700.
For the foregoing reasons, Lakeview's request is granted and this matter is remanded for
assignment.

Arlene Holen, Commissioner

.'
2389

Distribution:
Gregory M. Simonsen, Esq.,
Kirton & McConkie, Esqs., for
Lakeview Rock Products, Inc.,
1800 Eagle Gate Tower
60 E. South Temple
Salt Lake City, Utah 84111
W. Christian Schumann, Esq.,
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.,
Arlington, VA 22203
C. Bryan Don, Chief
Civil Penalty Compliance Office
U.S. Department of Labor
4015 Wilson Blvd.,
Arlington, VA 22203

2390

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

December 15, 1994

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

Docket No. SE 93-130-M

DRILLEX, INCORPORATED

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

DECISION
BY THE COMMISSION :

This civil penalty proceeding, arising under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1988) ("Mine Act" or "Act"), presents the issue of whether the
operations of Drillex, Incorporated ("Drillex") at the Montehiedra Project (the "Project") in
Puerto Rico fell within the definition of a "mine" as set forth in section 3(h)(l) of the Mine
Act, 30 U.S.C. § 802(h)(l). 1 Administrative Law Judge David F. Barbour determined that
1

Section 3(h)(l) of the Mine Act provides that:
"coal or other mine" means . . . an area of land from
which minerals are extracted in nonliquid form or . . . lands,
excavations, ... facilities, equipment, ... or other property ...
used in, or to be used in, or resulting from, the work of
extracting such minerals from their natural deposits in nonliquid
form, . . . or used in, or to be used in, the milling of such
minerals, or the work of preparing ... minerals ....

30 U.S.C. § 802(h)(l).

2391

Drillex' s operations were subject to Mine Act jurisdiction. He affirmed the citations and
orders issued to Drillex and assessed civil penalties. 15 FMSHRC 1941 .(September 1993)
(AU). The Commission granted Drillex's petition for discretionary review, which challenges
only the judge's determination of jurisdiction. For the reasons that follow, we affirm the
judge's decision.
I.
factual and Procectural Backiround
The parties stipulated as follows:

1. [O]n February 1, 1993, the U.S. Department of Labor filed a
proposed Assessment of Civil Penalty with the . . . Commission
against Drillex . . . for alleged violations of the [Mine Act] at
the . . . Project.
2 . [Drillex] contested the proposed assessment of civil penalties
on t~e grounds that the operation conducted by Drillex . . . at
the . '.. . Project does not fall within the jurisdictional scope of the
[Mine Act] . . ..
3 . [T]he following stipulation of facts is submitted by the parties
in order to resolve the jurisdictional issue presented by . . .
[Drillex] :
a. [O]n or about July 10, 1992 .. . Drillex
... entered into an agreement with A.H.
Development Corporation under which Drillex was
to perform drilling, blasting, rock excavation and
crushing of a minimum of 20,000 cubic meters of
stone to be used as fill for embankment and road
base at the . . . Project. The specified work was
the only work performed by Drillex at the . . .
Project and the material was processed an average
of three . . . times a week.
_ b. The [Project] ... is a privately owned
construction project wherein over two-hundred
. . . residential units are being built.
c. The material processed by Drillex . . . was
extracted from the project site and hauled to the
crusher area located within the project.

2 392

d. The extracted material was to be reduced to
gabion size by one . . . employee using a hydraulic
hammer. [2] The remaining stone was reduced to
three . . . inches . . . in size with the use of a
portable jaw crusher plant. Two . . . employees
were retained for this purpose including the project
supervisor.
e. Drillex ... removed six trucks of
contaminated material (stone mixed with clay)
from the project site. Said material was deposited
in a property adjacent to Canteras de Puerto Rico
in Guaynabo, ... to be acquired by Drillex. Said
material will be used to provide temporary access
road for trucks and equipment in the property.
f. None of the referred material was marketed or
~old .

15 FMSHRC at 1942-43 (footnotes omitted). The parties further stipulated that the only
matter to be determined was whether Drillex' s operations were subject to Mine Act
jurisdiction. Tr. 7. Drillex did not otherwise contest the alleged violations. Id.
The judge determined that Drillex' s operation constituted a "mine" within the meaning
of section 3(h)(l) of the Mine Act. 15 FMSHRC at 1945-48. He reasoned that Drillex had
engaged in both mineral "extraction" and "milling" and that the Secretary of Labor's
interpretation of the term "mine," as demonstrated by his exercise of jurisdiction, was entitled
to deference. Id. at 1946-47. The judge also found that, because Drillex did not extract
minerals on a one-time or intermittent basis and milled minerals for a specific purpose, its
work site differed from a "borrow pit," which would have been subject to the jurisdiction of
the Department of Labor's Occupational Safety and Health Administration ("OSHA") rather
than its Mine Safety and Health Administration ("MSHA ") pursuant to the MSHA-OSHA
Interagency Agreement, 44 Fed. Reg. 22827 (April 17, 1979), amended, 48 Fed. Reg . 7521
(February 22, 1983) ("lnteragency Agreement"). Id. at 1948. Accordingly, the judge
affirmed the alleged violations and assessed the civil penalties of $1 ,567 proposed by the
Secretary. Id. at 1949.

2

Gabion size is approximately 12 inches. Tr. 8.

2393

II.
Disposition
Drillex argues that MSHA' s assertion of jurisdiction over its work site was
unauthorized. It contends that it did not extract and process rock for the material 's intrinsic
qualities but, rather, performed such activities merely as an "incidental operation . . . for the
construction of ... roads .... " Petition for Discretionary Review ("PDR") at 6 .3
Additionally, Drillex asserts that, under the terms of the Interagency Agreement, its site was
subject to OSHA jurisdiction as a borrow pit because extraction occurred only intermittently
and no milling was involved. Id. at 7-8.
The Secretary responds that "the crushing, sizing, and separation of ... stone from
contaminants [performed by Drillex] cannot be characterized as 'an incidental operation,' but
rather constitutes 'mineral milling' as contemplated in the Mine Act and as defined in the
lnteragency Agreement." S. Br. at 9 (citations omitted). He also contends that the judge
correctly distinguished Drillex' s operation from a borrow pit and that, in any event, the
lnteragency Agreement is not legally binding on the Secretary. The Secretary argues further
that deference must be accorded to his interpretation of the Act.
Section 4 of the Mine Act, 30 U.S.C. § 803, provides that each "coal or other mine"
affecting commerce shall be subject to the Act. Section 3(h)(l) of the Mine Act defines "coal
or other mine, " in part, as "an area of land from which· minerals are extracted ... and
... lands, excavations, ... facilities, equipment, ... used in, or to be used in, the milling of
such minerals .... " 30 U.S.C. § 802(h)(l). The Act does not further define "extracted" or
"the milling of ... minerals." The Commission and courts have recognized, however, that
the legislative history of the Mine Act indicates that a broad interpretation is to be applied to
the Act's definition of a mine. See, e.g., Marshall v. Stoudt's Ferry Preparation Co. , 602
F.2d 589, 592 (3rd Cir. 1979); Cyprus Indus. Minerals Corp., 3 FMSHRC 1, 2-3 (January
1981), aff'd, 664 F.2d 1116 (9th Cir. 1981), citing S. Rep. No. 181, 95th Cong., 1st Sess. 14
(1977), reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 95th
Cong., 2d Sess., Legislative History of the Federal Mine Safety and Health Act of 1977, at 602
(1978) ("Legis. Hist. "). 4

3

Drillex designated its PDR as its brief.

4

The report of the Senate Committee on Human Resources states:
the definition of 'mine' is clarified to include the areas, both
underground and on the surface, from which minerals are
extracted . . . and areas appurtenant thereto. . . . The Committee
notes that there may be a need to resolve jurisdictional conflicts,

2394

We conclude that Drillex engaged in both mineral extraction and milling, either of
which independently qualifies its operation as a "mine" within the meaning of the Act. 5 In
general, absent express definitions , statutory terms should be defined according to their
commonly understood definitions. See 73 Am. Jur. 2d Statutes § 223 (1974). The term
"extraction" means the separation of a mineral from its natural deposit in the earth. See
Bureau of Mines, U.S. Dept. of Interior, Dictionary of Mining, Mineral, and Related Terms
404 (1968) ("DMMRT'). As the judge correctly found , Drillex engaged in mineral extraction
by drilling, blasting, excavating and, thereby. separating rock, "a mineral or a composite of
minerals," from its deposit in the earth. 15 FMSHRC at 1946-47 . See DMMRT at 932.
The term "milling" includes processes by which minerals are made ready for use. See
DMMRTat 706; Webster's Third New International Dictionary, Unabridged 1434 (1971). The
Interagency Agreement further defines "milling" as:
the art of treating the crude crust of the earth to produce
therefrom the primary consumer derivatives. The essential
operation in all such processes is separation of one or more
valuable desired constituents of the crude from the undesired
contamit:iants with which it is associated.
44 Fed. Reg. at 22829. The Interagency Agreement includes "crushing," "the process used to
reduce the size of mined materials into smaller, relatively coarse particles," among milling
processes subject to MSHA' s regulatory authority. Id. Drillex crushed stone into gabion and
smaller particles and separated usable stone from undesired contaminants. Therefore, Drillex
engaged in milling. See Donovan v. Carolina Stalite Co., 734 F.2d 1547, 1551-54 (D.C. Cir.
1984).
We also conclude that substantial evidence supports the judge's determination that the
site did not qualify as a borrow pit subject to OSHA jurisdiction. The Interagency Agreement
provides: .

but it is the Committee's intention that what is considered to be a
mine and to be regulated under [the] Act be given the broadest
possiblle] interpretation, and . .. that doubts be resolved in favor
of inclusion of a facility within the coverage of the Act.
Legis. Hist. at 602.
5

We need not reach the issue of whether deference must be accorded to the Secretary's
interpretation of the Act.

2 39 5

"Borrow Pits" are subject to OSHA jurisdiction except
those borrow pits located on mine property or related to mining.
(For example, a borrow pit used to build a road or construct a
surface facility on mine property is subject to MSHA
jurisdiction). "Borrow pit" means an area of land where the
overburden, consisting of unconsolidated rock, glacial debris, or
other earth material overlying bedrock is extracted from the
surface. Extraction occurs on a one-time only basis or only
intermittently as need occurs, for use as fill materials by the
extracting party in the form in which it is extra~ted . No milling
is involved, except for the use of a scalping screen to remove
large rocks, wood and trash. The material is used by the
extracting party more for its bulk than its intrinsic qualities on
land which is relatively near the borrow pit.
44 Fed. Reg. at 22828. As the judge found, extraction did not occur intermittently or on a
one-time basis. Drillex excavated and processed material approximately three times each week
in order to fulfill its agreement to produce at least 20,000 cubic meters of stone. Tr. 6. It
also performed milling processes, beyond merely using the scalping screen, by crushing stone
into smaller particles. Furthermore, the stone was not used for its bulk alone but was sized for
its intended use as fill.6
Substantial evidence also supports the judge's conclusion that Drillex' s extraction and
processing of minerals were not merely incidental to road construction and, thus , its operations
do not fall within the exception for such activities· referenced in MSHA' s Program Policy
Manual, Vol. I at 3. q. RBK Constr. Inc., 15 FMSHRC 2099, 2100-01 (October 1993).
Drillex contracted with A.H. Development Corporation expressly to extract and crush a
specific quantity and quality of stone needed for the Project. Tr. 6.

6

We need not reach the issue of whether the lnteragency Agreement is legally binding on
the Secretary.

2396

m.
Conclusion
For the foregoing reasons, we conclude that Drillex engaged in mineral extraction and
milling and affirm the judge's determination that its site constituted a "mine" within the
meaning of section 3(h)(l) of the Mine Act.

Arlene Holen, Commissioner

2397

Distribution

Miguel E. Bonilla Sierra, Esq.
Gonzalez, Bonilla & Quinones Tridas
14 O'Neil Street, Suite C
Hato Rey, Puerto Rico 00918
Susan E. Long, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Administrative Law Judge David Barbour
Federal Mine Safety and Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

2398

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
December 19, 1994

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

Docket No. WEV A 94-80

FIELDING HYDROSEEDING

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

ORDER

BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1988). On July 14, 1994, Chief Administrative Law Judge Paul
Merlin issued an Order of Default to Fielding Hydroseeding ("Fielding") for its failure to answer
the Secretary of Labor's proposal for assessment of civil penalty or the judge's April 22, 1994,
Order to Respondent to Show Cause. The judge ordered the payment of civil penalties of
$6,000.
In a letter to the Commission dated July 29, 1994, Steve Gannon, Fielding's safety
director, states that he did not receive the Secretary's penalty proposal due to an address change
and a misunderstanding in the mail pickup. Gannon requests that a copy of the penalty proposal
be sent to him and that he be given another opportunity to answer.
The judge's jurisdiction over this case terminated when his default order was issued on
July 14, 1994. 29 C.F .R. § 2700.69(b) (1993). Due to clerical oversight, the Commission did
not act on the July 29 letter within the required statutory period for considering requests for
discretionary review. The judge's default order became a final decision of the Commission 40
days after its issuance. 30 U.S.C. § 823(d)(l).
Relief from a final Commission judgment or order is available to a party under Fed. R.
Civ. P. 60(b)(l) in circumstances such as mistake, inadvertence, or excusable neglect. 29 C.F.R.
§ 2700. l (b) (Federal Rules of Civil Procedure apply "so far as practicable" in the absence of
2399

applicable Commission rules); see, e.g., Lloyd Logging, Inc., 13 FMSHRC 781, 782 (May 1991).
On the basis of the present record, we are unable to evaluate the merits of Fielding's proffered
explanation for its failure t<? answer the Secretary's penalty proposal. In the interest of justice, we
reopen this proceeding and deem the July 29 letter to be a petition for discretionary review,
which we grant. We remand the matter to the judge, who shall determine whether final relief
from default is warranted. See Hickory Coal Co., 12 FMSHRC 1201, 1202 (June 1990).
For the reasons set forth above, we reopen this matter, vacate the judge's default order,
and remand this matter for further proceedings.

\

Arlene Holen) Commissioner

2400

Distribution

Steve Gannon, Safety Director
Fielding Hydroseeding, Inc.
HC 71, Box 93 B
Wharncliffe, WV 2565 1
Glenn M. Loos. Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wi lson Blvd.
Arlington, VA 22203
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, O.C. 20006

2401

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

December 19, 1994

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket Nos. SE 93-262
93-263
93-288
93-313
93-329
93-330
93-331
93-332
93-346

\I.

JEN IN CORPORATED

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

BY THE COMMISSION:
These civil penalty proceedings arise under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1988). On June 1 and June 28, 1993, the Secretary of Labor filed
civil penalty proposals against JEN Incorporated ("JEN") for allegedly violating various
mandatory standards. On August 20 and September 15, 1993, Chief Administrative Law Judge
Paul Merlin issued orders to show cause that directed JEN to answer the Secretary's penalty
proposals within 30 days. On March 8, 1994, the judge issued an Order to Submit
Information/Second Order to Show Cause, in which he stated that the citations and orders giving
rise to these cases had been subsequently modified by the Department of Labor's Mine Safety
and Health Administration ("MSHA") to add Tennessee Consolidated Coal Company ("TCC") as
an operator of the mine and were the subject of a separate contest proceeding initiated by TCC
before Administrative Law Judge Roy Maurer. Judge Merlin provided JEN with another
opportunity to file its answers and ordered the Secretary to advise him whether he wished these
cases consolidated with TCC's contest proceeding or treated separately with JEN held in default.

2402

On April 15, 1994, the Secretary responded that JEN should be held in default. When JEN failed
to file its answers by May 9, 1994, the judge issued an Order of Default, entering judgment in
favor of the Secretary and ordering JEN to pay civil penalties of $37,832.
On October 7, 1994, the Commission received a letter from JEN's president. James
Nunley, in which he requested relief from the default order. He asserted his belief that TCC, as
the owner of the mine, is responsible for the civil penalties. He also requested a hearing on the
citations and orders. Nunley stated that JEN has no funds and cannot afford counsel because it
made no profit from its agreement with TCC.
The judge's jurisdiction over these cases terminated when his order was issued on May 9,
1994. 29 C.F.R. § 2700.69(b)(1993). Under the Mine Act and the Commission's procedural
rules, relief from a judge's decision may be sought by fi ling a petition for discretionary review
within 30 days of its issuance. 30 U.S.C. § 823(d)(2)(A); 29 C.F.R. § 2700.70(a). JEN did not
file a timely petition for discretionary review within the 30-day period, nor did the Commission
direct review on its own motion within that period. 30 U.S.C. § 823(d)(2)(B). Thus, the judge's
decision became a final decision of the Commission 40 days after its issuance. 30 U.S.C.
§ 823( d)( 1).
Relief from a final Commission judgment or order is available to a party under Fed. R.
Civ. P. 60(b) ("Rule 60(b)") in circumstances such as a party's mistake, inadvertence, or
excusable neglect. 29 C.F.R. § 2700.1 (b) (Federal Rules of Civil Procedure apply "so far as
practicable" in the absence of applicable Commission rules); see, e.g., Lloyd Logging, Inc., 13
FMSHRC 781, 782 (May 1991 ). Although JEN, who is proceeding without benefit of counsel,
asserts that a separate party, TCC, should be held liable for the civil penalties assessed by the
judge ($37,832), it does not set forth the reasons for its failure to file an answer as required by
29 C.F.R. § 2700.29, or respond to the judge's orders to show cause.
On the basis of the present record, we are unable to evaluate the merits of JEN's position.
In the interest of justice, we reopen this proceeding, treat JEN's October 7 letter as a late-filed
petition for discretionary review requesting relief from a final Commission decision, and excuse
its late filing. See, e.g., Bentley Coal Co., 12 FMSHRC 1197-98 (June 1990); Westrick Coal
Co., 10 FMSHRC 853 (July 1988). We remand the matter to Judge Merlin for appropriate
assignment to a judge, who shall determine whether final relief from default is warranted. See
Hickory Coal Co., 12 FMSHRC 1201, 1202 (June 1990).

2403

For the reasons set forth above, we reopen this matter, vacate the judge's default order,
and remand for further proceedings.

~~tu/
f: ~L
:oycc
A. Doyle, Commissioner
1

Arlene Holen/Commissioner

Marc Lincoln Marks, Commissioner
Distribution
Jumes Earl Nunley, President
J.E.N. Coal Company
P.O. 11ox 328
Whi tm:ll. TN 37397
Donna E. Sonner. Esq.
Olfo.:e ol'the Solicitor
U.S. Department of Lahur
2002 Richard Jones Rd.
Suite B-201
Nashville. TN 37215
Chier Administrative Law Judge Paul Merlin
Federal Mine Safety & I kallh Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

2404

ADMINISTRATIVE LAW JUDGE DECISIONS

·.

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
6203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

DEC 1 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.

W-P COAL COMPANY,
Respondent

:

CIVIL PENALTY PROCEEDING

:

Docket No. WEVA 92-746
A.C. No. 46-05801-03618

.. No. 21 Mine
DECISION

Appearances:

Mark Malecki, Esq. (on the remand brief),
Gretchen Lucken, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for Petitioner;
Kurt A. Miller, Thorp, Reed and Armstrong,
Pittsburgh, Pennsylvania, for Respondent;
Michael Heenan, Esq., Smith, Heenan and Althen,
Washington, D.C., for Amicus CUriae, American
Mining Congress.

Before:

Judge Melick

This case is before me upon remand by the commission,
16 FMSHRC 1407, 1412 (1994). Issues directed to be reviewed on
remand include arguments framed by Respondent, W-P Coal Company
(W-P) that the Secretary failed to issue the citation at bar
with reasonable promptness; that the section 104(b) order. was
improperly based upon a terminated citation; 1 that W-P was
deprived of its constitutional rights when it was purportedly
not accorded the procedural due process attendant to Mine Safety
and Health Administration (MSHA) inspections; and that the
Secretary's enforcement action was an unfair departure from
its purported past practice of regulating the West Virginia
contract mining industry. Depending upon the disposition of
these procedural issues, it may then be necessary to determine
whether the violation existed as charged and, if so, what is
In a supplemental brief filed after the Commission
remand, the Secretary stated that he had since vacated this
order. Issues regarding the validity of that order are
accordingly now moot.

2405

the appropriate civil penalty to be assessed considering the
criteria under section llO(i) of the Federal Mine Safety and
Health Act of 1977, 30 u.s.c. S 801 ~ ~., the "Act."
Background
Under a 1969 lease with the owner, Cole and Crane, W-P
holds the mining rights to the subject No. 21 Mine, a deep coal
mine in Logan County, West Virginia. Originally W-P engaged in
coal extraction at the mine but, in 1988, shifted to contract
mining. In December 1989, W-P contracted with Top Kat Mining,
Inc. (Top Kat) to extract the coal in return for royalty payments
from W-P based upon the tonnage of clean coal produced. At that
time Top Kat filed a legal identity report with MSHA as operator
of the No. 21 Mine.
The agreement between W-P and Top Kat identified Top Kat
as an independent contractor responsible for controlling the
mine, hiring miners and complying with mine safety and health
laws. During 1990 and 1991, MSHA conducted a number of
inspections at the No. 21 Mine and issued a number of citations
and withdrawal orders to Top Kat. During this time W-P
participated in discussions with MSHA personnel about enforcement
problems at the mine. on September 4, 1991, an MSHA inspector
issued a number of citations to Top Kat including Citation
No. 3750647, alleging a violation of 30 C.F.R. S 77.201 (later
amended to charge a violation of 30 C.F.R. S 77.200) for failing
to properly maintain the bathhouse floor. 2 The mine was placed
on a "special emphasis" inspection program on October 10, 1991,
because of its alleged safety and health problems. Shortly
thereafter, W-P terminated Top Kat's contract, shut down the
No. 21 Mine, and submitted to MSHA a legal identity report
listing Bear Run Coal Company (Bear Run) as the successor
contractor-operator.
On November 14, 1991, MSHA modified the citations, including
the bathhouse citation at issue, to name W-P as the "co-operator"
of the mine and also issued a withdrawal order, pursuant to
section 104(b) of the Act, alleging failure by W-P to abate the
cited condition. As noted, that order has since been. vacated by
the Secretary. MSHA subsequently served W-P with the modified
citation and filed a civil penalty petition against Top Kat,
. against W-P on the theory that it was a "co-operator" and against

2

This case involved one of some 138 civil penalty
petitions filed by MSHA against W-P for a number of alleged
violations at the No. 21 Mine during the time Top Kat was the
contract miner. The other cases have been stayed pending
resolution of the common issues.

2406

Bear Run as successor-in-interest. 3 The petitions against Top
Kat and Bear Run were dismissed at hearing because those parties
had not been served, and only W-P's liability remained at issue.
Following trial, it was held in the initial decision that
W-P was a mine operator under the Act, but under the criteria
•stablished by the Commission in Phillips Uranium Corp., 4 FMSHRC
549 (1982), the Secretary had not met his burden of proving that
be acted permissibly in proceeding against W-P. As noted, the
Commission reversed the latter findings holding that too much
reliance was placed upon the Phillips Uranium decision and
remanded the case for determination of remaining issues.
Issues on Bemand
W-P claims that the Secretary's enforcement action in this
case was an unfair depa.r ture from its purported past practice of
regulating the West Virginia contract mining industry. In this
regard, W-P appears to assert that it had been the uniform MSHA
policy prior to the instant enforcement action to cite only the
contract miner for health and safety violations in contract
mining situatio~s.
While there is record support that MSHA had never before
cited W-P as lessee/operator for violations at the No. 21 Mine
during its contract with Top Kat and that, at least in the areas
under the inspection authority of the Logan, West Virginia, MSHA
Subdistrict Office, it was probably not the practice to cite such
lessee/operators, W-P certainly has not established by record
evidence the proposition that there was such a uniform
industry-wide Secretarial policy (Tr. I-119, 200, 236 and 237). 4
No such inference can properly be drawn from the record evidence
cited by W-P. Clearly, Noah ooten, a supervisor for the Logan,
West Virginia, MSHA Field Office was not speaking in the context
of a national or even a West Virginia Secretarial policy when he
testified. More particularly, the fact that OOten was unaware
o~ instances in which MSHA had previously cited a mineral rights
owner or lessee for violations of a contract miner clearly does
3

In his original petition filed in this case, the
Secretary proposed a civil penalty of $1,176 for the violation.
At oral argument following remand, the Secretary acknowledged
that a 35 percent reduction of this proposed penalty would be
appropriate since he had vacated the •section 104(b)" failure-toabate order, and now acknowledges that whoever the mine operator
is, it is entitled to full credit for good faith abatement.
4

Transcript references to the September 24, 1992,
proceedings will be prefaced by "I," to the September 25, 1992
proceedings by a "II," and oral argument on OCtober 17, 1994, by
a "III."

240 7

not prove that in fact it had never before occurred (Tr. I-119).
It is disingenuous to suggest otherwise. The same . is true for
W-P's references to the testimony of MSHA Inspector Stepp (Tr.
I-200, 236-237). The Secretary maintains aoreover that as a
aatter of law no such regulation or uniform policy statement
existed then or now exists. In any event, W-P has failed to
·establish by record evidence that any such uniform industry-wide
Secretarial policy existed and this being an essential premise to
its argument, that argument must accordingly fail. 5
Moreover, W-P cannot fairly claim lack of prior notice
that the acts of its contractor could lead to liability in light
of the long established case law. In one of its earliest
decisions, the Commission placed the mining industry on notice
that private contractual assignments of liability and private
characterizations of parties would not shield operators from
liability. In Secretary v. Republic steel Coro., 1 FMSHRC s, 11
(1979), issued 10 years before W-P contracted with Top Kat,
the Commission concluded, within the framework of the identical
definition of "operator" in the Federal Coal Mine Health and
Safety Act of 1969, that a "mine operator cannot be allowed
to exonerate itself from its statutory responsibility for the
safety and health of miners merely by establishing a private
contractual relationship in which miners are not its employees
and the ability to control the safety of its workplace is
restricted."
In the case of cyprus Industrial Minerals co. v. Federal
Mine Safety and Health Review Commission, 664 F.2d 1116 (9th Cir.
1981), the Federal Circuit Court of Appeals also anticipated the
situation herein, where the owner/lessee contracts extraction
and safety functions to another entity and then argues that the
owner/lessee is not _liable for ensuing violations. In the
CVPrus case, the Court stated:
The Secretary presents sound policy reasons for
holding owners liable for violations committed by
independent contractors. For one thing the owner
is generally in continuous control of the conditions
at the entire mine. The owner is more likely to_
know the federal safety and health requirements. If
the Secretary could not cite the owner, the owner
could evade responsibility for safety and health
requirements by using independent contractors for
most of the work. The Secretary should be able to
5

The evidence that MSHA bad not previously taken
enforcement action against W-P as lessee/operator of the No. 21
Mine may nevertheless be considered in mitigation of negligence.
See ging ltJlob coal Co., 3 FMSBRC 1417 (1981) and Decision infra,

p. 10-11.

240 8

cite either the independent contractor or the owner
depending on the circumstances. ig. at 1119.
More recently the rationale for holding owner/lessee
operators liable under the Act was restated and reinforced in
Bulk Transportation Services. Inc., 13 FMSHRC 1354, 1359 (1991),
~herein the Commission wrote:
Thus, an owner is held liable for the acts of its
contractor not merely because the owner has continuous
control of the entire mine but, rather, because the
Act's scheme of liability provides that an operator,
although faultless itself, may be. held liable for
the violative acts of its employees, agents and
contractors.
It is further noted that w-P actually anticipated its
liability for violations of the Act when it provided in its
contract with Top Kat a duty for Top Kat to indemnify W-P for any
penalties assessed against W-P for the actions of Top Kat
(Respondent's Exhibit No. 3, pps . 13-14, 58-59).
In any event, even assuming that the Secretary had not
always cited off-site owner/lessee operators in the past, the
Secretary cannot, because of such inaction, be estopped from
otherwise legal enforcement action under the Act. See King Knob
Coal Co . , 3 FMSHRC 1417, 1421-1422 (1981), Bulk Transportation
Services, Inc., 13 FMSHRC 1354, 1361 (fn. 3), and U.S. Steel,
15 FMSHRC 1541, 1546-47 (1993).
The next claim presented on remand is the assertion that W-P
was deprived of its constitutional rights when it was purportedly
not accorded the procedural due process attendant to MSHA
inspections. 6 In particular, however, W-P asserts it was denied
rights provided mine operators under Section 103(f) of the Act.
Section 103(f) provides in pertinent part that "a representative
of the operator and a representative authorized by his miners
shall be given an opportunity to accompany the Secretary or his
authorized representative during the physical inspection of any
coal or other mine made pursuant to the provisions of subsection
(a), for the purpose of aiding such inspection and to participate
in pre- or post- inspection conferences held at the mine."
The short answer to this contention, however, is that W-P
waived these rights granted to mine operators by failing to file
a legal .identity report identifying itself as a mine operator
as required by section 109(d) of the Act and under 30 C.F.R.
6

At oral argument W-P counsel added that this "due
process" claim was intended to fall within the protections of the
Fifth Amendment, U.S. Constitution.

2409

S 41.10 -41.13 and 41.20. 7 It is, of course, a well established

principle of law that even constitutional rights m~y be waived
and forfeited. See Yakus v. United States, 321 U.S. 414,
64 s.ct. 660, 88 L.Ed. 834 (1944), and Johnson v. Zerbst,
304 u.s. 458, 58 s.ct. 1019, 82 L.Ed. 1461 (1938). As noted
.at trial, the rights accorded mine operators under Section 103(f)
'of the Act can only be provided to an entity if the Secretary is
appropriately informed through a legal identity report that he
is in fact an operator of the mine (Tr. t-119, 155, 205-207). In
the instant case, it is undisputed that W-P had not filed the
requisite legal identity report as an operator of the No. 21 Mine
during relevant times and accordingly I find that it has waived
its rights under Section 103{f) to be informed of the right to
accompany an inspector and the right to attend any pre-inspection
conference. 8
W-P also maintains that MSHA failed to include it in a
post-inspection "close-out" conference and "10-day" safety and
health conference. However, according to the testimony of MSHA
Inspector George Cavendish, which I find credible·, W-P President
Vernon Cornety was in fact informed of W-P's right to postinspection conferences following the issuance to .him of, among
other things, the citation at bar (Tr. I-230-231) and that
Cornett did not request any such conferences (Tr. I-138). In
addition, it is acknowledged that W-P officials were aware of
their rights to such conferences and elected not to seek such
conferences (Tr. III•l20-124). In this regard, W-P also
maintains that such post-inspection cpnferences would in any
event have been meaningless. Under the circumstances, I find
that W-P waived its rights to post-inspection conferences by
knowingly electing not to seek such conferences.
In its final argument to vacate the citation, W-P argues
that MSHA failed to issue the citation with "reasonable
promptness" as prescribed by Section 104{a) of the Act. That
section provides in part as follows:
If upon inspection or investigation the Secretary or
his authorized representative believes that an operator
of a coal or other mine subject to this Act has
30 c.F.R. s 41.ll(a), for example, provides in .part
that "the operator of a coal or other mine shall, in writing,
notify the appropriate district manager of the Mine Safety and
Health Administration in the district in which the mine is
located of the legal identity of the operator."
7

1

Alternatively, W-P may be barred by estoppel from
claiming a denial of such rights by having tailed to have
properly notified the Secretary through a legal identity report
that it was an operator entitled to such rights.

2410

violated any mandatory health or safety standard, he
shall with reasonable promptness issue a citation to
the operator • • • • The requirements for the issuance
of a citation with reasonable promptness shall not be a
jurisdictional prerequisite to the enforcement of any
provision of this Act.
It is undisputed that in the present case the inspection
that resulted in the issuance of Citation No. 3750647 took place
on September 4, 1991. The Secretary issued the citation against
Top Kat on that date and modified the citation to name W-P as a
co-operator on November 14, 1991. The Secretary served W-P with
a copy of the modified citation in December 1991 or January 1992.
Accordingly, there was a delay of approximately 71 days between
the date of the inspection and the date of the issuance of the
citation against W-P and a delay of approximately 3 to 4 months
between the date of the inspection and the date of service of
the citation on W-P.
W-P argues that this delay violates the mandate of
Section l04(a). This argument ignores, however, the effect of
the last sentence of Section 104(a) that "the requirement for
the issuance of the citation with reasonable promptness shall
not be a jurisdictional prerequisite to the enforcement of any
provision of this Act." Moreover, the Act's legislative history
explains:
There may be occasions where a citation will be
delayed because of the complexity of issues raised
by the violations, because of a protract[ed] accident
investigation, or for other legitimate reasons. For
this reason, Section (104(a)] provides that the
issuance of- a citation with reasonable promptness is
not a jurisdictional prer~quisite to any enforcement
action. H.Rep. No. 181, 95th Cong. 1st Sess. 30
{1977), reprinted in Senate Sub-Committee on Labor,
Legislative His~ory of the Federal Mine Safety and
Health Act of 1977 (Leg. Hist.), at 618 (1978J.
In the case at bar, I do not find that a delay of ·as
long as four months would not have been reasonably prompt
under the circumstances. It is readily apparent from the
background of this case that the delay herein was due in
large part to uncertainty regarding the identity and degree of
liability of all responsible mine operators. Indeed, part of the
uncertainty may have been the result of W-P's own failure to have
~iled a legal identity report with the Secretary identifying
·
itself as an operator of the subject mine. Had W-P filed a legal
identity report as an operator it may reasonably be inferred
that the citation would have been served upon W-P at a much .
earlier time (See Tr. I-119, 155, 205-207). Thus, not only do I
find that the citation was issued with "reasonable promptness"

2411

within the meaning of Section 104(a) of the Act, but that, in
addition, I find that W-P waived its right to any earlier service
of the citation by its own failure to have filed a · legal identity
report. See Old Dominion Coal Power Co., 6 FMSHRC 1886, 1894
(1984), rev'd on other grounds, Old oominion v. Donovan, 772 F.2d
92 (4th Cir. 1985).
Since the procedural objections raised by W-P have been
rejected herein, the only remaining issue is whether the
violation charged in citation No. 3750647 did in fact occur
and, if so, was it a "significant and substantial" violation
and what is the appropriate civil penalty to be assessed. The
citation charges as follows:
The # 20 bath house facility was not maintained in
good repair to prevent accidents and injuries to
employees in that there was an area of the bath house
floor approximately 2-1/2 foot by 2-1/2 foot that was
rotten and the wood was wet and weak, (ready to
collapse anytime)
The cited standard, 30 C.F.R. S 77.200, provides that
"all mine structures, enclosures, or other facilities (including
custom coal preparation) shall be maintained in good repair to
prevent accidents and injuries to employees."
The testimony of MSHA Inspector Tyronne Stepp is undisputed
that the bathhouse floor was "basically rotten." Indeed, Top Kat
official William Adkins, sole officer and stockholder of Top Kat,
admitted that there was a "big hole" in the floor; The bathhouse
door was unlocked and according to Stepp "any person walking on a
rotten deteriorated floor • • • are [sic) subject to slip[ping )
and hurt[ing] an ankle [and] if it gives way you are subject to
break[ing] a leg." Within this framework of evidence the
violation has clearly been proven as charged.
Stepp further opined that the violation was "significant
and substantial" because "it's reasonably likely • • • due to the
amount of traffic in the bathhouse • • • you have several coal
miners in and out different shifts occasionally." A violation
is properly designated as "significant and substantial 0 if,
based on the particular facts surrounding that violation, there
exists a reasonable likelihood that the hazard contributed to
will result in an injury or illness of a reasonably serious
nature. Cement Division. National Gypsum Co., 3 FMSHRC 822,
825 (1981). In Mathies Coal co., 6 FMSHRC 1,3-4 (1984), the
commission explained:
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

2412

standard, (2) a discrete safety hazard -- that is, a
measure of danger to safety -- contributed to by the
violation, (3) a reasonable likelihood that the hazard
contributed to will result in an injury, and (4) a
reasonable likelihood that the injury in question will
be of a reasonably serious nature.

· ·,

See also Austin Power co . v. Secretary, 861 F.2d
99 , 103-04 (5th Cir. 1988), aff'g 9 FMSHRC 2015, 2021
(1987) (approving Mathies criteria).
The third element of the Mathies formula requires that
the Secretary establish a reasonable likelihood that the
hazard contributed to will result in an event in which there
is an injury (U . S. Steel Mining Co . , 6 FMSHRC 1834, 1836 (1984),
and also that the likelihood of injury be evaluated in terms of
continued normal mining operations. U. S . Steel Mining Co .. Inc.,
6 FMSHRC 1473, 1574 (1984); see also Halfway, Inc . , 8 FMSHRC 8,
12 (1986) and Southern Oil Coal Co., 13 FMSHRC 912, 916-17
(1991).
With the ab9ve framework I conclude that the violation was
indeed "significant and substantial" and of high gravity. In
reaching these conclusions I have not disregarded the testimony
of William Adkins that the bathhouse was "not supposed to have
been used." However, I can give such speculative and selfserving testimony but little weight in light of the fact that the
bathhouse door was unlocked and the premises openly accessible.
In determining an appropriate civil penalty under section
llO(i) of the Act, the following factors must be considered:
"[t)he operator's history of previous violations; . the
appropriateness of such penalty to the size of the business of
the operator charged, whether the operator was negligent, the
effect on the operator's ability to continue in business, the
gravity of the violation, and the demonstrated good faith of the
person charged in attempting to achieve rapid compliance after
notification of a violation . "
The Secretary acknowledges that there is nothing in the
record to support a finding regarding "the size of the business
of the operator charged," and notes that this was a small mine
(Tr. III-31). The Secretary also acknowledges that whoever the
operator is deemed to have been, it is entitled to fuli credit .
for good faith abatement (Tr. III-29). The Secretary further · ··
acknowledges that there is nothing in the record regarding the
history of violations of any operator at the subject mine (Tr·.
III-37). W-P has not shown how a civil penalty would affect its
ability to continue in business . Gravity has already been
determined to be high .

2413

The Secretary argues, finally, that W-P's negligence should
be based upon both its own negligence in contracting with Top Kat
and upon an imputation of Top Kat's negligence. · The record is
devoid, however, of any evidence that before contracting with
Top Kat, W-P had knowledge of, or that in fact Top Kat had a
prior history of, safety and/or health violations or that W-P
"•hould in any way have been placed on notice of any deficiencies
in Top Kat's past safety and/or health performance. Accordingly,
there is no basis for the Secretary's contention that W-P was
negligent in its selection of Top Kat as its contractor.
The Secretary further argues, but without reference to
record evidence, that W-P was negligent in "failing to intervene
when it became evident that [Top Kat] was in serious
non-compliance." While there is record evidence that Top Kat had
received prior citations, the record also shows, contrary to the
Secretary's allegations, that W-P officials in fact met with MSHA
representatives in an attempt to resolve safety problems between
MSHA and Top Kat. Indeed, this is the same evidence the
Secretary has cited in maintaining that W-P was a co-operator.
More specifically, however, there is no evidence that W-P had any
knowledge of ~op Kat's non-compliance with the mandatory standard
at issue in this case. Accordingly, I find the Secretary's
argument herein to be without merit.
I further reject the Secretary's attempt to impute
Top Kat's negligence to W-P through an agency theory at this
late stage in the proceedings. In this regard, the Secretary has
claimed Top Kat was negligent in this case because it should have
known of the violation. According to Inspector Stepp "you walk
on [the bathhouse floor) every day • • • it's obvious. (Tr.
I-197). However, the Secretary's theory, from the beginning of
this case when the civil penalty petition was filed, has been
that W-P was a "co-operator" responsible based upon its own
exercise of "control and supervision over the operation of the
No. 21 Mine" (See also Tr. I-11, 15-16).
It is only since trial
and Commission remand after the "co-operator" theory had been
twice rejected that the Secretary changed his theory of W-P's
responsibility to one based upon the imputed negligence of Top
Kat as an agent of W-P. While this additional theory. could
perhaps have at some point in time been included in an amended
pleading (amended petition for civil penalty) upon appropriate
motion under FED. R. CIV. P. 15, it comes too late at this stage
of the proceedings and would clearly be prejudicial to W-P. See
3 Moore's Federal Practice! 15.08[4]. To allow an amendment to
the petition now would deny W-P an opportunity it would otherwise
have had at trial to defend against such a theory by presenting
evidence that an agency relationship may not in fact have existed
between Top Kat and W-P.
In any event, overriding any finding of negliqence against
W-P is the fact that even though the Secretary had knowledge of

2414

W-P's relationship as lessee of the mining rights at the No. 21
Mine, he had never previously charged W-P with any violations
at the mine (Tr. I-166). This lack of prior enforcement against
W-P (as well apparently as against other mineral rights owners
and lessees under the inspection authority of the Loqan,
West Virginia MSHA Field Office), including the failure to
~enforce the legal identity reporting requirements against W-P,
may properly be considered in mitigation. See King KnOb Coal
~' 3 FMSHRC 1417 (1981).
Under the circumstances, I find W-P
chargeable with but little negligence and find that a significant
reduction in civil penalty to $250 is appropriate.
ORDER

Citation No . 3750647 is AJl'FIRMED and W-P Coal Company is
directed to pay a civil penalty of $250 wit in 30 days of the
date of this decision.

•

Melick
istrative
Distribution:
Mark R. Malecki, Esq., Gretchen M. Lucken, Esq., Office of the
Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard,
suite 400, Arlington, VA 22203 (Certified Mail)
Kurt A. Miller, Esq., Thorp, Reed and Armstrong, One Riverfront
Plaza, Pittsburgh, PA 15222 (Certified Mail)
Michael Heenan, Esq., Smith, Heenan and Althen, 1110 Vermont
Avenue, N.W., Suite 400, Washington, DC 20005 (Certified Mail)
\lh

2 415

PEDER.AL KINE SAPETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LA\I Jll>GES

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

.DEC 5
JAMES D. WATERS,
Complainant

.:• DISCRIMINATION PROCEEDING

: Docket No. CENT 93-261-DM
: MSHA Case No. SE MD 93-04

v.
IMC FERTILIZER, INC.,
Respondent

...

Carlsbad Facility

DECISION

Appearances:

David w. Strickler, Esq., and W.T. Martin, Jr.,
Esq., C.a rlsbad, New Mexico, for Complainant;
Charles c. High, Jr., Esq., Kemp, Smith, Duncan &
Hammond·, El Paso, Texas, for Respondent.

Before:

Judge Fauver

This is a discrimination action under § 105(c) of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801
f i llSl:..
Having considered the hearing evidence and the record as a
whole, I find that a preponderance of the substantial, probative
and reliable evidence establishes the Findings of Fact and
further findings in the Discussion below:
FINDINGS OP PACT

1. Complainant, James Waters, began working for Respondent,
IMC Fertilizerr Inc., on April 15, 1985, at IMC's Carlsbad, New
Mexico mine. Mr. Waters has a Bachelor of Science Degree in
Metallurgical Engineering, a Master's Degree in Busi~ess
Administration, with a specialty in Industrial Management, and
substantial experience in mineral chemical processing,
engineering and plant operations. IMC's annual pay evaluations
of Mr. Waters were. verJ favorable. The company does not contend
that he was discharged for cause, but contends he was terminated
in a reduction in force due entirely to business reasons.
2. IMC owns a large underground mine near Carlsbad, New
Mexico where it mines potash and other minerals for sale or use
in interstate commerce. Respondent also has mining and
processing operations in Louisiana, Florida, and Canada and
maintains corporate headquarters in Northbrook, Illinois. The
Carlsbad mine employs about 600 employees.

2416

3. Complainant was hired at the Carlsbad mine in 1985 as
superintendent of Construction and Engineering. He transferred
to surface Production Superintendent in 1989 and was promoted to
Manager of Surface Operations on July 1, 1992. This was the
number two position in surface operations. Dale Willhoit,
Production Manager, was Complainant's supervisor for his entire
employment.
4. On April 29, 1993, Complainant's position was eliminated
and his employment terminated along with four other employees in
a reduction in force at the Carlsbad mine.
5. Following his termination, Complainant filed a complaint
with the Mine Safety and Health Administration claiming that he
was terminated in violation of § 105(c) of the Act. MSHA
investigated the complaint and concluded that no violation had
occurred.
The company•s Financial Problems
6. In 1992 and continuing into 1993, the company
experienced major financial problems. These were brought on by a
combination of factors, including, a sharp decline in the price
of phosphate, expenses associated with an inrush of water into
the company's Canadian mine, poor performance of a sulphur
operation in which the company invested heavily, and the
settlement of litigation arising out of an explosion at the
company's fa~ility in Sterlington, Louisiana. For the third
quarter ending on March 31, 1993 (the fiscal quarter ending just
prior to the April 1993 reduction in force), the company reported
a net loss of $113.7 million. This included a litigation
settlement of $108.5 million. Throughout this period, the
Carlsbad mine remained profitable.
7. Concerned that its bank creditors would call its loans,
which were in excess of $50 million, the Company retained outside
bankruptcy counsel and prepared the necessary filings in the
event they were needed.
Reductions in Poree
8. Because of its financial difficulties, the company
implemented reductions in force in 1992 and 1993, terminating
over 600 employees.
lffect on Carlsbad Mine
In 1992

9. Although the Carlsbad mine remained profitable, it was
required to share the Company's financial burden by reducing
costs. In November 1992, Walt Thayer, Vice President and General
Manager of the Carlsbad mine, was asked by his supervisor,

2417

corporate Executive Vice President Jim Spier, to contribute as
much as he could to cash flow, to produce at the best margin
possible, and to cut costs as much as possible. This meant that
the Carlsbad mine was being asked to increase production at the
same time it was being asked to cut costs.
10. In 1992, Thayer was able to accomplish this without
laying off many people . Because additional employees were needed
to increase production and therefore increase cash flow, Thayer
held off hiring the additional people and, instead, transferred
people from other positions into underground miner positions
which were necessary to increase production. In addition, some
positions were eliminated while others were not filled. A few
employees were either offered a retirement package, a severance
package, or laid off. All decisions on cost reduction at
Carlsbad were made by Thayer. A total of five employees were
separated from the payroll during this reduction in force.
In 1993
11. The company's financial problems continued and in early
1993 the Carlsbad mine was again asked to cut costs. On
March 22, 1993; Executive Vice President Spier, Thayer's

supervisor, called fro~ the corporate office and in Thayer's
absence talked to Dale Willhoit, the Production Manager. Spier
told Willhoit that the Carlsbad mine was behind in production,
was $32,500 unfavorabl~ in labor and salaries, and there was "no
choice" but to have a further reduction in costs.
12. Willhoit immediately called Thayer, who was on vacation,
and told him of Spier's instructions. Thayer told Willhoit to
start making a list of what he thought could be done to reduce
costs.
13. As requested, Willhoit prepared a list of recommended
moves and terminations. The list included 19 individuals and
listed their salaries and Willhoit's recommended personnel
actions. ' Among his recommendations were to move Cy Bullen to
Manager Mine Operations, Morehouse to Mine Engineer, and
Complainant to Production superintendent.

14. Thayer did not accept all of Willhoit•s recommendations.
He decided to eliminate the level of management directly below
Production Manager (Willhoit). This level consisted of three
positions: Mine Manager, held by Dan Morehouse; Surface
Operations Manager, held by Complainant; and Mine Operations
Coordinator, held by Cy Bullen. Upon elimination of this level,
the employees previously reporting to these positions were to
report directly ·to the Production Manager (Willhoit).
15. Thayer retained Morehouse by offering him a demotion to
Mine Engineer in the Mine Engineering Department.

2418

16. Cy Bullen was 66 and entitled to retirement. Thayer
placed him on full retirement and gave him a generous severance
package that Bullen found to be "very good."
17. Complainant was terminated without an offer of transfer
or demotion.
18. In addition to eliminating Complainant's level of
aanagement, Thayer eliminated three lower positions and
terminated the employees. In total, five employees had their
jobs eliminated and were terminated: Linda Carr, Receptionist;
Scot Bendixsen, Personnel Supervisor; Myra Jacks, Data Entry
Operator; Cy Bullen, Mine Operations Coordinator (placed on full
retirement) ; and Complainant, Manager of Surface Operations.
19. Once Thayer decided on the cost reductions, his plan was
sent to the corporate office for review and approval. The
corporation promptly approved.
20. Originally, i ·c was planned to have the immediate
supervisor meet with each employee being terminated. However,
Thayer ·decided that he would meet with them individually.
21. On April 29, 1993, Thayer summoned Complainant to his
office at the end of the shift. He told him his job was
eliminated immediately, that he was to leave the property
immediately, and that the company would empty his desk and send
his personal belongings to him. Complainant tried to ask him
whether he could take a demotion or transfer, but Thayer cut him
off and told him he had someone else coming in and could not talk
to him and that if he had any questions he should call Wilcox (in
Human Resources). Complainant insisted on taking some of his
personal belongings wi th him, and Thayer assigned a subordinate
employee to escort him to his office, watch him as he removed
personal belongings and escort him to the front gate. I find
that Thayer's abrupt and insulting treatment of Complainant
resulted from substantial management hostility toward
Complainant. ·
22. Shortly after Complainant's termination, Willhoit
prepared a "Confidential" evaluation on Complainant, which was
placed in Complainant's file. Willhoit rated him average in
performance and below average in "attitude."
Willhoit's
evaluation effectively eradicated years of very favorable
performance evaluations received by Complainant. I find that
Willhoit•s downgrading evaluation resulted from substantial
aanagement hostility toward Complainant.
The Bobbie Slusher Matter
23. In his complaint to MSHA, Complainant alleged that he
was terminated in retaliation for his conduct in connection with

2419

an incident involving Foreman Robbie Slusher.
complainant alleged that:

Specifically,

Mr. Waters became aware of an incident resulting in injury
to a miner that involved the possibility that the injured
miner's front-line supervisor had willfully or knowingly
placed the miner in an unsafe condition. Further, it came
to Waters' attention that IMC's report to MSHA had
intentionally misstated the nature of the supervisor's
involvement in the injury. Mr. Waters brought the matter to
the attention of his supervisors at IMC, and recommended
that front-line supervisors be given additional training,
with particular emphasis on knowingly or willfully
subjecting miners to unsafe working conditions. Despite Mr.
Waters• · exemplary record, he was discharged six weeks later.
24. This incident involved an accident on March 11, 1993,
when Foreman Robbie Slusher (one of the supervisors under
Complainant) was sent to measure a pipe for a blueprint. When he
arrived, he saw that the pipe was higher than ~e could reach. He
observed a 6 x 6 x 40 inch timber nearby, stood it on its end and
leaned it against a feed pump, thinking that he could stand on it
and reach the pipe. A miner, Mike Sensibaugh, offered to help.
Sensibaugh climbed on the timber while Slusher steadied it with
his foot. The miner attached a safety belt to climb up to the
pipe to be measured. When he was finished and stepped on the
timber to descend, the timber slipped and he caught himself on
another pipe. The sudden move and pressure dislocated his
shoulder. He was out for several weeks and returned for
restricted duties.
25. The following morning, Thayer called a meeting to find
out what happened, whether any discipline was needed and what
could be done to prevent similar accidents. This was attended by
Thayer, Willhoit, Wilcox, Complainant, and Jim Spearman, the
Maintenance Superintendent. Complainant's principal concern
going into the meeting was that the company "would take this
young man (Slusher) who had been a supervisor for at that time I
am going to think a year and a half or so and terminate his
employment • • • ·" Tr. 508.
26. During the meeting Complainant expressed his concern for
Slusher and said he did not want to see him terminated or charged
by MSHA. He also recoAJUDended that front-line supervisors be
given special training on potential liability for willful or
knowing violations that place miners in danger. After reviewing
the incident, the group decided that Slusher should not be
terminated but that he should be suspended from regular duties
for three days with pay, required to present safety seminars on
the use of ladders, receive a written reprimand, and be protected
in the report to MSHA. With respect to reporting the accident to
MSHA, Complainant asked, "How are we going to take care of the

2420

accident report to MSHA?" Tr. 518. Wilcox, who had
responsibility for safety as well as human resources, said that
was his responsibility and he would "take care of it • "
Complainant thought that Wilcox's statement meant that Slusher
would be written out of the MSHA report. He had no objection to
this and expressed no disagreement.
27. At the conclusion of the meeting, Thayer polled everyone
to see if there was a consensus on how the matter should be
handled. Everyone agreed, including Complainant.
28. IMC's accident report to MSHA was prepared a few days
later, on March 16, 1993, but was not sent to MSHA until May 6,
1993, the day Sensibaugh returned to work for restricted duties.
The report was filed with MSHA after Complainant's termination .
A comparison of IMC's internal accident report (Exh . C-2) and the
report to MSHA (Exh. C-3) shows that Slusher•s involvement and
the failure to use a ladder were written out of the report to
MSHA. The report to ~SHA was deceptive and covered up the safety
accident as a mere "slipping" accident without fault.
29. On the \date of the meeting, March 12, 1993, Complainant
had prepared an advanca memorandum to Dale Willhoit . The
memorandum (Exh. C-4) argued to save Slusher from discharge by
pointing out a perceived failure of the company to train frontline supervisors as to "the implications of knowingly or
willfully placing an employee in an unsafe situation" and the
"potential liabilities for both the salaried employee and IMCFertilizer • • • • " It ·concluded with the statement:
Had we had an ongoing program to reinforce our posit±bn on
this and thoroughly explain the law , I would be forced to
recommend termination.
30. Complainant gave copies of his memorandum to a secretary
before the meeting on March 12, expecting her to deliver the
memorandum to Willhoit and Wilcox before the meeting. However,
she did not deliver it until shortly after the meeting.
31 . Willhoit and Wilcox were both upset by the me~orandum,
which exposed IMC to potential liability for Foreman Slusher's
failure to use a ladder and for IMC's (planned) deceptive
accident report to MSHA. They told Complainant to destroy the
memorandum. Complainant destroyed the memorandum except for one
copy. On prior occasions, he had been instructed to destroy
•emoranda dealing with various matters, some involving safety and
aoae unrelated to safety.
32. At times, Willhoit (Complainant's supervisor) had warned
Complainant about writing memoranda that put the company in a bad
light. He advised him not to write memoranda on safety problems
and counseled him that any memoranda containing unfavorable

2421

information on safety would not be well received by higher
management. Complainant felt intimidated by Will~oit's remarks.
In one instance, he removed any reference to safety in a
memorandum requesting that UHF radios be purchased for
communications with miners. He did not realize his Slusher
aemorandum was controversial until Wilcox and Willhoit became
· upset and told him to destroy it.
The Air Transfer/Cullins Matter
33. Although not mentioned in his MSHA complaint, 1
Complainant contended at the hearing that his termination was
also motivated by his memorandum of October 10, 1990, and his
continuing efforts up ~o February 1993, to persuade the company
to correct what he con~idered to be a serious hazard in using PVC
pipe to transfer acid.
34. In its reagent plant, the company uses hydrochloric acid
in the processing of .ore. The acid is stored in a tank and must
be transferred at specified times. This has been a part of the
processing operation for over 30 years. A storage building
contains three mixing tanks and storage tank of amine. outside,
there is a storage tank containing hydrochloric acid. Amine must
be neutralized with hydrochloric acid to render it usable for
IMC's purposes.
35. At various times, the aciq has been transferred into the
storage building by one of two methods: pressurized air or an
acid pump. Prior to Complainant's arrival, acid had been
transferred by a Wilfrey pump before the company switched to an
air transfer system. The Wilfrey pump leaked acid around the
shaft, causing some maintenance and repair problems.
37. When Complainant was hired, the company was using the
air transfer system with PVC pipe as the conduit for the acid.
38. On October 9, 1990, Complainant inspected the air
transfer system in response to an employee complaint about fumes
in the reagent plant. Complainant had not examined the system
1

Extensive evidence was introduced at the hearing by
Complainant and Respondent on the Slusher matter, the air
transfer/Cullins matter and the reduction in force, without
objection by Respondent or Complainant as to the issues being
tried. The case was tried on the key issues whether the Slusher
aatter and the air transfer/Cullins matter involved protected
activities by Complainant, whether his termination in the
reduction in force was motivated "in any part" by protected
activities, and, if so, whether Respondent proved an affirmative
defense.

2422

before. Complainant had substantial experience with PVC pipe and
believed it was not safe as a conduit for acid . When he
inspected the air transfer system, he saw an immediate hazard in
the company's use of PVC pipe. Complainant then prepared a
memorandum to Willhoit, dated October 10, 1990, in which he
informed Willhoit of the problem and recommended that a regular
acid pump be purchased immediately and that the company stop
using the air transfer system. His memorandum stated in part:
I further recommend we use acid grade
stainless, hastelloy, or FRP piping and do
away with the cheap PVC we are currently
using. I doubt if you would get the
manufacturers to certify the contractor grade
PVC we use for concentrated HCl .
We are now highly exposed to a potential
accident in this area and cost of a pump and
piping at $4,000 - $5,000 is a very cheap
policy .
Copies were sent to Daily Jones, Jim Spearman, and J. McKenny.
39. Willhoit was upset by this memorandum and told
Complainant to shred i·~. When Complainant said it had already
been distributed to others, Willhoit wrote a number of items on
the memorandum for further study.
40. Complainant gave a copy of Willhoit•s. questions to Daily
Jones and asked him to "check it out." Jones never finished the
project because Complainant determined his work priorities .and
assigned him to other tasks.
41. Complainant did not respond to the questions a.s ked by
Willhoit because he thought Willhoit had made- up his mind and a
further reply would be futile. He also was intimidated by
Willhoit•s strong reaction to his memorandum and to his warning,
after the memorandum, not to put safety problems in writing .
42. On July 1, 1992 Complainant was promoted to Manager of
Operations, based upon Willhoit's recommendation.

sur~ace

43. Purchases on requisitions required Willhoit's approval
if they were for his d ·~partment. However, if an item could be
found in the city of Carlsbad in the range of $1,000 - $2,000 it
could be purchased without his approval.
44. On August 26, 1992, a Teel acid pump had been received
on a "city ticket" in the company's warehouse. Five days later,
August 31, 1992, the Complainant instructed Jim Spearman to have
the "new acid pump" installed . copies of these instructions were
sent to Willhoit. The pump was installed September 23, 1992.

2423

This pump proved to be unsatisfactory and the company returned to
the air transfer system. Complainant also tried ~nother pump and
it likewise did not work.
45. Complainant received very favorable annual evaluations
for 1991 and 1992.
46. On February 7, 1993, Reagent Helper Cheryl CUllins was
working on the air transfer system when the PVC pipe burst and
spewed acid on her. She immediately washed off in an emergency
shower and was taken to a hospital emergency room. She suffered
no lost time for injurJ. The pipe burst with such force that she
was knocked down on her face and several pieces of pipe struck
her.
47. Complainant promptly asked Daily Jones to determine the
best kind of pump and pipe to use and to prepare the necessary
purchase orders for recommendation to Willhoit. Jones
recommended a Fybroc pump which he believed to be better than a
Wilfley pump. The pump and pipe were approved by Willhoit,
ordered and installed in June 1993, after Complainant's
termination.
Acts of Management Hostility
48. Following the Slusher matter on March 12, 1993, and the
CUllins accident in February 1993, there were a number of
management acts of hostility toward Complainant: (A) Complainant
was excluded from meetings to which he ordinarily would have been
invited and expected t o participate; (B) the discussions in such
meetings were kept secret from him; (C) Complainant's authority
in his department was bypassed; (D) Dale Willhoit deliberately
deceived him two days before his termination, by telling him that
he was doing a good job and there was nothing to worry about and
that he was not being deliberately excl"ded from meetings; (E)
the company accorded Complainant disparate treatment in the
reduction in force; (F) the company showed hostility toward
Complainant by its abrupt, insulting treatment of him when he was
terminated, by giving him short shrift, cutting off his
questions, and having him guarded while he removed personal
belongings from . his office and physically escorted to the front
gate; and (G) shortly after his termination, Willhoit wrote a
"Confidential" evaluation for Complainant's file that downgraded
his evaluation for performance and attitude despite years of
outstanding evaluations.

2424

DISCUSSION !ITH PURTBER PINDINGS, CONCLUSIONS

General Principles
Section lOS(c) {l) of the Act 2 protects miners from
retaliation for exercising rights under the Act, including the
·right to notify the operator of an alleged danger or violation of
the Act. ·
The basic purpose of this protection is to encourage miners
"to play an active part in the enforcement of the Act"
recognizing that, "if miners are to be encouraged to be active in
matters of safety and health, they must be protected against any
possible discrimination which they might suffer as a result of
their participation." s. Rep . No. 95-181, 95th Cong. 2d Sess.
1977, reprinted in the Legislative History of the Federal Mine
Safety and Health Act of 1977 at 623 (Senate Subcommittee on
Labor, Committee on Human Resources, 95th Cong., 2nd Sess.
(1978)).
This provision is a key part of remedial legislation, which
is to be liberally construed to effectuate its purposes.
To establish a prima fac i e case of discrimination under
lOS(c) a miner must prove (1) that he or she engaged in
protected activity and (2) that the adverse action complained of
was motivated "in any part" by that activ ity. The operator may
rebut the prima facie case by showing either that no protected
§

2

section lOS(c) (1) provides:

No person shall discharge or in any manner discriminate
against or cause to be discharged or cause discrimination against
or otherwise interfere with the exercise of the statutory rights
of any miner, representative of miners or applicant for
employment in any coal or other mine subject to this Act because
such miner, representative of miners or applicant for employment
has filed or made a complaint under or related to this Act,
including a complaint notifying the operator or the operator's
agent, or the representative of the miners at the coal or other
mine of an alleged danger or safety or health violation in a coal
or other mine, or because such miner, representative of miners or
applicant for employment is the subject of medical evaluations
and potential transfer under a standard published pursuant to
section 101 or because such miner , representative of miners or
applicant for employment has instituted or caused to be
instituted any proceeding under or related to this Act or has
testified or is about to testify in any such proceeding, or
because of the exercise by such miner, representative of miners
of applicant for employment on behalf of himself or others of any
statutory right afforded by this Act.

2425

activity occurred or that the adverse action was in no part
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 activity and would have taken the adverse
.action in any event for the unprotected activity alone. Haro v.
Kagma Copper Company, 4 FMSHRC 1935 (1982) : National Cement,
16 FMSHRC 1595 (1994) (and cases cited).
A prima f aci e case of discriminatory intent may be
established solely through circumstantial evidence. The most
common indicia of discriminatory intent are: (1) knowledge that
the miner was engaged in protected activity: (2) hostility toward
the protected activity: (3) coincidence of timing between the
protected activity and . the adverse action: and (4) disparate
treatment of the miner.
A miner need not prove disparate treatment to establish a
prima facie case . Knowledge of the miner's protected activity is
"probably the single most important aspect of a circumstantial
case," and may itself be proved by circumstantial evidence.
Secretary on behalf of Chacon v. Phelps podge Corp., 3 FMSHRC
2508, 2510 (1981), rev'd in part on other grounds sbu non.
Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983).
Protected Activities
The first element Complainant must prove is that he was
engaged in "protected activity . "
The Slusher Matter
Complainant alle3es discrimination because of the Slusher
matter, contending (1) that he "brought to the attention of his
supervisors" an "incident that involved the possibility that [an]
injured miner's front-line supervisor had willfully or knowingly
placed the miner in an unsafe condition" and the fact that "IMC's
report to MSHA had intentionally misstated the nature of the
supervisor's involvement in the injury"; and (2) that Complainant
recommended that "front-line supervisors be given additional
training, with particular emphasis on knowingly or willfully
subjecting miners to unsafe working conditions . " Exh. R-37,
Complainant's participation in the Slusher matter involved
writing a memorandum and attending a meeting on March 12, 1993.
I find that complainant's statements at the meeting, and in
his memorandum, concerning his view that better safety training
was needed to instruct supervisors on their potential liability
for knowing or willful violations that place miners in danger
were protected activities under § 105(c) of the Act. Deficiency

2426

in the safety training of supervisors can present a danger to
miners.
The Air Transfer/Cullins Matter
At the hearing Complainant also introduced evidence of an
air transfer/Cullins matter that began with his memorandum on
october 10, 1990, and extended to his efforts in February 1993,
to persuade the company to correct what he believed to be a
serious hazard in the use of PVC pipe to transfer acid. In
clarifying the basis of his discrimination complaint, complainant
testified that the other incidents he mentioned at the hearing
were only for purposes of "background" and that "the two items
that are involved with my termination, sir, are the CUllins
accident and the memo that I wrote (about) Mr. Slusher."
Tr. 475-476.
I find that Complainant's October 1990 me~orandum and
continuing efforts to persuade management to change the air
transfer system were protected activities. The risk of injury
was serious and\ in fact the accident forecast by Complainant
occurred.
Did Complainant Show Management Hostility Toward His Protected
Activities?
The Slusher Matter
I find that the evidence as to the first part of the Slusher
matter (item (1) above) does not show management hostility.
Rather than his bringing to the attention of management the
Slusher matter or the fact that IMC's report to MSHA.
intentionally misstated the supervisor's involvement, Complainant
was actually called to a meeting by management before the IMC
report to MSHA, and at the meeting he and everyone else agreed to
a plan to protect Slusher from being charged by MSHA by writing
Slusher out of the IMC accident report to MSHA. After the
meeting, the IMC report to MSHA not only wrote Slusher•s
involvement out of the accident report , but even omitted the need
to use a ladder instead a piece of timber for climbing, and
recast the incident as a mere "slipping" accident without fault
or risk of IMC liability. Comp~ainant had no objection to this
plan. In fact, he pa:-::ticipated in it. Complainant made no
effort to see the actual report to MSHA, which was prepared on
March 16, 1993, and was not sent to MSHA until May 1993, after
complainant was terminated.
In summary, Complainant went to the Slusher meeting to try
to protect Slusher from being discharged by IMC or being charged
by MSHA. He succeeded and had no objections to the aeeting and
its outcome . There is no evidence that item (l) generated any
hostility by management.

2427

However, the second part of the Slusher matter, item (2)
above, shows management hostility toward a protected activity.
At the March 12 meeting, Complainant recommended (1) special
training of front-line supervisors on their potential liability
for willful or knowing violations that place miners in danger;
(2) leniency for Foreman Slusher, and (3) protection of Slusher
·in the accident report to MSHA. The meeting reached a unanimous
agreement as to how to resolve the Slusher matter i.e., to
auspend Slusher from regular duties for three days with pay, with
an assignment to conduct safety training on the use of ladders,
to give him a letter of reprimand, and to protect him in IMC's
accident report to MSIL\.
Complainant prepared a memorandum on the Slusher matter and
gave it to a secretary to deliver to Willhoit and Wilcox before
the meeting. However, it was not delivered to them until shortly
after the meeting. Willhoit and Wilcox were upset by
Complainant's memorandum because, among other things, it exposed
Respondent to potential liability for Slusher's failure to use a
ladder or other safe means in having a miner do elevated work and
it exposed Respondent to potential liability for its (planned)
deceptive accident report to MSHA.
I find that Complainant's Slusher memorandum was a protected
activity that generated substantial management hostility toward
Complainant .

The Air Transfer/Cullins Matter
I also find that the Air Transfer/ CUllins Matter involved
protected activities t~at generated substantial management
hostility toward Complainant .
In his memorandum of October 10, 1990, Complainant warned
Respondent that the PVC pipe in the air transfer system presented
a high risk of rupturing and spraying acid on miners. His
warning proved prophetic when the PVC pipe ruptured on
February 7, 19~3, and sprayed acid on Cheryl Cullins. While she
was able to get to an emergency shower, she could have been
seriously injured.
·
Willhoit was upset by Complainant's 1990 memorandum and told
him to shred it. He believed the memorandum could subject IMC to
liability . The PVC pipe was used without incident until the
CUllins accident in February 1993. Complainant was promoted on
July 1, 1992, based on Willhoit's recommendation. When the PVC
pipe burst in Februar/ 1993, spraying acid on Cheryl CUllins,
Complainant promptly came up with recommendations (through his
subordinate Daily Jone3) for a pump and replacement of the PVC
pipe.

2428

Management Acta of Hostility
Complainant's memoranda as to the PVC pipe and .the Slusher
matter were met by hostility from management, who told him to
destroy the memoranda. In addition, shortly after the CUllins
accident (February 1993) and the Slusher matter (March 1993)
·there were a number of hostile acts of management toward
Complainant: (A) excluding Complainant from meetings to which he
would have ordinarily been invited and be expected to
participate; (B) keeping such meetings a secret from Complainant;
(C) bypassing Complainant's authority in his department; (D)
Willhoit's deliberate deception of Complainant, two days before
his termination, by telling him he was doing a good job, there
was nothing to worry about, and he was not being excluded from
meetings; (E) IMC's disparate treatment of Complainant in the
reduction in force; (F) the abrupt, insulting treatment of
Complainant when he was terminated, by cutting off his questions
and having him quarded while he removed personal belongings from
his office and physically escorted to the front gate; and (G)
Willhoit•s "Confidential" post-employment evaluation of
Complainant in which Willhoit eradicated the benefit of years of
very favorable performance evaluations by evaluating him as
average in performance and below average in "attitude."
Was Complainant• 1 'l'ermipation Motivated ••In Any Part" by

Protected Activities?
In the reduction in force in 1993, the Carlsbad Mine
Manager, Walter Thayer, had discretion as to how and where to cut
costs. Corporate headquarters did not prescribe for Carlsbad any
names or positions that had to be cut or any ratio between
positions and non-personnel items to be reduced.
Thayer had input from Willhoit and Wilcox as to recommended
personnel reductions and changes. Willhoit recommended
eliminating Complainant's position but retaining him in a demoted
position. Wilcox recommended eliminating Complainant's position
and terminating him.
Thayer had a number of options with regard to Complainant,
including: (1) retain Complainant without change, (2) eliminate
his position but offer him a transfer or demotion, and (3)
eliminate his position and terminate his employment.
Thayer decided to eliminate the "level of management" at
which Complainant was ~mployed, which involved the positions held
by cy Bullen, Dan Morehouse, and Complainant. Bullen was 66 and
eligible for retirement. He was put on full retirement with a
generous severance package that Bullen found to be •very good."
Morehouse was offered and accepted a lower position in the Mine
Engineering Department. Complainant was terminated without an
offer of transfer or demotion. In making these decisions, Thayer

2429

did not consider eliminating or reducing various non-payroll
costs (exceeding $500~000 a year) such as company cars to
aupervisors, free bus transportation, free coffee service, and a
recreation lake resort provided by the Carlsbad mine.
Complainant was given disparate treatment in that he alone
at his management level was terminated without an offer of
transfer, demotion or retirement. Also, as found above,
Complainant's Slusher memorandum of March 12, 1993, and his
efforts (from October ·1990 to February 1993) to persuade IMC to
correct the hazard of · using PVC pipe to transfer acid were
protected activities that were met with marked hostility by
management.
Taken as a whole, I find that the reliable evidence shows
that Complainant's termination on April 29, 1993, was motivated
at least in part by his protected activities.
Did Respondent Zsta})lish An Affirmative Defense?
If an operator fails to rebut a pri.ma facie case of
discrimination, it may raise an affirmative defense in a "mixed
motive" case. It then has the burden to prove that, while it
considered both protected and unprotected activities, the
unprotected activities were of such weight that the operator
would have taken the adverse action in any event for those
activities alone.
l

Respondent contends that it would have terminated
Complainant in the ' reduction in force even if he had not engaged
in protected activities. However, its evidence does not point to
any objective or other compelling factor, e.g., a seniority
system, misconduct, or orders from corporate headquarters, that
required Complainant's termination.
Respondent's mine manager, Thayer, had discretion to select
employees for retention, termination, transfer or demotion as
part of the reduction in force, and to choose between personnel
and non-payroll items in reducing costs. As stated, Thayer had a
number of options with regard to Complainant, including: (1)
retaining him without change; (2) eliminating his position with
an offer of transfer or demotion; and (3) eliminating his
position and terminating his employment. The fact that Thayer
exercised discretion in terminating Complainant does not show -let alone carry a burden of proving -- that Thayer would have
chosen to terminate Complainant in any event had there been no
protected activities.
Given the force of management's hostility toward
Complainant's protectej activities, it is unlikely that, but for
his protected activities, a person of complainant's education,
experience, and performance as reflected by his record and career

2430

at IMC would have been terminated without at least an offer of
transfer or demotion as was accorded to Dan Morehouse.
I find that Respondent has failed to prove an affirmative
defense.
CONCLUSIONS OP LAW

l. The judge has jurisdiction.
2. Respondent terminated Complainant's employment on
April 29, 1993, in violation of § 105(c) of the Act.
ORDER
WJIBREPORE IT IS ORDERED that:
1. Within 15 days of this decision, the parties shall confer
(by telephone or otherwise) in an effort to stipulate (A) the
position which Complainant should be offered for reinstatement at
the Carlsbad mine or an economic reinstatement agreement
(i.e., a lump sum agreed to in lieu of reinstatement); (B) back
pay and interest computed from April 29, 1993, after legal
deductions e.g., earnings from other employment, (C)
reimbursement for any other economic or tax losses caused by his
termination, and (0) a reasonable attorney's fee and
reimbursement for Complainant's litigation costs reasonably
incurred in this action. Provided: Respondent's stipulation of
any matter regarding relief shall not waive or lessen its right
to seek review of the judge's decision on liability or relief .
2. If the parties are able to stipulate the relief, they
shall file with the judge, within 30 days of this decision, a
proposed Order for Relief.
3. If the parties are unable to stipulate the relief,
Complainant sh~ll file with the judge, within 30 days of this
decision, a proposed Order for Relief . Respondent shall have
10 days to reply. If issues or relief are raised, a separate
hearing on relief shall be scheduled.
4 . This decision shall not constitute the judge's final
disposition of this case until a final Order for Relief is
entered.

.

w~
,~~~V\William Fauver
Administrative Law Judge

2431

Distribution:
David w. Strickler, Esq., and W.T. Martin, Jr., Esq., 509 w.
Pierce Street, P.O. Box 2168, Carlsbad, NM 88221-2168 (Certified
Mail)
Charles c. High, Jr., Esq., Kemp, Smith, Duncan & Hammond,
P.O. Drawer 2800, El Paso, TX 79999 (Certified Mail)
/lt

24 3 2

l'BDBRAL IUllB SAJ'B'l'Y .um BBALTJI llBVl:D COJOllSSXOlf
OFFICE OF ADMINISTRATIVE LAW JIJ>GES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

.DEC 5 i994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No . WEVA 93-416-M
A.C. No. 46-02793-05533-A

v.
Mercer Crushed Stone Mine
THOMAS DETAMORE, employed by
POUNDING MILL QUARRY CORP.,
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. WEVA 93-417-M
A.C. No. 46-02793-05534-A
Mercer Crushed Stone Mine

EDWARD T. SONGER, employed by
POUNDING MILL QUARRY CORP.,
Respondent
DECISION
Appearances:

J. Philip Smith, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia, for
Petitioner;
Mr. Edward T. Songer, Ripplemead, Virginia, pro
g;

Mr. Thomas Detamore, Rocky Gap, Virginia, pro se.
Before:

Judge Fauver

These consolidated civil penalty proceedings were brought by
the Secretary of Labor under § llO(c) of the Federal Mine Safety
and Health Act of 1977, 30 u.s.c. § 801 et seg. Section llO(c)
of the Act provides:
(c) Whenever a corporate operator violates a mandatory
health or safety standard • • • , any director, officer, or
agent of such corporation who knowingly authorized, ordered,
or carried out such violation • • • shall be subject to the
same civil penalties, fines, and imprisonment that may be
imposed upon a person under subsections (a) and (d).

2433

Respondents are each charged with knowingly authorizing,
ordering, or carrying out two corporate violation?: a violation
of 30 C.F.R. § 56.63ll(b) and a violation of 30 C.F.R. § 56.9314.
Section 56.6311(b) provides:
Only work necessary to remove a misfire and protect the
safety of miners engaged in the removal shall be permitted
in the affected area until the misfire is disposed of in a
safe manner.
Section 56.9314 provides:
stockpile and muckpile faces shall be trimmed to prevent
hazards to persons.
Having considered the hearing evidence and the record as a
whole, I find that a preponderance of the substantial, probative,
and reliable evidence establishes the Findings of Fact and
further findings in the Discussion below:
FINDINGS OF FACT

1. The Mercer crushed Stone Mine is a limestone operation
in Mercer County, West Virginia. At all relevant times, it was
operated by Pounding Mill Quarry Corporation, employing 27
miners, in producing limestone for sale in or substantially
affecting interstate commerce.
2. At all relevant times, Respondent Thomas Detamore was
General Superintendent at the mine, and Respondent Edward T.
Songer was Foreman at the mine, and each Respondent supervised
miners and was responsible for the operation of all or part of
the mine.
3. On July 1, 1992, a fatal explosives accident occurred at
the Mercer Crushed Stone Mine. The accident was investigated by
Charles w. McNeal, MSHA Supervisory Inspector, and Carl W.
Liddeke, MSHA Inspector, and they co-authored MSHA's official
Accident Investigation Report regarding the accident~
4. The following material facts are provided in the
official MSHA Accident Investigation Report and were proved at
the hearing:
Danny R. Whitt, shovel operator, age 39, was fatally
injured at about 9:40 a.m., on July 1, 1992, when explosives
in the muckpile detonated dislodging boulders which struck
the shovel and crushed him. Whitt had a total of 10 years
mining experience; 8 years as an equipment operator with
this company.

2 434

* * *
The last production shot on this bench was fired on June 18,
1992. At least four holes misfired and were re-shot. On
June 26, an undetonated cast primer and blasting cap were found
in the muckpile. When this discovery was reported to Edward
Songer, foreman, he removed the explosives from the site. He
instructed the shovel operator to continue mucking and to be
careful. On June 29, another undetonated cap and part of a
primer were disc overed. Again , the foreman was summoned and took
the explosives away.

* * *
On the day of the accident, Danny Whitt (victim) reported
for work at 7:30 a.m., his normal starting time. He was to
operate the shovel on the lower bench. Although this was not his
regular job, he was a relief shovel oper~tor and had performed
this job before. Whitt had loaded about 12 truckloads of rock
when an e~plosion occurred in frorit of and above the shovel in
the muckpile. 'Epis explosion and subsequent movement of material
apparently dislodged a large boulder from the spoil pile which
sheered the cab from t~e shovel crushing the victim. Other large
rocks struck the front of the shovel boom and broke o£f the
bucket.
5. MSHA Supervisory Inspector McNeal issued two citations to
the corporate mine operator, Pounding Mill Quarry Corporation, on
July 6, 1992. Citation No. 3871242 charged a violation of 30
C.F.R. § 56.6311(b), as follows:
A production shot was fired on June 18, 1992. Four misfired
holes were discovered and re-blasted. On June 29 and 30,
1992, undetonated explosives (PETN primers and caps) were
found in the muckpile and given to the mine operator . The
mine operator did not change the loading cycle in order to
dispose of any other undetonated explosives in a safe
manner. An unplanned detonation of explosives occurred in
the muckpile on July 1, 1992, which caused a slide of
material on the muckpile which resulted in the death of the
shovel operator.
§

6. ·citation No. 3871243 charged a violation of 30 C.F.R.
56.9314, as follows:
A fatal accident occurred at this operation on July 1, 1992,
on the bottom bench at the base of the muckpile at the west
end of the quarry. A large boulder estimated to weigh 190
tons slid down the muckpile, struck the .operator's cab of
the 180-D track mounted shovel that was being used to load
out the shot rock. The shovel operator was fatally injured.

2 4 35

7. Pursuant to § llO(a) of the Act, Pounding Mill Quarry
Corporation paid a civil penalty of $9,500 for the corporate
violation of 30 C.F.R. § 56.63ll(b), and a civil penalty of
$9,500 for the corporate violation of 30 C.F.R. § 56.9314.
These are the two underlying violations for which Respondents are
charged with knowing violations as agents of the corporation,
under § llO(c) of the Act.
DISCUSSION WITH FURTHER FINDINGS, CONCLUSIONS
§

The Commission has defined the term "knowingly" as used in
llO(c) of the Act as follows:
"Knowingly," as used in the Act, does not have any meaning
of bad faith or evil purpose or criminal intent. Its
meaning is rather that used in contract law, where it means
knowing or having reason to know. A person has reason to
know when he has such information as would lead a person
exercising reasonable care to acquire knowledge of the fact
· in question or to infer its existence . . . . We believe
this interpretation is consistent with both the statutory
language "and the remedial intent of the Coal Act. If a
person in · a position to protect employee safety and health
fails to act on the basis of information that gives him
knowledge or reason to know of the existence of violative
condition, he has acted knowingly and in a manner contrary
to the remedial nature of the statute. [Kenny Richardson v.
Secretary of Labor, 3 FMSHRC 8, 16 (1981), 689 F.2d 632
(6th Cir. 1982), cert. denied, 461 U.S. 928 (1983) .]

The Commission has also ruled that a "knowing violation
under § llO(c) involves aggravated conduct, not ordinary
negligence." Bethenergy Mines, Inc., 14 FMSHRC 1232, 1245
(1992).
Violation of 30 C.F.R.

§

56.6311(b)

A preponderance of the evidence shows that each of the
Respondents knowingly authorized, ordered, or carried out the
cited violation of§ 56.63ll(b).
Five miners testified at the hearing:
(1) Roger Whitt, lead
man, (2) Dewey Whitt, shovel operator, (3) Robert Musick, drill
helper, (4) Jack Billings, front-end loader operator, and (5)
Jess Fisher, haulage truck operator. Each of them testified that
both Respondents, Detamore and Songer, knew that there were
undetonated explosives still left in the muckpile prior to the
fatal accident.
Prior to the fatal accident, Dewey Whitt, the regular shovel
operator, found an undetonated cast primer and blasting cap in
the muckpile on June 26, 1992. He reported this to Respondent

2 4 36

Songer and gave him the cast primer and blasting cap for
disposal. On June 29, 1992, · Dewey Whitt discovered another
undetonated cap and part of a primer in the muckpile·. Again,
Respondent Songer was summoned and took the explosives away.
After finding the undetonated primers and caps in the
muckpile and giving them to Songer, Dewey Whitt asked to be
pulled out of the area and told Songer that he was concerned
about remaining explosives going off in the muckpile. However,
he was told by Songer that the company wanted to get the clean
rock that was in there and that after the July 4th holiday, they
would pull out. Dewey Whitt also complained to Detamore about
the misfires, but Detamore would not listen, and told Whitt that
if he did not want to work in that area, "get your dinner bucket
and go home." Tr. 113.
After these incidents, and before the fatal accident,
Songer, the Foreman, reported to Detamore, the General
superintendent, that the . undetonated explosives had been found in
the muckpile. Despite this information, Detamore told Songer to
instruct the miners to keep mining. Songer ordered the miners to
just go ahead and keep digging, that is to keep producing
limestone in the regular production mode, but to "be careful·."
The discovery of the undetonated primers and blasting caps
in the muckpile clearly indicated that at least one unfired hole
was still left in the .muckpile. Despite this extremely hazardous
situation, both Detamore and Songer ordered the men to just keep
on digging and producing the limestone, but to "be careful."
This was like playing "Russian Roulette" with the lives of the
miners working in the muckpile.
Under 30 C.F.R. § 56.63ll(b), only work necessary to remove
a misfire and protect the safety of miners engaged in the removal
shall be permitted in the affected area until the misfire is
disposed of in a safe manner. Both Detamore and Songer clearly
violated this mandatory safety standard when they ordered the
miners to keep mining in the regular production mode after they
(Detamore and Songer) were informed of the undetonated explosives
in the muckpile.
When the undetonated primers and blasting caps were
discovered in the muckpile before the accident , Detamore and
Songer should have stopped production in the muckpile and called
the blasting company, Austin Sales, Inc . , to come back to search
for the remaining misfired holes. Or, if they were going to
search on their own, the search had to be done with great
precaution in order to protect the safety of the miners, as they
did when they abated the violation after the fatal accident.
However, Detamore and Songer did not call the blasting
company to come back to search for misfired holes after the

24 3 7

undetonated primers and blasting caps were discovered in the
muckpile. Nor did they stop production and proceed on their own
with great precaution to search out the misfired holes. Instead,
Detamore and Songer ordered the miners to continue mining in the
regular production mode, but to be careful. This was a knowing
violation of 30 C.F.R. § 56.63ll(b) and each of the Respondents
is responsible.
Violation of 30 C.F.R.

§

56.9314

The boulder dislodged by the explosion weighed about 110
tons and was situated about 100 feet above the muckpile where the
miners were working.
About two years earlier, MSHA Inspectors Darrel Porter and
Charles Vance told Detamore and Songer that the area below the
large boulder was dangerous and had to be bermed or barricaded
off, and that if they were going to do any work in that area in
the future, they needed to get up on top and cut the boulder down
or shoot it down so that it would not fall on the miners. At
that time, the area below the large boulder was not being worked,
and Detamore and Songer did berm the area.
Both Detamore and Songer were thus pre-warned by MSHA that
the large boulder was hazardous, and that if they decided to work
in the area below it, they had to remove it so that it would not
injure anyone. Cutting the boulder down, shooting it down, or
pushing it down with a dozer would each come under the term of
"trimming" required in 30 C.F.R. § 56.9314.
At the time of the accident, only about one third of the
boulder was visible but observers could easily see that it was
big. After the undetonated primers and blasting caps were found,
Dewey Whitt, Danny Whitt, and some of the other miners expressed
their fear that somebody was going to get killed either by the
explosives or the big rock. Danny Whitt tried to get Detamore to
let him push the large rock down with the dozer, but Detamore
would not let him do it.
Section 56.9314 requires that any place that presents a
hazard of material falling off a highwall, a muckpile, or a spoil
pile must be trimmed for the safety of the miners working below.
This mandatory safety standard applied to the large boulder. The
boulder was clearly hazardous and Detamore and Songer should have
gotten rid of it, particularly since they had reason to know that
there were undetonated explosives still left in the muckpile
where the miners were working.
I find that Respondents Detamore and Songer each knowingly
violated 30 C.F.R. § 56.9314 as charged.

2438

The actions of Respondents with regard to both violations
were highly negligent. Both violations were very serious in that
they were contributing factors to the fatal accident.•
Taking into consideration the criteria in § llO(i) of the
Act, I find that the following civil penalties are appropriate:
(a) A civil penalty of $5,500.00 against Respondent Thomas
Detamore for knowingly violating 30 C.F.R. § 56.6311(b);
(b) a civil penalty of $5,000.00 against Respondent Thomas
Detamore for knowingly violating 30 C.F.R. § 56.9314;
(c) a civil penalty of $4,500.00 against Respondent Edward
T. Songer for knowingly violating 30 C.F.R. § 56.6311(b);
and
(d) a civil penalty of $4,000.00 against Respondent Edward
T . Songer for knowingly violating 30 C.F.R. § 56.9314.
CONCLUSIONS OF LAW
'
1. The judg~
has jurisdiction.

§

2. Respondent Thomas Detamore knowingly violated 30 C.F.R.
56.63ll(b) as charged.

§

3. Respondent Thomas Detamore knowingly violated 30 C.F.R.
56.9314 as charged.

§

4. Respondent Edward T. Songer knowingly violated 30 C.F.R.
56.63ll(b) as charged.

§

5. Respondent Edward T. Songer knowingly violated 30 C.F.R.
56.9314 as charged.
ORDER

WHEREFORE IT IS ORDERED that:
1. Respondent Thomas Detamore shall pay civil penalties of
$10,500 within 30 days of this decision .
2 . Respondent Edward T. Songer shall pay civil penalties of
$8,500 within 30 days of this decision.

~~~v~
William Fauver
Administrative Law Judge

2439

Distribution:
J. Philip Smith, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Blvd., 4th Floor, Arlington, VA 22203
(Certified Mail)

Mr. Edward T. Songer, P.O. Box 42, Ripplemead, VA
(Certified Mail)

24159

Mr. Thomas Detamore, P.O. Box 106, Rocky Gap, VA
(Certified Mail)
/lt

24366

2440

PEDERAL 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. WEVA 93-471
A.C. No. 46-08174-03528

v.
KENNIE-WAYNE INCORPORATED,
Respondent

Docket No. WEVA 93-472
A.C. No. 46-08174-03529
Docket No. WEVA 9 3-473
A.C. No. 46-08174-03530
Kennie-Wayne No. 1-A
DECISION

Appearances:

Javier I. Romanach, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia, for
Petitioner;
Daniel E. Durden, Esq., Howe, Anderson & Steyer,
Washington, D.C., for Respondent.

Before:

Judge Fauver

These are consolidated actions for civil penalties totalling
$40,454 under § 105(d) of the Federal Mine Safety and Health Act
of 1977, 30 u.s.c. § 801 et seq.
The citations and orders are not contested and have been
affirmed by the judge. The only issue is whether payment of the
proposed civil penalties will adversely affect Respondent's
ability to continue in business. The burden of proof rests with
Respondent on this issue.
Glenn Hall and Stephen Hairston testified as to Respondent's
financial condition. 3all testified that Kennie-Wayne, Inc. is a
contract miner for M & H Coal Company. M & H is the lessee of a
tract of property owned by McDonald Land Company. According to
Hall, M & H has "total rights of ownership to sell, ship or
retain the coal" that is mined by Kennie-Wayne at .the property
leased by M & H from McDonald. Tr. 40. He also said that
Kennie-Wayne was incorporated around August 15, 1991, and signed
a contract mining agreement with M & H around March or April
1992. Notwithstanding this testimony, it does not appear that
Kennie-Wayne has in fact signed a formal agreement with M & H.
See Exh. R-7. He stated that according to this agreement Kennie-

2441

Wayne has the right to mine coal from M & H's land · and M & His
to pay Kennie-Wayne $19.60 per ton with · a deduction of $0.60 per
ton for power, and the payment terms have been mod~fied two or
three times since the agreement was signed. M & H is also
supposed to pay Kennie-Wayne on the 10th and the 25th day of each
month, and Hall represented that although M & H has usually been
timely in its payments, as of the hearing date, August 30, 1994,
it had not made its payment that was due on August 25, 1994.
In addition, Hall said that Kennie-Wayne does not have the
discretion to sell the coal it mines to any coal company besides
M & H "who is willing to take all the coal that Kennie-Wayne
sends it." Tr. 62, 63, 77. However, before Stephen Hairston
became the owner of Kennie-Wayne (July 19, 1994), M & H had
periodically allowed Kennie-Wayne to ship coal to Hampden Coal
Company in the previous 2 years, and it had been more profitable
for Kennie-Wayne to ship its coal to Hampden than to M & H.
Hampden Coal would split the payment between what was due KennieWayne (the contractor) and what was due M & H.
According to Hall and Hairston, M & H has filed for
bankruptcy. Hall testified that for the first quarter of 1994
Kennie-Wayne reported a loss of $135,460.35 and the company's
balance sheet shows total assets of $1,191,743.12 and total
liabilities of $1,543,786.85. Tr. 50; Exh. R-5. Hall also
testified that if Kennie-Wayne is "allowed to mine coal . and ship
its coal to Hampden Coal their cash flow would improve
considerably and they could resume. profitable operations."
Hairston testified that, although he purchased Kennie-Wayne,
Inc., subject to liabilities and with knowledge that M & H had
filed for bankruptcy, he assumed that it was going to be paid by
M & H for its production and that Kennie-Wayne was going to be
profitable. In addition, he understood that M & H would allow
Kennie-Wayne to sell its coal to H~mpden if Kennie-Wayne
developed payment problems with M & H. From Hairston's
testimony, it appears that up until two Fridays before the
hearing Kennie~wayne had been delivering coal to Hampden but that
a few days before the hearing, M & H decided not to allow KennieWayne to sell its coal to Hampden.
Hairston testified that he draws an $8,000 per month salary
and that he believes that paying the $40,454 in proposed
penalties would affect Kennie-Wayne's ability to remain in
business.
DISCUSSION

In assessing civil penalties under § llO(i) of the Act, a
Commission judge is not bound by the penalty proposed by the
Secretary. Rather the judge is to assess a penalty de DQYQ based
upon the following six statutory criteria: · (1) the operator's

2 442

history of previous violations, (2) the appropriateness of the
penalty to the size of the business, (3) the operator's
·
negligence, (4) the effect on the operator's ability to continue
in business, (5) the gravity of the violation, and (6) the
operator's good faith in abatement of the violation. Secretary
of Labor v. Sellersburg Stone Co., 5 FMSHRC 287 (1983), aff'd
Sellersburg Stone Co. v. FMSHRC, 736 f.2d 1147 (7th Cir. 1984).
In evaluating the fourth factor, the Commission has held
that, "in the absence of proof that the imposition of authorized
penalties would adversely affect (an operator's ability to
continue in business), it is presumed that no such adverse effect
would occur." Spurlock Mining Company, Inc., 16 FMSHRC 697, 700
(1994), quoting Sellersburg Stone Co., 5 FMSHRC 287. If an
adverse effect is demonstrated, a reduction in the penalty may be
warranted. Robert G. Lawson Coal Company, (1972). However, "the
penalties may not be eliminated • • • , because the Mine Act
requires that a penalty be assessed for each violation."
Spurlock Mining, supra, 16 FMSHRC at 699, citing ,30 u.s.c
§ 820(a); Tazco. Inc .. 3 FMSHRC 1895, 1897 (1981).
Respondent~s witnesses seem to portray Kennie-Wayne as being
financially viable rather than a business on the brink of
financial collapse. · H3irston stated that he purchased KennieWayne subject to liabilities with knowledge of M & H's petition
for bankruptcy and the amount of MSHA's proposed penalties. He
considers himself a goQd judge of the value of mining operations
and obviously assessed Kennie-Wayne as a good investment. The
production capacity is about 24,000 clean tons of coal per month,
and each ton is worth about $20.25. Hampden Coal is a ver.y
willing buyer of Kennie-Wayne's mined coal and according to
Hairston it is in a strong financial condition. Tr. 19, 34.
There is no evidence that Kennie-Wayne does not have a legal
right to sell coal to Hampden if M & His unable to buy it. 1
The fact that Kennie-Wayne is ca.p able of paying Hairston a salary
of $96 I 000 per year ·.is a revealing indication of Kennie-Wayne I .s .
financial condition.

Respondent presented balance sheets indicating its .profits,
losses, assets and liabilities. However, financial statements
showing a loss, by themselves, are not sufficient to r~duce
penalties because they are not i .n dicative of the ability to
1Hairston

testified that part of his agreement with M & H is·
the understanding that Kennie-Wayne has the right to sell coal to
Hampden Coal if M & H defaults in p~ying for it. In addition,
under West Virginia law it appears that Kennie-Wayne would have a
mechanic's lien to sell the coal for its work or labor. West
Virginia Code§ 38-2-31 (1994) • . Respondent has not submitted any
documentation showin·g that M & H's bankruptcy proceeding would
prevent Kennie-Wayne from sel.ling coal to Hampde.n Coal.

2 4 43

continue in business. Spurlock Mining. Inc., 16 FMSHRC at 700,
citing Peggs Run Coal Co., 3 IBMA 404, 413-414 (1974).
In conclusion, I find that Respondent has failed to prove by
a preponderance of the evidence that payment of the proposed
civil penalties would adversely affect its ability to continue in
business. I also find the proposed civil penalties of $40,454 to
be appropriate for the violations found herein.
CONCLUSIONS OF LAW

1. The judge has jurisdiction.
2. Respondent committed the violations as alleged in the
citations and orders attached to the Secretary's petitions for
civil penalties.
3. Respondent has not proven that payment of the proposed
civil penalties would adversel y affect its ability to continue in
business.

ORDER
WHEREFORE IT IS ORDERED that Respondent shall pay civil
penalties of $40,454 within 30 days of this decision.

(j~ ~.,V\_

William Fauver
Administrative Law Judge

Distribution:
Javier I. Romanach, Esq., Office of the Solicitor, u.s.
Department of Labor, 4015 Wilson Boulevard, Room 516, Arlington,
VA 22203 (Certified Mail)
Daniel E. Durden, Esq., Howe, Anderson & Steyer, 1747
Pennsylvania Avenue, NW., Suite 1050, Washington, DC 20006
(Certified Mail)
/lt

2 4 44

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

DEC

8 1994

WILLIAM T. SINNOTT, II,
Complainant
v.

DISCRIMINATION PROCEEDING

JIM WALTER RESOURCES, INC.,
Respondent

BARB CD 94-09

Docket No. SE 94-358-D

No. 5 Mine
ORDER OF DISMISSAL

Before:

Judge Maurer

This procee9ing concerns a complaint of discrimination filed
by the complainant (William T. Sinnott, II) against Jim .Walter
Resources, Inc. (JWR) pursuant to section lOS(c) of the Federal
Mine Safety and Health Act of 1977 (the Mine Act).
On August 23, 1994, JWR filed a Motion for Summary Decision
(which I am treating as a Motion to Dismiss), alleging, inter
alia, that ·the instant complaint is barred by the statute of
limitations and by laches. Subsequently, on September 26, 1994,
the undersigned issued an Order to Show Cause to the complainant
to explain why his complaint should not be dismissed because of
his failure to timely file his section 105(c) complaint with the
Mine Safety and Health Administration (MSHA).
A chronology of the significant events which gave ·rise ·to
the instant complaint is as follows:
July 17, 1989 -

Complainant is first employed by JWR as an
Associate Production Engineer.

February 12, 1990 -

Complainant placed on medical leave for
treatment of ulcers and mental illness.

May 14, 1990 -

Complainant returned to duty.

Auqust 21, 1990 -

Complainant terminated from his employment
at JWR.

February 10, 1991 -

Complainant files a complaint with the
Off ice of Federal Contract Compliance
Programs (OFCCP) under the Rehabilitation
Act of 1973, alleging that JWR violated the
nondiscriminatory and affirmative action
2445

provisions of its federal contract by
terminating him because of his handicap,
mental illness.
February 12, 1992 -

OFCCP makes an initial finding of "no
violation" in the complaint he filed under
section 503 of the Rehabilitation Act of
1973.

August 5 , 1993 -

Complainant's request for reconsideration is
finally denied by OFCCP.

November 29, 1993 -

Complainant files the instant complaint with
MSHA alleging that JWR violated the
nondiscriminatory provisions of the Mine Act
by terminating him in retaliation for h i s
refusal to follow a direct order that he
believed was harmful and would have placed
his life in imminent danger.

March 22, 1994 -

MSHA notifies complainant that they have
determined "no violation" of section 105(c)
of the Mine Act has occurred.

April 28, 1994 -

FMSHRC receives complaint at bar.

The critical two dates for purposes of this motion are
August 21, 1990, the date of termination, and November 29, 1993,
the date the section 105(c) complaint was filed with MSHA. As
the respondent complains of in his motion, the complainant failed
to ~nitiate his complaint under the Mine Act until some 3 years
and 3 months af.ter the allege~ discriminatory activity occurred.
Section 105(c) (1) of the Act prohibits any discrimination
against a miner, including discharge, because of the miner's
making safety complaints or his justifiable refusal to perform an
assigned task which he reasonably believes to be unsafe.
In accordance with section 105(c) (2) of the Mine Act any
miner who believes he has been discharged or discrim~nated
against may, within 60 days of the alleged act of discrimination,
file a complaint with the Secretary of Labor. The Secretary is
then required to conduct an investigation and make a determination as to whether or not a violation of section 105(c) has
occurred. If the Secretary determines that the miner's
allegations of discrimination are valid and a violation has
occurred, he is required to file a complaint on the miner's
behalf with the Commission.

2 446

Pursuant to section lOS(c) (3) of the Act, if the Secretary
determines that a violation of section lOS(c) has not occurred,
he must so inform the miner, and the miner then has a right to
file a complaint on his own behalf with the Commission within
30 days of notice of the Secretary's determination.
Ordinarily, when dealing with late-filings of a few days or
even a few months, the Commission has determined that the time
limits in sections 105(c) (2) and (3) "are not jurisdictional'' and
that the failure to meet them should not result in dismissal,
absent a showing of "material legal prejudice." See, e.g.,
Secretary on behalf of Hale v. 4-A Coal Co., 8 FMSHRC 905, 908
(June 1986). However, in that same decision, the Commission also
stated that "[t]he fair hearing process envisioned by the Mine
Act does not allow us to ignore serious delay . • • . " Here, we
are dealing with an extraordinarily late filing in excess of
3 years. At some point there has to be an outer limit, if the
60-day rule contained in the statute has any meaning at all.
In David Hollis v. consolidation Coal Company, 6 FMSHRC 21
(January 9, 19~4), aff'd mem., 750 F.2d 1093 (D.C. Cir. 1984)
(table), the Commission affirmed a dismissal of a miner's
discrimination complaint filed 6 months after his alleged
discriminatory discharge. The Commission stated that "timeliness
questions must be resolved on a case-by-case basis, taking into
account the unique circumstances of each situation," 6 FMSHRC 24.
In that case, the judge below concluded that Hollis knew, or
had reason to know, of his section 105(c) remedies within the 60day period following his discharge; but like Sinnott, elected to
seek another avenue of relief (the West Virginia Human Rights
Commission, charging discrimination against a racial minority),
before filing his section 105(c) complaint over 4 months past the
Act's 60-day time limit.
The Commission, reviewing this ALJ finding, stated that:
"We do not believe that Congress. • • intended for us to excuse a
miner's late-filing where the miner has invoked the aid of other
forums while knowingly sleeping on his rights under the Mine
Act." 6 FMSHRC 25.
I should also note that in that case, Judge Melick found
that the fact that Hollis had completed two years of college
reflected positively on his ability to understand his rights
under the Mine Act. In the case at bar, the more so.
Mr. Sinnott is a college graduate, having received his Mining
Engineering degree from the University of Missouri-Rolla in May
1988. While attending the University, he also worked summer jobs
for various coal companies and upon graduation went to work for
Western Fuels-Utah as an Operations Engineer prior to his
relatively short stint of employment with JWR. It is readily

24 4 7

apparent that he is a man of ample intelligence with experience
in the coal industry. Moreover, he has demonstrated the ability,
with assistance of ·legal counsel, to pursue another . complex
complaint concerning this same employment matter with the OFCCP.
It should also be noted that Mr. Sinnott does not claim
ignorance of the filing requirements of the Mine Act. Rather,
Mr. Sinnott's claim is that his late-filing should be excused
because he did not know why he was discharged at the time. He
states that at the time of his termination he believed that he
was being discharged because of his mental illness and because of
"acting strange." It was only later, after the OFCCP case was
concluded (and lost) that he came to believe that he was
discharged in violation of the Mine Act. The trouble with this
theory as an excuse for late-filing is that it is universal. An
operator rarely (never) puts a miner on official notice that he
is being discharged in violation of the Mine Act or because he
made safety complaints or because he justifiably refused to
perform an unsafe task. As a matter of practice, it is up to the
miner to know that he has engaged in protected activity and to
suspect, at least, that the adverse action he has suffered, is
somehow connected with that protected activity. One cannot
expect the operator to provide official notice to the prospective
complainant that they have just violated the Mine Act as a
precondition to starting the clock running on the 60-day rule.
Under the circumstances, I conclude that Mr. Sinnott knew or
at least should have known of his right to file a complaint with
MSHA under section lOS(c) of the Mine Act at the time of his
August 1990 termination, and that therefore his seriously latef iled complaint herein cannot be excused for "justifiable
circumstances." The complaint was filed over 3 years out of
time. Since then, another year has passed. After an
extraordinary delay of over 4 years since the matters complained
of occurred, it is highly questionable whether the other company
employees who might have had some knowledge of the events
surrounding Mr. Sinnott's termination would have a present
recollection of those events. Generally, I find that a 3-plus
year delay in charging the respondent with what specifically it
did or failed to do in violation of the Mine Act is inherently
prejudicial to an operator's ability to defend itself against the
allegations contained in the complaint. It can hardly be
disputed that JWR would have been in a much better position to
investigate and def end against the allegations made in the
complaint had the filing deadline been met by Mr. Sinnott.
"[E)ven if one has a just claim it is unjust not to put the
adversary on notice to defend within the period of limitations
and. • • the right to be free of stale claims in time comes to
prevail over the right to prosecute them." Herman v. IMCO
Services, 4 FMSHRC 2135, 2138-39 (Dec. 1982) (emphasis added).
In that case, Herman, a senior project engineer, was terminated

244 8

in April of 1979. He delayed filing any complaint until March
1980. When he did file, he filed with the Nevada Department of
Occupational Safety and Health, who referred the matter to MSHA.
Thus, the discrimination complaint in the case was filed 9 months
after the expiration of the time period specified in the statute
regarding the filing of such complaints, i.e., 60 days . The
Commission affirmed the AI.J's decision, which found no justifiable circumstances to excuse what they termed, "Herman's
egregious delay in instituting this proceeding."
Like the miner in Herman, Sinnott's protracted delay in
filing a complaint with MSHA cannot be attributed to his being
mislead as to or a misunderstanding of his rights under the Mine
Act. And, like the miner in Hollis, Sinnott pursued an alternative avenue of relief, and not until he lost that claim did he
file the subject complaint.
Accordingly, complainant's initial complaint filed with MSHA
on November 29, 1993, is found to be excessively stale and will
be dismissed herein.
ORDER

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

Law Judge
Distribution:
William T. Sinnott, II, 1302 South Walnut, Springfield, IL 6270436633 (Certified Mail)
David M. Smith, Esq., J. Alan Truitt, Esq., Maynard, Cooper &
Gale, P.C., 1901 Sixth Avenue North, 2400 AmSouth/Harbert Plaza,
Birmingham, AL 35203-2602 (Certified Mail)
Stanley Morrow, Esq., Jim Walter Resources, Inc., P.
Brookwood, AL 35444 (Certified Mail)
dcp

244 9

o. Box 133,

FEDERAL ICDIE SAFETY Alm JIRAT!l'JI RBVIJSW er •lflSSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

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

v.

9 1994
CIVIL PENALTY PROCEEDING

.

Docket No. PENN 93-119
A. C. No. 36-08136-03511
Natalie Banks

SUSQUEHANNA-MT. CARMEL, INC.,
Respondent
DECISION APPROVING SR'Pl'!.RMRNT
Before:

Judge Melick

This case is before me upon a petition for assessment
of civil penalty under Section 105(d) of ~he Federal Mine
Safety and Health Act of 1977 (the Act). Petitioner has
filed a motion to approve a settlement agreement and to
dismiss the case. A reduc·tion in penalty from $4,400 to $1,000
is proposed. I have considered the representations and
documentation submitted in this case, and I conclude that
the proffered settlement is acceptable under the criteria
set forth in Section llO(i) of the Act.
WHEREFORE, the motion for approval of settlement is
GRANTED, and i t is ORDERED that Respondent pay a penalty of
$1,000 within 30 days of this order.
The hearing scheduled for Dece
cancelled.

ative
Distribution:
Mark Swirsky, Esq., Office of the Solicitor,
U.S. Department of Labor, 14480 Gateway Bldg., 3535 Market
Street, Philadelphia, PA 19104
Joseph M. Rasmus, Susquehanna-Mt. Carmel, Inc., P.O. Box 27, 200
E. Front Street, Nanticoke, PA 18634

/jf

2450

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

DEC

9 1994
CIVIL PENALTY PROCEEDINGS

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

Docket No. PENN 93-445
A.C. No. 36-02374-03875
Docket No. PENN 94-54
A.C. No. 36-02374-03888

NEW WARWICK MINING COMPANY,
Respondent

Warwick Mine

DECISION

Appearances:

Before:

Linda M. Henry, Esq., Office of the Solfcitor,
U. s. Department of Labor, Philadelphia,
Pennsylvania, for Petitioner;
Joseph A. Yuhas, Esq., Barnesboro ~ Pennsylvania,
for Respondent.

Judge Amchan:

These cases involve several inspections of Respondent's
Warwick mine in southwestern Pennsylvania. In each the primary
issue is whether Respondent violated MSHA regulations in failing
to clean-up coal and coal dust accumulations in a timely manner,
and if it did, whether those violations were significant and
substantial. Docket PENN 94-54 contains several allegations
charging Respondent with an unwarrantable failure to comply with
the Secretary's regulations 1 • Docket PENN 94-445 contains two
failure to abate orders.

1

At hearing I granted the Secretary's motion to vacate
citations 3655711 and 3655712. These citations alleged
respirable dust violations based on a single sample.
2451

Docket PENN 94-54
Orders 3655504 and 3655505
On July 26, 1993, MSHA inspector Robert Santee issued
Respondent citation 3655279 (Exh. G-4} alleging a violation of
the Secretary's regulation at 30 C.F.R. 75.400. That regulation
requires that loose coal, coal dust and other combustible
materials be cleaned up and not be permitted to accumulate in
active workings or on electrical equipment therein. This
citation alleged that accumulations ranging up to 1/4 inch deep
were permitted on the surfaces of the 3 left (012) longwall
section shields, numbers 4 through 22, and behind the shields .
After issuing the citation, inspector Santee discussed the
violation with mine management, including mine superintendent,
Jon Pavlovich (Tr. 23-24, Exh. G-3, pages 6-8 of entry of July
26, 1994). On July 26, the inspector told management that wash
down hoses needed to be installed across the pan line and that
the hose attached to the longwall shear was inadequate to prevent
coal dust from accumulating (Exh. G-3, pp. 7-8 of 7/26/93 notes}.
The next day, July 27, Santee issued another citation for an
accumulation of loose fine coal on a pump car at the end of the
012 longwall supply track (Exh. G-5). He also noticed
accumulations behind the longwall shields and on the toes of the
shield (Tr. 25).
Since they were in the process of being
cleaned, a citation was not issued for the coal dust in and about
the shields (Tr. 25-28). On July 27, Santee discussed with
Respondent's safety director, Rod Rodavich, the necessity of
continued efforts to prevent repeated violations of section
75.400 at the longwall (Exh. G-3, page 5 of July 27, 1993 notes}.
On July 28, 1993, shortly before 5:10 a.m., inspector Santee
observed coal dust of up to 1/4 inch in depth on the surfaces of
shields 23 through 123, and behind those shields2 • He found coal
dust accumulations on cables and as much as 6 inches .of loose
coal behind the shields (Exh. G-1) 3 • He thereupon issued order
2

The longwall was not operating at this time and apparently
had not operated since 3:30 a.m. (Tr. 21}
3

In its brief Respondent argues that inspector Santee's
testimony should be discredited because it is inconsistent with
the notes he made on July 28, 1993 (Respondent's brief at 13).
The first two pages of those notes do in fact state that "small
amounts of float dust observed on shield behind support legs
which appeared the previous shift did not wash shield off during

2452

3655504 pursuant to section 104(d) (2) of the Act for failure to
clean-up the coal and coal dust in a timely fashion. He also
issued order 3655505 alleging a violation of section 75.360.
This order is predicated on Santee's conclusion that the preshift
examination made between 1:00 a.m. and 3:00 a.m. on July 28, was
inadequate in that it failed to detect the coal and coal dust
accumulations cited in order 3655504 {Tr. 32-33, Exh. G-2).
To the inspector it appeared that the longwall shield area
hadn't been cleaned at all recently {Tr. 28). He stated that
foreman Paul Wells agreed with him that no cleaning had been done
on the prior midnight shift {Tr. 28). Wells denies making such a
remark {Tr. 118). Inspector Santee concluded that the coal and
coal dust accumulations he observed had accumulated over the
course of an entire production shift {Tr. 53-54). He also based
his conclusion that the accumulations were the result of
Respondent'~ "unwarrantable failure" on the fact that he had
indicated to management, prior to the citation, that the water
hose on the longwall shear was insufficient to keep the shields
clean and that management had not installed additional hoses
(Tr • 7 8 - 7 9 ) •
During his inspection, Santee was accompanied by Barry
Radolec, then a inspector-trainee. Radolec concurs with Santee's
opinion that the coal and coal dust accumulations were extensive
and that they built up over a shift or more {Tr. 92-93).
Paul Wells, who was New Warwick's longwall foreman on the day
shift of July 28, doesn't dispute that material had accumulated ·
on and behind the shields. However, he contends that much of the
material was not coal (Tr. 113, 119).
The longwall had run into a "rock binder" in the middle of
the coal seam, which caused a lot of dust to be generated
{Tr. 109-114). Wells insists that the dust accumulations cited
by Santee were primarily shale and dirt, as opposed to coal
{Tr. 113, 119). Inspector Santee, on the other hand, contends
that when the dust he saw was mixed with slate, he recognized
this and that the accumulations he cited were coal and coal dust
(Tr. 157). With respect to this difference of opinion, I credit
the last pass." (Exhibit 3, pp. 1 and 2 of July 28, 1993 notes). ·
However, I find the conditions related in the order did
exist. Santee's notes of the same date at pp. 5-6 are consistent
with the allegations of the order. Moreover, Respondent's
foreman, Paul Wells, did not deny that such accumulations
existed. Rather he argued that the material on the shields was
not coal dust and that they could not be kept any cleaner when
the longwall shear was not operating (Tr. 117-19).

2453

the testimony of inspector Santee and find a violation of section
75.400 as alleged.
Was this violation due to Respondent's unwarrantable failure to
comply with section 75.400?
The Secretary's allegation of "unwarrantable failure" is
predicated on the fact that this was the third day in a row that
Santee had observed coal and coal dust accumulations on the
longwall shields, the fact that the company had not implemented
his suggestion that additional washdown hoses be installed, and
Wells' "confirmation" that it appeared that no cleaning had been
done on the prior shift.
Although Wells denies making such a statement, his testimony
is not inconsistent with that of inspector Santee.
Q.

In that regard, what did you tell the inspectors?

A. They had cut out at the headgate, which was number
one . shield. And when they cut out, that makes a
greater deal of water mist and dust, and the guys
normally cut the water back. If not, they get soaking
wet because they've got 36,000 coming down the face and
it just blows that water mist back onto you, because
that shear uses 75 gallons of water a minute, and it's
all blown out there in a mist. They normally cut the
water back to 40 shielp, which was probably a time of
ten to 15 minutes, when they mined from headgate back
to 40, I said, okay, that dust probably came from
cutting out and it doesn't look like they hosed as they
came back to this point.
(Tr. 118)
A few minutes later, however, Wells appeared to contradict
himself.
JUDGE: It looked to you like the last pass from one to
40, the hose on [mistranscribed as "and"] the shear had
not operated?
A. No. The shear was suppressing the dust, but they
did not physically
a man did not walk and hose down
the shields as they mined for that last ten or 15
minutes that they mined. Which you don't do all the
time. You're only required to do it the very first
pass of the day.
(Tr. 121)

2454

Although it is difficult to determine the precise import of
Wells' testimony, I conclude that the coal and coal dust
accumulations were in part the result of a reduced amount of
water applied on the last pass of the longwall shear on the
midnight shift4 • Respondent knew or should have realized that
additional dust would be generated and I conclude that its
failure to take sufficient measures to clean up this dust
constitutes an unwarrantable failure to comply with section
75.400--particularly in light of the warnings given to them by
inspector Santee on the two previous days.
Commission precedent requires consideration of three factors
in determining whether a violation of section 75.400 is the
result of an operator's unwarrantable failure. They are: 1) the
extent of the violation; 2) the length of time the violation has
existed; and 3) the efforts of operator to prevent or correct the
violation. Peabody Coal Co., 14 FMSHRC 1258 (August 1992);
Mullins & Sons, 16 FMSHRC 192 (February 1994).
I conclude that the violation cited in order 3655504 was due
to Respondent's unwarrantable failure because the coal and coal
dust accumulations were extensive. Although they had not existed
for a long time, ·Respondent should have been on a "heightened
alert" that such accumulations could occur--given the reduced
water spray in the last pass and the discussions with inspector
Santee on the two prior days, .§.gg, Drummond Company. Inc., 13
FMSHRC 1362 (September 1991). When inspector Santee came to the
longwall no cleaning was in progress, and in light of the
circumstances, I conclude that it was incumbent upon New Warwick
to clean up these coal and coal dust accumulations immediately. 5
Civil Penalty
The Secretary proposed a $4~100 civil penalty for order
3655504. I assess a penalty of $2,000. Although not a
prerequisite to a section 104(d) (2) order, the Secretary
characterized this violation as "significant and substantial."

4

Wells, for example, also stated that did not assume that
the dust observed by the inspectors had accumulated in ten
minutes (Tr. 119).
5Night shift longwall foreman Michael Smith testified as to
the additional shoveling of coal and coal dust on July 27-28 (Tr.
128-130). The fact that inspector Santee found nobody engaged in
clean-up and no indication that clean-up had commenced prior to
his arrival at the longwall section, leads me to conclude that no
effort was made to clean this area after the accumulations
observed by Santee were created.

2455

The same considerations that are involved in a determination of
the "S & S" issue are relevant to a consideration of the gravity
of the violation under section llO{i).
Inspector Santee designated the order "S & S" because he
detected one to two-tenths methane at the longwall and because
the longwall shear was capable of operating (Tr. 33). I conclude
that this is insufficient to establish that an ignition or
explosion was reasonably likely to occur, or be exacerbated due
to the 75.400 violation. Texasgulf, Inc., 10 FMSHRC 498, 500-01
(April 1988). As Respondent points out, the fact that the
Warwick mine is a gassy mine does not establish that potential
for methane liberation in the longwall section (Tr. 84-85).
Nevertheless, there was certainly some chance of ignition at
the longwall section, a situation made much more dangerous by the
presence of the cited coal and coal dust accumulations. I deem
Respondent's negligence to be very high in failing to take
immediate action to clean up these accumulations and conclude a
$2,000 civil penalty to be appropriate given all six penalty
assessment factors set forth in section llO{i) of the Act.
Order 3655505 is vacated
Order 3655505 is predicated on the assumption that the
accumulations observed by inspector Santee were present when the
pre-shift examination for the day shift (4:00 a.m. - 4:00 p.m.)
was performed. Santee testified that the pre-shift was made
between 1:00 a.m. and 3:00 a.m. (Tr. 21). The longwall section
broke down at 3:30 a.m. Michael Smith, the longwall foreman on
the night shift testified that when he performed this examination
he observed no hazardous conditions in regard to coal and coal
dust accumulations (Tr. 132).
I conclude that the accumulations observed by Santee on the
day shift may not have been present or may not have been as
extensive when Smith did his pre-shift examination. Thus, this
examination may not have been inadequate. I therefore vacate
order 3655505.

Orders 3655519 and 3655520
At about 10:55 a.m. on August 12, 1993, inspector Santee was
traveling in the mocker area of the New Warwick mine (Tr. 37).
This is an area where conveyor belts dump coal into a bunker and
the bunker dumps the coal of the mainline number 6 conveyor belt
(Tr. 37). At this location Santee observed extensive
accumulations of loose coal and coal dust by the motor drive
structure "(Tr. 37-38). He also observed hydraulic oil, up to
1/4-inch deep on the bunker floor, next to a pump car (Tr. 39-40,
71).

2456

The coal and coal dust accumulations were coated with rock
dust and there were black footprints in the rock dust leading to
a preshift examination board. Some of the accumulated coal and
coal dust was soaked with hydraulic oil (Tr. 38) . Santee issued
order 3655519, which alleged a violation of section 75.400,
concluding that the footprints to the preshift board indicated
that the examiner had failed to take corrective action and that
due to the compaction of the coal and dust, that the
accumulations had existed for several shifts (Tr. 38-39).
In addition to the order for the accumulations, Santee
issued order 3655520 alleging a violation of section 75.360 in
that the preshift examination perf~rmed between 5:00 a.m. and
7:40 a.m. was inadequate (Exh. G-7).
Mike Voithoffer, the mine
examiner who performed the pre-shift inspection at issue, did not
consider the accumulations he saw as hazardous (Tr. 138). While
Voithoffer also testified that accumulations can build-up in the
bunker area very quickly, I conclude· from the black footprints in
the rock-dusted~oal and coal dust that conditions at the time of
the pre-shift we1re pretty much the same as when. inspector Santee
came by several hours later.
Voithoffer concluded that there were no likely sources of
ignition and that these accumulations would be taken care of by
the clean-up man on the day shift at about noon (Tr. 138-39,
142-43). Frank Domasky, a New Warwick safety engineer, confirms
that Santee observed two areas under the sprockets of the bunker
drive where the top of the cone-shaped piles of loose coal and
coal dust measured 20 inches (Tr • .149) .
Domasky also indicated that the accumulations may have been
cleaned up before Santee arrived except that the employee
assigned to this duty was busy abating other citations issued by
the inspector (Tr. 150-51). The issue thus becomes whether it
was an unwarrantable failure for Respondent to fail to note these
accumulations in its pre-shift examination and for it to fail to
assign additional personnel to clean up this area.
I credit inspector Santee's opinion that the accumulations
in this area were such that they warranted immediate attention .
I therefore conclude that Respondent's failure to record these
accumulations on the pre-shift examination and to assign
additional personnel to clean-up this area was sufficiently
"aggravated" to warrant the characterization of unwarrantable
failure.
In so finding I conclude that Mr. Voithoffer's belief
that the accumulations need not be recorded, nor cleaned up
immediately, was unreasonable, Cyprus Plateau Mining Corporation,
16 FMSHRC 1610 (August 1994). I therefore affirm both section
104(d) (2) orders issued on August 12, 1993.

2457

Significant and Substantial and Penalties
With regard to these orders I am not convinced that the
Secretary has established a confluence of factors that would make
an ignition or explosion reasonably likely. Texasgulf, supra.
There is no showing of potential high methane concentrations in
the cited area. Although inspector Santee was concerned about a
7200 volt cable which was 12-15 feet from the coal and coal dust
accumulations (Tr. 73), I am not persuaded that the presence of
this cable made it reasonably likely that the section 75.400
violation would result in injury. Although there was a puddle of
oil by the pump car, which was located 20-25 feet from the
bunker, this pump car had its own automatic fire suppression
system (Tr. 150) .
Having concluded that the Secretary has not established this
violation to be "S & S'', I find that the gravity of the violation
was significantly lower than for the section 75.400 violation of
July 28. Taking into account all six section llO(i) penalty
criteria, I conclude that a $1,000 civil penalty is appropriate
for order 3655519 and another $1,000 penalty is appropriate for
Respondent's failure to record the accumulations on the pre-shift
examination.
The defective ladder citation
During an August 31, 1993 inspection of the Warwick's mine
preparation plant, MSHA inspector Mel Remington observed a 7-foot
ladder on the third floor (Tr. 162-63). Upon close inspection of
the ladder Remington observed that one of the support legs was
broken, just below the lowest rung (Tr. 163). From the lack of
dust on the ladder, the inspector concluded that it had been used
recently (Tr. 165).
Inspector Remington issued Respondent citation 3667167
alleging a significant and substantial violation of ~o C.F.R.
77.206(a). That regulation requires that ladder be of
substantial construction and be maintained in good condition.

6The Secretary argues that this violation was "S & S"
because "the number 6 mainline conveyor belt was rubbing in loose
wet coal just underneath this bunker area" (brief at 7).
However, I find inspector Santee•s testimony regarding the
location of this and other ignition sources to be insufficient to
establish that they were directly under the bunker (See, Tr.
103) .

2458

New Warwick's defense to this citation is that the defective
ladder was a 4-legged step-ladder, not a 7-foot aluminum ladder
and that the defect was so obvious nobody would have used it
(Tr. 174). However, Respondent's evidence is based on a
conversation between safety engineer Frank Domasky and union
walkaround representative John Ellis (who did not testify at
trial) a week before the hearing. On this basis I credit
inspector Remington's testimony over that of Respondent.
On the other hand, I do not find this violation to be
significant and substantial. The fourth element in the
Commission's test for "S & S" violations is that there is a
reasonable likelihood that an injury that is likely to result
will be of a reasonably serious nature, Mathies Coal Company,
6 FMSHRC 1 (January 1984). Given the fact that the defect in
this ladder was on the bottom rung, it is difficult to envisi on
anyone getting up high enough on it to be injured seriously. The
most likely scenario is that as soon as one put their foot on the
ladder the support leg would break off. At worst the miner using
the ladder would be likely to fall to same level on which he was
standing.
As there is not really any evidence regarding the degree of
negligence for this violation and as I deem the gravity of the
violation to be moderate, I conclude that a $75 civil penalty is
appropriate considering all six of the criteria in section llO(i)
of the Act.
Docket PENN 93-445
Coal Dust Accumulations at the overland belt transfer stations
On May 19, 1993, MSHA inspector Frank Terrett examined the
overland conveyor belt at the Warwick mine (Tr. 187) 7 • At
various points along this belt there are 6 transfer stations,
which are two-story buildings housing a drive motor to provide
power to the conveyor. In 5 of these transfer stations Terrett
observed significant accumulations of coal dust on the surfaces
of structures, enclosures and motors. He therefore issued a
citation alleging a violation of· 30 CFR 77.202 for each one· of
these belt transfer stations (Exhibits Gl7-22, Citations 365908387).

7 "0verland"

is mistranscribed as "overlaying" at Tr. 187
(see Exh. G-17, block 15; G-22, page 1) •

.2 45 9

These citations were characterized as "significant and
substantial".
Inspector Terrett found an electrical box open at
the transfer station #4 and concluded that a fire was reasonably
likely to occur in the continued course of normal mining
operations (Tr. 206-07, Exhs. G24-28) 8 •
A termination date of May 21, 1993, was established by
Terrett for each of the five violations (See, e.g. box 16 of
citation 3659086, Exh G-17, page 2). On May 24, Terrett returned
to the mine. He found that transfer houses 1, 2, & 3 had been
cleaned up but that the coal dust accumulations in transfer
houses 4 and 5 hadn't been touched (Tr. 199-200). The electrical
boxes in these two houses were open (Tr. 200-01, Exh. G-27, G28). Terrett then issued Respondent orders 3659098 and 3659099
alleging a failure to abate the citations issued for houses 4 and
5 on May 19 (Exh. G-17, G-18).
The only evidence as to the reasons for the failure to abate
is the inspector's account of his conversation with preparation
plant supervisor Tom Cole (Tr. 200, Exh. G-23). Cole told
inspector Terrett that the two hourly employees assigned to clean
up the transfer houses had reported the task accomplished.
Cole
thus assumed the citations had been abated (Tr. 200).
Respondent concedes that there were dust accumulations in
the areas cited on May 19, 1993, that needed to be cleaned
(Tr. 229-30).
It also appears to concede that transfer houses
4 and 5 were not cleaned up when inspector Terrett returned on
May 24.
New Warwick, however, takes issue with the inspector's
characterization of the gravity of the violations, and
particularly with his characterizations of the original citations
as significant and substantial9 • Terrett assumed that in the

8

Terrett testified that the boxes at all the transfer
stations were open on May 19 (Tr. 191).
However, I find that
the Secretary has established only that the box at transfer
station #4 was open. Terrett issued a citation for the
electrical box at station #4, but not any of the others on that
date (Tr. 205-07). Moreover, his field notes of May 19 indicate
that the power box at station #4 was open, but does not mention
the same condition at the other transfer stations (Exh. G-22).
9Respondent's brief also argues that section 77.202 was not
violated because the Secretary failed to establish that coal dust
existed or accumulated in dangerous amounts. I deem safety
director Rodavich's admission that the dust needed to be cleaned
up (Tr. 230) as a concession that dust existed in dangerous
amounts within the meaning of the standard.

24 60

case of a fire resulting from the violations, that employees
would have to jump from the sec ond floor of the transfer house to
escape (Tr. 192, 203).
Respondent's Safety Direc tor Ro d Rodavich contends that
there was no likelihood of an employee being trapped in the
transfer house.
I credit Rodavich's testimony that each transfer
house had 2-3 exits on the upper level as well as 3 on the bottom
level (Tr. 227-229). Therefore, an employee would not have to
jump from the second floor to escape a fire.
I find that the Secretary has not established these
violations to be significant and substantial. Step 3 in the
Commission's test for a significant and substantial violation is
whether there is a reasonable likelihood that the hazard
contributed to will result in an injury. Step 4 is whether there
is a reasonable likelihood that the injury will be of reasonably
serious nature, Mathies Coal Co., 6 FMSHRC 1 (January 1984).
Since the Secretary's theory of "S & S" is based largely on the
need for an employee to jump from the second story to escape a
fire resulting from the coal dust accumulations in the transfer
house, I conclude these violations were not "S & S" .
Respondent appears to have no argument with which it can
legitimately challenge the validity of the section 104(b) orders.
To establish the validity of such .an order the Secretary need
only show that the condition originally cited still existed at
the time the 104(b) order was issued, and that the time allowed
for termination had passed. Martinka Coal Company, 15 FMSHRC
2452 (December 1993); Mid-Contlnent Resources, Inc., 11 FMSHRC
505 (April 1989).
The fact that the employees assigned to clean-up the cited
transfer houses may not have followed their instructions is not a
defense to the orders, or even a mitigating factor in considering
the appropriate penalty to be assessed.
In Rochester &
Pittsburgh Coal Company, 13 FMSHRC 189 (February 1991), the

I decline to address the issue as to whether the elements of
a violation of section 77.202, the coal dust accumulation
standard for surf ace coal mines and surf ace areas of underground
coal mines, are different than the elements of a violation of the
coal dust accumulation standard for underground coal mines at
75.400, and whether the Secretary's direct case met this
additional burden, if any exists.

2461

Commission held that a rank-and-file miner's negligent or willful
conduct can be imputed to a mine operator for the purpose of
making unwarrantable failure findings. The logic of that
decision applies to this case where Respondent delegated its
statutory responsibility to timely abate the original citations
to rank-and-file miners.
This record is also devoid of any evidence on which I could
conclude that Respondent had a reasonable expectation that the
employees would clean the transfer houses as instructed. There
is no indication, for example, that these employees had a work
history demonstrating such reliability that management was
justified in assuming that the task had been completed. Indeed,
if the employees were told that Respondent was required by MSHA
to have the transfer houses cleaned by May 21, it is difficult to
believe that they cavalierly ignored their instructions and
risked disciplinary action.
Civil Penalties for the Coal and Coal Dust Vio l ations in the
Transfer House
The Secretary proposed a $267 civil penalty for each of the
original section 104(a) citations relating to coal and coal dust
accumulations in the transfer houses. Given the fact that I find
that the gravity of these violations was not as great as believed
by MSHA, I assess a $100 penalty each for citations 3659083,
3659084, and 3659085, taking into account the six criteria in
section llO(i) of the Act.
With respect to section 104(b) orders 3659098 and 3659099,
and the original citations issued for the accumulations in those
transfer houses, I assess civil penalties of $750 for each
transfer house.
I find that the gravity of these violations
warrants a penalty lower than the $1,457 proposed by MSHA.
However, I believe Respondent's negligence in failing to abate
the original citations by the termination date warrants a
significantly larger penalty than that assessed for the transfer
houses in which the original citations were timely abated.
Battery Charger improperly ventilated
On May 20, 1993, MSHA representative Gerald Krosunger was
inspecting a longwall section at the Warwick mine at which
production was finished and miners were recovering shields
(Tr. 245). He detected the odor of batteries and walked to an
area in which he saw a battery-powered scoop being charged in the
middle of an entryway (Tr. 233, 235). Krosunger then released a

2462

cloud of chemical smoke which drifted in the direction of the
longwall section from which he had just travelled (Tr. 235).
As the result of these observations Krosunger issued
Respondent citation 3659432, alleging a significant and
substantial violation of 30 CFR 75.340(a) (1). That regulation
requires that battery charging stations be ventilated by intake
air that is coursed into return air or to the surface. The air
may not be used to ventilate working places.
Respondent at page 19 of its brief argues that the standard
was not violated because the longwall area was not a working
place as defined in 30 C.F.R. 75.2(g) (2). That regulation
defines ''working place" as "the area of a coal mine inby the last
open crosscut." Last open crosscut is defined in section
75.362(c) (1) as "the crosscut in the line of pillars containing
the permanent stoppings that separate the intake air courses and
the return air courses".
While I agree with Respondent that the Secretary has fail ed
to establish that the longwall area in which Krosunger smelled
the battery fumes was a "working place" within the meaning of the
above-mentioned definitions, I conclude that these definitions do
not apply to the prohibition against ventilating working places
with air that has ventilated battery charging stations in section
75.340(a) (1).
Section 75.340(a) (1) is intended to protect miners if a fire
originates at a battery charging $tation, 57 Fed. Reg. 20888
(May 15, 1992). The purpose of this requirement would be
seriously undercut if I were to interpret it to allow miners to
be exposed to air that had passed over a battery charging station
simply because the area in which they were working did not meet
the criteria of 75.2(g) (2). The Commission has in the past
declined to interpret definitional terms in way that defeats the
underlying purposes of a standard, Jim Walter Resources, Inc.,
11 FMSHRC 21 (January 1989). I decline to so in the instant case
and conclude that the air that passed over the scoop ventilated a
working place within the meaning of 75.340(a) (1).
Michael Smith, Respondent's longwall foreman, appears to
concede that the scoop was not being charged in an appropriate
location (Tr. 274).
However, both Smith and New Warwick safety
director Rod Rodavich challenge the inspector's contention that
air from the scoop was flowing towards the longwall section
(Tr. 263-65, 271-72, Exh R-1). As neither Rodavich nor Smith was
with inspector Krosunger when he performed his smoke cloud test,
I credit the inspector's testimony that the air from the scoop
was moving in the direction of the longwall (Tr. 268-69, 274).

2463

I therefore affirm the violation, concluding that the air from
the battery charger was ventilating a working place.
On the other hand I find that the Secretary has not
established that this viofation was significant and substantial.
Inspector Krosunger's opinion that an in j ury was reasonably
likely to occur was based large ly on his belief that in the event
of a fire, miners at the longwall wou ld have to exit the mine
through the entryway in whi c h the scoop was being charged (Tr.
236). However , I credit the testimony of safety director Rod
Rodavich that thi s entryway was neither a primary or alternate
escapeway, and that several alternative means of exit were
availab le for the miners at the longwall (Tr. 263).
The Secretary proposed a $362 civil penalty for this
violation. As I conclude that the gravity was considerably less
than the Secretary believed, I find that a $100 penalty is
appropriate given the six factors in section llO(i).
ORDER

Docket PENN 94-54
Order 3655504 is affirmed and a $2,000 civil penalty is
assessed .
Order 3655505 is vacated.
Order 3655519 is affirmed and a $1,000 civil penalty is
assessed.
Order 3655520 is affirmed and a $1,000 civil penalty is
assessed.
Citation 3655511 is vacated.
Citation 3655512 is vacated .
Citation 3667167 is affirmed as a non-significant and
substantial violation and a $75 civil penalty is assessed.
Docket PENN 93-445
Citation 3659083 is affirmed as a non-significant and
substantial violation and a $100 civil penalty is assessed.
Citation 3659084 is affirmed as a non-significant and
substantial violation and a $100 civil penalty is assessed.

2464

Citation 3659085 is affirmed as a non-significant and
substantial violation and a $100 civil penalty is assessed.
Citation 3659086 is affirmed as a non-significant and
substantial violation. Section 104(b) order 3659098 is affirmed.
A civil penalty of $750 is assessed for these two violations
combined .
Citation 3659087 is affirmed as a non-significant and
substantial violation . Section 104(b) order 3659099 is affirmed.
A civil penalty of $750 is assessed for these two violations
combined.
citation 3659432 is affirmed as a non-significant and
substantial violation. A $100 civil penalty is assessed.
Respondent shall pay the civil penalties totalling $5,975
for both dockets within 30 days of this decision.

~~~
~tQur J. Amchan

Administrative Law Judge
703 -756-6210

Distribution:
Linda M. Henry, Esq., Office of the Solicitor, u. s. Department
of Labor, Room 14480, 3535 Market ' st., Philadelphia, PA 19104
(Certified Mail)
Joseph A. Yuhas, Esq., 1809 Chestnut Ave., P.
Barnesboro, PA 15714 (Certified Mail)
/rb

2465

o. Box 25,

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

DEC 1 4 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDING
Docket No . LAKE 94-158-M
A.C. No. 12-00038 -05 510

v.
Mine : Ha rri s City
NEW POINT STONE COMPANY, INC.
Respondent
DECISION

Appearances:

Lisa A. Gray, Esq., Office 'of the Solicitor,
U. S. Department of Labor, Chicago , Illinois,
for Petitioner;
Kenneth T. Wanstrath, President, New Point
stone Company, Inc., Greensburg, Indiana,
Pro Se, for Respondent.

Before:

Judge Amchan

On October 13, 1993 , MSHA representative Jerry Spruell
inspected Respondent's Harris City, Indiana, stone quarry.
He observed that on one of the c ompany's Mack dual axle haul
trucks a brake chamber was missing (Tr. 14-15). The brake
chamber is an air-actuat~d diaphragm which causes the brake
shoes to contact the stopping surface of the wheel drum (Tr. 23).

of

Respondent's truck has· a brake chamber for each
the
six wheel assemblies. Two of the wheels are connected by an
axle on the front of the truck. There are two axles on the· r ear
of the truck with four tires on each axle. The brake ' chamber had
be·e n removed from the right front tires of the rear dua·l axles
(or the middle tires on the right) (Tr. 26).
Scott Moffitt, a mechanic and truck driver employed by
Respondent, had removed the brake chamber in question a month,
or month· and a half, earlier at the direction of forem'e n Russ
Wanstrath and Rod Borgman (Tr. 40). The chamber was removed
because it was leaking air which could have caused the truck
to have breaking problems (Tr. 45). After removal, th~ lin·e ·
to this chamber was plugged to prevent further leaks (Tr. 45).

2 466

on the day of the inspection, MSHA representative Spruell
observed the truck stop on level ground without difficulty
(Tr. 15). Mr. Moffitt had driven the truck approximately once
or twice a week since the brake chamber had been removed
without experiencing any braking problems (Tr. 41-42). Foreman
Rod Borgman had also driven the vehicle with the brake chamber
removed and was able to make a sudden stop to avoid hitting a
truck that pulled out in front of him (Tr. 55, 58, 60).
Additionally, the primary operator of the truck, Richard
Van Dyke, apparently experienced no braking problems during
this period (Exh. R-3).
Inspector Spruell issued Respondent Citation No. 4308134
pursuant to section 104(d) (1) of the Act. This citation alleged
a ''significant and substantial" violation of 30 c. F. R.
56.14101(3) due to Respondent's "unwarrantable failure" to
comply with the regulation. The cited standard requires that
all braking systems on self-propelled mobile equipment "be
maintained in functional condition."
Were the brakes on Respondent's Mack Haul Truck
maintained in functional condition?
Inspector Spruell opined that the absence of the one brake
chamber could cause the truck to swerve .when the brakes are
applied in a panic situation (Tr. 18) and would increase the
distance within which the vehicle would stop (Tr. 20). I decline
to credit this testimony as there is nothing in the . record that
would indicate that the inspector has sufficient expertise to
determine the impact of operating the truck without one of
six braking chambers. I note that the Secretary apparently did
not contact the manufacturer to determine the effect of this
alteration.
The Secretary also contends that a braking system with a
missing component is per ~ not in functional condition. He
relies in part on a directive in the MSHA Program Policy Manual.
The Manual ·directs that a citation should be issued for violation
of section 56.14101 if a component or portion of any braking ·
system is riot maintained in functional condition--even if the
braking system is capable of stopping and holding the . equipment
with its typical load on the maximum grade it travels,
(Secretary's brief at page 4, citing MSHA Program Policy Manual,
Vol. IV, P~~t 56/57, p. 55a).
Respondent, on ~he other hand, contends that the · braking
system worked acceptably and that there is no evidence that the
missing brake chamber presented a hazard to its employees.
One reason advanced for this contention is that this · truck is
driven only within the quarry, at speeds of 10 to 15 miles
per hour, while it was manufactured to be driven on the open
highway (Tr. 43, 63-64).

246 7

On balance, I conclude that the Secretary has the better
argument and affirm the citation. First of all, the Commission
recognizes the MSHA Program Policy Manual as evidence of that
agency's policies, practices and interpretations, to which it
gives deference in interpreting MSHA regulations, Dolese Brothers
Company, 16 FMSHRC 689, 692-93, and n. 4 (April 1994). I find
that the Secretary's interpretation is a reasonable one which
furthers the safety objectives of the Act.
I therefore defer to
that interpretation.
Further, it is inconsistent with the objectives of the Act
to sanction the prolonged use of equipment on which the braking
system has been altered without some reliable evidence that this
practice poses no hazard to employees. Although I find Inspector
Spruell's conclusions somewhat speculative, I have the same view
of the opinions of Respondent's witnesses, who also have not been
shown to have sufficient credentials to determine that the
removal of a braking chamber posed no hazard.
One can only assume that had it not been for the instant
citation the truck in question would have been operated with the
missing brake chamber indefinitely. Both Respondent's mechanic,
Moffitt, and foreman Borgman recognize that this is not a sound
practice (Tr. 44, 60-61). I therefore conclude that there is a
presumption that a braking system is not in functional condition
when a component has been removed, unless this presumption has
been rebutted by reliable evidence from the manufacturer, or
equally competent authority, that it is safe to operate the
vehicle with the missing component.
Unwarrantable Failure
The Secretary contends that the instant citation was the
result of Respondent's unwarrantable failure to comply with the
regulation. He argues that "unwarrantable failure" is established by the fact ' that the brake chamber was intentionally
removed at the direction of management and that the truck in
question was used with the brake chamber missing for an extended
period of time.
The Commission has held that the term "unwarrantable
failure" means aggravated conduct amounting to more than ordinary
negligence, Emery Mining Corp., 9 FMSHRC 1991, 2001 (December
1987). While it is true that the brake chamber on the cited
truck was removed intentionally, I conclude that Respondent's
conduct was not sufficiently "aggravated" to constitute an
unwarrantable failure for the following reasons.
First, it has not been established that operating the truck
with one of six brake chambers missing was in fact dangerous.
Secondly, there is no evidence from which I would conclude that
Respondent should have suspected that its conduct exposed its

2468

employees to a hazard. Finally, only reference to the MSHA
Program Policy Manual would have apprised Respondent of the
fact that MSHA regarded operation of the truck under. these
conditions to violate its regulations.
Significant and Substantial
The commission's formula for a "significant and substantial"
violation was set forth in Mathies Coal Co., 6 FMSHRC 1 (January
1984):
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 saf ety--contributed to by the
violation; (3) a reasonable likelihood that the hazard
contributed to will result in an injury; and (4) a
reasonable likelihood that the injury in question will
be of a reasonably serious nature .
Since I ha~e previously concluded that the inspector's
testimony is insufficient to persuade me of the hazards resulting
from the violation, I conclude that the Secretary has failed
to meet steps 2 - 4 of the Mathies test . I therefore affirm
Citation No. 4308134 as a non-significant and substantial
violation of section 104(a) of the Act.
Assessment of Civil Penalty
The Secretary proposed a civil penalty of $2,500 for this
citation. While I have vacated the unwarrantable failure
characterization of the violation, I conclude that Respondent
exhibited considerable negligence in operating the truck in
question for a month or month and a half after altering the
braking system installed by the manufacturer.
on this record, it is difficult to determine the extent of
the gravity of the violation. Respondent quickly abated the
violation. In the absence of any evidence to the contrary, I
conclude that Respondent is a relatively small operator and that
its prior history of violations would not lead me to impose a
higher penalty than I would otherwise. Finally, there is nothing
in the record to indicate that a penalty of $2,500 or less would
threaten Respondent's financial viability.
After considering these factors pursuant to section llO(i)
of the Act, I assess a civil penalty of $500. I arrive at this
figure primarily on the negligence factor. I deem it very
important for the safety of miners that operators not alter
safety equipment such as brakes and then assume that their

24 69

equipment poses no hazard to their employees. I conclude that
a $500 penalty is an appropriate deterrent to such conduct.
Assessment of this penalty provides this operator and others an
incentive to quickly repair such safety equipment, or at least
establish through competent authority that operation of their
equipment with the alteration does not compromise the safety of
miners.
ORDER

Citation No. 4308134 is affirmed as a non-significant and
substantial violation of section 104(a) of the Act. Respondent
shall pay the assessed civil penalty of $500 within 30 days of
this decision.

~~{~f::~

Administrative Law Judge
Distribution:
Lisa A. Gray, Esq., Office of the Solicitor, u. s. Department
of Labor, 230 S. Dearborn St., 8th Floor, Chicago, IL 60604
(Certified Mail)
Kenneth T. Wanstrath, President, New Point Stone Co.,
992 s. County Rd., 800 E., Greensburg, IN 47240 (Certified Mail)
/lb

2470

FEDERAL MlNE SAFETY AND HEALTH R£VIEW COMMISSION
1730 K STR.E£T, N.W., 6TH FLOOR
WASHINGTON, D.C. 20006

lDEC 1 4 1994
CIVIL PENALTY PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
HOMER CITY COAL PROCESSING
CORPORATION,
Respondent

Docket No. PENN 94-591
A. C. No. 36-06475- 03542
Homer City Coal
Processing Plant

:

QBDER ACCEPTING APPEARANCE
DECISIQN APPROVING SETTLEMENT
QRDER TQ MODIFY
QRDER TO PAY
Before:

Judge\ Merlin

The penalty petition in the above-captioned case was filed
on behalf of the Secretary by a " Conference and Litigation
Representative", hereafter referred to as a CLR. I n the cover
letter to the petition the CLR advises that he is an employee of
the Mine Safety and Health Administration who has been trained
and designated as a CLR and is authorized to represent the
Secretary in accordance with an attached Limited Notice of
Appearance.
In the notice the CLR states that he is authorized
to represe nt the Secretary in all prehearing matters and that he
may appear at a hearing if an attorney from the Solicitor 's
office is also present.
Subparagraph (4) of section 2700. 3 (b) of the Commission's
regulations, 29 C .F.R. § 2700.3(b) (4), provides that an
individual who is not authorized to practice before the
Commission as an attorney may practice before the Commission as a
representative of a party with the permission of the presiding
judge .
In reviewing this matter, note is taken of the· fact that
more than 5,000 new cases were filed with the Commission in
Fiscal 1994. Obviously, a caseload of this magnitude imposes
strains upon the Secretary's resources as well as those of this
Commission.
It appears that the Secretary is attempting to
allocate his resources in a respons ible matter. Therefore, I
exercise the discretion given me by ·the regulations, cited above,
and determine that in this case the CLR may represent the
Secretary in accordance with the notice he has filed.
The CLR has filed a motion to approve settlement for the one
violation in this case. A reduction in the penalty from $94 to
$63 is proposed. The CLR also requests that the citation be
modified to reduce negligence from moderate to low. The
violation in thi s case was issued because fine coal and float
2471

coal dust accumulated below the No. 7 conveyor in the preparation
plant. According to the CLR, the operator was aware of the
accumulation problem in this area and was prepared . to fix it
during the first belt conveyor shutdown. In the interim, the
operator increased the .number of times the area was to be cleaned
from one to three times a shift. The CLR further advises that
the area had been cleaned three hours before the issuance of the
citation and an hour prior to the citation the area was examined
and reported to be in good condition.
I have reviewed the documentation and representations made
in this case, and conclude that the proffered settlement is
appropriate under the criteria set forth in section llO(i) of the
Act.
WHEREFORE, the motion for approval of settlement is GRANTED.
It is ORDERED that Citation No. 3960774 be MODIFIED to
reduce negligence from moderate to low.
It is further ORDERED that the operator PAY a penalty of $6 3
within 3 0 days of this decision.

---+-(_,--~~ v~
Paul Merlin
Chief Administrative Law Judge
Distribution:
Gerald F. Moody, Jr., Conference and Litigation Representative,
u. s. Department of Labor, MSHA, 200 James Place Monroeville, PA
15146
Mr. David Hartley, Homer City Coal Processing Corporation, P.
Box 47, Homer City, PA 15748
Mr. Kenneth Cecconi, UMWA, 112 Apache Drive, Indiana, · PA
/gl

2472

o.

15701

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
t 730 K snlll, N.W., 6lli FLOOR
WASHINGTON, O.C. 20006

.DEC J_6 1994.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CONSOL PENNSYLVANIA COAL
COMPANY,
Respondent

..

.
.
.
.
.:

CIVIL PENALTY PROCEEDING
Docket No. PENN 95-11
A. C. No. 36-07230-03761
Bailey Mine

ORDER ACCEPTING APPEARANCE
ORDER OF DISMISSAL
Before:

Judge Merlin

The penalty · petition in the above-captioned case was filed
on behalf of the secretary by a "Conference and Litigation
Representative", hereafter referred to as a CLR. In the cover
letter to the petition the CLR advises that he is an employee of
the Mine Safety and Health Administration who bas been trained
and designated as a CLR and is •utborized to represent the
Secretary in accordance with an attached Limited Notice of
Appearance. In the notice the CLR states that be is authorized
to represent the secretary in all prehearing matters and that he
may appear at a bearing if an attorney from the Solicitor•s
office is also present.
Subparagraph (4) of section 2700.3(b) of the Commission•s
regulations, 29 C$F.R. § 2700.3(b) (4), provides that an individual who is not authorized to practice before the commission as an
attorney may practice before the commission . as a representative
of a party with the permission of the presiding judge. In
reviewing this matter, note is taken of the fact that more than
s,ooo new cases were filed with the commission in Fiscal 1994.
Obviously, a caseload of this magnitude imposes strains upon the
secretary•s resources as well as those of this Commission. It
appears that the secretary is attempting to allocate his resources in a responsible matter. Therefore, I exercise the
discretion given me by the regulations, cited above, and determine that in this case the CLR may represent the secretary in
accordance with the notice he has filed.
The CLR has filed a motion to dismiss because KSKA has
vacated the . one violation involved in this matter. The CLR
has attached a copy of MSHA's subsequent action vacating the
citation.

2473

In light of the foregoing, it is ORDERED that this case be
DISMISSED.

Paul Merlin
Chief Administrative Law Judge
Distribution:

(Certified Mail)

Gerald F. Moody, Jr., conference and Litigation Representative,
u. s. Department of Labor, MSHA, 200 James Place Monroeville, PA
15146

Elizabeth s. Chamberlin, Esq., Consol Inc., 1800 Washington Road,
Pittsburgh, PA 15241
/gl

24 74

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

DEC 2 O1994
CONTEST PROCEEDINGS

T. J. McKNIGHT, INC.,
Contestant

v.

Docket No. SE 94-51-RM
Citation No. 4094591;
7/29/93

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

Docket No. SE 94-52-RM
Citation No . 4094593;
7/29/94

' .

Clarks Mine
Mine ID 31-02009-QFX
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION {MSHA) ,
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. SE 94-262-M
A. C. No. 31-02009-05501 QFX
Clarks Mine

T. J. McKNIGHT, INC.,
Respondent
DECISION APPROVING SETTLEMENT

Appearances:

Before:

Leslie John Rodriguez, Esq., Office of the
Solicitor, u. s. Department of Labor,
Atlanta, Georgia, for the Secretary;
Michael c. Lord, Esq., Maupin, Taylor, Ellis
& Adams, P.A., Raleigh, North Carolina, for
Contestant/Respondent.

Judge Maurer

These consolidated proceedings concern two Notices of
Contest filed by T. J. McKnight, Inc., pursuant to section lOS(d)
of the Mine Safety and Health Act of 1977, challenging the
legality of two section 104{a) "S&S" citations alleging
violations of the mandatory safety standards found at 30 C.F.R.
SS 56.14100(b) and 56.7005, respectively. The civil penalty case
concerns a proposed civil penalty assessment of $7000, for the
alleged violations. Pursuant to notice, a hearing was held in
Raleigh, North Carolina, on September 15-16, 1994, wherein the
parties appeared and presented evidence to support their

2475

respective pos i tions. At the conclusion of the hearing, I
scheduled November 15, 1994, as the filing date for the
simultaneous submission of proposed findings of fact and
conclusions of law. At the request of the Secretary, that filing
date subsequently was extended to December 1, 1994.
However, in lieu of filing the requested post-hearing
submissions, on December 9, 1994, the parties, pursuant to
Commission Rule 31, 29 C.F.R. § 27 00 .31, filed a joint motion t o
approve settlement of all matters in issue in these proceed i ng s .
The Sec retary move s to vacate Citation No. 4094593, conteste d in
Docket No. SE 94-52-RM, and to dismiss so muc h of t~e Peti t ion
for Assessment of Civil Penalty as is based thereon, on the
ground that the evidence now available does not sustain the
viol a tion. The Secretary also proposes to reduce the proposed
assessment for Citation No. 40 9 45 91 from $2000 to $ 500 , and t o
reclassify the negligenc e facto r from "low" to "no" neglige nce,
on the grounds that the Sec retary now feels the company did
exercise due diligence.
I have considered the representations and documentation
submi tted in these cases, and I conclude that the proffered
settlement is appropriate under the criteria set forth in
section llO(i) of the Act.
WHEREFORE, the motion for approval of settlement is GRANTED,
.and it is ORDERED that res pondent pay a penalty of $500 with i n
30 days of this decision.

aurer
s rative Law Judge
Distribution:
Michael c. Lord, Esq., Maupin, Taylor, Ellis & Adams, P.A.,
3200 Beechleaf Court, P. o. Drawer 19764, Raleigh, NC 27619
Leslie John Rodriguez, Esq., Office of the Solicitor, · u. s.
Department of Labor, 1371 Peachtree Street, NE, Room 339,
Atlanta, GA 30367
dcp

2 4 76

PBDBRAL KINE SAPBTY AND BBALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW Jll>GES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

.DEC 2 1199,
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.

JIM WALTER RESOURCES, INC.,
Respondent

.. CIVIL PENALTY PROCEEDINGS
..: Docket No. SE 94-74
: . A.C. No. 01-01401-03987
:
:

Docket No. SE 94-84
A.C. No. 01-01401-03988

:

Mine No. 7

.
: Docket No. SE 94-115
.: A.C. No. 01-01401-03993

J>ECISION
Appearances:

William Lawson, Esq., Office of the Solicitor,
U.S. Department of Labor, Birmingham, Alabama,
for Petitioner;
R. Stanley Morrow, Esq., Jim Walter Resources ,
Inc . , Brookwood, Alabama, for Respondent.

Before:

Judge Amchan

These cases arise from several MSHA inspections of
Jim Walter Resources, Inc.•s (Respondent) No. 7 Mine in
Tuscaloosa County, Alabama, in the summer of 1993. The
primary issues concern the maintenance of Respondent's
conveyor belts and clean-up of coal dust accumulations.
Docket No. SE 94-74
Conveyor Belt Alignment and Damaged Belt System
Components
On August 17, 1993, MSHA Inspector Kirby Smith issued
Order No. 3015993, pursuant to section l04(d)(2) of the Act.
~he order alleged a violation of 30 C.F.R. S 75.1725(a) which
requires that mobile and stationary machinery be maintained
in safe operating condition and that unsafe machinery or
equipment be immediately removed from service.

2477

The order was issued due to a number of defects observed
by Inspector Smith while inspecting the East A conveyor belt.
This belt was out of alignment and was running side to aide
cutting into the metal supporting structure of the conveyor
at several places (Tr. 115-118). A number of the rollers on
which the belt moves were dislodged and/ or damaged (Tr. 77,
116-17) 1 • Some rollers were stuck in mulk (a mud-like mixture
of coal dust and water) (Tr. 11; · 118•19).
Smith concluded that the friction of the stuck rollers
and from the belt rubbing against the metal frame of the
conveyor made it highly likely that a fire would occur along
the belt line {Tr. 120-21). He therefore concluded that the
vioiation was. "significant and substantial {S & S)."
The inspector also concluded that the violation was
due to the "unwarrantable failure" of Respondent to comply
with the cited regulation. He made this determination because
most of the East A conveyor belt was located next to the main
track which carried Respondent's miners to their work stations
and because the area was subject to preshift examinations
required by MSHA (Tr. 115, 122-24).
Inspector Smith does not know how long the damaged rollers
be observed had been defective, nor how long the East A belt had
been out of alignment and cutting into the supporting structure
(Tr. 169-74, also see Tr. 87). He concedes that the conveyor
belt could sever a piece of the supporting structure in a very
short period of time and that belt rollers are damaged or become
stuck on a recurring basis (Tr. 171-74). On the other hand, the
record establishes that the conditions cited by Smith were
persistent at Respondent's mine.
Two days prior to the issuance of Smith's order, Keith
Plylar, Chairman of UMWA Local 2397's Safety and Health
Committee, discussed these conditions with mine management.
He complained to Larry Morgan, the dayshift mine foreman,
about small smoldering fires that were occurring where the
East A belt was rubbing against the belt structure (Tr. 41-45,
63). The belt had been improperly aligned for a least a week
prior to the issuance of Order No. 3015093 (Tr. 49-50, 63).
However, it is possibl~ that the alignment was corrected
during that week and that it then recurred (Tr. 68-70).
Respondent concedes that section 75.172S(a) was violated,
but takes issue with the "S & S" and "unwarrantable failure"
characterizations contained in Order No. 3015093 (Respondent's
2when abating this order, Respondent replaced approximately
200 rollers on the cited conveyor, as well as "training" or
aligning the belt (Tr. 124-25, Order No. 3015093, Block 17).
2 478

brief in Docket No. SE 94-74 pages 3-5, 7-8). An "unwarrantable
failure" is aggravated conduct by a mine operator constituting
more than ordinary negligence, Emery Mining Corp., 9 FMSHRC 2007
(December 1987).
The Commission formula for a "S & S" violation was set
forth in Mathies Coal Co., 6 FMSHRC 1 (January 1984):
In order to establish that a violation of
a mandatory safety standard is significant and
substantial under National Gypsum the Secretary
of Labor must prove: (1) the underlying violation
of a mandatory safety standard; (2) a discrete
safety hazard--that is, a measure of danger to
safety--contributed to by the violation; (3) a
reasonable likelihood that the hazard contributed
to will result in an injury; and (4) a reasonable
likelihood that the injury in question will be of
a reasonably serious nature.
In challel\ging the "unwarrantable failure" characterization, the company first points out that the East A conveyor
was approximately 5, 000 feet long (Tr. 170). Each section of
the belt has three top rollers spaced five feet apart and
one bottom roller (Tr. 169). Bottom r oller s are spaced
10 feet apart (Tr. 169).
Respondent calculates that the 200 defective rollers found
when the instant order was abated indicates that 95 of the
rollers on the East A belt were operating properly (Respondent's
brief at 4). Respondent contends that the dimensions of the belt
and the propensity of belt components to malfunction makes it
impossible to judge their conduct "aggravated" on this
record.
MSHA and the union witnesses contend that the Respondent's
conduct is "unwarrantable" because it has no set procedure for
maintaining and repairing the Eas t A belt (See e.g. Tr. 51).
The Secretary suggests that Respondent is hesitant to_repair
defective rollers because it would have to shut down this
conveyor, which otherwise runs 24 hours a day (Tr. 52, 200,
223-24). By letting the belt fall into the state of disrepair
that existed on August 17, 1993, the Secretary argues that
Respondent failed to maintain the belt as would a prudent mine
operator.
Respondent contends that the Secretary has simply failed to
meet its burden of proving "unwarrantable failure." Respondent
put on no witnesses regarding this order but submits that there
is simply no evidence that this violation was due to more than
ordinary negligence. I agree with Respondent.

2 479

To establish aggravated conduct, the Secretary must
establish the standard of care from which the cited mine
operator departed. The record in this case is completely
amorphous in this regard. There is no question that there
were many defective rollers and that the belt was misaligned,
posing some degree of a fire hazard. However, I am left to
guess at the reasonableness of the steps taken or not taken
to correct these defect s (See e.g., Tr. 54-55).
It may have been preferable for Respondent to introduce
evidence establishing that it was acting prudently in maintaining the East A beltline, but the lack of evidence as to
what constitutes prudent behavior inures to the detriment of
the Secretary. Inspector Smith conceded that Respondent might
not be acting imprudently if it failed to shut down the East A
belt every time a single roller gets stuck--even though a single
defective roller can cause a fire (Tr. 170-74). I am therefore
left in the dark as to the circumstances under which a reasonably prudent employer would shut down the belt line, and how
far beyond such circumstances were the conditions cited on
August 17, 1993. I therefore vacate the characterization of
"unwarrantable failure" contained in Order No. 3015093.
On the other hand, I conclude that the Secretary has
established this violation to be "S & S." Given the number of
defective rollers, the recurring nature of misalignments of
the East A belt, and that Respondent's No. 7 Mine is a gassy
mine, I conclude that it is reasonably likely that in the
continued course of normal mining operations a fire would
occur and such fire could result in serious injury.
I therefore affirm a "S & S" violation of section 104(a)
of the Act, and assess a $2,000 civil penalty2 • This figure is
derived primarily on the basis of the gravity of the violation,
which I consider quite high given the number of defective rollers
on the date of violation and the methane liberation of the No. 7
Mine. Respondent is a medium-large operator (Tr. 13) and a
$2,000 penalty will not affect its ability to stay in business.
The record indicates the violation was timely abated in good
faith.
The two remaining: criteria that must be considered in
assessing a civil penalty under section llO(i) are the operator's
history of previous violations and negligence. I find nothing in
the record regarding t~ese factors that influences this penalty
assessment.

2

A $7,000 civil penalty was proposed by the Secretary.

24 80

Order 3015094. Float Coal Dust in East A Belt
Conveyor Entry
on August 17, 1993, Inspector Smith also found accumulations of float coal dust throughout the 4900 feet of the
East A conveyor belt entry (Tr. 78-79, 126-28) 3 •
Some of
this dust was covering rock dust and some of it was floating
in puddles of water on the mine floor (Tr. 125-26). The extent
of the accumulation is indicated by the fact that Respondent
used six pods of rock dust to abate the condition. One pod
contains several tons of rock dust (Tr. 137).
As the result of his observations, Inspector Smith issued
Order No. 3015094, alleging a violation of 30 C.F.R. § 75.400
and section 104(d) (2) of the Act. The regulation requires float
coal dust and other combustible materials to be cleaned up and
that they not be permitted to accumulate on active workings or
electrical equipment.
The order was characterized as "S & S."
Inspector Smith
concluded that an ignition of the float coal dust was reasonably
likely (Tr. 130~35). He opined that frayed chords and fibers of
the conveyor belt which were being heated by friction could fall
to the mine floor and ignite the coal dust. The belt fibers were
being heated in places where they were caught in rollers and
where the belt was rubbing against the conveyor structure
(Tr. 133-35).
The determination of "unwarrantable failure" for this order
was predicated on the fact that two-thirds of the East A belt
was next to the track entry and therefore readily visible to
everyone, including management officials (Tr. 136-37). Further,
th~ accumulation of float coal dust was noted in Respondent's
pre-shift examination book and no effort to abate the condition
was underway when Smith observed the violation (Tr. 138).
I conclude that the violation herein was "S & S" as alleged.
I find that the likelihood of the coal dust being ignited by
heated belt fibers and the fact that this is a gassy mine is a
sufficient "confluence of factors" to establish a reasonable
likelihood of an accident and serious injury, Texasgul·f . Inc.,
10 FMSHRC 498, 501 (April 1988).
A "S & S" finding is not precluded by the fact that the
East A belt had both a carbon monoxide detection system and
point-type heat sensors (Tr. 67-68). The record establishes
that miners may be exposed to smoke from such fire before being
warned by either detection system (Tr. 70-71). Similarly, the
3

Float coal dust is defined as coal dust particles
that can pass through a No. 200 sieve, 30 C.F.R. § 75.400-1.

24 81

fact that a miner has yet to be injured by a belt line fire at
the No. 7 Mine does not mean that such injury · is not reasonably
lik~ly to occur in the future.
To hold otherwise would suggest
that . it is unimportant for operators to comply with sections
75.1725(a) and 75.400.
Similarly, I find that the Secretary has established an
"unwarrantable failure" to comply with section 75.400 on the
East A belt line. Commission precedent requires consideration
of three factors in determin i ng whether a violation of section
75.400 is the result o f an operator's unwarrantable failure.
They are:
(1) the extent of the violation; (2) the length of
time the violation has existed; and (3) the efforts of the
operator to prevent or correct the violation. Peabody Coal
~' 14 FMSHRC 1258 (August 1992); Mullins & Sons, 16 FMSHRC 192
(February 1994).
The extensive nature of the float coa l dust a c cumulations
along the East A beltline, the l ocation of this beltline next
to the track entry where it was read i ly visible to management,
and the fact that inspector Smith f ound nobody engaged in
cleaning up the accumulations, lead me to conclude that
"unwarrantable failure'' has been established in this case.
While it is true that coal dust accumulations can occur in
a relatively short period of time , the testimony of Inspector
Smith and miner Troy Henson that the dus t had accumulated
throughout the belt entryway, make it very unlikely that this
violation had just occurred when Smith observed it.
I find Respondent's exhibit JWR-1 to be insufficiently
specific to be given any weight in determining whether this
violation was due to unwarrantable failure 4 • This document
indica~es that two people were shoveling and sweeping loose
coal and coal dust on the East A belt on the day shift of
August 17, 1993. The exhibit does not indicate how long this
shoveling was done and in any event, I conclude from the extent
of the accumulations found by Inspector Smith that whatever
shoveling was performed was woefully inadequate to comply
with the regulation.
The Secretary· proposed a $7,000 civil penalty for Order
No. 3015094, I assess a penalty of $3,500. I conclude that
the gravity of the violation and Respondent's negligence as
reflected by the extensiveness of . the accumulations warrant
such a penalty in conjunction with consideration of the other
four penalty criteria.

4

This exhibit was admitted over the Secretary's objection
that it was not sufficiently authenticated (Tr. 161-68).

2482

Order No. 3015095; Coal and Coal Dust Accumulations
at the section 4 belt feeder
When Inspector Smith arrived at the section 4 belt feeder
on August 17, 1993, he found accumulations of loose coal and
coal dust six to 42 inches in depth, 20 feet wide, and 15 feet
long (Tr. 139-40). The belt feeder t ransfers the freshly mined
coal from the ram cars corning from the working face to a belt
conveyor (Tr. 139, 142-43). The section 4 belt feeder had been
improperly positioned so that some of the coal from the ram cars
was being dumped on the ground (Tr. 83-86, 139).
Smith issued Order No. 3015095 alleging a violation of
section 75.400 and section 104(d) (2) of the Act. I find that
the evidence falls short of that necessary t o establish an
"unwarrantable failure" to comply with the regulation. Although
the condition was noted in the preshift examination book
(Tr. 140) there is nothing in this record that would indicate
Respondent's failure to correct this condition was anything
more than ordinary negligence. This condition was not nearly
as extensive, nor as pers istent as that cited in Order
No. 3015094.
On the other hand, I conclude that the Secretary has
established this violation to be "S & S."
The tail rollers on
the conveyor were turning in loose material thus making ignition
reasonably likely (Tr . 140). Considering also that this is a
gassy mine, I find that the Mathies criteria have been satisfied.
.

"

I therefore affirm Order No. 3015095 as an "S & S" violation
of section 104(a) of the Act. I assess a civil penalty o~ $500,
rather than $5,000 as proposed by the Secretary. Respond~nt•s ·
negligence was not nearly as great as that assumed by the ·
proposed assessment. However , the accumulation was recorded in
the preshift book and there was no evidence of abatement meas~res
when Smith observed the violation (Tr. 141). This degree of
negligence and the gravity as reflected in the "S & S" determination warrant a penalty of $500, in conjunction with the.
other penalty criteria.
·
Citation No. 2807230; Improperly Secured Coyer Guard
On September 22, 1993, MSHA representative Terry Gaither
inspected the No. l longwall section at Respondent's No. 7 Mine.
He observed that the cover guard for the main sprocket drive · of
the face conveyor was held in place by only one bolt (Tr. 20-21).
Five other bolts for the guard had been sheared off (Tr. 20).
The guard is approximately 30 inches by 30 inches and
1 and 1/2 -·2 inches thick (Tr. 20-21). It weighs approximately
200 pounds and is situated about four feet abov.e ground level
(Tr. 22, 25-26).

2483

When Gaither observed the cover guard it was jumping up
and down from vibration and rocks were coming out from under
it and falling into a passageway (Tr. 20-23). Miners who passed
by the cover guard could have been struck by a rock, or been hit
on the foot by the guard if the last bolt sheared off and the
guard became dislodged (Tr. 23-33).
Gaither issued Respondent Citation No. 2807230 alleging
a "S & S" violation of 30 C.F.R. § 75 .17 25(a) . I affirm the
citation as issued and assess a $362 civil penalty, the same
as that proposed by the Secretary. I conclude that a conveyor
on which a heavy metal plate is secured by one of the six bolts
that are supposed to hold it in place is not "in safe operating
condition" as that term is used in the standard.
I conclude further that if the cited condition persisted in
the course of continued normal mining operations it is reasonably
likely that a miner will be struck by a rock or by the metal
plate itself and be seriously injured. A penalty of $362 is
appropriate given the gravity of the violation and Respondent•s
negligence in not r eplacing the bolts when five of the six had
sheared off. ·
Docket SE 94-84
This docket involves Order No. 3015087 issued on July 29,
1993, by MSHA Inspector Kirby Smith. The allegations in this
order are very similar to those in -Order No. 3015993 in Docket
No. SE 94-74, which was issued approximately three weeks later.
This order involves the condition of the "isolated" portion of
the East A conveyor belt at Respondent•s No. 7 Mine, rather than
that portion of the belt which is adjacent to the track entry.
Smith observed a number of places where the top rollers
of the conveyor belt had slid together, leaving portions of the
belt inadequately supported (Tr. 215). The inspector also
observed a number of the bottom rollers of the conveyor which
had been taken out of service by detaching one side from the
supporting structure (Tr. 215-16).
The belt was also improperly aligned so that it was rubbing
against its supporting structure (Tr. 195-96, 215). This caused
the belt to fray, with the fibers from the belt becoming
entangled in the rollers and creating friction. Since the chords
and fibers of the belt are flammable, Inspector Smith concluded
that a fire was highly likely. This and the fact that the air
from the beltline was ventilated to the working face caused the
inspector t~ characterize the violation as "S & S 11 (Tr. 221).

2484

The inspector characterized the violation as an
"unwarrantable failure" to comply with section 75.1725(a.)
.
for several reasons: (1) the belt line was subject to preshift
and onshift examinations; (2) a large number of rollers were
defective, and (3) his belief that the rollers taken out-ofservice indicated management awareness of the cited condit .i ons
(Tr. 219-2 0) .

.....

The conditions observed by inspector Smith on July 29,
1993, were persistent and recurring problems on the isolated
portion of the East A beltline. Union representative Keith
Plylar had discussed taem with management officials on numerous
occasions, including just three days prior to the issuance of
the instant order (Tr . 197-98). Plylar was told that the
East A belt was prone to misalignment because it was constructed
out of three different types of belting material (Tr. 2.02) .
I conclude that Respondent committed a "S & S" violation -0£
section 75.1725(a) as alleged, but that the Secretary has failed
to show that th~ . violation is the result of Respondent's
"unwarrantable failure" to comply. As with Order (now citation)
No. 3015993, the number of defective rollers and the persistence
of this problem in a gassy mine lead me to conclude that there
was a reasonable likelihood that this violation would contribute
to a serious injury.
Similarly~ I find the Secret~ry has failed to establish.·
Respondent's "aggravated" conduct in the absence of any ev.idence
indicating the measures that a reasonably prudent employerwoµld
have taken with regard to the East A -belt. Given the -fact that
one of the defective rollers could have started a fire, I believe
that the gravity of the violation, as well as the negligence.. of
Respondent, warrants a civil penalty of $2,000, rather than the
$7,000 proposed by the Secretary.

I conclude that the violation was the result of at least
ordinary negligence on the basis of Mr. Plylar's testimony.
Despite the fact that maintaining this beltline may be ·a
Herculean task, it is readily apparent that in the three days
between Mr. Plylar's complaint to management and the insp.ection 11
the condition of the isolated portion of the East A belt did·. not
improve significantly (Tr. 197-209). Although this evidence. ·is
insufficient to find aggravated conduct, it is ·sufficient for the·
undersigned to conclude that Respondent should have done more in
the way of maintaining the beltline than it did •

..

2 4 85

Docket No. SE 94-115
This docket pertains to two orders issued by MSHA Inspector
oneth L. Jones at Jim Walter's No. 7 mine. They allege excessive
coal and coal dust accumulations in violation of section 75.400.
The first was issued on August 16, 1993, and the second on
September 2, 199 3 .
On August 16, at about 8:05 a.m., Jones was inspecting the
West B conveyor belt ~nd observed an accumulation of coal dust.
It was wet on the bottom, damp in the middle and dry from the
friction of the conveyer on top {Tr. 237, 241). This accumulation was about 19 inches deep, 20 feet in length and the
width of the belt. The coal dust touched the bottom of the
belt (Tr. 237-38).
Several conveyor rollers were stuck at the site of the
accumulation and one was hot to the touch {Tr. 237-38). Jones
characterized the violation as "S & S" because he believed that
the heat generated by the rollers made an ignition of the coal
dust reasonably likely (Tr. 244). I credit his opinion.
The "unwarrantable failure" characterization was predicated
on the fact the violation was in an entry adjacent to the manbus
stop (Tr. 239). Therefore, both the dayshift and the nightshift
would have passed the cited area within an hour of Jones• arrival
{Tr. 240). This area would have been subject to a preshift
examination between 4 a.m. and 7 a.m. and Jones concluded that
the accumulation was too extensive to have occurred after this
examination (Tr. 242). Union walkaround representative Keith
Plylar also believes that the accumulation occurred before 4 a.m.
due to the amount of d .ist and the degree to which it was
compacted (Tr. 274-75).
1

Respondent counters that coal dust accumulations of this
magnitude have occurred in periods of less than an hour. It
cites, in particular, an accumulation for which it was cited in
August 1994 (Tr. 279-283). Given the lack of evidence on whether
this accumulation existed when the preshift examination was done,
I cannot credit the assumptions made regarding the duration of
the violation by the Secretary's witnesses. I therefore find
that it is unclear how long the condition cited had existed prior
to Inspector Jones' arrival at the scene.
Applying the criteria set forth by the Commission in Peabody
Coal Co., 14 FMSHRC 1258 (August 1992), I do not find that this
violation rises to the level of "unwarrantable failure." The
accumulation was not sufficiently extensive to lead to such a
finding, and as stated above, I find the evidence regarding the
duration of the violation similarly insufficient. The Secretary

2 4 86

also argues that 192 violations of this regulation by
Respondent in the two years prior to the instant order
mandate a finding of unwarrantable failure (Secretary's
brief at 7-9).
This number of prior violations of the standard does
not, standing alone, persuade the undersigned that the instant
violation was due to an "unwarrantabl e failure." The record
is clear that coal spills in coal mines and that it accumulates.
It is also clear that this may happen rather quickly. I find
nothing in this record to persuade me that Respondent's failure
to start clean-up of the instant accumulation by the time of
Inspector Jones' arrival constituted aggravated conduct.
In conclusion, I affirm Citation No. 3183062 as a "S & S"
violation of section 104(a) of the Act. I assess a civil
penalty of $1,000--giving greatest weight to the gravity of
the violation when considering the six penalty criteria.
Order No. 3183157
on September 2, 1993, at 7:50 a.m., Inspector Jones observed
the East A belt tailpiece turning in an accumulation of fine dry
pulverized coal dust (Tr . 252). The suspended dust was highly
visible (Tr. 252). Jones issued Respondent 104(d) (2) Order
No. 3183157.
His characterization of "unwarrantable failure" was based
on the fact that he had cited an almost identical problem at
the same location less than two weeks earlier on August 24, 199 3
(Tr. 254-56), and that miners, including management personnel,
passed right by the cited location getting on and off the manbus
at the beginning and end of their shifts (Tr. 263). Jones also
concluded that the accumulation must have been created prior t o
the preshift examination for the dayshift (Tr . 258-60).
I am not sufficiently persuaded by Inspector Jones' opinion
as to the duration of the violation to accord it great weight.
Thus, for the same reasons that I stated with regard to the
previous violation I find that the record fails to establish
conduct sufficiently worse than ordinary negligence.
Citation No. 3183157 is affirmed as a "S & S" violation of
section 104(a) of the Act and section 75.400 of the regulations.
I assess a civil penalty of $1,000, primarily because the gravity
·ot the violation in co~junction with the other penalty criteria
warrant such an amount.
·

2487

ORDER
Docket No. SE 94-74
Citation No. 3015993 is affirmed as a " S & S" violation
of section 104( a) and a $2,000 civil penalty is assessed.
Order No. 3015994 is affirmed as a violation of section
104 (d) (2) of the Act and a $3,500 penalty is assessed.
Citation No. 30150995 is affirmed as a "S & S" violation
of section 104 (a) and a $500 penalty is assessed.
Citation No. 2807230 is affirmed as a "S & S " violation
of section l04(a) and a $362 penalty is assessed.
Docket No. SE 94-84
Citation No. 3015087 is affirmed as a "S & S" vi olation
of section 104(a) and a $2,000 penalty is assessed.
Docket No. SE 94-115
Citation No. 3182957 is affirmed as a " S & S" violation
of section 104(a) and a $1,000 penalty is assessed .
Citation No. 3183157 is affirmed as a " S & S" violation
of section 104(a) and a $1,000 penalty is assessed.
The penalties assessed above shall be paid within 30 days
of this decision. Thereupon these cases are DISMISSED.

c

if)_ f/W--Ci~vY'-

ArtA~r J. Amchan
Administrative ·Law Judge
Distribution:
William Lawson, Esq., Office of the Solicitor, U.S. Department
of Labor, Chambers Bldg., Highpoint Office Center, Suite 150,
100 Centerview Drive, Birmingham, AL 35216 (Certified Mail)
.· F. Stanley Mo rrow, Esq., Jim Walter Resources,

Inc.,
P.O. Box 133, Brookwood, AL 35444 (Certified Mail)

/lh

2488

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

DEC 2 2 1994
CIVIL PENALTY PROCEEDING

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

Docket No. WEST 94-289
A. C. No. 48-00732-03523

v.
Belle Ayr Mine
AMAX COAL WEST INCORPORATED,
Respondent
DECISION

Appearances:

Ann M. Noble, Esq., Office of the Solicitor, U.S.
Department of Labor, Denver, Colorado for
Petitioner;
R.,. Henry Moore, Esq., Buchanan Ingersoll, P.C.,
Pittsburgh, Pennsylvania for Respondent.

Before:

Judge Hodgdon

This case is before me on a petition for assessment of civil
penalty filed by the Secretary of Labor, acting through his Mine
Safety and Health Administration (MSHA), against . Amax Coal West
Incorporated, pursuant to Sections 105 and 110 of the Federal
Mine Safety and Health Act of 1977, 30 u.s.c. S S 815 and 820.
The petition alleges two violations of the Secretary's mandatory
health and safety standards and seeks a penalty of $100.00. For
the reasons set forth below, I vacate the citations and dismiss
the petition.
This case was heard on August 30, 1994, in Gillette,
Wyoming. MSHA Inspector Lewis H. Klay Ko testified for the
Secretary. Randall L. Rahm, Clyde W. Witcher, James L. Phipps,
Jr., and Terry R. Besecker testified on behalf of Amax. The
parties also filed post-hearing briefs which I have considered in
my disposition of this case.
BACKGROUND

Amax operates the Belle Ayr Mine in Campbell county,
Wyoming. The mine consists of a strip coal mine, preparation and
loading facilities. Among Amax's customers are two utilities,
Northern Indiana Power and Service Company (NIPSCO) and southwest
Electric Power Company (SWEPCO).

2489

NIPSCO and SWEPCO contracted with NALCO, a chemical company,
to spray a dust suppressant on their coal after it had been
loaded into railroad cars. NALCO, in turn, hired Commercial
Building Systems (CBS) to perform the spraying at the Belle Ayr
Mine. In addition, NALCO entered into a verbal agreement with
Amax to be allowed to install two large tanks on mine property
and to use Amax•s power and water in order to carry out the
spraying operation. NALCO leased the tanks from Jim's Water
Service, which installed them on the site.
One of the tanks held wate r, and the other tank he ld a
surfac tant. 1 The water and the surfactant were mixed together
for spraying on the coal. NALCO was experimenting with the most
effective mixture of the two for suppressing ·dust.
Both NALCO and CBS have MSHA identification numbers issued
under Section 45. 3 of the Secretary's Regulations, 30 C.F.R.
§ 45 .3.
The· CBS employee responsible for carrying out the
spraying of the coal came to the mine only when a train with coal
for one of the utilities needed spraying or when it was nec essary
t o perform maintenance on the spraying equipment.
On November 10, 1993, Inspector Klay Ko issued two citations
to Amax for violations found on the two tanks. The citations
were subsequently modified on November 24, 1993. Citation
No . 35887 95 alleges a violation of Section 77.206(c), 30 C.F.R.
§ 77~206(c), and states that:
"The green 20 1 (feet) tall water
tank and the 20' (feet) tall serfactant [sic] tank, vertical
ladder on each one was not provided a backguard. The serfactant
[sic] tank is tan in · color." (Pet. Ex. 2.) Citation No. 3588796
sets out a violation of Section 77.206(f), 30 C.F.R. § 77.206(f),
and asserts that: "The green 20' (feet) tall water tank and the
20 1 (feet) tall tan serfactant [sic] tank.[sic] The vertical
ladder on each one did not project at least 3' (feet) above the
landing." (Pet. Ex. 3.)
Inspector Klay Ko was accompanied on the inspection. by his
supervisor, Larry Keller. Both were aware that the tanks were
leased and used by CBS and NALCO. The inspector testified that
he issued the citations to Amax, rather than to CBS ~r NALCO,
because "the contractor was not on the mine property that I could
issue the citation to. The production operator was." (Tr. 18.)

1 A "surfactant" is a " [s]urface active agent, a substance
that affects the properties of the surface of a liquid or solid
by concentrating in th~ surface layer." Bureau of Mines, U.S.
Department of Interior, A Dictionary of Mining, Mineral, and
Related Terms 1107 (1968).

2 490

FINDINGS OF FACT AND CONCLUSIONS OF LAW
It seems obvious from these facts that either. CBS or NALCO
should have been the recipient of the citations. The question in
this case is whether Amax could be issued the citations. Amax
argues that the inspector abused his discretion in issuing it the
citations and that they should, therefore, be vacated and the
civil penalty petition dismissed.
I conclude that Amax is
correct.
Prior Commission Decisions
While it is clear that the Secretary has wide enforcement
discretion, there is little guidance on if, when or how he can
abuse this discretion.
In Phillips Uranium Corp., 4 FMSHRC 549
{April 1982), the Commission vacated citations and orders issued
to an operator, holding that they should have been issued to an
independent contractor.
In that case, Phillips owned mining
rights and was ·~onducting mining activities at a proposed uranium
mine.
It retain.e d independent contractors to constrl;lct shafts
and related underground construction. None of the contractors
had MSHA identification numbers.
The Commission found that:
The citations and orders alleging violations of the Act
described activities or omissions of the contractors'
employees or conditions of the contractors' equipment
or facilities relating to the work the contractors were
engaged to perform. Phillips' employees, equipment or
activities did not cause o.r contribute to the alleged
violations. Phillips' employees did not perform any ·
work for the contractors, but they did inspect and
observe the progress of the work to assure compliance ·
with quality control and contract specifications • . The
alleged violations were abated by employees of . the
contractors.

Id. at 549~550.
In holding that the contractors should have been cited, the
Commission said:
The Secretary's insistence on proceeding against
Phillips appears to be a litigation decision resting
solely on considerations of the Secreta~y~s
administrative . convenience~ rather than on a . concern
for · the health and safety -. of mil)ers'. In choosing the
course that is administratively convenient, . the
Secretary has ignored Congressional intent, the

2491

Commission's clear statements in Old Ben (1 FMSHRC 1480
(October 1979)), and the intent of his own regulations,
and has subjected the wrong party to the continuing
sanctions of the Act. The Secretary's decisions to
continue against Phillips were not consistent with the
purposes of the Act and must fail.

Id. at 553.
The Commission next took up the issue in cathedral Bluffs
In that case, which
also involved an independent contractor performing shaft
construction, both the operator and the contractor had been
cited. The contractor did not contest the citation, but the
operator did. The Commission held that the fact that both the
operator and the contractor had been cited, and the fact that the
Secretary had formally adopted a policy concerning the issuance
of citations for violations of the Act committed by independent
contractors, 2 distinguished the case from Phillips.

Shale Oil Co., 6 FMSHRC 1871 (August 1984).

However, .the commission went on to find that the Secretary
had failed to properly follow his own policy in citing the
operator. It stated:
We emphasize that in this case an independent
contractor with a continuing presence at the mine site
was cited for a violation it committed in the course of
its specialized work; the contractor did not contest
the citation; and the hazardous condition was abated
promptly. Given these facts and the lack of any
demonstrated exposure of Occidental employees or
control by the production-operator other than routine
verification of work performed, we believe that harm,
rather than good, would be done to the goal of
achieving maximum mine safety and health if such a
strained interpretation and application of the
Secretary's enforcement policy were upheld. Therefore,
we decline to interpret the Secretary's regulations and
guidelines to require precisely what their adoption was
intended to avoid.
·
6 FMSHRC at 1876.
The same day the Commission issued its decision in cathedral
Bluffs, it issued a decision in Old Dominion Power co., 6 FMSHRC
2 44 Fed. Reg. 44497 (July 1980). Except for the
introductory language, the criteria considered by the Commission
in these guldelines was identical to the criteria presently
contained in MSHA's Program Policy Manual, the text of which is
found on p. 9, infra.

249 2

1886 (August 1984). In that case, Old Dominion Power Company was
cited for a violation which resulted in a fatal accident to one
of its employees at an electrical substation located on property
leased by Westmoreland Coal Company from Penn-Virginia Resources.
Although there were a number of issues in the case, the
Commission found with respect to whether Old Dominion was
properly cited with the violation, that it was an independent
contractor and, consequently, properly cited. It held:
We emphasize that by citing Old Dominion for the
violation committed by its employees, the Secretary has
acted in accordance with the Commission's longstanding
view that the purpose of the Act is best effectuated by
citing the party with immediate control over the
working conditions and the workers involved when an
unsafe condition arising from those work activities is
observed. Old Ben, supra; Phillips Uranium, supra. By
citing the operator with direct control over the
working conditions at issue, effective abatement often
can be achieved most expeditiously. Id.

Id. at 1892.
Both Cathedral Bluffs and Old Dominion Power were reversed
by federal courts of appeal. The Fourth Circuit in Old Dominion
Power Co. v. Donovan, 772 F.2d 92 (4th Cir. 1985), held that Old
Dominion had such minimal contacts with the mine that it was not
an "operator" under the Mine Act. Id. at 97 . As a result, the
court did not address the issue of whether the "independent
contractor" was the appropriate entity to cite.
In Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533 ,
539 (D.C. cir. 1986), the court reversed the Commission because
"the Commission improperly regarded the Secretary's general
statement of his enforcement policy as a binding regulation which
the Secretary was required to strictly observe . . . . "
Consequently, no opinion was offered on whether the citation
could have been issued to the operator, but the case was remanded
to the C~mmission for further action consistent with the
opinion.
Id.
.
The next occasion that the Commission had to address this
issue was in Consolidation Coal Co., 11 FMSHRC 1439 (August
1989). As in Phillips Uranium and Cathedral Bluffs, this case
3 The Commission remanded the case to the Administrative
Law Judge "to determine the liability of Occidental for the
violation of its independent contractor in light of the court's
opinion." Cathedral Bluffs Shale Oil Co., 8 FMSHRC 1621, 1622
(November 1986). There is no further, published record of the
case.

249 3

involved shaft construction by an independent contractor.

As in

Cathedral Bluffs both the operator and the independent contractor
had been cited for the violations and the independent contractor
did not contest the citations. Relying on Phillips Uranium, the
operator had argued at trial that the Secretary had not properly
exercised its enforcement discretion in citing the operator.
The judge had concluded that Phillips Uranium was not
applicable in a case where both the operator and the independent
contractor had been cited. Id. at 1442. The Commission affirmed
the judge, stating:
In this instance, the Secretary pursued enforcement
action against bQth a production operator and its
contractor for electrical violations occurring in an
underground mine setting wherein the employees of both
the production operator and the independent contractor
were exposed to potential hazards occasioned by th~
violations. We have carefully reviewed the record, the
judge's decision, and the parties' arguments. We hold
that the judge's conclusion that the Secretary's
discretion was not abused in citing Consol in addition
to Frontier for these particular violations is
supported by the record, summarized above, relating to
the violation9 ~nd the inspectors' reasons for citing
both parties,l 4 J and is also supported by applicable
precedent. See, e.g., Old Ben, supra, 1 FMSHRC at
1481-86; Intl. U., UMWA v. FMSHRC, supra, 840 F.2d at
83; Brock v. Cathedral Bluffs Shale Oil co., supra, 796
F.2d at 537-38; BCOA v. Secretary, supra, 547 F.2d at
246.

Id. at 1443.
In Bulk Transportation Services, Inc., 13 FMSHRC 1354
(September 1991), the Commission affirmed a judge's decision
which held that the Secretary did not abuse her discretion in
citing Bulk, an independent contractor of Bethlehem Steel, rather
than James Krumenaker, a subcontractor leasing a truck and driver
to Bulk. Stating that " [ w]e believe that it is unreasonable to
require the Secretary to pursue each of Bulk's 70 to 100
subcontractors," the Commission held that the judge's decision
was "supported by applicable precedent, which clearly establishes
that the Secretary has wide enforcement discretion. See, e.g.
4 The reasons given for citing both parties were that the
violations occurred in Consol's mine, Consol's employees worked
in the area where the contractor's empioyees were working part of
the time, the cited conditions could affect other employees and
areas of the mine and Consol's work relationship with Frontier.
Id. at 1442.

2 494

Consolidation Coal Company, 11 FMSHRC 1439, 1443 (August 1989);
cathedral Bluffs, 796 F.2d at 537-38; Old Ben, 1 FMSHRC at 148186." Id. at 1361.
Most recently, the Commission decided W-P Coal Co., 16
FMSHRC 1407 (July 1994). That case involved a decision to cite
W-P, the company that held the mining rights to a mine, in
addition to Top Kat, the company W-P had contracted with to
perform the mining. The judge had relied on Phillips Uranium in
concluding that the Secretary had impermissibly cited W-P based
on "administrative convenience" rather than the protective
purposes of the Act.
In reversing the judge, the Commission said:
We agree with the Secretary that the judge erred
in relying solely on Phillips Uranium. That case,
decided in 1982, was directed to the Secretary's
earlier policy of pursuing only owner-operators for
their contractors's violations. Subsequently, the
Secretary's policy has been broadened to include
pursuit of ipdependent contractor-operators in some
instances. It is now well established that, in
instances of multiple operators, the Secretary may, in
general, proceed against either an owner operator, his
contractor, or both. Bulk Transportation Services,
Inc., 13 FMSHRC 1354, 1360 (September 1991);
Consolidation Coal Co., 11 FMSHRC 1439, 1443 (August
1989). The Commission and the courts have recognized
that the Secretary has wide enforcement discretion.
See, e.g., Bulk Transportation, 13 FMSHRC at 1360-61;
Consolidation Coal, 11 FMSHRC at 1443; Brock v.
Cathedral Bluffs Shale Oil Co., 790 F.2d 533, 538 (D.C.
Cir. 1986). Nevertheless, the Commission has
recognized that its review of the Secretary's action in
citing an operator is appropriate to guard against
abuse of discretion. E.g., Bulk Transportation, 13
FMSHRC at 1360-61; Consolidation Coal, 11 FMSHRC at
1443.
Id. at 1411. The Commission went on to examine W-P's involvement
in the mining operation and concluded that "the record reveals
that W-P was sufficiently involved with the mine to support the
Secretary's decision to proceed against W-P. 11 Id.
analysis and Conclusions

Applying this precedent to the case at hand, it appears that
this case is most like Phillips Uranium. However, although the
Commission nas not expressly overruled Phillips Uranium, it
severely limited its applicability in W-P Coal. Consequently,
since this case does not involve "the Secretary's earlier policy

2495

of pursuing o n ly owner-operators for their contractors'
violations," I conclude that Phillips Uranium is ~ot pertinent.

Old Dominion and Cathedral Bluffs would also seem to support
a finding that the Secretary abused his discretion in citing
Amax. Al though both cases were subs.e quently overruled by the
courts, neither was overruled on the issue of whether the
operator, in Cathedral Bluffs, or the independent contractor, in
Old Dominion, should or should not have been cited for the
violation. Therefore, it would seem that the reasons given by
the Commission for concluding that the operator should not have
been cited, with the exception of its holding that the
Secretary's guidelines were binding, and that the independent
contractor was correctly cited would still provide guidance
today.
On the other hand, it may also be significant that since
Cathedral Bluffs, there have been no Commission decisions finding
an abuse of the Secretary's discretion in citing either the
operator or the independent contractor or both. The later cases,
Consolidation Coal, Bulk Transportation and W-P Coal, seem to
have been dec,ided on the degree of involvement between the
operator and the independent contractor. Therefore, I conclude
that while Cathedral Bluffs and Old Dominion may be instructive
in this case, they are not dispositive.
Were it not for the Commission's statement in W-P Coal that
Commission review guards against an abuse of discretion by the
Secretary in issuing a citation, one might conclude from the most
recent cases that the Secretary is free to cite the operator, the
independent contractor, or both, as he sees fit.
However, by
stating that it will guard against an abuse of discretion the
Commission has clearly implied that there is some limit to the
Secretary's enforcement decisions. While the Commission has
never set out what that limit is, and the term "discretion"
indicates the absence of a hard and fast rule, it does mean that
the Secretary cannot act arbitrarily or capriciously. Langnes v.
Green, 282 U.S. 531, 541 (1931).
While acknowledging that the Secretary has wide enforcement
discretion, it appears that if ever there was a case . where the
Secretary abused this discretion in citing an operator instead of
an independent contractor, this is it. Amax has virtually no
involvement with NALCO or CBS. The independent contractor was
not hired to perform services for Amax, but for two of Amax's
customers. The contractor was not retained by Amax, but· by the
customers. Conversely, in all of the cases discussed above,
there was a contractual relationship between the operator and the
independent contractor.

2 4 96

Although the violations occurred within Ama~'s property
area, they occurred on property leased to NALCO.
The location
of the tanks was not in the same area that Amax's miners were
working. Nor did any of Amax's employees have any duties that
would require them to go into the NALCO area. The cited
conditions could only affect Amax employees if an employee
deliberately went out of his way to go to the tanks and then
decided to climb the tanks. The violations could have no effect
on any of Amax•s mining operations or employees performing those
operations anywhere in the mine.
While failing to follow his own guidelines concerning
enforcement against independent contractors is not binding on the
Secretary, not following them may well be an indication of an
abuse of discretion. Volume III, Part 45, of MSHA's Program
Policy Manu al 6 (07/01 /88 Release III-1) states that
" [i)nspectors should cite independent contractors for violations
committed by the contractor or by its employees. Whether
particular provisions apply to independent contractors or to the
work they are performing will be apparent in most instances."
(Pet. Ex. 4.) Clearly, under this standard NALCO should have
been cited.
The manual also advises that:
Enforcement action against a production-operator for a
violation(s) involving an independent contractor is
normally appropriate in any of the following
situations: (1) when the production-operator has
contributed by either an act or by an omission to the
occurrence qf a violation in the course of an
independent contractor's work; (2) when the productionoperator has contributed by either an act or omission
to the continued existence of a violation committed by
an independent contractor; (3) when the productionoperator' s miners are exposed to the hazard; or (4)
when the production-operator has control over the
condition that needs abatement. In addition, the
production-operator may be required to assure continued
compliance with standards and regulations applicable to
an independent contractor at the mine.
Id.
None of these situations are present in this case. Amax did
not contribute to the violations in any way. It did not
5 originally, this was a verbal agreement. Subsequent to
the violations, the NALCO's operation moved to a different site
on Amax property and the lease was reduced to writing.
(Tr. 4445.)

2497

construct the tanks, make arrangements for their use and
placement or use the tanks for any of its mining operations.
Nor were the tanks used by the contractor in connection with
any of Amax's mining operations.
To argue that permitting the tanks on the property and
failing to inspect them for possible violations are acts or
omissions contributing to the occurrence of a violation, as the
Secretary does, is to argue that there can never be a situation
when the contractor rather than the operator should be cited.
By that standard, Amax would always be responsible for every
violation occurring on its property. Under that standard Amax
had an obligation to inspect another contractor's pickup truck,
which was cited the same day, for a defective parking brake.
(Tr. 25.)
Yet even the inspector agreed that the contractor was
the proper entity to cite in that case.
.

.

Amax did not contribute by act or omission to .the continued
existence of a violation committed by an independent contractor
for the same reasons it did not contribute. to the occurrence of
the violation.
Interestingly, the Secretary argues that (1)
applies in this case, but (2) does not. Yet it would seem that
the reasons he gives for (1) being applicable, that Amax
permitted the tanks on ·the property and did not inspect them,
would also apply to (2).
Amax's miners were not exposed to the hazards. None of them
had duties that required them to work around the tanks _or to
climb the ladders on the tanks. None of Amax's employees had any
reason to be in the vicinity of the tanks, as tanks were not in
an area normally travelled by those emp~oyees, and the ladders
were on the opposite side of the tanks.
(Tr. 89.) To argue that
this guideline applies in this case because an Amax employee was
not prevented from climbing the ladders- would stretch the
guideline beyond relevance.
Finally, it is obvious that Amax had no control over the
condition needing abatement.
It had no authority to put a
backguard on the ladders, put handholds at the top of the
ladders, remove the ladders from the tanks or in any . meaningful
way correct the situation. The fact that, having been issued a
citation, Amax directed CBS to remove the tanks from its property
does not demonstrate that Amax had control over the condition
needing abatement. Clearly, the entity having control over the
violative conditions was CBS or NALCO.
The manual's guidelines all indicate that the contractor,
rather than Amax, should have received the citations. To argue,
as the Secretary does, that sole:lY by permitting NALCO to be on
its property Amax's conduct satisfies the .guidelines would render
the guidelines .superfluous and unnecessary.

249 8

In this case, the only reason given for citing Amax instead
of CBS or NALCO is that no 'one from either of those companies was
present at the time the inspector wanted to issue the citation.
This reason does not even rise to the level of administrative
convenience since that term is generally used in connection with
convenience in prosecuting the case. See, e.g., W-P Coal at
1409. Here, only convenience in serving the citation was
involved. Even if a representative of the contractor was not
immediately present to acgept the citations, the citations could
have been served by mail.
Consequently, there was no reason not
to cite the independent contractor.
ORDER

In view of the above, I conclude that the Secretary abused
his discretion in citing the production-operator rather than the
independent contractor for the violations in this case.
Accordingly, Citation Nos . 3588795 and 3588796 are VACATED and
the Petition for Civil Penalty is DISMISSED.

Distribution:
Ann M. Noble, Esq., Office of the Solicitor, U.S. Department of
Labor, 1999 Broadway, Suite 1600, Denver, CO 80202 (Certified
Mail)
Henry Moore, Esq., Buchanan Ingersoll, 600 Grant Street, 58th
Floor, Pittsburgh, PA 15219 (Certified Mail)
/lbk

6 Section 45.5, 30 C.F.R. § 45.5, provides that "[s)ervice
of citations, orders and other documents upon independent
contractors ·shall be completed upon delivery to the independent
contractor or mailing to the independent contractor's address of
record."

2499

FEDERAL MINE SAFETY ANp HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
6203 LEESBURG PIKE
FAUS CHURCH, VIRGINIA 22041

DEC 2 7 1994
BLUESTONE COAL CORPORATION,
Contestant
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent
SECRETARY OF LABOR,
MINE SAFET¥ AND HEALTH
ADMINISTRATJ:ON (MSHA),
· Petitioner

v.

BLUESTONE COAL CORPORATION,
Respondent

:

.
.
.
.

.
.
.
.
.
.
.

CONTEST PROCEEDING

Docket No. WEVA 93-165-R
Order No. 2723399; 1/13/93
Keystone No. 6 Strip
Mine ID 46-03404
CIVIL PENALTY PROCEEDING

Docket No. WEVA 94-117
A. C. No. 46-03404 03509
Keystone No. 6 Strip

DECISION

Appearances:

Patrick L. DePace, Esq., Office of the Solicitor,
u. s. Department of Labor, Arlington, Virginia,
for the Secretary;
David J. Hardy, Esq., Jackson' Kelly, Charleston,
West Virginia, for Respondent.

Before:

Judge Barbour
STATEMENT OF THE CASE

In this consolidated contest and civil penalty proceeding
Bluestone Coal Corporation (Bluestone) contested the validity of
an imminent danger order of withdrawal issued at its Keystone
No. 6 Strip Mine pursuant to section 107(a) of the Federal Mine
Safety and Health Act of 1977 (Mine Act or Act), 30 u.s.c.
S 817(a) and the Secretary of Labor (Secretary) sought the
aaaessment of civil penalties for alleged violations of 30 c.F.R.
SS 77.1600(b), 77.1607(c) and 77.1600(a). The violations were
charged in citations issued pursuant to aection 104(a) of the
Act, 30 u.s.c. S 814(a), and in association with the order of
withdrawal. The Secretary further alleged that the violations
were significant and substantial contributions to aine aafety
hazard (S&S violations).

2500

Pursuant to notice, the cases were heard in Beckley,
West Virginia. Subsequently, the Secretary's Mine Safety and
Health Administration (MSHA) vacated the withdrawal order.
Counsel for the Secretary stated, "[After] considering all of the
evidence of record, the Secretary determined that (the] (o]rder
••• could not be sustained" (Sec. Br. 3, Apex . A). For the same
reason MSHA vacated the citation alleging a violation of section
77.1600(a) (failure of Bluestone to restrict haulage roads to
authorized persons) (Sec. Br . 3, Apex. B).
Issues left for resolution are whether the alleged
violations of sections 77.1600(b) and 77.1607(c) occurred, if
so, whether they were S&S, and the appropriate penalties to be
assessed. I will discuss evidence relating to the vacated order
and citation only to the extent it bears upon these issues.
STIPULATIONS

At the commencement of the proceedings the parties
stipulated as follows:
\

l.

'

Bluestone is subject to the jurisdiction of the Act.

2.
The Administrative Law Judge has jurisdiction to hear
and decide the case.
3.
The orders of withdrawal and citations were issued
by authorized representatives of the Secretary of Labor and
were properly aerved upon Bluestone.
4.
Penalties proposed for the alleged violations if
assessed will not affect Bluestone's ability to continue in
business.

s . Bluestone is a small operator with an excellent
history of compliance .
6.

The alleged violations were abated in a timely fashion.

(Tr. 11 for all six stipulations.)
,.UE EVIDEHCE
THE SECBETARY'S WITHESSES

LABRY K. MURDQCK
Larry K. Murdock, is a federal mine inspector ~or •urface
coal mines. His duties require him to inspect all aspects of a
mine, including haulage roads. Murdock has inspected Bluestone•s

2501

Keystone No. 6 Strip Mine since March 30, 1990 (Tr. 17). Prior
to January 1993, he inspected it approximately five times
(Tr. 18, 58).
The Bluestone operation consisted of a large land tract,
portions of which are leased to various independent contractors.
The contractors develop and operate underground coal mines. The
number of mines on the Bluestone property varies between 8 and
13 (Tr. 19.) A mix of county, state, and private roads are used
on the operation - they include two main haulage roads. The
haulage roads lead to Bluestone's preparation plant where coal
from the contractors' mines is processed {Tr. 20).
On January 11, 1993, Murdock traveled to the Bluestone
property to inspect the preparation plant. Between 1:50 p.m.
and 2:00 p.m., while in the central control room of the plant, he
heard that a coal truck had overturned on the property and that
an ambulance was needed {Tr. 21-22). He went immediately to the
mine foreman's office • . While the foreman called the ambulance,
Murdock left the off ice, got in his automobile, and drove to the
accident scen~ . (Tr.22).
The coal truck was lying on its side. Fuel had leaked from
the truck and the fire department had been called to wash down
the gasoline {Tr. 28). The truck driver, Theodore Payne, was
dead. His body was lying in the haulage road some distance from
the truck {Tr. 24).
Murdock began to gather information about the accident
(Tr. 25.)
Murdock also called his supervisor (id.a.). Murdock
then issued to the mine foreman an order of withdrawal pursuant
to section 103{k) of the Act, 30 u.s.c. S 813(k). The order
sought to preserve the accident scene by closing to coal trucks
the road Payne had traveled {Tr. 26).
MSHA personnel -- including Jerry Sumpter, an accident
investigator and John Cheetham, an electrical inspector -- soon
arrived. They .were joined by personnel from the State of West
Virginia, Bluestone officials and Thomas Mullins, the owner of
Mullins Trucking Company, Payne's employer (Tr. 29-30).
According to Murdock, the accident occurred when the truck
failed to negotiate one of the last turns in the road. At the
turn two parallel roads of different elevations -- an upper road
and a lower road -- entered the haulage road. After failing to
make the turn, the truck left the haulage road and traveled onto
the upper road. It hit the berm on the right side of the upper
road, fell on its side, and slid onto the lower road ("T" on
Joint Exh. 1; Tr. 33-34).

2502

Payne started the fatal trip at the No. 39 Mine, a mine
operated by Blackstone Coal Company (Blackstone), a contractor of
Bluestone (Joint Exh. 1, upper left had corner; Tr. 36, 85.)
Murdock described Payne's route. From No. 39 Mine, Payne
traveled along County Road 52/6 until he reached County Route 6.
Payne turned right onto Route 6 and proceeded until shortly
before the Bluestone Shop where he bore left onto County
Route 6/2. After traveling a short distance Payne crossed onto
the Bluestone•s property ("X" on Joint Exh. 1). At this point,
the road's name changed from County Route 6/2 to Company
Road D-11-82 (Tr. 36-37; Joint Exh. 1).
Payne proceeded along D-11-82, past a box cut (a "Y" intersection) where D-11-82 was joined by another road. Further
along, Payne passed an impoundment on the left. To this point
the road contained only slight grades (Tr. 38). However, just
past the impoundment the grade increased greatly and the road
entered an area where it turned several times (Tr. 37).
Near the b\>ttom of the steep grade the road came to another
Here the
road contained some final sharp turns (Tr. 38). Payne failed to
complete a turn and the truck went straight ahead onto one of the
access roads where it overturned (Tr. 39).

"Y" where a vehicle had to bear left to go the plant.

Murdock stated that the investigation team surveyed the
scene and because of early darkness, left the mine shortly
afterward.
Murdock had last inspected the mine in October 1992 • . At
that time he had not noted any imminent danger that involved the
haulage road. Murdock also agreed that in October he had written
no citation for the lack of, or the inadequacy of, traffic signs
(Tr. 68).
When he tr~veled the road during prior inspections he never
observed trucks going in excess of five to seven miles per hour
(Tr. 75, 97). He agreed that a truck driver was best equipped to
control the speed of a truck and when asked whom he would cite if
he observed a truck using excessive speed on a haulage road,
Murdock stated that he would cite the operator of the truck -i.e., the person or company who owned or controlled the truck.
However, he added that he might cite the operator responsible for
the haulage road also since a speeding truck would endanger
others using the road (Tr. 77). Murdock acknowledged that
portions of the haulage road near the accident site were traveled
by the general public going to or from their homes (Tr. 74-75).
With respect to the cause of the accident, the truck
appeared to have gone out of gear during its descent of the road.
Murdock agreed that Bluestone had no ability to control the loss

2503

of gear and that "[t]he only possibility to help .• ~ [Payne] not
lose control of the truck is if there is any other means that
they could have provided that would keep him from getting into
excessive speed and not (be) able to control [the truck]"
(Tr. 79).
JERRY SUMPTER

Jerry Sumpter, an accident investigator for MSHA, was the
leader of the MSHA investigation team. Sumpter stated that he
was informed of the accident and arrived at the mine late in the
afternoon on January 11. Payne's body had been removed but his
overturned truck was blocking the access road. The MSHA team
photographed the scene. Because people had to use the road to
get to and from their homes, Sumpter permitted the truck to be
pulled out of the way (Tr. 146). It was growing dark and the
team decided to continue the investigation the next day.
on January 12, Sumpter assisted in inspecting the truck's
brakes. The brakes were out of adjustment. Also, there was not
enough air pressure in the system to apply the brakes to the
brake drums. As a result, the brakes were ineffective (Tr. 148).
Sumpter stated that if he had found the brakes in this condition
during a regular inspection, he would have removed the truck from
service (id&.). As a result of the investigation Mullins Trucking
was issued a citation for inadequate brakes (Tr. 228, 231;
Bluestone Exh. 5). Sumpter speculated that with good brakes
Payne might have been able to control the truck (Tr. 264).
On January 12, Sumpter walked the haulage road. He was
accompanied by Skip Castanon, his supervisor. Sumpter tried to
determine if the roughness of the road had caused the truck's
transmission to slip out of gear. The only thing Sumpter noticed
was a "washboard area," near the impound.ment. Sumpter described
the area as "very rough" (Tr. 151). Gravel that had been used to
fill some of the washboard-like ruts had been worn away by
traffic (Tr. 151-152).
As a result of the investigation, Sumpter issued an imminent
danger order of withdrawal (Gov. Exh. 3). Sumpter stated:
I issued it because of the steepness,
number one, of the grade, and the payload that
the truckers were using to come off of this steep
grade. And also ••• there was no means available
in case of a runaway with this truck. Also, I
didn't observe very many signs. I observed two
that particular day (Tr. 159).
With regard to the signs Sumpter stated that there was a
20 miles per hour sign at the top of the steep grade. Also,
there was a sign stating that all visitors were required to
2504

report to the preparation plant (Tr. 160). With regard to the
payloads, Sumpter believed a coal truck should haul 28 tons of
coal. MSHA • s investigators reviewed Blues.t one• s records and
found that loads at Keystone No. 6 strip Mine averaged 34 to 36
tons. These heavy loads put inordinate stress on the brakes.
Another problem was that as the trucks came down the hill
the drivers changed gears to control the speed of their descent.
Sumpter stated that during upshifting or downshifting it was not
unusual to miss a gear. When this happened a truck could run
away (Tr. 163). He added, "[T]hat is basically what we thought
may have happened, that the truck either jumped out of gear or
the brakes was overheated. Then the victim has ••• two choices.
If he jumps, he may die; if he stays with the truck, he may
die •••• When he ran away toward the last curve ••• he rode the
truck out. Then he decided to jump and the end result was fatal"
(Tr. 163-164).
Sumpter was shown a copy of a memorandum from Castanon to
MSHA District M~nager L.D. Phillips (MSHA District 4) regarding
the results of a, survey of road grades in the district. The
December 28, 1992 memorandum indicated that in District 4 there
were 41 haulage roads with grades of 15 percent or greater
(Bluestone Exh. 6). Sumpter understood that if a grade was over
12 percent he could require the operator to install a vehicle
escape ramp or some other kind of safety device (Tr. 282).
Sumpter noted that following the accident the company installed
both escape ramps and "Australian barriers" along the road
(Tr. II 15-16). ("Australian barriers" are dirt mounds that are
approximately three feet high and that are placed at intervals
along a road. A truck can stop if it runs on top of the mounds
and "bottoms out" (Tr. II 16).)
In addition to the imminent danger order, Sumpter issued the
subject citations. Citation No. 2723400 was issued because
Bluestone did not properly post the haulage road with rules,
signals or warning signs (Gov. Exh. 4). Sumpter was asked what
signs he believed should have been posted in order to comply with
section 77.l600 (b). He stated that a sign was needed prior to
the start of the steep grade to warn truckers to use a lower gear
and a stop sign was needed on the flat, before reaching the steep
part of the grade. The signs should have required drivers to
stop and select a lower gear to descend the grade (Tr. 168-169).
He suggested the signs should have been located "in a conspicuous
place" (Tr. 169). In addition, signs should have pointed out the
particular hazards of the road -- for example, the washboard area
or the curves. They should also should have indicated the speed
at which it was safe to descend (Tr. 170).
The area involved in the violation was from the impoundment
to the preparation plant, a distance of nearly one mile (Tr. 170171). In addition to the previously mentioned signs, he believed

2505

yield signs or stop signs should have been installed where roads
crossed or entered the haulage road, and in the flat areas signs
should have limited speeds to 15 miles per hour (Tr. 171).
Finally, signs should have advised drivers of vehicles traveling
the road to use their C.B.s to monitor conditions on the roads
(Tr. 172) .
Sumpter explained that Citation No. 2723400 was abated when
various signs were posted. Specifically, at the start·of the
steep grade a sign was posted instructing truck drivers to use a
lower gear. Also, signs were installed at the top of the hill
instructing truckers to stop, to shift to a lower gear and to
reduce speed to 15 miles per hour {Tr. 180-181). In addition, a
sign was posted instructing truck drivers to monitor their
C.B. 's.
Sec tion 77.1600(b) states in part that "traffic rules,
signals and warning signs" shall be "standardized." When aske d
to state what the word "standardized" meant to him, Sumpter
replied that it "meant a uniform system throughout the property
that each and ·every employee •.. could understand" and that signs
should be repeated every so often (Tr. 183).
Sumpter believed the lack of signs was an S&S violation in
that it was going to result in a serious or fatal accident
"sooner or later". He also believed the violation contributed to
Payne's death (Tr.172-174).
Sumpter was asked about Bluestone•s negligence in allowing
the alleged violation to exist . . · He had indicated on the citation
form that the company exhibited a "moderate" degree of
negligence. However, he stated that if he were to cite the
company again for the same violation, he would consider the
company's negligence "low" (Tr. 269).
Sumpter also observed that many of the company's rules and
regulations were vague and that Bluestone should have included in
the rules a specific instruction for truckers to use low gears on
steep grades rather than provide that the speed limit· on haulage
roads was 20 miles an hour (Tr. 178, 179). The rules also should
have specified the tonnage that was safe to haul. The company
should have known that there would be a temptation to overload
the trucks since the drivers were paid on the basis of the weight
of the coal they hauled (Tr. 179).
After being cited for the alleged violation Bluestone
updated the rules and regulatio~s (Bluestone Exh. 1) and
retrained "everybody on their property" to make sure they
understood the rules (Tr. II 30). Although Sumpter had not seen
the undated rules, he understood they specified which gears

2506

should be used in descending the roadway, indicated where to stop
before proceeding down the grade and required trucks to maintain
a speed limit of ten miles per hour (Tr. II 31-32).
Sumpter testified he also issued Citation No. 2723974, which
alleged a violation of section 77 .1607 (c), a mandatory standa'r d
requiring that "[e]quipment operating speeds ••. be prudent and
consistent with conditions of roadway, grades •••• and the type
of equi pment used" (Gov. Exh. 5 ). When asked to explain why he
believed the standard had been violated, Sumpter stated that he
had spoken with several truck drivers and that the re was no
consistency regarding the gear they used t o descend the grade.
This resulted in trucks traveling the grade at different speeds.
He also noted the condition at the road near the i mpoundment and
stated that the washboard area might have caused Payne's truck to
g o out of gear. However, he did not know for certain why Payne
lost contro l of the truck and did not know the speed of the truck
or the exact spot at which Payne lost control. (Tr. 18 5-186,
187, 271).
Although there were no eyewitnesses, Payne had been
heard over the truck's C.B. to say that he had lost control of
the truck and it; was believed the· truck was moving "pretty fa s t"
(Tr. 18 9 , 240). '.
In Sumpter's opinion the alleged violation lead to Payne's
death. It was logical that if the truck was not kept under
control a serious or fatal injury was reasonably likely to
result. 188-18 9 ).
While in sumpter's view Bluestone management was negligent
in allowing the violation to exist, its riegligence was mitigated
by the fact it kept the haulage road relatively well surfaced,
except for the washboard area (189-190).
Finally, Sumpter stated that in his opinion · Jo trucks daily
traveled the haulage road to the plant. He described the road as
having been used for "years" (Tr. 224). He knew of no other
reportable accident on the road·, and there was no evidence Payne
was an unsafe driver. In fact, some of those interviewed by the
investigation team stated · that he was a good and well-respected'
driver (Tr. 225, 243-244).
AUBREY T. CASTANON

Aubrey T. "Skip" Castanon, is an MSHA supervisor and
specialist in accident investigation. In his capacity as an
accident investigator Castanon researched the hazards associated
with haulage roads . In July 1992, a fatal accident involving a
coal haulage truck lead MSHA to survey haulage road grades· at
all coal mines in District 4. The suryey resulted in Castanon's
memorandum of December 28, 1992, to District Manager Phillips
(Tr. II 40-41; Bluestone Exh. 6). Castanon testified that MSHA
discovered that when a coal truck is loaded at or above its

2507

maximum recommended capacity, and is descending a steep grade,
the load shifts toward the front of the truck and the front
brakes and drive train come under a strain that can cause them to
fail (Tr. II 43). MSHA advised mine operators of this and other
hazards associated with steep grades. MSHA also sent to
operators a 1977 Bureau of Mines Informational Circular titled
"Design of Surface Haulage Roads" (Tr. II 50) •
Despite these initiatives, Castanon did not believe that
MSHA's response to haulage road accidents had been adequate. He
stated, "[W)e probably recognize some of the problems with
haulage road design ...• And I just don't think we have taken the
data that we're supposed to be taking ••• and disseminate(ed]
that information to the mining industry the way we should, or
develop(ed) regulations based on that information" (Tr. II 53).
Castanon was at the Mine on January 12. In addition, on
January 13 he participated in interviews conducted by MSHA
concerning the accident. Castanon believed that Citation No.
2723400 correctly cited a violation of section 77.1600(b) because
the only sign pe saw along the haulage road was one stating "All
first-time visitors report to the preparation plant" (Tr. II 62).
He observed no signs concerning speed or grades.
In castanon's opinion a speed limit sign should have been
posted at the top of the grade. In addition, signs were needed
about not passing on the haulage road, and about truckers
monitoring their C.B. channels (Tr. II 63). Had such signs been
in place they would have reminded Payne to descend the hill in a
safe manner. The failure to remind Payne of the dangers
presented by the grade played a part in his death (Tr. II 81).
In addition, Bluestone only gave a 20 miles per hour speed limit
for the roadway in its rules and regulations, this was adequate
for the top of the road where the grades were less, but where the
grade became steeper, the limit should have been eight or ten
miles an hour (Tr. II 68-69).
With respect to an interpretation by MSHA of section
77.1600(b), Castanon stated that as far as he knew, there was no
official interpretation. (Tr. II 142-143).
Castanon also believed Citation No. 2723974 properly cited a
violation of section 77.1607(c). In his opinion, Payne downshifted and the truck went out of gear; or, the truck hit the
washboard area of the road and went out of gear. Failure to
subsequently control the truck's speed contributed to Payne's
death (Tr. II 82, 144). (However, there was no indication that
Payne was traveling at an excessive speed when he lost control of
the truck (Tr. II 115).· Nor was there any evidence Payne was
driving recklessly prior to the accident (Tr. II 132).) In his
view, Mullins Trucking also should have been cited for Payne's
failure to control the truck (Tr. II 126-127).

250 8

Castanon believed the Bluestone was moderately negl i gence in
allowing the violation to exist (Tr. II 84).
·
BLUESTONE'S WITHESSES
JOHN G. CHEETHAM. JR.
John G. Cheetham, Jr., an MSHA inspector who investigates
accidents involving heavy equi pment, appeared under subpoena and
as an adverse witness. He estimated that during the proceeding
16 or 17 years he had investigated approximately 65 accident s
involving coal haulage trucks (Tr. 107). As part of the
investigation of the January 11 accident Cheetham examine d the
truck's braking system. There were six wheels on the truck -four in back and two in front. Consequently, there were s i x
brake drums (Tr. 108, 115). The brake drums were "worn
excessively, with grooves and heat cracks" (Tr. 108, see also
Tr. 116-117).
In addition three of four back brakes were out of
adjustment (Tr. 118-120). Cheetham esti mated that 6 0 t o 70
percent of the bruck's breaking capacity had been lost (Tr. 121 ) .
The truck was dangerous to operate; so much so that he would have
removed it from service (Tr.122).
Cheetam was asked about the cause of the accident. In his
opinion Payne had attempted to change gears -- to downshift.
When he could not get the lower gear, the truck ran away
(Tr. 122) • . With the braking capacity essentially gone, it was
not possible to stop the truck on the steep grade (Tr. 122-123).
BYRD E. WHITE, III
Byrd E. White, III, is vice president and secretary of
Bluestone. White has been affiliated with the company for more
than 17 years. White testified that at the time of the accident
Bluestone employed 13 miners. There was a superintendent (Dale
Wright), an assistant superintendent, a chief engineer, seven
hourly employe~s and three other employees who did general
engineering work (Tr. II 150-151).
White described the mining arrangements at the Keystone
No. 6 Strip Mine. According to White, Bluestone leased the land,
portions of which it subleased to independent contractors. The
contractors mined coal and delivered it to Bluestone•s preparation plant. Bluestone's standard contract required the
contractors to mine in accordance with federal and state law, to
hire their own employees and buy their own equipment. Bluestone
prepared the leased sites for mining, but the contractors
developed their own mines. Bluestone paid the contractors a
specified sum per ton for coal brought to the preparation plant.
After mining was finished, Bluestone reclaimed the land
{Tr. II 152-153).

25 09

Bluestone maintained the roads on its property, whether
they were haulage roads or county roads (Tr. II 153, 158-159).
Bluestone's contract did not specify how coal was to be
transported to the plant, nor did it specify how the contractor
was to hire truckers (l..d.a..).
In total, Bluestone leased approximately 26,000 acres of
land. In January 1993, there were between 12 and 15 mines on the
property. As White explained, "The number changes; somebody
quits, somebody else comes in. Sometimes a mine is vacant for
2 or 3 months before we get somebody to replace them"
(Tr. II 154) •
Blackstone was one of the companies operating a ·m ine in
January 1993. As with other contractors, Blackstone contracted
to mine the coal, bring it to the plant and be paid on a per-tonde l ivered basis (Tr. II 155).
Blackstone hired Mullins Tucking.
DALE WEIGHT
Dale Wright is Bluestone's superintendent. He testified in
detail about the Bluestone property and the roads thereon.
Wright stated that the grade of the haulage road traveled by
Payne varied. From the box cut to the impoundment the grade was
5.9 percent. From the impoundment to the spot where the truck
~verturned the grade was 12 percent {Tr. II 185).
Wright also testified that he had been involved in writing
Bluestone's rules and regulations for haulage roads. In fact, he
was the author of those in effect at the time of the accident
(Tr. II 189; Bluestone Exh. l}. Bluestone gave the rules and
regulations to its contractors, along with a cover letter
instructing the contractors to make certain they and their
subcontractors complied. In addition, some copies were handed
out to individual truckers (Tr. II 189-190). The purpose was to
make sure mining contractors understood the truckers they hired
were the contractors' responsibility and that it was the
contractors' duty to make sure the truckers understood the rules
and regulations (Tr. II 190). The rules were also posted at the
mine (l.$L.).
On an average day approximately 20 different trucks traveled
to the preparation plant. The trucks made approximately 60 trips
downhill from the box cut to the plant (Tr. II 191). This
portion of the road had been used since 1987. Approximately 300
trips per week were made by coal trucks from the box cut to the
plant. Wright estimated that since 1987 there were approximately 46,000 trips down this portion of the road (Tr. II 192).
Aside from the accident involving Payne, Wright knew of no other
reportable accident on the road (Tr. II 193).

2510

Using photographs and the mine map, Wright identified signs
posted on the property. There were three signs notifying first
time visitors to report to a mine office, there were nine "notrespassing" signs, there was a sign stating "Danger, watch out
for coal trucks" and one stating "Proceed with caution. Coal
truck traffic."), there were two environmental permit signs and
there was a sign warning that the property was patrolled by
security police (Tr. II 197-206; Bluestone Exh. a; Joint Exh. 1).
After the citation was issued Bluestone added yield and speed
limit signs that were virtually identical to those used on public
roads (Nos. 3 and 6 on Bluestone Exh. 8; Tr. II 230, 232).
Wright stated that he was surprised to be served with a
citation alleging a violation of section 77 . 1600(b). He
explained that many inspectors had traveled the roads
inspectors who were inspecting Bluestone's facilities and those
who were traveling to the contractors' mines -- and he had no
knowledge of any previous citation for a such violation nor of
comments about the signs and rules (Tr. II 207).
THE MERITS
CITATION NO.
2723400

30 C.F.R.
1/13/93

§

77.1600(b)

PROPOSED PENALTY
$ 6000

The citation states in part:
Management did not have traffic rules, signals or
warning signs standardize [sic) on the steep mountain
incline to provide the coal haulage equipment a warning
of the steep incline on [B]urke [M]ountain road to the
preparation plant. This was revealed after a fatal
truck haulage accident (Gov. Exh. 4).
Section 77.1600(b) states that, "Traffic rules, signals, and
warning signs shall be standardized at each mine and posted."
THE ABGUMENTS
The Secretary argues that "The failure to have any signs
indicating the safe manner for travelling on the road clearly is
a failure to comply with the regulation, which requires that
rules, signals and warning signs be posted •••• [T]o adequately
ensure the safety of those driving on the hill, signs warning of
hazardous conditions, steep grades, speed limits, and curve-s, are
necessary. Likewise, to insure that drivers were consistent in
how they travelled on the hill, Bluestone should have had a sign
reminding drivers to stay in a low gear and to avoid shifting as
they descended the hill" (Sec. Br. 8-9 (citations omitted)).

2511

The Secretary also argues that Bluestone's haulage rules and
regulations were not enforced by Bluestone and that "rules not
consistently enforced or followed cannot be considered
•standardized' as the ·regulation requires" (Sec. Br. 10).
Further, the Secretary attacks the rules because they were
inadequate in that they indicated a speed limit -- 20 miles per
hour -- that was too fast for the road where the accident
occurred and because they did not address steep grades, sharp
curv~s, or remind drivers to stay in low gear.
Bluestone argues that section 77.1600(b), as applied in
this case, is void for vagueness. Bluestone points to the conflicting testimony among MSHA witnesses as to the meaning of the
standard and the absence of any MSHA interpretive policy
(Bluestone Br. 11-15).
THE VIOLATION

When the Secretary alleges the violation of a mandatory
safety standard, it is essential first to determine what the
standard requires. The wording of section 77.1600 (b) is simple.
At each mine, traffic rules, signals, and warning signs are to be
standardized and posted. The word "stand~rdized" conveys the act
of bringing the rules, signals and warning signs into conformity
with a standard in order to make them uniform. ~ Webster's
Third New International Dictionary (1986) at 2223. The word
"posted'' conveys the act of displaying the standardized rules,
signals and warning signs where they may be observed and read.
~at 1771.
The standard is broadly worded, and, as Bluestone notes, the
Commission has enunciated a "reasonably prudent person" test for
such a standard -- "whether a reasonably prudent person familiar
with the mining industry and the protective purposes of the
standard would have recognized the specific prohibition or
requirement of the standard." See e.g., Ideal cement co., 12
FMSHRC 2409, 2416 (November 1990).
Uniformity of signals and warning signs would, I believe, be
understood by a reasonable person to ref er to both the physical
nature of the signal or sign and to its wording (~ Tr. II 141142). The uniformity of written rules would be likewise
understood. Uniformity would also be understood to refer to the
location of the rules, signals, and warning signs. That is to
say, at substantially similar areas requiring the invocation of a
rule, signal or warning sign, the same rule, signal or warning
sign would be required to be placed in substantially the same
location. As Sumpter stated, if a warning sign was required at
the top of a certain grade, a similar sign should placed at the
top of each similar grade (Tr. 183). Given the simple language
of the standard, this is hardly a revolutionary or convoluted
interpretation and because such an understanding is, in my

2512

opinion, well within the keen of a reasonably prudent person
familiar with the industry, I decline Bluestone's invitation t o
find section 77.16 00(b) void for vagueness.
However, the question remains whether Bluestone violated th e
standard as charged. In this regard, it is important to keep in
mind that the standard d oes not specify which rules, signals or
warning signs are required to be exhibited at certain places .
Rather, it manda tes that .if they are exhibited they be uniform i n
appearance and loc at i on and they be posted, that is, plac ed whe r e
they may be observed and read.
It is clear from the testimony that Bluestone was not c i ted
bec ause its r u l e s, signals and signs lacked uniformity or were
exhi bited improperly. Rather, it was cited because it did not
have certain specific signs in the places MSHA believed they
should have been and because it d i d not include among its rules
and regu l ations those MSHA thought necessary.
The testimony of Sumpter, who issued the citation, is
telling:
\
Counsel for the Secretary: You only saw two signs
on the haul road. Is that correct?
Sumpter:

Yes that is all I saw.

Couns e l f or the Secretary: Now, what signs would
be necessary to comply with the regulation, in your
opinion?
Sumpter: By looking at that particular property
and the haul roads, you need [a sign), where you
descend the steep grades ••• [to) warn the truckers to
use a lower gear, or maybe even a stop sign if they
want to stop on the flat before going over the steep
••• if you select a lower gear, it keeps your miles per
hour down, under say a ten-mile-an hour; not what
management had posted, which was twenty (Tr. 168-169).

*

*

*

Counsel for the Secretary: Are there any other
signs you feel are necessary on the haul road?
Sumpter: I would try to take control ••• saying how
many miles an hour to descend that haul road in a safe
manner and ••• let them know that the hazards are all up and
down the haul road. It would be various signs is what I'm
saying (Tr. 170).

*

*
25 1 3

*

The signs should be posted all over the haul road
Just take control of the area and say certain things.
If you need to yield -- there are several roads there
that cross each other; a yield signs or a stop
(Tr. 171) •
Counsel for the Secretary:
regarding communication?

Should there be any signs

Sumpter: There should be for your c.B. It should
tell you what channel and no monkey play •.•• You need to
take control of that, also (id.).
What troubled Sumpter was the fact that Bluestone had not
installed the type and number of signs he believed were required
where he believed they should be. Lacking a standard mandating
operators install warning signs at hazardous areas and install
signs advising those entering the property of the reporting and
communication rules to be followed, Sumpter sought to enforce
such requirements through section 77.1600(b), a standard designed
for another purpose. (In this regard it is instructive to
compare the Traffic Safety regulations in Subpart H of the
standards for surface metal and nonmetal mines.
30 C.F.R. S 56.9100(b) requires "signs or signals that warn of
hazardous conditions .•• [to be] placed at appropriate locations
at each mine.")
In like manner, Sumpter was troubled by the content of
Bluestone's rules, not whether they were uniform and exhibited
where they could be read.
Counsel for the Secretary: Did you consider these
rules and regulations [Bluestone Exh. 1] adequate?
Sumpter:

•

No, I do not (Tr. 177) •

•

•

They should have put in here the steepness of the
grades or, "Truckers Use Lower Gears," for example
It's just saying speed limit on haul roads is twenty
miles an hour. To me, that is vague. It mentions
trucks in here, but it doesn't get into the actual
haulage, ~hat the truckers are really supposed to do
(Tr. 178).

*

*

. *

Take control of the coal trucks as far as telling
them how much coal •••• ! feel that should be in part of .
this policy (Tr. 179-180).
2514

Lacking a standard specifying what the rules should contain,
Sumpter tried to dictate their content through section
77.1600(b). (Again, it is instructive to reference the Traffic
Safety standards in Subpart H of the mandatory standards for
surface metal and nonmetal mines. 30 C.F.R. S9100(a) requires,
"Rules governing speed, right-of-way, direction of m6vement, and
the use of headlights to assure appropriate visibility, ••• shall
be established and followed at each mine.")
Because I find that Bluestone was not cited for a violation
of section 77.1600(b), but rather for failing to conform to
requirements that are outside the purview of the standard, I
conclude that Citation No. 2723400. is invalid. I will order its
vac ation at the close of this decision.
CITATION NO.

30 C.F.R. S

2723974

77.1607(c)
'1 /13/93
\
The citation states in pertinent part:

PROPOSED PENALTY

$

6,000

Based on evidence obtained during a fatal
accident investigation it was determined that the
1979 DM 600 Mac coal haulage truck was being operated
at a speeQ that was not consistent with the conditio~s
of the roadway, grades, visibility a~d traffic while
descending the Burk Mountain coal haulage road with a
full load of coal. An accident occurred on 01/11/93
about 1:55 P.M. when the truck ran away and turned over
at the switchback (Gov. Exh. 5).
Section 77.1607(c) states:
Equipment operating speeds shall be prudent
and consistent with conditions of roadway, grades,
clearance, visibility, traffic, and the type of
equipment used.
THE ARGUMENTS
The Secretary's position is that "for whatever reason the
victim lost control of the truck ••• [and] that once he lost
control he was not operating at a speed consistent with the
conditions [of the roadway]" (Sec. Br. 15).
Bluestone focuses on the requirements of abatement imposed
by MSHA -- the construction of Australian barriers and escape
ramps and the limitation of haulage truck payload weights -- and
asserts the Secretary is trying to impose requirements that can
only be established through rulemaking (Bluestone Br. 17-22).
25 15

Bluestone also argues that MSHA should not be permitted to
hold it responsible for an accident that resulted because the
subcontractor (Mullins Trucking) of the independent contractor
(Blackstone) failed to properly maintain or assure the safe
operation of the subcontractor's truck (Bluestone Br. 9).
THE YIOI+ATION

The first question is whether a violation of the cited
standard existed. If not, the issue of who should be held
responsible is immaterial. As the Secretary notes, section
77.1607(c) is subject to the same "reasonably prudent person"
test as section 77.1600(b). In the context of the alleged
violation, this means whether a reasonably prudent person
familiar with the mining industry, including the factual
circumstances surrounding the January 11, 1993 accident, would
have recognized the speed of Payne's truck as imprudent and
inconsistent with the conditions of the road and truck.
All of the witnesses agreed that the accident occurred near
the bottom of the grade when the truck failed to negotiate one of
the last turns in the road. Cheetham thought the grade at its
steepest point was between 13 percent and 16 percent (Tr. 126).
Wright believed that the grade from the box cut to the accident
site averaged 12 percent (Tr. II 185). Sumpter described the
grade as "steep" (Tr. 159). All three witnesses agreed the grade
was significant, and it is certain that unless the speed of a
truck was fully controlled, the grade was hazardous.
Cheetam•s testimony establishes that the brakes on the truck
were substantially impaired. However, whether or not brakes that
were fully functional would have allowed Payne to retain control
of the truck, as Sumpter believed might have been possible, is
not significant (Tr. 264). The fact remains that Payne did not
retain control, as Payne himself exclaimed over his C.B. moments
before his death (Tr. 189).
The record does not support a finding as to why ·Payne lost
control. As the company points ou:t, although MSHA's witnesses
had their theories -- that the truck had gone out of gear or that
the brakes had locked or that a combination of both had occurred
(see for example Tr. 187)-- they were candid in stating they did
not know for certain what had happened (see for example Tr. 79).
Further, none of the witnesses knew exactly where Payne lost
control. Nor could they cite to any evidence that Payne was
speeding or driving recklessly prio~ to losing control (Tr. 271,
Tr. I I 132).
Nonetheless, the inescapable fact is that at some point and
for some reason, the loaded coal truck went out of control while
descending the steep and potentially hazardous grade and that
2516

near the bottom of the grade Payne failed to maneuver around one
of the road's final curves. It is reasonable to infer that given
the fact the accident occurred near the bottom of the grade and-. ·
given the condition of the truck, the truck was traveling too
fast to negotiate the curve. It is equally reasonable to . '· : ·.
conclude the truck's speed was neither prudent nor consistent
with the grade , curve, and condition of the brakes and that this
constituted a violation of section 77 .1607(c).
In finding the violation existed I am not unmindful that·
MSHA might have chosen to cite a violation of section 77.1607(b) ,
a standard that requires mobile equipment operators to have fu l l
control of moving equipment, and that such a citation might .have
been as appropriate, perhaps even more. appropriate, than the
citation of s ection 77.1607 (c) . ~Island Creek Coal Co., ·
3 FMSHRC 1265 ( ALJ Koutras). However, the fact that one set . of.
circumstanc es can engender violations of more than one standard'
does not r e nder invalid -MSHA's choice of a standard or standards
to cite. The fundament3l question is whether the standard chosen
has been violat~d.
··:

The violation was terminated on February 2, .1993.
termination notice states in part:

The

As an additional safeguard four speed berms [i.-e. ,:.
Australian barriers] and three escape ramps have been
provided on the haulroad in the event another truck
should become a runaway (Gov. Exh. 5).
MSHA' s rationale for requiring the barriers· and ramps: ·as a
condition for abatement was explained by Murdock·.: When he --w as ·'···
asked about Bluestone•s ability to influence a .driver's control ..
over a truck Murdock responded, . "The only possibility. to help·, .\ · '·
[a driver] not lose control of the truck is if there is any other
means that ••• (Bluestone] could have provided that would :keep: ··
••• [the driver] from getting into excessive speed · and not· being·
able to control it and lose it" (Tr.79). The barriers and ramps
were part of the "other means" upon which MSHA· insisted·. In
fact, Sumpter stated that he and other MSHA. inspectors were told
that if they found a grade over 12 percent, escape ramps or some·:
other kind of safety device should be required· (Tr. 282) •. · 1·
•
There are two reasons why Bluestone's argument ·that .. the ·· .
citation is invalid because it is based upon a failure to fulfill
requirements not contemplated by the standard can not prevai1 ~ : '~..
First, and most important, there was a violation. of. the cited ·.: .~: ·
standard. The truck was not operated at a sp~ed · consistent ..with'·:·.
the conditions, grade and type of equipment used. Second, : i'f.:
Bluestone objected to the requirements for abatement of the
citation, the Act provided a specific means to challenge those
requirements. Bluestone could have refused to comply a.n d could ··:: .
have sought review· of any resulting section 104 (b) withdrawa·l :- .. . · ·
2517

order, 30 u.s.c. S 814(b) , by bringing a contest proceeding under
section lOS(d) of the Act, 30 u.s.c. S815(d). Bluestone could
have argued the withdrawal order was invalid because it was
unreasonable to require measures beyond the requirements of the
cited regulation. As Judge Melick observed, "The Secretary is
without authority under (s ] ection 104(b) · to compel performance of
additional mini ng activities or to create new regulations beyond
what is necessary t o abate the precise violation charged."
prummond Company. Inc., 14 FMSHRC 2039,2042 n. 3 (December 1992).
However, Bluestone did not chose to avail itself of this option
and it is much too late for it to "end run" the statutory
enforcement scheme.
BLUESTONE'S LIABILITY
Finally, I a l s o reject Bluestone's view that the imposition
of liabi lity for the violation is contrary to existing decisional
law (Bluesto~e Br. 8-9 ) . The relationship of Bluestone,
Blackstone, Mullins Trucking, and Payne is clear. Bluestone was
the operator in overall charge of the mine. Bluestone contracted
the mining of the No . 39 Mine to Blackstone. Blackstone subcontracted with Mullins Trucking to haul the coal. Payne was
employed by Mullins Trucking.
In the past, MSHA has issued citations to independent
contractors when the independent contractors have actual control
over the v i olative conditions. The theory behind citing the
contractor in such situations is that responsibility should lie
with the party in the best position to alleviate the hazard. The
theory recognizes that although under the Act a mine operator may
be held liable for the violative conduct of another on the basis
of the Act's imposition of liability without fault, the Secretary
has wide discretion in citing the contractor or the mine operator
or both and that he does not abuse his discretion when he chooses
to cite the party in the best position to prevent the violation
in the first instance.~ Bulk Transportation Services. Inc., 13
FMSHRC 1354, 1359-1361 (and cases cited therein.)
The Secretary has made clear that there are four instances
in which he will exercise his discretion to cite mine operators
for the violations of independent contractors: the mine operator
contributed to the violation; the mine operator contributed to
continued existence of the violation; the mine operator's
employees were subjected to the hazard created by the violation;
or the mine operator had control over the condition requiring
abatement (III Program Policy Manual Part 45 at 6). However, the
Secretary's discretion is not limited to these four instances,
Brocky. cathedral Bluffs Shale Oil Co., 796 F.2d 533, 537-539,
and, indeed, one commentator recently (and rather qratuitously)
has suggested the law is such that the Commission will "rubber

2518

stamp" any and all MSHA decisions to cite mine operators for
independent contractor violations. c. Gregory Ruffennach,
Independent Contractors: How Things Haye changed, Mine Safety and
Health News, November 18, 1994, at 585-589.
While I suspect that no one would be more surprised than the
Secretary if this were indeed true, I believe in this case there
are traditional and compelling reasons to find that the
Secretary's citation of Bluestone was well within his authority.
First, the hazard created by the violation was not· limited to
Payne. Operation of the truck at a speed that was inconsistent
with the grade and curve of the road and the condition of the
truck created a hazard that not only resulted in Payne's death
but that also potentially endangered the public, truckers
employed by contractors and employees of Bluestone .- - all of
whom, the record establishes, used the road on occasion.
Second, Bl4estone recognized a bottom line responsibility to
make sure the speed of coal haulage trucks was consistent with
the condition of 'the road. Bluestone's haulage rules and
regulations specifically limited trucks to 20 miles per hour and
cautioned the speed limit was to be "strictly adhered to"
(Bluestone Exh. 1 at 2). Bluestone added that it would not
accept coal from truckers who did not comply with its rules (.Id....
at 3). The citation of Bluestone was an incentive for Bluestone
to find a more effective means to better ensure truckers traveled
at safe speeds on the mine's roads.
For these reasons I cannot find the Secretary abused his
discretion in citing Bluestone.
Moreover, the fact that the
Secretary might have cited Mullins Trucking, as Castanon
recognized, and that this also might have had a deterrent effect,
equal or even greater, to citing Bluestone, does not invalidate
the Secretary's choice (Tr. II 126-127).

The four-part test enunciated by the Commission in .Mathies
Coal Co., 6 FMSHRC 1, 3-4 (January 1984) for determining whether
a violation is S&S is well known and need not be repeated here.
I have concluded a violation of section 77.1607(c) existed.
Moreover, I find the evidence easily establishes a discrete
safety hazard in that failure to operate the coal haulage truck
at a speed consistent with the grade and curve of the road and
the condition of the truck endangered not only the truck driver
but others who traveled the road. Unfortunately, the worst
occurred and the hazard came to a fatal fruition. There is no
doubt that the speed at which the truck was operating was a
significant and substantial contribution to that fatality. The
violation was S&S.

2519

GRAYI TY
·!
The concept of gravity involves analysis of both the
potential hazard to miners and the probability of the hazard
occurring. The potential hazard was of an accident caused by
excessive speed and resulting in the death or injury of the truck
driver, other miners, and/or the public. It is difficult to
imagine anything more hazardous than a truck with inadequate
brakes speeding out of' control down a frequently used, steep, and
multi-curved road.

NEGLIGENCE

Negligence is the failure to exercise the care required by
the circumstances. Given the volume of traffic over the road and
the -lack of any previous reportable accidents or citations, the
lack of any conclusive evidence as to what caused Payne to lose
control of the truck or where he lost control, as well as the
lack· of any citation with regard to the washboard ~rea, there is
no basis to find that Bluestone's design and / or maintenance of
the road contributed to the violation. Nor is there any basis to
find that Bluestone was in some way responsible for training
Payne and that its failure to properly train him lead to Payne
speeding out of control. Although at trial the Secretary's
counsel seemed especially enamored of this theory, speculation is
not equival'ent to proof.
However, Bluestone required trucks on its property to be
maintained in safe operating condition (Sec. Br. 17; Bluestone
Exh. 1) • . It seems certain the virtually useless condition of the
brakes played a role in causing the violation. While initial
responsibility for the condition of the brakes lay with Mullins
Trucking and Blackstone, the presence of the unsafe truck on
Bluestone' s property evidenced Bluestone •·s ne_g ligent failure to
effectively enforce its rules. I conclude therefore, the
Secretary has established that Bluestone failed to exhibit the
care that was necessary and that Bluestone's negligence
contributed to the violation.
OTHER CIYIL PENALTY CBITERIA

The parties stipulated that Bluestone is a small operator
with an excellent history of compliance (Stipulation 5). They
further stipulated that the proposed penalties would not affect
Bluestone's ability to continue in business (Stipulation 4).
CIVIL PENALTY

The Secretary has proposed a civil penalty of $6,000 for the
violation of section 77.1607(c). The violation was instrumental
in Payne's death and I have recognized its very serious nature.

2520

In addition, I have found Bluestone negligent. However, I
conclude that the company's small size and excellent compliance
record, as well as the primary parts played by Payne, Mullins
Trucking and Blackstone in the violation, warrant a significantly
lower penalty than that proposed by the Secretary. I will assess
a civil penalty of $500.
ORDER
The Secretary has vacated Order No. 2723399. Therefore,
Docket No. WEVA 93-165-R is DISMISSED.
In Docket No. WEVA 94-117, the Secretary's vacation of
Citation No. 2723275 is AFFIRMED. Citation ·No. 2723400 is
VACATED. Citation No. 2723974 is AFFIRMED and a civil penalty of
$500 is assessed for the violation of section 77.1607(c).
Bluestone is ORDERED to pay the civil penalty within 30 days of
the date of this decision. Upon payment of the civil penalty
Docket No. WEVA 94-117 is DISMISSED.

David F. Barbour
Administrative Law Judge
Distribution:
Patrick L. DePace, Esq., Office of the Solicitor,

u. s. Department of Labor, 4015 Wilson Boulevard, Room 516,

Arlington, VA 22203 (Certified Mail)

David J Hardy, Esq., Jackson & Kelly, 1600 Laidley Tower,
P. o. Box 553, Charleston, West Virginia 25322 (Certified Mail)
dcp

2521

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
6203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

DEC 2 7 1994

CONSOLIDATION COAL COMPANY,
Contestant

CONTEST PROCEEDING

v.

Docket No. WEVA 94-260-R
Citation No. 3318787; 5/5/94

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

Blacksville No. 2 Mine
Mine ID 46-01968
DECISION

Appearances:

Elizabeth s. Chamberlin, Esq., Consolidation Coal
Company, Pittsburgh, Pennsylvania, for the
contestant;
Elizabeth Lopes, Esq., and Roberts. Wilson, Esq.,
U.S. Department of Labor, Arlington, Virginia,
for the Respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns a Notice of Contest filed by the
contestant pursuant to section 105(d) of the Federal Mine Safety
and Health Act of 1977, challenging the legality of a section
104{d) (1) "S&S" citation alleging a violation of mandatory safety
standard 30 C.F.R. S 75.1725(a) . A hearing was held .in
Morgantown, West Virginia and the parties filed posthearing
briefs which I have considered in the course of my adjudication
of this matter .
Issues
The issues presented in this case are {l) whether the
conditions or practices cited by the inspector constitute a
violation of the cited mandatory safety standard, (2) whether th~
alleged violation was "Significant and Substantial" (S&S), and
(3) whether the alleged violation was the result of an
unwarrantable failure by the contestant to comply with the cited
standard.

2522

Applicable Statutory and Regulatory Provisions
1.

The Federal Mine Safety and Health Act of ·
1977; 30 u.s.c. s 801 ~ ~-

2.

Commission Rules, 29 C.F.R. S 2700.1, ~ ~·

3.

Mandatory safety standards 30 C.F.R.
S 75.1725(a).

Stipulations
The parties stipulated to the following (Tr. 12):
1. The Administrative Law Judge and the Federal Mine Safety
and Health Review Commission have jurisdiction to hear and
decide this contest proceeding pursuant to Section 105 of
the Federal Mine Safety and Health Act of 1977.
2. The contestant is the owner and operator of the
Blacksville No. 2 Mine.
3. Operations of the Blacksville No. 2 Mine are subject to
the jurisdiction of the Act.
4. The contestant may be considered a large mine operator
for purposes of 30 u.s.c. S 820(i).
5. The maximum penalty which could be assessed for this
violation pursuant to 30 u.s.c. S 820(a) will not affect the
ability of the contestant to remain in business.
6. MSHA Inspector Lynn A. Workley was acting in his
official capacity as an authorized representative of the
Secretary of Labor when he issued Citation No. 3318787.
7. A true copy of Citation No. 3318787 was served on the
contestant· or its agent as required by the Act.

a. Citation No. 3318787, marked as Government Exhibft
No. 1, is authentic and may be admitted into .evidence
for the purpose of establishing its issuance and not
for the purpose of establishing the accuracy of any
statements asserted therein.
The contestant's counsel would not stipulate to the accuracy
of MSHA's proposed civil penalty assessment "Data sneet" and
MSHA's computerized mine compliance history print-out (Exhibits .
G-5 and G-6). However the objections were overruled and the
documents were admitted and made a part of the record (-Tr. 13) .•

2523

Discussion
Section 104(d) (1) "S&S" Citation No. 3318787, -May 5, 1994,
cites an alleged violation of 30 C.F.R. S 75.1725(a), and the
cited condition or practice states as follows:
The 6 South No. 2 belt conveyor was not being operated
in safe condition. The tailpiece was plugged with fine
coal and coal dust. Several roller sections were
missing and the belt was riding on the steel roller
mounting brackets. Most of the remaining roller
sections were stuck with fines and worn flat from belt
friction. The side frame and floor adjacent to the
tailpiece was covered with thick dry black float coal
dust. A cloud of black float coal dust was present in
the air above and behind the tailpiece. The belt was
removed from service immediately when cited.
MSBA's Testimony and Evidence
MSHA Inspector Lynn A. Workley testified as to his
experience and backgroupd, including 8 years of work for the
contestant at an underground mine. He has served as an inspector
for 12 years and is a certified mine foreman and underground
electrical worker. He confirmed that he was familiar with the
Blacksville No. 2 mine and has inspected it for 10 years
(Tr • 14 -16) •

- Mr. Workley confirmed that he inspected the mine on May s,
1994, and was accompanied by Ron Thomas, a company escort, and
Philip Nine, the miner's representative. Mr. Workley identified
a copy of the citation that he issued and he explained what he
observed and why he cited a violation of section 75.1725(a),
requiring the cited conveyor to be removed from service. He
stated that the belt was in operation and he observed "a cloud
of float coal dust" in the air above and behind the tailpiece.
He concluded that the tailpiece was clogged with fine coal and
coal dust and that the belt was rubbing coal and generating float
dust. He stated that it was difficult to see inside the
tailpiece with the belt running, but that he could se~ in from
the side view and observed that "the area between the top and
bottom belt was packed with fine coal". He also observed coal
dust accumulations a quarter of an inch in thickness on the right
side of the tailpiece facing it inby (Tr. 16-21).
Mr. Workley stated that after the hinged tailpiece side
guards were opened, he observed that the area under the top belt
and around the impact rollers was completely plugged and full of
dry coal and coal dust accumulations and part of the impact
rollers were stuck and were "worn completely flat clear down to
the shaft". He stated that a couple of rollers were missing under
the tailpiece, and believed that only 2 out of 12 roller sections

252 4

were turning . He also stated that the belt was not aligned on
the rollers and that it was running over to the right side and
was contacting the metal brackets that the missing r-0llers had
been mounted on . Approximately one inch of the top of two
brackets had been worn away by frictional contact with the mov.ing
belt (Tr. 21-23).
Mr. Workley stated that heat was being generated at the area
where the brackets were worn and where the thick float coal dust
was on the tailpiece frame and on the floor beside it, and he
could feel warm air coming out of that side of the tailpiece (Tr.
23). Mr. Workley explained why he believed that the conditi ons
he observed constituted a violation of section 75 . 1725(a) , as
follows at (Tr. 24-25):
A. As I sai d previously, that standard requires that
mobi le and stationary equipment be maintained in safe
operating condition . This tailpiece was not maintained
in safe operating condition. The belt was running. It
was in contact with fine coal and coal dust
accumulations inside the tailpiece. It was also in
contact wi~ metal brackets , producing frictional heat .
Was there evidence that any maintenance had taken
place on this belt?

Q.

A.

No .

Why didn't you write a separate citation under
secti on 75.400 for coal dust accumulation?

Q.

A. I considered a violation of 75.400 initially,
before the protective hinged sides were turned back and
I could see that the belt was definitely wearing
against the metal stand. Then I decided that .1725(a)
-- That standard requires that it be removed from
service -- It was adequate just to issue a citation
under that:· standard. I didn't need to write both of
them, in my opinion .
Q.

Mr. Workley, how was the violation abated?

A. All of the combustible material was cleaned from
inside the tailpiece, removed and put on the belt . The
brackets that the belt had been contacting were bent
back to prevent further contact if the belt ran out of
alignment.
Would the operator have been able to completely
abate this violation without stopping the belt?

Q.

A.

Not safely, no .

2525

Mr. Workley confirmed that he designated the violation as
significant and substantial and stated that the cited conditions
created a fire hazard in the mine. He was aware of at least two
belt fires, and he explained what was needed for a belt fire to
occu·r as follows at (Tr. 26-27):
A. Three things are necessary for a fire; adequate
air, adequate fuel and an ignition source. There was
adequate air in that area, with twenty-one percent
oxygen in it. There was ample amount of dry coal and
coal dust inside the tailpiece and on the frame, beside
the tailpiece and on the mine floor, and in the air
above and behind the tailpiece. And there was a
frictional heat source from the belt rubbing the
accumulations and from the belt rubbing against the
metal stands where the rollers were missing. And,
occasionally, at intervals of four hundred feet or
less, there are metal splices that hold the belt
together that come through and you have metal to metal
friction against those metal stands that are being
worn.
Mr. Workley stated that metal to metal friction would
create sparks and the float coal dust or dry coal dust, which he
described as "dry and black", could be ignited by the generated
heat. He believed it was reasonably likely that a fire would
occur if the belt continued to run without the cited conditions
being corrected. He believed it was reasonably likely for an
injury to occur if there was a fire because the heat and smoke
area was confined and the heat and smoke would likely not be
carried away, and someone there to fight the fire would be
injured by smoke inhalation or burns (Tr. 28). He confirmed that
two fire detection systems were installed on the No. 2 belt, one
in the general tailpiece area, and the other some distance away.
Mr. Workley explained his high negligence and unwarrantable
failure findings as follows at (Tr. 29-31):
A. * * * Looking at the wear I saw to the impact
rollers, it occurred while coal was being loaded .onto
this tailpiece and that had ceased happening months
before this violation was cited. The rollers had been
worn out for months.
The amount of coal that had accumulated inside the
tailpiece had been there shifts, days, weeks. I can't
tell you how long for sure. It took a prolonged period
of time for it to accumulate.
The thickness of the float coal dust on the side of the
structure and on the mine floor indicated that it had
been like this for a long period of time.

2526

A pool of water behind and under the end of the
tailpiece which was black with coal dust, and the
presence of a wash down hose, indicated to me that
float dust had been present previously and had been
washed off of this area repeatedly .
When you observed the condition at the six south
number two belt, was it obvious that it was in an
unsafe condition?

Q.

A.

Yes, it was .

And would a reasonably competent preshift exami ner
have not i ced this condition?

Q.

He should have, yes .

A.

Q. In your opinion, the condition you just described,
did it exist prior to the previous preshift exam?

There is no question in my mind that it did, Yes .

A.

*

*

*

*

*

*

*

How long do you believe it took for the brackets to
be worn down?

Q.

A. Several days, weeks. They wear slowly. It ' s a
rubber belt. I think the belt travels somewhere around
three hundred and fifty feet per minute. It's enough
to create a great deal of friction, but a steel bracket
a quarter to three-eights of an inch thick wears rather
slowly, so this took a long period of time .
You described coal dust accumulations inside the
tailpiece . How long do you think it took for that
accumulation to build up?
Q.

A.

Weeks .

Mr. Workley stated that as he approached the tail piece area
to better evaluate the problem, safety escort Thomas picked up a
washdown hose and started washing the left side of the tailpiece
and the floor. When he informed Mr. Thomas that he was issuing a
citation, Mr . Thomas became excited and left the area. When he
returned he washed down the other side of the tailpiece after the
belt was shut down and stated "I want to apologize to you for
yelling. I didn't realize it was this bad" (Tr. 32). Several
mine officials then appeared at the scene, and one referred to
the condition of the tailpiece and commented that "he did not
want this kind of junk -- only he used stronger language -- in
his mine" (Tr. 34).

2527

Mr. Workley explained why the belt was not aligned and why
he believed that the worn impact roller conditions took place
over multiple shifts and that no maintenance had been done for a
long time. He also explained why he believed the float coal dust
had accumulated over a period of multiple shifts (Tr. 35-37), and
stated as follows at {Tr. 38):

A. I'm not positive, but based on twenty years of
experience as a miner and as an inspector, what I saw
in the air, the amount of float dust that was in the
air current there, it would have taken a long period of
time for that thickness of float dust to settle on that
structure and on the walkway beside it.
On cross-examination, Mr. Workley confirmed that his belief
that the belt rollers had been dumping while coal was being
dumped on the tailpiece was an inference on his part and that he
had no other explanation for the roller wear that had occurred.
He also confirmed that a belt alignment problem can be unexpected
and occur at any time while the belt is in operation. If this
occurs, coal spillage can be expected and it can get caught up in
the bottom b~lt . Although the coal on the belt is normally wet
to damp , the coal he observed around the impact rollers and
plugging the tailpiece was fine and extremely dry, and the float
coal dust was black and suspended in the air {Tr. 39-42).
Mr. Workley confirmed that he had not previously inspected
the six south tailpiece and that he had no way of knowing
how long it took for the float coal dust to be generated
{Tr. 39, 43). He patted the accumulations on the belt frame and
floor and it dispersed into a black cloud in the air. The float
coal was "finely ground, the consistency of face powder", and he
collected no samples {Tr. 44).
Mr. Workley stated that he did not speak to the fire boss
about his examination, but he did speak to others in mine
management who told him that no foreman had come to look at the
six south tailpiece after the fire that occurred on sixth north
(Tr. 45) .

Mr. Workley stated that he found no problem with the tail
roller on the cited tailpiece and detected no hot rollers or
smell of combustion. He confirmed that it was possible that warm
air would be generated from a continuously running piece of
equipment. He confirmed that operating a tailpiece with missing
impact rollers is not a violation as long as the belt is not
contacting the frame. He confirmed that he observed the belt
contacting the frame, and when the belt was not running "it was
resting on portions of the frame when it stopped and portions of
the frame were worn away by friction of the belt rubbing it"
(Tr. 49).

2528

Mr. Workley believed that the fire boss should have observed
the cloud of float coal dust generated in the air above and
behind the tailpiece and should have looked inside to determine
what was generating the dust (Tr. 51). He did not know when the
last preshift was conducted prior to his inspection, but
indicated that at a minimum, it would have been close to four
hours. He conceded that he was speculating that the fire boss
encountered the same conditions that he observed, and confirmed
that he did not issue a violation for an improper preshift
examination (Tr. 52-54).
Mr. Workley stated that the two missing rollers were rubber
impact rollers, and that no metal rollers away from the tail
piece were missing, and he explained the worn bracket conditions
that he observed (Tr. 55-58).

In response to further questions, Mr. Workley stated that
"judging by the wear on those two brackets" he concluded that the
belt had been out of alignment for "several shifts" {Tr. 58). He
described the cc;mdition of the brackets as "worn down
approximately one inch at the top and they were both bright and
shiny" and he believed it took "shifts weeks" for this to occur
(Tr. 59). He believed it unlikely that the coal dust
accumulations he observed occurred over a short period of time
because he found float coal dust "a quarter to more than a
quarter of an inch thick" deposited adjacent to the tailpiece
belt and he has inspected belt lines that had not been dragged or
rock dusted for several shifts and found little or no
accumulations of float coal dust (Tr. 59).
Mr. Workley stated that the float coal dust was washed down
to terminate the citation and the clogged coal fines were removed
with a bar, roof bolts, or a pointed instrument (Tr. 60). He
explained that no coal had been transported over the tailpiece in
question for three or five months before his inspection when it
was operated as part of a working section. The tailpiece belt
was running during his inspection because it was a continuation
of the "mother ·· belt", and it performed no useful function.
However, the mother belt would not operate if the tailpiece were
shut down (Tr. 62).
·
Mr. Workley confirmed that he reviewed the prior fire boss
preshift and onshift reports and saw no indication of the cited
conditions. The tailpiece area was part of the normal fire boss
run and he saw no examination entries mentioning the brackets,
the belt out of alignment, or the presence of any float coal dust
(Tr. 63 ) . He did not speak with the fire boss who worked the
midnight shift and who was not present when the citation was
issued {Tr. 64). He explained his concerns as follows at {Tr.
64-65):
Q.

So missing rollers, per se, is not a violation.

2529

A.

No, sir, it's not.

Q.

And the belt running out of alignment is not
a violation.

A.

No, your honor, it's not.

Q. I guess the bottom line is that it was in general
disrepair, in that these two brackets were touching and
caused the belt to run out of alignment, caused some
friction. And there was float coal dust there and you
were concerned it was a fire hazard. Is that it?

A.

Yes, your honor.

Robert P. Nine, testified that he has worked for the
contestant for 21 years, and that he currently works as a block
mason. He confirmed that he accompanied Mr. Workley as the
miner's representative during his inspection on May 5, 1994, at
the tailpiece. He confirmed that he observed "heavy" float coal
dust accumulations on the belt structure and tailpiece and
estimated that it was "under a half inch, or quarter inch" thick.
He estimated ·t hat it would take "two to three days, maybe" for
the coal dust to accumulate. He looked into the side of the
tailpiece and observed a roller that was worn flat with fine coal
dust and pieces of coal or fines around it where it had frozen
the roller. The belt was running, but the frozen roller was not
turning (Tr. 66-69). He further described his observations as
follows at (Tr. 70-71):
Were the side guards ever removed so you could get
a better look inside the tailpiece?

Q.

A. Yes. The beltman came later and the belt was shut
off. And they pulled the skirts or the guard. The top
of it come up and fell back.
Q. What did you see?

A. It was a mess. Rollers wore down, froze;
accumulation of coal in the tailpiece.
Can you estimate how long it would have taken for
the coal to accumulate inside the tailpiece in the
manner that you saw it?
Q.

A.

I would say weeks.

Q. Did you see the belt rubbing on the steel bracket
or on two steel brackets?

2530

A. Yeah . That was on the other side of the belt.
There wasn ' t any roller there. There was a bracket, and
you could see where the belt had rubbed into the
bracket .

*

*

*

*

*

*

*

A. Yeah , it was worn down. It was worn down past
where the other belt -- I don't know how far. It was
shorter than the others by an inch or so.
Q.

Do you have an estimate as to how long that took?

A. On that, I don ' t know. I would say a day, couple
days . I don't know how long it would take a belt to go
through steel like that. I would say a day or two ,
maybe a week .
Mr. Nine stated that Mr . Thomas was initially angry with
Mr . Workley for i~suing the citation but later apologized to him

after looking at the tailpiece. He stated that Mr. Thomas said
it was bad but "~idn't think it was that bad till he looked in
it" (Tr. 72). He" also confirmed that there have been three or
four belt fires at the mine during the past year .
On cross-examination, Mr. Nine estimated that he had visited
the cited tailpiece five to ten times prior to Mr . Workley's
inspection. He confirmed that someone would be assigned to clean
up coal accumulations and take care of problems on belt lines as
they occurred . He confirmed that he did not know how long the
belt was running off to one side of the tailpiece, and since the
tailpiece is enclosed, one could not see that it running off of
the brackets unless the enclosure was opened up . He confirmed
that a casual observer could not see the belt running off unless
they opened up the hinged guards and looked under the cover
(Tr . 77-78) •
Ray L. Ash, MSHA Inspector Supervisor, testified that he has
46 years of mining experience, 21 of which was in private
industry as a mine superintendent, section boss, and mine
foreman. He confirmed that he was with Mr. Workley during his
inspection of May 5, 1994 , and that he was there to conduct a
quality control review and evaluation as to how inspections are
conducted (Tr . 79-82).

Mr. Ash stated that he personally observed the conditions
cited by Mr . Workley and he described them as follows at
(Tr. 84-86):
A. We came off of the -- I beli eve it was the f ive-s
belt. We came down it. Five-s belt, from one end to
the other, is several hundred, maybe a thousand feet

2 5 31

long, a very good looking belt, very well maintained,
everything in good shape, you know.
We came down to the corner there and I looked around
the corner. I couldn't believe the contrast of what I
saw up this little -- Up the entry' where this tailpiece
was setting, the contrast to the rest of the belt line .
You know, it just indicated there was lot of trouble
there from somewhere. I don't know where. But
something was bad wrong.
Q.

Why do you say that?

A. Well most of the rock dust had been washed off the
ribs, float dust in the air. I could see float dust on
part of the structures and thing up three, that had
settled, and just -- I've been to many of them. And
when you see that, you know, you've got trouble, when
you see it look like that.

*

*

*

*

*

*

*

A. When ·1 saw it up there, I stepped back and I let
Mr. Workley go first, because I knew there was trouble.
Then I walked along after he went up in there. And I
saw -- tried to see in the tailpiece.
There wasn't too many places you could see in. I
couldn't see any rollers in there as it's been
testified to before. Everywhere I looked in there, it
was packed with some kind of coal. Some of it was
caked hard. Some of it was loose. I just couldn't see
anything in there that much.
I could see a lot of float dust collected on the ribs
and some float dust in the air. I could see it in the
beam of my light.
Q. When the side guard was lifted, afterward, what did
you see then?

A. I walked -- After the side guards were lifted,
which was a good while later, I walked back up far
enough to look, just to look in there. The reason I
didn't go clear to the end, there must have been eight
or ten people in this little confined place, trying to
work and do things. So I tried to stay out of the way
as much as I could.
But I did see the brackets. I wasn't close enough to
tell how much they were wore down, a quarter inch, a
half inch, inch, or what. But the brackets did show

2532

signs they had been worn on. And the rollers and the
other stuff was just a mess in there. Everythin.g had
been bound up with coal.
Mr. Ash believed that the danger of fire was very real, and
based on his experience, he was of the opinion that it was highly
likely that a belt fire would have occurred of the belt continued
to run without correcting the cited conditions . He agreed with
Mr. Workley's finding that an injury was reasonably likely to
occur to people fighting the fire. He also believed that
methane, which is released freely in the mine, could be present
in the area, adding to the hazard {Tr. 87) .
Mr. Ash expressed his "one hundred percent" agreement with
Mr. Workley's high negligence and unwarrantable failure findings
and he believed that the accumulations occurred over a long
period of time. He saw no evidence of any coal spillage along
the belt live and did not believe that the accumulations had
occurred recently. He also believed that it took a long time for
the worn bracket condition to occur and he stated that this would
be a very slow R_rocess taking place over "several months". Based
on his experienc~, he believed that a reasonably competent
preshift examiner would have noticed the float coal accumulations
in question. He confirmed that an examiner would not be able to
see the belt rubbing on the steel bracket while waking by the
belt. However, he believed that a competent examiner would have
looked for the source of the float coal dust and reported it to
his foreman {Tr. 88-91). Mr. Ash denied that he ever commented
to Mr. Thomas that the conditions he observed "was not that bad"
and he heard no comments from Mr. Thomas about the condition of
the tai~piece {Tr . 94).

On cross-examination, Mr. Ash stated that he was impressed
with management's quick reaction to the citation {Tr. 96). He
confirmed that no one would open the tailpiece covers unless the
belt were shut off and that it was difficult to open the covers
"because it was hinged and I think it hadn't been opened for so
long" {Tr. 97). He believed that the worn bracket condition
would have occurred from the belt running off center on more than
one occasion {Tr. 98-100). He had no reason to believe. that the
belt fire detection or fire suppression systems were not
functioning and he found nothing wrong with them {Tr. 100) .
Mr. Ash believed that the preshift examiner should have
observed the absence of rock dust, and the presence of float dust
in the area and on the ribs, and this should have alerted him to
look in the tailpiece. He confirmed that the floor around the
tailpiece "was wet, sloppy, muddy". Although it was possible
that the float dust in the air was not there when the preshift
was conducted he believed that this possibility is "very, very
low", and that at least part, if not all, of the conditions were
present {Tr. 102).

2 533

Mr. Ash confirmed that he found no methane problem at the
tailpiece area, and no hot rollers or electrical problems. He
found no problems on any of the other belts in the area. He
confirmed that the problem was confined to the cited tailpiece
area 45-feet from the transfer point and stated that "it looked
like another world" {Tr. 105).

In response to further questions, Mr. Ash stated that the
friction between the belt , the brackets, the frozen rollers, and
the belt rubbing the coal in the tailpiece were all sources of
ignition (Tr. 106). He stated that some of the coal he observed
near the brackets was dry, indicating that heat was being
generated, while the coal in other areas was damp {Tr. 107).
Mr. Ash stated that the float coal dust and packed coal
conditions were observable from the side of the tailpiece but
that the brackets underneath were not readily observable until
the belt was shut down and the covers were opened up (Tr. 114).
He summarized his agreement with the unwarrantable failure
finding by Mr. Workley as follows at (Tr. 116):
(S]o I guess the nuts and bolts of this citation is the
fact that you found float coal dust accumulated on the
belts. You came to the conclusion it had been there for
a while. And after you opened the hinges, you found
all these other conditions. You found, like you said,
it was a marked contrast between another part of the
mine. And you agreed it was unwarrantable, because the
mine management should have been alerted to that or at
least the fire boss should have been alerted to it and
gone one step further than what he did.
A.

Yes, Sir.

Q. Or what you believe he did or didn't do.
correct?

A.

Yes, sir.

Q.

So that is the aggravated conduct.

A.

Yes.

Q.

That supports the unwarrantable.

A.

Yes

Is that

The Contestant's Testimony and Evidence
John Straface, mine superintendent, testified that he holds
a 1987 degree in mining engineering from West Virginia
university, and has been employed by the contestant since that

253 4

time. Referring to a mine map, he stated that the cited
tailpiece was a couple of miles away from the fire that occurred
on the six north belt (Tr. 121). He explained the direction of
the airflow over the tailpiece area and confirmed that there was
a stopping 12 to 15 feet behind the tailpiece and that there was
a dead end down the entry. The stopping was 12 to 15 feet from
the tailpiece. He confirmed that fire sensors and suppression
systems were installed in the area, including a water pump, bags
of rock dust, and a fire extinguisher (Tr. 117-127). He also
explained how the impact rollers functioned and how they are
distinguished from the metal rollers found along the beltline.
He confirmed that there are six similar tailpieces in operation
in the mine and he has experienced no significant problems with
them (Tr. 131-133).
Mr. Straface explained how the tail pieces are serviced
and maintained, and he believed that adequate examinations are
made and he could recall no prior citations for a violation of
section 75.1725(a) (Tr. 134).

Mr. Straface explained the duties of a fire boss, and he
stated that any \ hazardous conditions found by the examiner are
taken care of immediately. He stated that hot impact rollers
are not common and that he has never observed or known of any
such rollers getting hot (Tr . 135). He examined and explained
several preshift examination reports covering the area cited by
Mr. Workley (Tr. 136-139).
Mr. Straface stated that he arrived at the cited tailpiece
area fifteen minutes or one half an hour after the belt was shut
down. He described the area as damp and wet, and stated that the
ribs were moist and adequately rock dusted . He observed no cloud
of float coal dust and confirmed that some work had already been
done in the areas and the belt was not running. He also
confirmed that he did not observe the conditions observed by
Mr. Workley with the belt running. He did not consider the
tailpiece to be in an unsafe operating condition (Tr. 140-143).
Mr. Straface stated that he observed wet muck material that
had built up around some of the impact rollers and some wet
buildup on part of the belt structure . The tail roller and belt
rollers "were running free" and he did not consider missing
impact rollers to be an unsafe condition. He did not believe
that the impact roller bracket was causing a problem . He stated
that "there were impact rollers that were not turning" and that
they were "frozen" (Tr. 144). However, he did not consider this
condition to be necessarily a hazard (Tr . 145).
Mr. Straface confirmed that a belt fire had occurred at
approximately 1 : 00 a.m. on the six north belt on May 5, 1994, the
shift before Mr . Workley's inspection of the sixth south
tailpiece . He explained that a tail roller similar to the cited

2535

one had failed and the hot bearing was against a piece of the
rubber belt conveyor that had lodged in the area and it caused
some smoldering of the belt line. The foreman at the scene had
to cool it off with a fire extinguisher and water, and as a
result of this incident, crews were dispatched to examine the
other mine tailpieces (Tr. 146-148).
Mr. Straface confirmed that the cited tailpiece was checked
for any problem similar to the one that caused the fire on the
earlier shift but that the tailpiece guards were not opened to
examine the area under the guards (Tr. 149). He reiterated that
he did not observe the conditions observed by Mr. Workley before
the citation was issued shutting down the belt (Tr. 153).

On cross-examination, Mr. Straface stated that some amount
of float coal dust is unavoidable on belts, but it is a hazard
and should be recorded in the preshift report. However, he
explained that the foremen are instructed to correct float coal
dust conditions immediately, and if this is done, the condition
is not reported during the preshift, but it should be recorded on
the on-shift side of the examination book (Tr. 158-159). He
agreed that some of the wet and "sloppy" conditions be observed
at the tailpiece could have occurred by washing off the tailpiece
to take care of accumulations of spillage and float coal dust
(Tr. 160) •
Mr. Straface stated that it would take more than a shift,
and possibly more than a day, for the impact rollers to be worn
down to the shaft. He could not recall that any metal was showing
on the worn rollers and stated that "they were worn to a flat
place" (Tr. 162). He further stated that no coal was being
dumped on the cited tailpiece and the section ceased developing
in December, 1992. The tailpiece was used at that time as a
section tailpiece when it was in production (Tr. 162). He stated
that the tailpiece is examined regularly no more than every
2 weeks, and usually every week.
He did not believe that a flat
impact roller necessarily demands immediate maintenance, and he
stated that the belt line was not in operation for 5 or 6 months
during a strike (Tr. 163).

In response to further questions, Mr. Straface stated as
follows at (Tr. 167-170):
Q. Do you think all these conditions that inspector
Workley described on the face of this citation could
have occurred within a week; struck rollers, bent
bracket, all the stuff that the found in there? That
could have happened between inspections?

A.

All of those conditions?

Q.

Yes.

2536

A. It probably -- It probably could have grown in
magnitude.
What?

Q.

A. It probably could have grown in magnitude. All of
those conditions that he noted would not have required
the belt to be shut down to repair them on their own.

*

*

*

•

*

*

*

Human nature being what it is
this tail roller
is kind of isolated. It hasn't ben used on a regular
basis. It is altogether possible that somebody just
forgot to look at this thing, open it up and look at
it?

Q.

A.

I'm sure that is possible.

JUDGE KOUTRAS: Nobody is going to admit that to you,
are they? You're the mine superintendent. That is
true, isn•'t it? Nobody is going to admit that to you,
are they?
A.

(No Response.)

Ray Campbell testified that he has an associate degree in
mining from Belmont Technical College, and has worked in the
mines since 1977. He has worked for the contestant since 1984,
as a section foreman and fire boss, and "sometimes, whenever they
need me to fill in, I do preshift examinations" (Tr . 173). He
confirmed that he was familiar with the violation in this case
and he stated that he conducted the preshift examination on the
May s, 1994, midnight shift. He stated that he looks for float
dust, spillage, bad rollers, roof and rib conditions, and methane
(Tr . 174).
Mr. Campbell stated that he was at the cited tailpiece on
two occasions during the May s, midnight shift, and he went there
the second time after an alarm sounded on the six north tailpiece
because of a hot bearing. He found no unusual conditions or
circumstances at the cited tailpiece when he arrived there at
1:30 a.m. He stated that he looked around the tailpiece, checked
the pillar block bearings, and found nothing unusual other then
some water and slop which he pumped out. He found no
accumulations of float dust on the tailpiece but did not pull the
covers off to look inside because " I seen nothing out of the
ordinary, I didn't feel it was necessary, and you cannot do that
with the belt running" (Tr. 176).
Mr. Campbell stated that he considered hot rollers, coal
spillage, the belt or roller rubbing in coal spillage, and float

2537

dust to be hazardous conditions. He stated that he observed no
evidence of the belt running in coal around the tailpiece, and
saw no damage to the edge of the belt or the belt running out of
train or off to one side at the tailpiece (Tr. 178). He returned
to the tailpiece area at 6:00 a.m. to preshift it and it took him
5 to 10 minutes to do this. He checked for float dust, spillage,
methane, and roof or rib conditions. He saw no float dust in the
air, saw no quarter inch accumulations on the tailpiece structure
and observed nothing that would have led him to pull the
tailpiece covers open and look inside. The examination of the
tailpiece interior is not a normal part of his examination and
this job is assigned to the belt foreman. He stated that he
would have taken care of any hazardous conditions if he had found
any (Tr. 179-181).
Mr. Campbell stated that he would look at both sides of the
tailpiece during his examination and could not recall ever having
to use the washdown hose to wash float dust off the tailpiece.
He described the area on the day he was there as "very wet and
muddy", and the only explanation he had for any float dust
observed by the inspectors was that someone turned the belt water
off. He stated that the coal dust would come off the other belt
lines, and believed it was possible that spillage and muck caught
in the bottom belt may have been the source of the coal dust
(Tr. 183-186) •
Mr. Campbell stated that he looks for ignition sources such
as bad rollers, sparks, or signs of combustion, but observed none
of these during his examination, and he smelled nothing unusual
(Tr. 188). He explained the absence of any float dust entries on
his preshift reports and stated that "we do whatever is necessary
to take care of the situation" and that this is standard mine
procedure (Tr. 189).
On cross-examination, Mr. Campbell stated that he could
examine the tailpiece tail roller bearings by looking at them
from each side, and he had no reason to believe there were any
bad or missing rollers inside the tailpiece and had no reason to
look inside (Tr. 191). He stated that there is no reason to
record a hazardous condition that is taken care of during the
preshift examination because "its no longer a violation or
hazardous condition" and "you have already cleared it" (Tr. 193).
It is, however, noted on the on-shift book that the condition was
there and that it was taken care of. Any float coal conditions
detected are taken care of immediately (Tr. 197).
Don Chernak, belt foreman, stated that he has worked for the
contestant for 22 years and holds fire boss and foreman's papers.
He is responsible for the large rollers and bearings at the back
of the tailpiece, the guarding and skirting, and the inside
rollers. He stated that he examines the tailpieces "as often as

2 538

I can. I try to get them once a week. Sometimes it's a little
more than a week that I finally get around to all of them
"(Tr. 209). He examines for conditions that cannot be detected
when the belts are running and he opens the tailpiece lids to
look inside (Tr. 209).
Mr. Chernok stated that a flat or frozen roller does not
render a tailpiece unsafe to operate and it simply indicates that
"there is a potential of maintenance for me, something that I do
need to make corrections on as time warrants" (Tr. 210). He does
not consider a missing impact roller to be an unsafe operating
condition, and he removes lumped coal around a roller to avoid
any damage. Fine coal around rollers, and accumulations of muddy
materials are hosed out . He could not recall any float coal dust
situations at the cited tailpiece (Tr. 212) .
Mr . Chernok could not recall the exact day he examined the
tailpiece prior to May 5, and stated that "it never goes more
than a week and a half that I don't see every tailpiece" and that
he never fails to examine the tailpiece in question (Tr. 212).
On cross-examination, Mr. Chernok stated that he does not
routinely stop the belt during his examinations of the tailpiece
unless he observes something out of the ordinary . He does not
keep maintenance records for the tailpiece. He stated that he
checks the tailpiece "at least every other week, maybe not
weekly. And I do try to examine weekly" (Tr . 215) . He explained
how the cited conditions could have occurred at the tailpiece
since his last examination , and he stated that no belt problems,
such as tears, worn edges, or abrasions, ever came to his
attention at any time when the citation was issued (Tr . 220}.
In response to further questions, Mr. Chernok stated that he
considers rollers turning in fine, black, dry float coal dust to
be an unsafe condition because of the possibility of heat and
combustion. He also believed that a belt riding on, and rubbing
the brackets, could generate heat. He confirmed that the
conditions found by the inspectors could have occurred a week or
a week and a half prior to his last inspection (Tr. 222} .
Mr. Chernok stated that he arrived at the tailpiece no more
than 30 minutes after the citation was issued and that he was in
no position to observe the float coal that the inspector
testified about (Tr. 226).
Ronald E. Thomas, safety inspector, testified that he has
24 years of mining experience as a section foreman and safety
escort, all at the Blacksville No. 2 mine (Tr . 227). He
confirmed that he accompanied Inspectors Workley and Ash during
the May 5, 1994, inspection, and he identified copies of his
inspection notes (Exhibit C-6; Tr. 229). Mr. Thomas stated that
he arrived at the tailpiece ahead of the inspectors and saw no

2539

cloud of float coal dust. He did see some float dust which
consisted of some dust generated off the belt line that had been
deposited on the frame of the tailpiece. He stated that he began
to wash the material off "because sometimes I get into trouble
violations wise of somebody calling a float dust violation, and I
just try to handle it. It was just a very light dusting from
deposits from the belt line" (Tr. 232).
Mr. Thomas disagreed that there was a violation of
section 75.1725(a), and he was of the opinion that there was no
hazard. He described the dust as wet and damp, and stated that
it had been rock dusted and that he tried to use a sump pump to
remove the water out of the area, but it wouldn't work. The dust
suppression spra's on the belt were operating and the belt was
damp (Tr. 234). After the belt was shut down, the tailpiece
covers were opened and "we seen that we needed some areas cleaned
inside there" and he described the material as "belting, scrapes
from old belt, looked like rope or string, mud, muck, some dried
mud and muck" and he believed that it was material knocked down
inside when he hosed off the tailpiece (Tr. 236).
Mr. Thomas stated that when he initially observed the
tailpiece he saw no condition that would have caused him to open
the covers and. look inside and he saw no evidence that the belt
was being cut by any part of the structure (Tr. 236). He
described the material he saw around the impact rollers and belt
structure as "muck, damp water that has dried .out and then
redampened again and dried out, and just water", and he saw no
fine coal dust or float coal dust (Tr. 237). He believed there
was sufficient rock dust in the area, and that the ribs were damp
or wet (Tr. 238).
Mr. Thomas stated that when the citation was abated, the
missing and flat rollers were not required to be replaced, and
all of the rollers that were frozen were not free to turn and
four of them were still frozen. The bare metal piece was bent
back so that it did not touch the belt and the tailpiece was
hosed down and "we continued to run after we cleaned it out a
little bit more" (Tr. 238).
On cross-examination, Mr. Thomas stated that he initially
picked up the water hose because he thought that Inspector
Workley was going to issue a section 75.400 float dust citation.
Mr. Thomas confirmed that float dust was on the tailpiece frame,
and he stated that "I'm not calling it float dust" (Tr. 241). He
stated that he did make the statement "I didn't realize the
condition was that bad" after the tailpiece lids were opened (Tr.
242). He stated that three or four people, including himself,
worked to abate the citation, and that it took approximately
one-half hour.

2540

Mr. Thomas stated that after he was informed that a
section 75.1725(a), citation was issued, he left the area to tell
his supervisors that the belt needed to be shut down~ When he
returned, Inspector Workley informed them that he was going to
issue a section 104(d) (1) citation because of the fire at the
number six north belt. He stated that he told Mr. Workley that
the cited area had been preshifted and that no hazard was
observed by the midnight preshift examiner (Tr . 245).
Inspector Workley was called in rebuttal by MSHA, and he
stated that he decided to cite a violation of section 75.1725(a),
after walking to the back and right side of the tailpiece and
observing how much float coal dust was there . He informed
Mr . Thomas that he was citing a violation of section 75 . 1725(a),
and that he was required to remove the tailpiece from service
immediately (Tr. 246). Mr . Workley stated that after Mr. Thomas
left the area he informed the miner's representative Philip Nine
that he was considering issuing a section 104(d) (1) citation
became of the conditions he found. Mr. Nine then informed him
about the fire at the six north belt on the previous shift, and
Mr. Workley believed that this added to the operator's negligence
and that the vi9lation was unwarrantable (Tr. 247-248). He
further explained his opinion that the dust he observed was not
recent spillage as follows at (Tr. 248-249):
A. In order for spillage to occur and cause the float
dust condition at the tailpiece, the spillage would
have to occur at the five-s or four-s transfer. And if
the coal fell from there, onto the bottom belt, and was
carried back to the two south -- or six south number
two tailpiece, the scraper would have knocked a lot of
the spillage off onto the mine floor and there would
have been spillage all over the place at the tailpiece.
There was none .
Also, there would have been an entry in the preshift
examination book from the shift before or two shifts
before or three shift before, noting the spillage and
the action taken to clean it up.
Q. The belt foreman testified that he examines the
belt approximately once a week, every seven to eight
days. Is it possible this condition could have
occurred over a one-week period?

A. Parts of the condition may have occurred over less
than a one week period, but part of the condition, as I
described previously, occurred over months. The wear
of the impact rollers did not occur in the last week or
two before the violation was cited.

2541

On cross-examination, Mr. Workley confirmed that he did not
require the replacement of the worn impact rollers as part of the
abatement. He stated that it was possible that a bad roller wiper
could have pulled the material up into the tailpiece (Tr. 250).
Mr. Workley further explained the effect of the prior fire
on his unwarrantable failure finding as follows at (Tr. 251-253):
Why would the fire on this other tailpiece cause
you to decide to issue a (d) (1)?

Q.

A. Your honor, a reasonably prudent person, if you
were responsible for the operation of a coal mine and
you have two mother belt tailpieces and you have an
emergency, a fire, occur on one of them, wouldn't a
reasonably prudent person send somebody or even go
himself to the other one to make sure that the same
condition didn't exist there, immediately or as soon as
possible?
It's my understanding that is what they did. There
was testimony here that the fire on the six north belt
was caused by some defective bearing or something in
the main tail roller. As a result of that, the
preshift examiner went and checked the tailpiece that
you cited and checked the bearings on the tail roller
visually. Were you aware of that?

Q.

A. One one ever offered that information to me, your
honor. And I did question people if that had happen.
Q. Had you had that information available to you,
would you still have issued the (d) (1) order -- I mean,
citation?

A. Given the other conditions, your honor, I'm not
positive, but probably not.

*

*

*

*

*

*

*

Mr. Workley, ·to your knowledge, was the situation
on the six north belt a reportable incident?

Q.

A. You mean did it require reporting under federal
quidelines? No, it didn't.

*

*

*

*

*

*

*

You said you might not have issued a (d) (1)
citation if you had known that the operator had sent
someone to check the six south tailpiece. Is that
correct?

Q.

2 5 42

A.

That is correct.

Would it make a difference, in your opinion, if you
knew that the only thing that the, I believe it was a
fire boss checked, when he went to examine the six
south tailpiece was the bearing on the back tail
roller. He didn't check the rest of the tailpiece. He
only examined that part.
Q.

A.

No.

Then it wouldn't have changed my opinion.
Findings and Conclusions

Fact of Violation
The contestant is charged with a violation of mandatory
safety standard 30 C.F.R. S 75.1725(a), which provides as
follows : "(a) Mobile and stationary machinery and equipment
shall be maintained in safe operating condition and machinery or
equipment in unsafe condition shall be removed from service
immediately."
\
Inspector Workley based his citation for a violation of
section 75.1725(a), on several factors, which taken as a whole,
led him to conclude that the cited conveyor belt tailpiece was
not maintained in a safe operating condition. Mr. Workley
testified credibly that he observed float coal dust accumulations
on the tailpiece frame, belt rollers that were plugged with dry
coal dust, partially stuck rollers, rollers impacted with coal
dust that were not turning, and a portion of the belt that was
running to one side and rubbing or contacting some worn metal
roller brackets and generating frictional heat. Mr. Workley
believed that these conditions presented a belt fire hazard and
rendered the cited tailpiece unsafe for continued operation.
Supervisory Inspector Ash, who was with Mr. Workley,
personally observed the conditions cited by Mr. Workley and he
testified credibly that he observed float coal dust in the air
and the worn brackets. Mr. Ash saw the worn brackets after the
tailpiece lids were opened, and he described the conditions as
"just a mess" and that "everything had been bound up with the
coal" Mr. Ash agreed with Mr. Workley that the cited conditions
presented a fire hazard.
Miner's representative Nine, who was also present during the
inspection, and who has worked for the contestant for 21 years,
also testified credibly that he observed float coal dust
accumulations on the tailpiece and belt structure, and a frozen
roller that was not turning and impacted with coal and coal
fines. Mr. Nine also observed the conditions inside the
tailpiece after the lids were opened, and he saw that the belt
had rubbed the metal roller bracket and worn it down, coal

2543

accumulations, and a frozen roller. Mr. Nine also heard
Mr. Thomas• comment that he (Thomas) did not believe the
conditions were "that bad" until he looked inside the tailpiec e.
Mine superintendent Straface, who arrived at the tailpiece
area 15 to 30 minutes after the belt was shut down, and after
some abatement work had been done, did not observe the cited
conditions as they existed and were observed by Inspector Workley
at the time he issued the citation. Under the circumstances, I
have given little weight to Mr . Straface•s opinion that the
tailpiece was not in an unsafe operating condition because the
area was wet, there was no float coal dust present, and the tail
and belt rollers "were running free" of coal. It seems obvious
to me that by the time Mr. Straface arrived at the scene,
corrective action had been initiated to wash down the area and to
free the belt rollers of impacted coal, and to bend back the
rubbing brackets.
Belt foreman Chernok also arrived at the tailpiece
30 minutes after the citation was issued and after the abatement
was well on its way, and he did not view the conditions that
prompted Mr. Workley to issue the citation. Even though he did
not view the ·conditions as observed by Mr. Workley, Mr. Chernak
agreed that belt rollers turning in fine, black, dry float coal
dust was an unsafe condition because of the possibility of heat
and combustion, and that a belt riding on, and rubbing a bracket
could generate heat.
Although safety escort Thomas testified that he arrived at
the tailpiece ahead of Inspector Workley and Ash and saw no
"cloud" of float coal dust, he confirmed that he observed float
coal dust deposited on the tailpiece frame. He admitted that he
immediately began washi ng down this material because he did not
want to get into trouble with any float coal dust violations, and
that after the tailpiece guarding lids were opened up exposing
the inside area of the tailpiece he stated to Inspector Workley
that he did not realize that the condition of the cited tailpiece
"was that bad." Mr. Thomas also agreed that after the lids were
opened the areas inside the tailpiece needed cleaning. Although
Mr. Thomas believed that the coal dust he observed was rockdusted
and light in color and was not float coal dust, I find the
testimony of Inspector Workley, Inspector Ash, and miners'
representative Nine to the contrary to be more credible.
Preshift examiner Campbell testified that when he last
inspected the tailpiece area at 6 : 00 a.m. on May s, he found "no
unusual" conditions, observed no float coal dust accumulations ,
and found . no evidence of the belt running in coal or out of
train. However, ·Mr. · Campbell did not inspect the inside of the
tailpiece where the inspectors found the cited conditions because
it was not his job. Under the circumstances, I have given little
weight to Mr. Campbell's testimony and find that it does not

2544

rebut the credible testimony of the inspectors with respect to
the cited conditions which they personally observed at the time
the violation was issued.
After careful consideration of all of the testimony and
evidence in this case, I conclude and find that the credible
testimony of the inspectors, as corroborated by Mr. Nine, clearly
establishes the existence of the cited conditions and reasonably
supports Inspector Workley•s conclusion that the cited belt
tailpiece was not maintained in a safe operating condition as
required by the cited section 75.1725(a). Accordingly, the cited
violation IS AFFIRMED.
Significant and Substantial Violations
A "significant and substantial" violation is described in
section 104(d} (1) of the Mine Act as a violation "of such nature
as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard."
30 C. F.R . S 814{d}(l). A violation is properly designated
significant and ~ubstantial "if, based upon the particular facts
surrounding the vi olation there exists a reasonable likelihood
that the hazard contributed to will result in an injury or
illness of a reasonably serious nature." Cement Division .
National Gypsum Co . , 3 FMSHRC 822, 825 (April 1981).
In Mathies Coal Co . , 6 FMSHRC 1, 3-4 (January 1984}, the
Commission explained its interpretation of the term "significant
and substantial" as follows:
In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum the Secretary 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 safetycontributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will result
in an injury; and (4) a reasonable likelihood that the
injury in question will be of a reasonably serious
nature.
In United States Steel Mining Company. Inc . , 7 FMSHRC 1125,
1129, the Commission stated further as follows :
We have explained further that the third element
of the Mathies formula "requires that the Secretary
establish a reasonable likelihood that the hazard
contributed to will result in an event in which there
is an injury . " U. S. Steel Mining co., 6 FMSHRC 1834,
1836 (August 1984). We have emphasized that, in
accordance with the language of section 104(d)(l), it

2545

is the contribution of a violation to the cause and
effect of a hazard that must be significant and
substantial. U.S. Stee1 Mining Company. Inc~, 6 FMSHRC
1866, 1868 (August 1984); U.S. Steel Mining Company.
~., 6 FMSHRC 1573, 1574-75 (July 1984).
The question of whether any particular violation is
siqnif icant and substantial must be based on the particular facts
surrounding the violation, including the nature of the mine
involved, Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498
(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
(December 1987). Further, any determination of the significant
nature of a violation must be made in the context of continued
normal mining operations . National Gypsum, 3 FMSHRC 327, 329
(March). Halfway, Incorporated, 8 FMSHRC 8, (January 1986).
Citing Secretary of Labor .y. Texasgulf, Inc., 10 FMSHRC 501
(April 1988), the contestant as·serts that in order to determine
the reasonable likelihood of a combustion hazard resulting in an
ignition or explosion there must be a ·"confluence of factors" to
create a likelihood of ignition . In the instant case, the
contestant a~gues that the violation was not significant and
substantial because an ignition was unlikely. In support of this
conclusion the contestant asserts that (1) an adequate fire
suppression and fire detection system was installed and in
working order, (2) the area was wet, (3) there was no smell of
combustion, and no electrical hazards or hot rollers, (4) any
float dust in the area was minimal and ·did not represent a .·
hazardous accumulation and (5) the lack of damage to the belt
represents clear and convincing evidence that the belt was not in
contact with the bracket while it was in operation.
In support of· the inspector's "S&S" finding, the respondent
argues that a violation of section 75.1725(a) has been
established and that the failure to maintain the cited tailpiece
in a safe operating condition and free of hazards presented -a
discreet fire hazard that exposed miner's to serious injuries.
The respondent further argues .that the failure of the contestant to maintain the tailpiece would have resulted in'i.a
fire, and miners would have been injur.ed had normal mining ..·
operations continued . Citing the testimony of Inspectors Ash and
Workley that the float dust accumulations ·.on the tailpiece -f rame
existed for 10 to 12 hours and that the accumulations inside . the
tailpiece existed for a prolonged period of ·shifts, days or. weeks
and were not documented in the last preshift or onshift exams,
the respondent concludes that it was highly unlikely that the
accumulations would have been removed any time soon.
The respondent also relies on the fact . that a preshift ·
examiner would not normally look inside the . tailpiece to examine
the belt or rollers, and he cites the admission ·of the belt

2546

foreman that he keeps no record of when he has last examined the
tailpiece and has no set examination schedule, and the mine
superintendent's testimony that given the remote location of the
tailpiece, it could have been missed during a beltline
examination. The respondent concludes that given the failure of
preshift examiners to discover the unsafe condition of the
tailpiece and the lack of a set plan for examining the tailpiece,
it is not likely that the conditions would have been corrected
before an accident occurred.
The respondent further argues that the coal dust
accumulations inside the tailpiece and on the frame were dry and
combustible and that there was sufficient air to accommodate a
fire. The respondent cites the testimony of the inspectors that
the belt has running in coal dust accumulations, causing friction
that could likely result in a fire, and that the belt was not
aligned and was wearing away at steel brackets on the ·right side
of the tailpiece where Inspector Workley noted the greater amount
of float coal dust. The respondent points out that both
inspectors were of the opinion that given the conditions which
they observed, it was reasonably likely that a fire wold occur .
'

Finally, the respondent asserts that Inspector Workley•s
belief that if a fire occurred, it was reasonably likely that
there would be an injury of a reasonably serious nature,
specifically smoke inhalation or smoke, stands uncontradicted.
I have considered the fact that the workable fire detection
and suppression systems were installed -along the belt line .
However, Inspector Workley testified that the sensor was in the
"general area" of the tailpiece and that a c .o. monitor was
located "some distance" from the tailpiece (Tr . 28).
Mr. Straface testified that the fire suppression system was
located at the Five-s transfer area (Tr. 125). Further, even
though these systems were provided, they did not prevent the
prior two belt fires that occurred at belt tailpieces (Tr.
46-47) . Indeed, the tailpiece fire that occurred on the
immediate shift prior to the inspection by Mr. Workley was not
put out by any supression system . A foreman was dispatched· to
the area, and he used a fire extinguisher to wet down the
smoldering roller bearing that had overheated .
·
· Although the inspector conceded that there was no smell of
combustion, he nonetheless testified credibly that the three
ingredients necessary for a fire were present, namely, adequate
air,. fuel, and an ignition source (Tr. 26). He found that the
belt was running and was in contact with the metal brackets,
producing frictional heat, and that the belt was in contact with
the fine coal accumulations inside the tailpiece (Tr. 24) . He
also indicated that had he smelled combustion, he would have
concluded that the belt was actually on fire and would have
issued an imminent danger withdrawal order (Tr. 59-60). Under

2547

all of these circumstances, the fact that there was no actual
smell of combustion does not detract from the inspector's "S&S"
finding.
While it may be true that there were no electrical hazards
or hot rollers, Inspector Ash testified credibly that heat was
being generated around the tailpiece area where the belt was
rubbing the metal roller bracket because there was dry coal in
that area and the rest of the coal was damp (Tr. 101). Mr. Ash
also testified credibly that there were frictional ignition
sources present at the tailpiece, namely the belt rubbing on the
metal bracket and the rollers that were impacted and frozen in
the coal accumulations. He also indicated from his long
experience that belts rubbing belt stands and metal brackets
produce heat quickly (Tr. 106).
Belt foreman Chernok admitted that a roller turning in fine,
black dry coal dust is an unsafe condition because of the
possibility of heat and combustion (Tr. 221). He also agreed
that a belt riding on steel bracket could generate heat (Tr.
221). Safety escort Thomas confirmed that after the belt was
shut down, he · bent the bare metal bracket back "so it wouldn't
touch the belt"(Tr. 238).
The contestant's conclusion that the lack of belt damage
represents clear and convincing evidence that the belt was not in .
contact with the bracket while it was in operation is rejected.
Although the brackets in question were not visible while the belt
was in operation with the tailpiece guards in the closed
position, there is ample credible evidence that lead me conclude
that the brackets were contacting the belt while it was running.
Inspector Workley testified that after the belt was stopped
he observed that it was resting on portions of the belt frame and
that the frame was worn away by friction caused by the belt
rubbing the frame (Tr-. 49). He also saw that the belt was
wearing away at the missing brackets which had worn down
approximately an inch from the top, and that this wear was on the
right side of the tailpiece where there was a greater
concentration of float coal dust (Tr. 22).

Mr. Nine confirmed that the belt had rubbed the roller
brackets, and that it was worn down and running off to one side
(Tr. 70-71). He also confirmed that there were two prior
tailpiece belt fires during the past year (Tr. 71). Inspector
Ash believed that the wear on the brackets was ongoing (Tr. 99).
The contestant's suggestion that the tailpiece area was so
wet as to render it harmless is rejected. As noted earlier,
contestant's witnesses Straface, Campbell, and Chernok did not
observe the tailpiece conditions at the time the inspectors
observed them and ordered the belt shut down. Although safety

2548

escort Thomas arrived just ahead of the inspectors, he picked up
a water hose and began washing the area down . As indicated
earlier, I have found the testimony of the inspectors and
Mr. Nine with respect to the existence of the dry float coal dust
and coal accumulations inside the tailpiece to be more credible
than the testimony of Mr. Thomas.
After careful consideration of all of the evidence and
arguments presented in this case, I conclude and find that the
respondent has the better part of the argument and has
established by a preponderance of the credible evidence that the
violation was significant and substantial (S&S) .
I have concluded that a violation of section 75.1725(a), has
been established. I further conclude and find that the cited
tailpiece conditions presented a discrete hazard of a potential
belt fire and ~hat in the normal course of continued mining at
the time the inspector observed the cited conditions it was
reasonably likely that an ignition would have occurred as the
dry, black, combustible coal dust and float coal dust continued
to accumulate and turn in the tailpiece that was plugged with
fine coal and c~al dust, and as the belt continued to run out of
alignment and rub on the missing roller brackets in question. I
further conclude and find that a tailpiece belt fire was
reasonably likely to occur as a result of the ignition, and that
it was reasonably likely that the ~iners on the working sections
would suffer smoke inhalation, and possibly ~ther fire related
injuries of a reasonably serious nature. Accordingly, I conclude
and find that the violation was significant and substantial
(S&S), and .the inspector's finding in this regard IS AFFIRMED.
Unwarrantable Failure Violation
The governing definition of unwarrantable ·failure was
explained in Zeigler Coal Company, 7 IBMA 280 (1977), decided
under the 1969 Act, and it held in pertinent part as follows at
295-96:
In light of the foregoing, we hold that an
inspector should find that a violation of any mand~tory
standard was caused by an unwarrantable failure to
comply with such standard ·if he determines that the
operator involved has failed to abate the conditions or
practices constituting such violation, conditions or
practices the operator knew or should have known
existed or which it failed to abate because of a lack
of due diligence, or because of indifference or lack of
reasonable care.
In several decisions concerning the interpretation and
application of the term "unwarrantable failure," the Commission
further refined and explained this term, and concluded that it

2549

means "aggravated conduct, constituting more than ordinary
negligence, by a mine operator in relation to a violation of the
Act." Energy Mining Corporation, 9 FMSHRC 1997 (December 1987);
Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007 (December 1987);
Secretary of Labor v. Rushton Mining Company, 10 FMSHRC 249
(March 1988). Referring to its prior holding in the Bmery Mining
case, the Commission stated as follows in Youghiogheny & Ohio, at
9 FMSHRC 2010:
We stated that whereas negligence is conduct that
is "inadvertent," "thoughtless" or "inattentive,"
unwarrantable conduct is conduct that is described as
"not justifiable" or "inexcusable . " Only by construing
unwarrantable failure by a mine operator as aggravated
conduct constituting more that ordinary negligence, do
unwarrantable failure sanctions assume their intended
distinct place in the Act's enforcement scheme.
In Eniery Mining, the Commission explained the meaning of the
phrase "unwarrantable failure" as follows at 9 FMSHRC 2001:
We first determine the ordinary meaning of the
phrase "unwarrantable failure." "Unwarrantable" is
defined as "not justifiable" or "inexcusable."
"Failure" is defined as "neglect of an assigned,
expected, or appropriate action." Webster's Third New
International pictionary (Unabridged} 2514, 814 (1971)
("Webster's"). Comparatively, negligence is the
failure to use such care as a reasonably prudent and
careful person would use and is characterized by
"inadvertence," "thoughtlessness," and "inattention . "
Black's Law Dictionary 930-31 (5th ed. 1979). Conduct
that is not justifiable and inexcusable is the result
of more than inadvertence, thoughtlessness, or
inattention. * * *
The contestant asserts that Inspector Workley's
unwarrantable failure finding is materially flawed because mine
examiner Campbell had made a special examination of the 6 South
tailpiece within one-half hour of the alarm sounding because of
the hot roller at the 6 North tailpiece and the inspector
conceded that if he had known about this examination he probably
would not have found an unwarrantable violation.
The contestant further argues that designating the violation
as unwarrantable was also inappropriate in light of: (1) the
fact that the inspector did not require many of the conditions
addressed in the violation (~, missing and stuck impact
rollers) to be corrected prior to putting the tailpiece back into
service, (2} the credible evidence that the other conditions
cited by the Inspector could have occurred after the last
examination of the tailpiece and (3) the credible testimony that

2550

the mine had a maintenance program that, as a rule, kept. the six
tailpieces installed at the mine in safe operating condition.
Examined as a whole, the contestant concludes that these factors
clearly establish that it was not indifferent to the hazards
associated with the operation of the tailpiece.
The respondent asserts that the evidence fully supports the
inspector's unwarrantable failure finding. The respondent argues
that given the existence of the cloud of float coal dust over the
tailpiece, the amount of float dust accumulations on the
tailpiece frame, and the lack of any evidence of a spill, it was
clear that there was an obvious problem with the tailpiece that
should have been explored by the preshift examiner.
The respondent further argues that the coal dust
accumulations inside the tailpiece and the wearing down of the
bracket by the belt support Inspector Workley•s belief that the
accumulations and belt wearing conditions existed over a
prolonged period of shifts, days, weeks, or months.
The respoJ\dent points out that Inspector Workley found that
no maintenance had been done on the tailpiece for a long time,
and the belt examiner could not state when he last examined the
tailpiece, and admitted that he kept no tailpiece maintenance
records. He also admitted that there was no set schedule for
examining belts, and the mine superintendent testified that the
isolated location of the tailpiece made it possible that it was
missed during maintenance checks.
Finally, the respondent argues that while there is testimony
that the cite~ tailpiece roller was checked following the fire at
the 6 North belt prior to the inspection of May 5, 1994, it is
unclear whether Inspector Workley would have concluded that the
violation was unwarrantable if he knew that the cited tailpiece
was checked to determine the condition of the tail roller.
Although the respondent asserts that Mr. Workley testified that
he "was informed that no one checked the tailpiece," the
transcript record reflects that Mr. Workley testified that no one
told him that anyone had checked the cited tailpiece after the
prior incident at the 6 North tailpiece (Tr. 252). In· any event,
the respondent concludes that the remaining evidence supports a
finding that the failure by the contestant to maintain the
tailpiece rises to a level of aggravated conduct.
Inspector Workley, whose 20 years of experience included
8 years of underground mining and work as a mine foreman,
testified credibly that the coal accumulations that he found
inside the tailpiece, and the float coal dust in the area, had
accumulated over a prolonged period of time. He also testified
credibly that the worn tailpiece roller and bracket conditions
and the lack of maintenance that he observed occurred over a
period of multiple shifts and weeks.

2551

Supervising Inspector Ash, who had 46 years of mining
experience, including 21 years as a mine superintendent and
foreman, was in total agreement with Mr. Workley's unwarrantable
failure finding, and he testified credibly that the coal
accumulation inside the tailpiece and the worm roller bracket
conditions were very slow processes that would have taken place
over several months.
The contestant's argument that Inspector Workley's
unwarrantable failure finding is materially flawed because he
conceded that if he had known that Mr. Campbell had preshifted
the tailpiece on May 5, he probably would not have made that
finding is rejected. Mr. Workley's testimony must be taken in
context. Mr. Workley further testified that had he also known
that Mr. Campbell only ·1ooked at the rear tailpiece roller and
did not examine the rest of the tailpiece, it would nQ.t have
changed his unwarrantable failure opinion.
Preshift examiner Campbell, who confirmed that he sometimes
conducts preshift examinations as a "fill-in," as needed, in my
view performed a rather cursory examination of the cited
tailpiece. Mr ~ Campbell confirmed that he did not examine the
inside of the tailpiece because the belt was running and he
observed no hazardous conditions, and had no reason to examine
the inside of the tailpiece. However, he further stated that the
examination of the inside of the tailpiece was not his job and
that this task was assigned to the . belt foreman. Under the
circumstances, it would appear to me ~hat even if Mr. Campbell
had some reason to examine the inside of the tailpiece, by his
own admission he would not have done so because it was not his
job. Given the fact that there was a hot roller and belt fire
problem with another tailpiece on the shift prior -to Inspector
Workley•s inspection, I would expect a reasonably prudent
preshift examiner to ensure that the cited tailpiece was
thoroughly examined, inside and outside, even if he had to shut
the belt down to do so. If Mr. Campbell had done so, he would
have found the conditions that company safety inspector Thomas
characterized as "bad."
Belt foreman Chernak, who was responsible for the large
rollers and bearings at the back of the tailpiece, and the
guarding and inside rollers, testified that "I try to get them
once a week. Sometimes it's a little more than a week that I
finally get to all of them." Mr. chernok could not recall when
he last examined the tailpiece prior to Mr. Workley's inspection,
and he kept no tailpiece maintenance records. He also testified
that he examines the tailpiece "at least every other week, maybe
not weekly." He agreed that the cited tailpiece conditions could
have occurred a week or a week and a half prior to his last
examination. Since Mr. Chernok could not recall when he last
examined the tailpiece, and maintained no records, this testimony

2552

gives little support to the contestant's unwarrantable failure
position. As a matter of fact, it lends support to the
respondent's position that little or no attention was given to
this particular tailpiece.
Mine superintendent Straface confirmed that the cited
tailpiece had not been used as an active section coal production
tailpiece since December, 1992, and that the belt line had not
been in operation for 5 or 6 months during a strike. Given the
fact that the tailpiece was in a rather isolated mine area and
had not been used on a regular basis as part of the active coal
production cycle, I believe one can reasonably conclude from the
condition of the tailpiece, as testified to credibly by
Inspectors Workley and Ash, and miners representative Nine, that
the cited tailpiece was not given much if any attention, and that
no one ever took the initiative to open the guarding lids to
examine the inside of the tailpiece, particularly during the time
immediately after the tailpiece fire incident on the S North
belt, and immediately before the inspection by Mr. Workley .
Indeed, Mr. Straface agreed that it was possible that someone
forgot to open µp the tailpiece and examine the inside before the
inspector cited \ it. When asked from the bench if anyone would
likely admit that they failed to examine the tailpiece
thoroughly, Mr . Straface did not respond.
After careful review and consideration of all of the
testimony and evidence adduced in this case, I conclude and find
that the credible testimony of the respondent's witnesses
supports the unwarrantable failure finding made by the inspector.
I conclude and find that the failure of the contestant, over a
protracted period of time, to clean up and remove the float coal
dust on the outside of the cited tailpiece and the coal
accumulations inside the tailpiece, and to thoroughly inspect the
inside of. the tailpiece and take corrective action to remedy the
frozen rollers and the metal roller bracket that was rubbing the
belt, particularly in view of a fire on a similar tailpiece on
the shift immediately prior to the inspection of May s, 1994,
constituted sufficient "aggravated conduct" to support the
inspector's unwarrantable failure finding . Accordingly, the
inspector's finding IS AFFIRMED.

2 553

ORDER

Based on the foregoing findings and conclusions, the
contested section 104(d}(l} "S&S" Citation No. 3318787, May 5,
1994, citing a violation of 30 C.F.R. S 75.1725(a), IS AJ'PIRKED
as issued, and the Notice of contest filed by the contestant IS
DBNIBD and DISMISSED.

~~(;~
Administrative Law Judge

Distribution:
Elizabeth s. Chamberlin, Esq., Consolidation Coal Company,
1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail)
Elizabeth Lopes, Esq., Office of the Solicitor, U.S. Department
of Labor, 40.1 5 Wilson Boulevard, Suite 516, Arlington, VA 22203
(Certified Ma_il)
/fb

2554

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

DEG 2 6 1~Y4

LION MINING COMPANY,
Contestant

v.

CONTEST PROCEEDING
Docket No. PENN 93-4 20-R
Order No . 3706548; 7/2/93

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

Grove No . 1
Mine ID 36-02398
DECISION

Appearances :

Joseph A. Yuhas, Esq., Barnesboro , Pennsylvania,
for Contestant ;
Richard T. Buchanan, Esq . , Office of the
Solicitor, U. S . Department of Labor, Philadelphia,
Pennsylvania, for Respondent .

Before :

Judge Fauver

Lion Mining Company seeks to vacate a§ 107(a) withdrawal
order under the contest provisions of the Federal Mine Safety and
Health Act of 1977 , 30 U.S.C . § 801 et seq .
Having considered the hearing evidence and the record as a
whole, I find that a preponderance of the substantial, probative,
and reliable evidence establishes the Findings of Fact and
further findings in the Discussion below:
FINDINGS OF FACT

1. Lion Mining Company owns and opera tes Grove No. 1 mine,
an underground mine that produces coal for sale or use .in or
substantially affecting interstate commerce .
2. On the afternoon of July 1, 1993, Lion Mining Company ' s
mine foreman detected 2.8 percent methane (above normal levels)
in the 16 Left bleeder . He removed several stoppings to increase
ventilation and monitored the area.
3 . When no changes occurred, he went to the surface for an
MX 240 monitor to get a better methane reading. The 3:00 p.m.
crew assigned to the 16 Left section was not sent into the
section.

2555

4. The mine foreman, general assistant and safety director
went to the 16 Left bleeder where they found that methane levels
had increased to over five percent, i . e. an explosive level. 1
Everyone was evacuated from the mine .
5. Lion developed a plan of action and notified MSHA of the
methane levels. Three miners were sent underground to monitor
the situation and give status reports every half hour.
Ventilation to the aff~cted area was increased from approximately
10,000 cubic feet per minute to 20,000.
6. MSHA Inspector Huntley arrived at the mine about 10 : 45
p . m. The production crews had been sent home, and there was no
power on any equipment in the 16 Left section .
7. The inspector arrived at the 16 Left bleeder around
midnight , took methane readings and found explosive levels . He
determined that an imminent danger existed and issued§ 107(a )
Order No. 370~ 548 for the 16 Left section.
8. Later, Inspector Huntley ' s supervisor, Ted Glusko,
instructed him to modify the order to designate the entire mine
as the area affected by the order.
9 . Explosive levels of methane were found by Inspectors
Huntley, Fetsko, and Jardina in the 16 Left bleeder system on
July 2 and 3, 1993 . By July 3 the operator abated the methane
condition by making ventilation changes . The order was
terminated by Inspector Kenneth Fetsko around 3:15 p.m. on that
date .
10 . Inspector Huntley issued the§ 107(a) order because of
high concentrations of methane in the 16 Left bleeder entry, the
possibility that a roof fall could occur igniting the methane,
and the danger to miners if normal mining operations were resumed
before the methane condition was abated .
11. Had normal mining operations been permitted to resume
under the conditions observed by Inspector Huntley, there would
have been several ignition sources present in and around the
active working section, such as a continuous miner, roof bolters,
ram cars, tractors, scoops, non-permissible golf carts, battery
charging stations, and an electrical transformer. In addition,
check curtains could have been moved or knocked down, causing the

1Methane is explosive in concentrations of 5 to 15 percent.

2556

methane in the 16 Left bleeder to back up into the active working
section .
12. High concentration s of methane can move very rapidly
from a bleeder entry into an active working section in the event
of a roof fall or a line brattice falling down .
13 . In April 1993, high concentrations of methane backed up
from the 17 Right bleeder into the active workings of that
section as reflected in Order No. 3706477. Inspector Huntley was
aware of that order when he issued Order No . 3706548.
14. On April 24 , 1992, methane accumulated in the 17 Right
section because of a failure to maintain adequate face
ventilation . The methane was ignited by heat or sparks generated
by cutting bits on a continuous miner . Inspector Huntley
participated in the investigation of the methane ignition .
15 . On August 19 , 1991 , methane accumulated in the 16 Right
section because of a f 3ilure to maintain adequate face
ventilation . The methane was ignited by heat or sparks generated
by cutting bits 6f a continuous miner. Inspector Huntley
participated in the investigation of that methane ignition .
DISCUSSION WITH FURTHER FINDINGS , CONCLUSIONS

" imminent danger " is defined in§ 3(j) of the Act as "-any
condition oi practice in a coal or other mine which could
reasonably be expected to cause death or serious physical harm
before such condition or practice can be abated. " If ·an MSHA
inspector finds an imminent danger, § 107(a) provides that he or ·
she must:
An

determine the extant of the area of such mine
throughout which the dange r exists, and issue an order
requiring the operator of such mine to cause all
per sons, except those referred to in§ 104(c), to be
withdrawn from, a::id to be prohibited from entering,
such area until an authorized representative of the
Secretary determined that such imminent danger and the
conditions or practices which caused such imminent
danger no longer exist .
The legislative history of§ 107(a), which was unchanged
when t he 1969 Mine Act was amended in 1977, underscores the
ha za r ds of methane accumulations :

2557

The most hazardous condition that can exist in a coal mine,
and lead to disaster-type accidents, is the accumulation of
methane gas in explosive amounts. Methane can be ignited
with relative little energy and there are, even under the
best mining conditions numerous potential ignition sources
always present . . . . [H .R. No. 563, 91st Cong ., 1st Sess.
21 (1969) .)
The Commission ha~ noted that "the U.S . Courts of Appeals
have eschewed a narrow' construction and have refused to limit the
concept of imminent danger to hazards that pose an immediate
danger." Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159,
2163 (1989) . The Commission has also noted that the courts have
held that "an imminent danger exists when the condition or
practice observed could reasonably be expected to cause death or
serious physical harm to a miner if normal mining operations were
permitted to proceed in the area before the dangerous condition
is eliminated." Id., quoting Eastern Associated Coal Corp. v.
Interior Bd. of Mine Op. Appl., 491 F. 2d 277, 278 (4th Cir.
1974). The Commission has adopted the Seventh Circuit's holding
that an inspector's finding of an imminent danger must be upheld
"unless there is evidence that he has abused his discretion or
authority." 11 FMSHRC at 2164, quoting Old Ben Coal Corp. v.
Interior Bd. of Mine Op. App. 523 F.2d 25, 31 (7th Cir. 1975) ;
see also: Wyoming Fuel Co., 14 FMSHRC 1282, 1291 (1992).
While the inspector has considerable discretion in
determining whether an imminent danger exists, there must be some
degree of imminence to support an imminent danger finding. Utah
Power & Light Co., 13 ~SHRC 1617, 1621 (1991) .
The evidence shows that a dangerous condition existed in the
Grove No. 1 mine on July 2 and 3, 1993. Inspectors Huntley,
Fetsko, and Jardina recorded explosive levels of methane in the
16 Left bleeder during that approximately one and one-half day
period. High levels of methane were also found at the 10 Left
bleeder. A roof fall could have ignited the methane .or, had
normal mining been permitted to resume, a number of electrical
ignition sources would have been present in the active 16 Left
section . The Secretary's experts testified, convincingly, about
the potential for an immediate explosion that could have quickly
traveled to widespread areas of the mine. I find that a
preponderance of the reliable evidence supports the inspector's
finding that an imminent danger existed. I also find that the
reliable evidence suppbrts the modification of the§ 107(a) order
to include the entire mine.

2558

Lion Mining contends that Inspector Huntley was precluded
from issuing a§ 107(a) order because it had voluntarily
evacuated the mine and deenergized equipment in the 16 Left
section. However, § 107(a) orders are intended not only to
withdraw miners from a mine or area affected by an imminent
danger, but also to pr~vent resumed mining until "an authorized
representative of the Secretary determines that such imminent
danger and the conditions or practices which caused such imminent
no longer exist." The Act does not contemplate leaving this
decision to the operator itself.
In Eastern Associated Coal Corp. v. Interior Board of Mine
Operations Appeals, 491 F.2d 277, 278 (4th Cir. 1974), the Court
upheld the IBMA's decision affirming an imminent danger order in
a similar situation. The Court stated that, although the
company:
had voluntarily withdrawn miners from the affected area
until the conditions were corrected prior to issuance of the
[imminent danger . withdrawal] order[,] the Secretary
determined, and we think correctly, that "an imminent danger
exists when the condition or practice observed could
reasonably be expected to cause death or serious physical
harm to a miner if normal mining operations were permitted
to proceed in the area before the dangerous condition is
eliminated." [Emphasis added.]
The decision of the IBMA, found at 2 IBMA 128 (No.
IBMA 73-28, 1973), more fully states the fact5 of that case. The
inspector had issued an imminent danger withdrawal order for a
mine entry because of a lack of clearance between the top of a
shuttle car and the roof, and because two loose roof bolts were
hanging from the roof. When the inspector arrived, the company
had removed the shuttle car from the area and was beginning to
correct the situation. Nonetheless, the IBMA held:
The dangerous condition cannot be divorced from the normal
work activity. The question must be asked -- could normal
operations proceed prior to or during abatement without risk
of death or serious injury? Although prior evacuation of
miners or voluntary work stoppage by an operator may be
laudatory and indicate concern for the safety of the miners,
such actions, although taken in all good faith, cannot
operate to eliminate an otherwise imminently dangerous
condition or practice. Likewise, the fact that the process
of abatement may have commenced prior to the issuance of the
order . . . does not in our view serve to invalidate the
order. [2 IBMA at 136; emphasis added.]

2559

The above quoted language of the Fourth Circuit Court in
a ff irming the IBMA ' s decision ha s become b lack letter law . See ,
e.g., V. P . Mining Co .,- 15 ~ SHRC 1531 , 1535 (1933) ; Wyoming Fuel
Co ., 14 FMSHRC 128.2, 12~0 (1992) ; and Rochester & Pittsbur gh Coal
Co ., l i FMSHRC 2159, 2163 (1989) . I n another key case , the
Seventh Circuit emphasi zed that imminent dange r o r de r s are
intended not onl y to withdraw miners from a dangerous a rea, but
al so " to assure the miners [wil l] not carry on rout ine mining
ope r ations in the face of imminent dangers ." Freeman Coal Mining
Co . v . IBMA, 504 F . 2d 741 , 744 (7th Cir . 1974) . Citing t he
legis lative his t o r y, the Court noted that an i ns p ector who issues
an i mmi nent danger order must "prevent entrance by anyone to that
mine or area , except t hose miners necessa ry to abate the hazard .
. . . " Id . at 744 n .4. 2
I f ind that a preponderance of the evidence shows tha t the
inspect o r e xerci s ed r easonab l e disc r et ion in issuing the subject
§ 107(a) o r der .
CONCLUSION OF LAW

1.

The judge has jurisdiction .

2 . The Secretary proved that the inspector acted on
re a sonable g r ounds and with s ubstantial supporting facts in
issuing Orde r No. 370 6548 .
ORDER

WHEREFORE I T I S ORDERED that :
1.

Order No . 3706548 is AFFI RMED .

2.

This proceedi~g is DISMISSED .

{()~r~Y'h

Wil liam Fauver
Admi ni str ative. Law Judge

2The legislative history cited by the court further states:
•the imminent danger may be due to a violation of a mandatory
safety standard or some other cause not covered by a standard,
including natural causes . • • . " See also VP-5 Mining Co., 15
FMSHRC 1531 (1993), wh~re the Commission affirmed an imminent
danger order but vacated an accompanying citation.

2560 .

Distribution:
Richard T. Buchanan, Esq., Office of the Solicitor, ·u.s.
Department of Labor, 3535 Market Street, 14480 Gateway Building,
Philadelphia, PA 19194 (Certified Mail)
Joseph A. Yuhas, Esq ., 18 09 Chestnut Avenue, Barnesboro,
PA 15714 (Certified Mail)
/lt

\

2561

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

DEC 2 9 1994
DISCRIMINATION PROCEEDING

LARRY E. HATTON,
Complainant
v.

Docket No. KENT 94 - 57-D
MSHA Case No. BARB CD 93-10

ADENA FUELS, INCORPORATED,
Respondent

Diamond No. 1 Mine

ORDER OF DISMISSAL
Appearances :

Tony Oppegard, Esq., Mine Safety Project of the
Appalachian Research and Defense Fund of Kentucky,
Inc., Lexington, Kentucky, for the Complainant,
Jerry Wayne Slone, Esq., Weinberg, Campbell and
Slone , Hindman, Kentucky, for the Respondent.

Before:

Judge Melick

Following initial commencement and postponement of hearings,
Complainant Larry E. Hatton, in effect , requested approval to
withdraw on the grounds that the parties had reached an agreeable
settlement of the underlying matter. Under the circumstances
herein, permission to withdraw is granted. 29 C.F.R. § 2700.11 .
This case is therefore dismissed and the continuation of
scheduled for January 24, 1995, is cancelle .
•

lA.rJudge

Distribution :
Tony Oppegard, Mine Safety Project of . the Appalachian Research
and Defense Fund of Kentucky, Inc., 630 Maxwelton Court ,
Lexington, KY 40508 (Certified Mail )
Jerry Wayne Slone , ·Esq ., Weinberg, Campbell and Slone, P .0.
Box 727 , Main St., Hindman, KY 41822 (Certified Mail)
/lt

2562

ADMINISTRATIVE LAW JUDGE ORDERS

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

.OEC .2.. 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. PENN 94-609
A. C. No. 36-08223-03533

v.
ROX COAL INCORPORATED,
Respondent

Docket No. PENN 94-625
A. C. No. 36-08223-03534
Docket No. PENN 95-2
A. C. No. 36-08214-03541
Docket No. PENN 95-10
A. C. No. 36-08223-03535
Diamond T .B Mine

ORDER ACCEPTING APPEARANCE
PREHEARING ORDER
The penalty petitions in the above-captioned cases were
filed on behalf of the Secretary by a "Conference and Litigation
Representative", hereafter referred to as a CLR.
In the cover
letter to each petition the CLR advises that he is an employee of
the Mine Safety and Health Administration who has been trained
and designated as a CLR and is authorized to represent the
Secretary in accordance with an attached Limited Notice of
Appearance. In the notice submitted for each case the CLR states
that he is authorized to represent the Secretary in all
prehearing matters and that he may appear at a hearing if an
attorney from the Solicitor's ·office is also present. The
operator has filed answers in these cases and has raised no
objection to the CLR's notices.
Subparagraph (4) of section 2700.3(b) of the Commission's
regulations, 29 C.F.R. § 2700.3(b) (4), provides that an individual who is not authorized to practice before the Commission as an
attorney may practice before the Commission as a representative
of a party with the permission of the presiding judge. In
reviewing these matters, note is taken of the fact that more than
5,000 new cases were fiied with the Commission in Fiscal 1994.
Obviously, a caseload of this magnitude imposes strains upon the
Secretary's resources as well as those of' this Commission.
It
appears that the Secretary is attempting to allocate his resources in a responsible matter. Therefore, I exercise the
discretion given me by the regulations, cited above, and determine that in these cases the CLR may represent the Secretary in
accordance with the notices he has filed.
It is hereby Ordered that the parties in the above-captioned
civil penalty proceedings communicate, by telephone or otherwise,
2563

and discuss (1) possible settlements, (2) the names of the witnesses each party intends to present at the trial, (3) the
possibility of stipulating issues that are not in ·substantial
dispute, and. (4) any other matter t h at may expedite t h e trial of
this proceeding. The attorneys must advise by 5:00 p.m.,
Jan uary 18 , 1995, of the results of their discussion .
In the event that by J anuary 18, 1995, I have received no
communi cation fr om the parties informing me that the aforesaid
discussion has taken place and that the possibil ities of agreement have b een exhausted, a prehearing conference will b e held in
my office on January 19, 1995, at 10:00 a.m., without further
notice. Fail ure to appear at the conference may result in a
default order be ing i ssued aga inst the party failing to appear .
If, of course , the parties advise me by 5:00 p.m. on
January 1 8, 1995, as to the r esults, if a ny, of their discussion,
no appearance will be necessary.

Paul Merlin
Chief Administrative Law Judge
Distribution:

(Certified Mail)

Gerald F. Moody , Jr., Conference and Litigation Representative,
MSHA, U. S . Department of Labor, 200 James Place, Monroeville, PA
15146
Joseph A. Yuhas, Esq., 1809 Chestnut Avenue, P .
Barnesboro, PA 15714

/gl

2564

o . Box 25, .

FEDERAL MINE SAFETY AND HEALTH R£VIEW COMMISSION
1730 K SnEET, N.W., 6TH FLOOR.
WASHINGTON, O.C. 20006

December 2, 1994
CIVIL PENALTY PROCEEDING

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

Docket No. PENN 94-616
A. C. No . 36- 06967 - 03856

v.
TANOMA MINING COMPANY ,
I NCORPORATED,

Tanoma Mine

Respo~dent

ORDER ACCEPTING APPEARANCE
PREHEARING ORDER
The penalty petition in the above-captioned case was filed
on behalf of the Secretary by a "Conference and Litigation
Repre sentative " , hereafter referred to as a CLR.
In the cover
letter to the petition the CLR advises that he is an employee of
the Mine Safety and Health Administration who has been trained
and designated as a CLR and is authorized to represent the
Secretary in accordance with an attached Limited Notice of
Appearance.
In the notice the CLR states that he is authorized
to represent the Secretary in all prehearing matters and that he
may appear at a hearing if an attorney from the Solicitor's
off ice is also present. The operator has filed an answer and has
raised no objection to the CLR's notice.
Subparagraph (4) of section 2700.3(b) of the Commission's
regulations, 29 C.F . R . § 2700.3(b) (4), provides that an
indiv.idual who is not authorized to practice before the
Commission as an attorney may practice before the Commission as a
representative of a party with the permission of the presiding
judge. In reviewing this matter , note is taken of the fact that
more than 5,000 new cases were filed with the Commission in
Fiscal 1994. Obviously, a caseload of this magnitude imposes
strains upon the Secretary's resources as well as those of this
Commission .
It appears that the Secretary is attempting to
allocate his resources in a responsible matter. · Therefore, I
exercise the discretion given me by the regulations, cited above,
and determine that in this case the CLR may · represent the
secretary in accordance with the notice he has filed .
It is hereby ORDERED t hat the parties in the above-captioned
civil penalty proceedin g communicate , by telephone or otherwise,
and discuss (1) possibl e settl ement, (2) the names of the wi tnesses each party i ntends t o present at the tria l, (3) the
possibility ·of stipulating issues that are not in substantial
dispute, and (4) any other matter that may expedite the trial
of this proceeding. The attorneys must advise by s : oo p.m.,
J anua r y 18 , 1995 , of the results of their discussion.

2565

In the event that by January 18, 1995, I have received no
communication from the parties informing me that the aforesaid
discussion has taken place and that the possibilities of
agreement have been exhausted, a prehearing conference will be
held in my office on, January 19, 1995, at 10:00 a.m., without
further notice . Failure to appear at the conference may result
in a default order being issued against the party failing to
appear.
If, of course, the parties advise me by 5:00 p.m. on
January 18 , 1995, as to the results , if any, of their discussion,
no appearance will be necessary.

Paul Merlin
Chief Administrative Law Judge
Distribution :

(Certifi ed Mail)

Gerald F . Moody, Jr., Conference and Litigation Representative,
Mine Safety and Health Administration, U. S. Department of Labor,
200 James Place, Monroeville, PA 15146
Joseph A. Yuhas, Esq., 1809 Chestnut Avenue , P.
Barnesboro , PA 157 14
/gl

2566

o . Box 25,

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

December 2, 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
CONSOLIDATION COAL COMPANY,

CIVIL PENALTY PROCEEDING
Docket No. PENN 94 -563
A. C. No. 36- 04281-03908

..

Dilworth Mine

Respon~ent

ORDER ACCEPTING APPEARANCE
PREHEARING ORDER
The penalty pet ition in the above-captioned case was filed
on behalf of the Secretary by a " Conference and Litigation
Representative", h ereafter refe rred to as a CLR. In the cover
letter to the petition the CLR advises that he is an employee of
the Mine Safety and Health Administration who has been trained
and designated as a CLR and is authorized to represent the
Secretary in accordance with an attached Limited Notice of
Appearance . In the not ice the CLR states that he is authorized
to. represent the Secretary in all prehearing matters and that h e
may appear at a hearing if an attorney from the Solicitor 's
off ice is also present. The operator has filed an answer and has
raised no objection to the CLR's notice.
Subparagraph (4) of section 2700 . 3 (b) of the Commission's
regulations, 29 C.F.R. § 2700.3(b) (4), provides that an individual who is not authorized to practice before the Commission as an
attorney may practice before the Commission as a representative
of a party with the permission of the presiding judge. In
reviewing this matter, note is taken of the fact that more than
5,000 ne w cases were filed with the Commission in Fiscal 1994.
Obviously, a caseload of this magnitude imposes strains upon the
Secretary's res ources as well as those of thi s Commissi.on. It
appears that the Secretary is attempting to a llocate his resources in a responsible matter. Therefore, I exercise the
discretion given me by the regulations, cited above, and determine that in this case the CLR may represent the Secretary in
accordance with the notice he has filed.
It is hereby ORDERED that the parties in the above-captioned
civil penalty proceeding communicate, by telephone or otherwise,
and discuss (1) possible settlement, (2) the names of the witnesses each party intends to present at the trial, (3) the
possi bility of stipulating issues that are n ot in substantial
dispute, and· (4) any other matter that may expedite the trial
of this proceeding. The attorneys must advise by s:oo p.m.,
January 18, 1995, of the results of their discussion.
2567

In the event that by January 18, 1995, I have r eceived no
communication from the parties inf orrning me tha t t he afor esaid
discussion has taken place and t hat t he possibilit i e s of agreement have been exhausted, a prehearin g conferen ce wil l be held in
my office on, January 19 , 1995, at 10:00 a.m., without f u rther
notice. Failure to appear at t he conference may r esult i n a
default order being issued against the party fai l ing to appear.
If, of course, the parties advise me b y s : oo p.m. on
January 18 , 1995, as to the results , if any, of t h eir discussion,
no appearance will be necessary.

Paul Merlin
Chief Administrative Law Judge
Distribution:

(Certified Mail)

Gerald F. Moody, Jr ., Conference and Litigation Representative,
Mine Safety and Health Administration , U. s. Depart ment of Labor,
200 James Place, Monroeville , PA 15146
Elizabeth s . Chamberlin , Esq. , Consol Inc. , Con sol Plaza , 1800
Washington Road, Pittsburgh, PA 15241-1421

/gl

2568

*U.S. G.P.0.:1995-387-720:23381