MARCH 1993

COMMISSION DECISIONS AND ORDERS
03-03-93
03-04-93
03-22-93
03-22-93
03-25-93
03-31-93

Island Creek Coal Company
Kerr-McGee Coal Corporation
UMWA on behalf of Dan Nelson, et al. v.
Secretary of Labor, MSHA, etc.
Cyprus Tonopah Mining Corporation
Peabody Coal Company
Sherrell Steven Reid v Kiah Creek Mining

VA 91-47-R
WEST 91-84-R

Pg. 339
Pg. 352

SE
88-92-D
WEST 90-202-M
KENT 91-179-R
KENT 92-237-D

Pg.
Pg.
Pg.
Pg.

PENN 91-1302-R
KENT 92-752
WEVA 93-64

Pg. 392
Pg. 405
Pg. 408

KENT 92-415
KENT 92-748

Pg. 410
Pg. 412

KENT 92-867-D
PENN 92-765
WEVA 91-224-R
WEVA 92-1011
WEVA 92-1054
KENT 92-237-D
SE
92-249-R
WEVA 92-657-R
WEVA 92-935
WEVA 92-783
CENT 92-141
WEST 91-109-M
WEST 92-45-M
WEST 92-139-M
VA
91-34-D
KENT 90-100
WEVA 92-799
KENT 92-610
KENT 92-543
CENT 92-136-Z.·'l
LAKE 92-216-R
PENN 93-221-R
PENN 92-715
PENN 92-814
KENT 92-547-D
KEENT 92-897
WEVA 92-1008
li'lEVA 92-1016
WEVA 92-1025
SE
92-361-RM
KENT 92-651

Pg.
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WEST 93-259-M

Pg. 585

365
367
381
390

ADMINISTRATIVE LAW JUDGE DECISIONS
03-01-93
03-03-93
03-05-93
03-08-93
03-09-93
03-09-93
03-09-93
03-09-93
03-09-93
03-09-93
03-10-93
03-10-93
03-10-93
03-10-93
03-11-93
03-16-93
03-16-93
03-16-93
03-16-93
03-17-93
03-18-93
03-17-93
03-18-93
03-19-93
03-22-93
03-24-93
03-24-93
03-26-93
03-26-93
03-26-93
03-29-93
03-29-93
03-29-93
03-29-93
03-30-93
03-31-93

Consolidation Coal Company
Williams Brothers Coal Co., Inc.
Consolidation Coal Compal).y
Fred Jones employed by Christian
Energies, Inc.
Peabody Coal Company
Sec. Labor on behalf of Robert
v. Black Mountain Coal Mining
Consolidation Coal Company
Consolidation Coal Company
Consolidation Coal Company
Consolidation Coal Company
Sherrell Steven Reid v. Kiah Creek Mining
Jim Walter Resources, Inc.
Consolidation Coal Company
Consolidation Coal Company
United States Steel Mining Co.
Perry Sisk
Mountain Cement Company, etc.
Noland Incorporated
Calco Incorporated
Bobby Gene Strouth v. Cavalier Mining
Gatliff Coal Company
Consolidation Coal Company
Broken Hill Mining Co., Inc.
Pyramid Mining,
Chico Crushed Stone
Monterey Coal Company
Buck Mountain Coal Company
Consolidation Coal Company
consolidation Coal Company
Gary L. Day v. Adena Fuels, Inc.
Mountaintop Restoration, Inc.
Martin Sales & Proces
Consolidation Coal Company
Maple Meadow Mining Company
Nolichuckey Sand Company
Peabody Coal Company

•
•
Pg.
•
.
•
•
•
Pg.
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Pg.
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416
418
419
422
424
426
432
436
445
452
459
463
468
480
501
503
505
515
519
524
529
539
551
553
555
556
559
564
572
575
581

ADMINISTRATIVE LAW JUDGE ORDERS
02-3-11-93

Asarco Incorporated

MARCH 1993
Review was granted in the following cases during the month of March:
Martinka Coal Company v. Secretary of Labor,
(Judge Weisberger, January 19, 1993).

MSHA,

Docket No. WEVA 93-45-R.

Secretary of Labor, MSHA v. C.W. Mining Company, Docket No. WEST 92-210.
Cetti, January 28, 1993)

(Judge

Secretary of Labor, MSHA v. Mid-Continent Resources, Inc., Docket Nos.
WEST 91-168, etc.
(Judge Morris, January 27, 1993)
Secretary of Labor on behalf of Clayton Nantz v. Nally & Hamilton Enterprises,
Inc., Docket No. KENT 92-259-D.
(Judge Koutras, February 12, 1993)
Sherrell Steven Reid v. Kiah Creek Mining Company, Docket No. KENT 92-237-D.
(Judge Weisberger, March 10, 1993)
There were no cases filed in whic~.review was denied.

COMMISSION DECISIONS AND ORDERS

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

20006

March 3, 1993
ISLAND CREEK COAL COMPANY
Docket Nos. VA 91-47-R
VA 91-48-R
VA 91-49-R

v.

SECRETARY OF LABOR, MINE SAFETY
AND HEALTH ADMINISTRATION (MSHA)
and
UNITED MINE WORKERS OF AMERICA

BEFORE:

Holen, Chairman; Backle}i, Doyle and Nelson, Commissioners
DECISION

BY THE COMMISSION:
This contest proceeding arises under the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"). The issues
are whether the presence of an explosive accumulation of methane behind
stoppings along the bleeder entries of a gob 1 in a longwall section presented
an imminent
and whether Island Creek Coal Company ("Island Creek") was
complying with its VP-3 Mine ventilation plan in accordance with 30 C.F.R.
§ 75.316. 2 This case arose when inspectors of the Department of Labor's Mine
Safety and Health Administration ("MSHA") issued two imminent
orders
and a citation to Island Creek after they measured the methane content of the
air leaking from seals of three stoppings that separated the gob from the
::.

nGob,u in the context of this case, refers to the

11

Space left by the

extraction of a coal seam .... " Bureau of Mines, U.S. Department of the Interior,
Dictionary of Mining, Mineral, and Related Terms, at 497 (1968) (DMMRT). "Bleeder
entries" are
entries driven on a perimeter of block of coal
mined
and maintained as exhaust airways to remove methane promptly from the working
faces to prevent buildup of high concentrations either at the face or in the main
intake
" DMMRT at 112.
2

Section 75.316 provides in pertinent part:
A ventilation system and methane and dust control
and revisions thereof suitable to the conditions
and the mining system of the coal mine and approved by
the
shall be adopted by the operator and set
out in printed form. . . . Such plan shall be reviewed by
the
and the Secretary at least every 6 months.

339

bleeder entries and determined that an area within the gob contained an
explosive accumulation of methane. Commission Administrative Law Judge George
A. Koutras vacated both orders and the citation. Island Creek Coal Co., 13
FMSHRC 592 (April 199l)(ALJ). For the reasons set forth below, we affirm the
judge.
I.

Factual and Procedural Background
The gob, known as the South Gob, is an inaccessible 1.75 square mile
area resulting from the mining of ten longwall panels. Each panel is about
5,600 feet long and, taken together, the 10 panels are about 8,000 feet wide.
The gob is ventilated by air entering at the tailgate end of the longwall
face, flowing through the gob, and exiting at three designated areas into
bleeder and return entries. Air also exits through bore holes drilled from
the surface and equipped with exhaust fans. This ventilation system is
designed to dilute and render harmless any methane emitted in the gob. The
VP-3 mine is a gassy mine that liberates more than one million cubic feet of
methane per day.
As mining has progressed, development entries have been established
using a continuous mining machine in advance of each longwall panel. Each
development entry consists of four individual entries, and serves as the
headgate entry when the longwall equipment is moved into the panel and as the
tailgate entry when the longwall is moved past the entry into the next panel.
The development entries are consecutively numbered and, at the time the
citation and orders were issued, the No. 12 development entry was the headgate
and the No. 11 entry was at the tailgate. At the time they were built, each
entry was connected to the bleeder entries at the back and was connected to
the south main returns at the mouth. Island Creek had installed stoppings at
the mouth of all of the development entries leading ·to the south returns
except at t:he No. l
and a·t t:he current headgate and ·tailgate entries
(Nos. 12 and ll, respectively). MSHA has not challenged the placement of
these stoppings. Island Creek also installed stoppings between the gob and
the bleeder entries on the Nos. 5 through 10 development entries.
On December 5, 1990, MSHA Inspector Arnold D. Carico conducted a
ventilation inspection of t:he area around the South Gob. He did not detect
any violations of safety and health standards in the headgate and tailgate
entries of the longwall panel or in the bleeder entries for the gob. As he
was inspecting the bleeder entries, he observed that stoppings were present in
all four entries of the No. 10 development at the point where they connected
with the bleeder entries. He tested for methane behind one of these stoppings
by using his hand to locate air leaking through cracks in the stopping. He
placed the tube of a hand-held methane detector into the cracks and took
several readings of air escaping from the interior of the gob. He recorded
the highest reading obtained, which was 6.2% methane. Inspector Carico then
proceeded to the area where the four No. 9 development entries intersected
with the bleeder entries. He performed the same type of test with his methane
detector and found 8.3% methane in the air leaking from a crack in a stopping.
Inspector Carico then traveled to the intersection of the four No. 8

340

development entries and the bleeder entries and measured 7.6% methane from a
stopping crack.
After taking the reading at the stopping in the No. 8 development
entries, Carico inferred that tens of thousands of cubic feet of methane were
present in the gob and that the gob was not being ventilated properly because
these stoppings blocked the air flow into the bleeder entries. Carico
believed that a roof fall could ignite the methane 3 and, thus, that an
imminent danger existed. Accordingly, he issued an order under section 107(a)
of the Mine Act, 30 U.S.C. § 817(a) ordering the withdrawal of all miners from
the VP-3 Mine. 4 Inspector Carico also issued a citation under section 104(a)
of the Mine Act, 30 U.S.C. § 814( , because he believed that the stoppings in
the Nos. 8, 9, and 10 development entries violated the mine's ventilation plan
adopted and approved pursuant to 30 C.F.R. § 75.316. 5 The inspector believed
3

Methane presents an explosion hazard when found in concentrations between
5% and 15%. Tr. Vol. I, 21; See also Wyoming Fuel Co., 13 FMSHRC 1210, 1213 n.3
(August 1991).
4

Section 107(a) of the Mine Act provides, in pertinent part:
If, upon any inspection or investigation of a coal
or other mine which is subject to this [Act], an
authorized representative of the Secretary finds that an
imminent danger exists, such representative shall
determine the extent of the area of such mine throughout
which the danger exists, and issue an order requiring
the operator of such mine to cause all persons, except
those referred to in section [104(a)], to be withdrawn
from, and to be prohibited from entering, such area
until an authorized representative of the Secretary
determines that such imminent danger and the conditions
or practices 'Vihich caused such imminent danger no longer
exist.
The imminent danger order provided:
Ivlethane concentrations ;;<Jere detected coming
through permanent stoppings erected across the bleeder
entry connectors between the gob and the South main
bleeders at the following locations and in the following
concentrations (as indicated by a Riken methane
indicator):
No. 2 Entry of No. 10 Development South
[ 6. 2%] ; No. 4 Entry of No. 9 Development South 8. 3%; No.
4 Entry of No. 8 Development South 7.6%; Citation No.
3354743 is being issued with and as contributing factor
to this order.

5

The citation provided, in pertinent part:
The Ventilation, Methane, and Dust Control Plan approved for

341

that these stoppings impeded the movement of methane from the gob into the
bleeder entries.
On the following day, December 6, MSHA Inspector Clardy Scammell used
the same technique to take methane readings at the same stoppings and detected
methane concentrations in the gob of 3.6% or less. He terminated the order of
withdrawal because the measured methane levels were below the explosive range.
On December 13, 1990, Inspector Scammell again checked the methane
levels of air leaking from the stoppings in the Nos. 8, 9 and 10 development
entries using the same technique that had been used on the previous two
inspections. He found 6.2% methane at a crack in a No. 10 entry stopping,
6.3% at a crack in a No. 9 entry stopping, and 5.75% at a crack in a No. 8
entry stopping. Based on these readings, he issued an imminent danger order
withdrawing all miners from the VP-3 Mine. The order was terminated on
December 20, 1990.
Island Creek filed notices of contest of the citation and orders and an
expedited hearing was held before Ju~~e Koutras on December 19-20, 1990. The
United Mine workers of America ("UMWA") intervened in the proceeding. In his
decision, the judge stated that, based on the record, "one may reasonably
conclude that the potential for a methane explosion is dependent on several
essential ingredients; namely, fuel, oxygen and a ready ignition source." 13
FMSHRC at 636. The judge questioned whether MSHA had established the
existence of a substantial body of explosive methane in the gob. 13 FMSHRC at
632. He noted that the inspectors had concluded that such a substantial
quantity was present by testing for methane through small cracks in one of
four stoppings at each of three of the eleven development entries adjacent to
the bleeders. 13 FMSHRC at 628-29. The judge determined that "the presence
of any explosive methane levels in the gob areas behind the stoppings ... ,
standing alone, did not present an imminently dangerous condition." 13 FMSHRC
at 636. The judge also stated he had "difficulty understanding how one may
reasonably conclude that there was a reasonable likelihood of a roof fall in
the gob area which would have sparked an ignition." 13 FMSHRC at 635. 6 The
this mine was not being complied with. Item 10 of the Plan requires
that "Bleeder entries shall be connected to those areas from which
pillars have been wholly or partially extracted at strategic
locations in such a way as to control air flow through such gob
areas, .... " Permanent stoppings were erected across all connectors
between the gob and the South main bleeders at Nos. 8, 9, and 10
Developments, and had been plastered to minimize leakage from the
gob to the bleeders. Methane was detected ... leaking through these
stoppings. . . . According to mine management the only locations where
air is being intentionally regulated from the gob area are at No. 11
Development (tailgate) connectors and No. 1 Development connectors
to the main bleeders and main returns.
6

MSHA asserted that, to a lesser degree, other ignition sources, such as
an ignition at the working face, welding or cutting at the face or. in the
bleeders, open flames or bolting in the face or bleeders, or the use of sparking

342

judge reviewed the Secretary's evidence concerning the history of roof falls
at the mine, the presence of sparking minerals (quartzite) in the roof, the
history of mine fires, and MSHA reports concerning prior ignitions at the
mine. 13 FMSHRC at 630-35. The judge held that, although "the presence of
explosive gas levels in a mine, under certain conditions, is dangerous, ...
any determination as to whether an imminent danger existed must be made on the
basis of the circumstances as they existed at the time the order is issued, or
as they might have existed had normal mining operations continued." 13 FMSHRC
at 637.
The judge stated that he could not conclude that "Mr. Carico's reliance
on the MSHA reports [concerning prior methane ignitions] provides any credible
or probative evidentiary support for any conclusion that ready ignition
sources capable of propagating an explosion of the methane in the gob ... were
present when he issued the order, or were likely to be present if normal
mining operations were to continue." 13 FMSHRC at 637. 7 He then stated:
I recognize the fact that any judgment call by an inspector
with respect to the existence of an imminent danger
situation, when balanc~·cl against the safety of miners, must
necessarily be made quickly and without delay. However, in
any subsequent proceeding challenging the order, any
imminently dangerous situation, which the inspector may have
believed existed at the time he issued the order, must be
proven. On the facts and evidence adduced in this case, I
cannot conclude that MSHA has proven or established the
existence of any ignition sources to support the inspector's
imminent danger finding. I conclude and find that the
inspector's speculative anticipation of a possible mine
explosion, in the circumstances presented, falls short of
the statutory requirement of reasonable expectation.

The judge noted that there was no evidence that explosive concentrations
of methane were entering the bleeders or the working areas of the mine. 13
FMSHRC at 646. He also noted that neither the ventilation plan nor the
Secretary's safety standards prohibit the existence of explosive
concentrations of methane in the gob.
The judge found that Island
Creek's evidence, which he found credible and supported in part by Inspector
Carico, established that the gob was being adequately ventilated because the
tools in the face or bleeders, could propagate an explosion in the gob.
The
judge determined that the evidence in the record did not support a conclusion
that any of these alleged ignition sources were present or would be present in
the normal course of mining.
13 FMSHRC at 636.
He also found that the
inspectors' testimony concerning these alleged ignition sources was "less than
credible and unsupported by any reasonably credible or probative evidence." Id.
7

The judge analyzed each withdrawal order separately in his decision, but
his conclusions were the same. 13 FMSHRC at 638-39.

343

"air flow through the cited development areas allowed for the mixing of the
methane with the air coursing through those areas and . . . the methane which
was mixing, or being diluted by the air, was coursing through the gob areas
behind the stoppings in question ... into the mine bleeder system and out of
the mine." Id. The judge concluded that MSHA failed to establish that Island
Creek violated its ventilation plan and he vacated the citation alleging a
violation of 30 C.F.R. § 316.
The Secretary filed a Petition for Discretionary Review of that part of
the judge's decision vacating the imminent danger orders and the UMWA filed a
Petition for Discretionary Review of the judge's vacation of the citation and
the withdrawal orders. The Commission granted both petitions.

II.
Disposition of the Issues
Section 303(z)(2) of the Mine Act, 30 U.S.C. § 863(z)(2), requires that
all abandoned areas of underground coal mines and areas from which pillars
have been extracted must be ventilat~dby bleeder entries or be sealed off
from the rest of the mine. This provision further states that "ventilation
shall be maintained so as continuously to dilute, render harmless, and carry
away methane and other explosive gases within such areas and to protect the
active workings of the mine from the hazards of such methane and other
explosive gases." This section also provides that "[a]ir coursed through
underground areas from which pillars have been ... extracted which enters
another split of air shall not contain more than 2.0 volume per centum of
methane, when tested at the point it enters such other split."
Island Creek contends that it fully complied with the Mine Act and the
Secretary's safety standards because, pursuant to its ventilation plan, it
provided sufficient ventilation in the gob to carry the methane away from the
working areas of the mine through the bleeder entries. It maintains that the
presence of methane in the bleeder entries at a level of less than 2%
demonstrates that its ventilation controls were working and that no imminently
dangerous conditions existed. Island Creek argues that explosive mixtures of
methane are to be expected in the gob from time to time because the coal seam
liberates large quantities of methane, but that the presence of methane in the
gob does not, by itself, violate MSHA's safety standards or create an imminent
danger. It maintains that the Secretary failed to prove the presence of an
ignition source that could reasonably be expected to ignite the methane.
The Secretary and the UMWA contend that the mine's ventilation system
did not induce the drainage of methane from all portions of the gob, in part,
because the presence of the stoppings between the bleeder entries and the gob
prevented the ventilation system from functioning properly. Both the
Secretary and the UMWA argue that the methane accumulation in the gob created
an imminent danger. The UMWA argues, in addition, that the presence of the
methane demonstrated that Island Creek violated its ventilation plan.

344

A.

Imminent Danger Orders

Section 3 (j) of the Mine Act defines an imminent danger as "the
existence of any condition or practice in a coal or other mine which could
reasonably be expected to cause death or serious physical harm before such
condition or practice can be abated." 30 U.S.C. § 802(j). In Rochester &
Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (November 1989), the Commission
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." (citations omitted). The Commission noted further 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.,
Eastern Associated Coal Corp. v. Interior Bd. of Mine Op. App., 491 F.2d 277,
278 (4th Cir. 1974). The Commission adopted the Seventh Circuit's holding
that an inspector's finding of an imminent danger must be supported "unless
there is evidence that he has abused his discretion or authority." 11 FMSHRC
at 2164 quoting Old Ben Goal CorP_:~ v. Interior Bd. of Mine Op. App., 523 F. 2d
25, 31 (1975).
In Utah Power & Light Co., 13 FMSHRC 1617, 1627 (October 1991), the
Commission reaffirmed that an MSHA inspector has considerable discretion in
determining whether an imminent danger exists. The Commission held that there
must be some degree of imminence to support an imminent danger order and noted
that the word "imminent" is defined as "ready to take place [;] near at hand[;]
impending ... [ ; ] hanging threateningly over one's head[;] menacingly near. 11
13 FMSHRC at 1621 (citation omitted). The Commission determined that the
legislative history of the imminent danger provision supported a conclusion
that "the hazard to be protected against by the withdrawal order must be
impending so as to require the immediate withdrawal of miners."
Finally,
the Commission held that an inspector abuses his discretion, in the sense of
making a decision that is not in accordance with law, if he issues a section
107(a) order without determining that the condition or practice presents an
impending hazard requiring the immediate withdrawal of miners. 13 FMSHRC at
1622-23.
On review, the Secretary argues that the judge erred in finding that the
MSHA inspectors did not reasonably conclude that explosive levels of methane
in the gob created an imminent danger. The Secretary believes that his burden
in an imminent danger case is to prove that the inspector "reasonably
that the conditions at the mine created an imminent danger and that
he is not required to show that an imminent danger "actually" existed. Sec.
Br. 9 (emphasis in original). The Secretary contends that it was reasonable
for the inspectors to rely on their knowledge that fires in the gob in 1972
and 1975 had been attributed to sparks caused by falls of quartzite roof and
that two more recent fires in the gob were of an indeterminable origin, with
quartzite a possible ignition source. The judge erred, the Secretary asserts,
in failing to recognize that inspectors must be given "great latitude in
making on-the-spot determinations of whether imminent dangers exist." Sec.
Br. 11. The Secretary contends that in order to affirm the judge, the.
"Commission must determine that the inspectors acted irrationally, and abused

345

their discretion." Sec. Br. 14. The Secretary is asking the Commission to
"independently examine the record evidence to determine whether a reasonable
inspector could have reached the conclusions reached by Inspectors Carico and
Scammell in this case." Sec. Br. 6.
The UMWA argues that the judge failed to focus on the potential risk of
serious physical harm at any time. The UMWA asserts that whenever a large
accumulation of an explosive mixture of methane is present, there is a
potential that the methane will be ignited. Moreover, it contends that the
MSHA inspectors were properly concerned that the methane could be ignited by a
spark caused by a roof fall in the gob. The UMWA further argues that the
judge placed an impossible burden on the Secretary in this case to pinpoint an
exact ignition source in the inaccessible areas of the gob.
We conclude that the judge applied the appropriate analysis in his
decision. The judge reviewed Commission and judicial precedent, including
those decisions that stress the considerable discretion granted MSHA
inspectors in issuing imminent danger orders. 13 FMSHRC at 626-28. He also
specifically recognized that inspectors are required to decide whether a
hazard presents an imminent danger "quickly and without delay." 13 FMSHRC at
637. He determined that it was not reasonable for the inspectors to have
concluded that "there was a reasonable likelihood of a roof fall in the gob
area which would have sparked an ignition." 13 FMSHRC at 635. The judge held
that "the inspector's speculative anticipation of a possible mine explosion,
in the circumstances presented, falls short of the statutory requirement of
reasonable expectation." 13 Fl1SHRC at 637. These findings demonstrate that
the judge concluded that the inspectors abused their discretion and authority
because, based on the facts readily available to them, it was not reasonable
for them to have concluded that the presence of the methane "could reasonably
be expected to cause death or serious physical harm." The Commission has held
that, in imminent danger cases, the judge must determine "whether a
preponderance of the evidence showed that the conditions or practices, as
observed by the inspectors, could reasonably be expected to cause death or
serious physical harm, before the conditions or practices could be
eliminated." WyominB Fuel Co., 14 FMSHRC 1282, 1291 (August 1992)(emphasis
added). We explained that, in making such a determination, a judge "should
make factual findings as to whether the inspector made a reasonable
investigation of the facts, under the circumstances, and whether the facts
known to him, or reasonably available to him, supported issuance of the
imminent danger order." 14 Fl1SHRC at 1292. Judge Koutras determined that the
inspectors did not make a reasonable investigation of the circumstances and
that the facts reasonably available to them did not support issuance of the
imminent danger orders. 13 FMSHRC 629, 632, 635-36, 637.
While the crucial question in imminent danger cases is whether the
inspector abused his discretion or authority, the judge is not required to
accept an inspector's subjective "perception" that an imminent danger existed.
Rather, the judge must evaluate whether, given the particular circumstances,
it was reasonable for the inspector to conclude that an imminent danger
existed. The Secretary still bears the burden of proving his case by a
preponderance of the evidence. Although an inspector is granted wide discretion because he must act quickly to remove miners from a situation that he

346

believes to be hazardous, the reasonableness of an inspector's imminent danger
finding is subject to subsequent examination at the evidentiary hearing.
It would be inappropriate for the Commission to reweigh the evidence in
this case or to enter de novo findings based on an independent evaluation of
the record. The Commission is bound by the substantial evidence test when
reviewing an administrative law judge's factual determinations. U.S.C. §
823(d)(2)(A)(ii)(I). "Substantial evidence" means "such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion." See,
~. Rochester & Pittsburgh, 11 FMSHRC at 2163 quoting Consolidation Edison
Co. v. NLRB, 305 U.S. 197, 229 (1938).
We conclude that substantial evidence supports the judge's findings of
fact. The judge found that it was unreasonable for the inspectors to believe
that methane at this location could be ignited given continued mining
operations. He determined that, after the 1975 mine fire, Island Creek
instituted a drilling program to locate sandstone formations containing
quartzite. The judge examined the reports that had been issued by MSHA and
its predecessor concerning earlier mine ignitions at the VP-3 mine. The judge
found that, in these reports, MSHA had discounted roof falls as the source of
the subsequent ignitions. 13 FMSHRC at 632 33, Exhs. G-8, G-9. The judge
further concluded that ignitions possibly caused by roof falls prior to 1975
were "too remote in time to support any reasonable conclusion that [roof
falls] pose a present ignition hazard." 13 FMSHRC at 633.
The judge found that the inspectors speculated that a large body of
explosive methane was present in the gob and that such a condition presented
an imminent danger based on their understanding of previous reports. 13
FMSHRC at 632. The judge also determined that the inspectors failed to make
any effort to ascertain actual mining conditions or to evaluate the mine's
ventilation system, and that the inspectors relied almost exclusively on the
earlier MSHA reports to support the imminent danger orders. Id. As stated
above, he determined that these reports indicated that quartzite was no longer
a potential ignition source for methane at this mine. 13 FMSHRC 633-37. He
then vacated the orders because he found that the reports did not provide "any
credible or probative evidentiary support for any conclusion that ready
ignition sources capable of propagating an explosion of the methane in the gob
area in question were present." 13 FMSHRC at 637. The record as a whole
contains substantial evidence to support the judge's findings.
~.
Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951).
While we recognize that the presence of an explosive concentration of
methane in a mine presents a hazard, it is significant that the methane
accumulation in this case was in a gob and not in an active area of the mine.
At the hearing, the MSHA inspectors admitted that explosive levels of methane
are to be expected in the gob at this mine. Counsel for the Secretary
conceded that an explosive accumulation of methane in this gob would create an
imminent danger "[o]nly if there's such a significant ignition source [that]
there is a significant danger." Tr. Vol. I, 153. On review, counsel for the
Secretary states that the primary point of contention is whether "it was
reasonable to conclude that an ignition source was present that rendered the
methane an imminent danger." Sec. Br. 9. Thus, the Secretary concedes that,

34 7

in the circumstances of this case, the methane that had accumulated in the gob
did not create an imminent danger in the absence of an ignition source. In
this case, we agree with the judge that the Secretary failed to prove that an
ignition source existed. Therefore, we need not and do not reach the issue of
whether, in another case, the Secretary may support an imminent danger order
by showing that an explosive accumulation of methane is present without
proving a specific ignition source.
We reaffirm our holding in Rochester & Pittsburgh that an inspector must
have considerable discretion in issuing imminent danger orders. Our
affirmance of the judge's decision in this case should not be construed as
circumscribing an inspector's authority or indeed his obligation to issue a
section 107(a) order whenever he finds that an imminent danger exists. We
base our decision on the narrow ground that substantial evidence supports the
judge's determination that MSHA failed to meet its burden of proving that it
was reasonable for the inspectors, based on the information available at the
time, to conclude that the conditions in the mine constituted an imminent
danger.
B.

Citation

The section of the ventilation plan at issue in this proceeding is, in
all essential respects, identical to the language of 30 C.F.R. §§ 75.316-2(e)
& 75.316-2(e)(l). 8 The UMWA contends that MSHA established that the sealed
stoppings Island Creek had constructed in the Nos. 8, 9 and 10 development
entries were inconsistent with the mine's ventilation plan. UMWA Br. 16-17.
8

The relevant provisions of the mine's ventilation plan provides:
10. Bleeder entries, bleeder systems, or equivalent means shall be
used in all active pillaring areas to ventilate the mined areas from
which the pillars have been wholly or partially extracted so as to
control the methane content in such areas.
Bleeder entries or
bleeder systems established after June 28, 1970, shall conform with
the requirements of Section 75.316-2, 30 CFR 75.
(a)

Bleeder entries shall be defined as special air courses
developed and maintained as part of the mine ventilation
system and designed to continuously move air-methane
mixtures from the gob, away from active workings, and
deliver such mixtures to the mine return air courses.
Bleeder entries shall be connected to those areas from
which pillars have been wholly or partially extracted at
strategic locations in such a way to control air flow
through such gob area, to induce drainage of gob gas
from all portions of such gob areas, and to minimize the
hazard from expansion of gob gases due to atmospheric
changes.

Exh. G-4.

348

The UMWA argues that the plan required Island Creek to place regulators at
those locations in order to provide the flexibility needed to adjust the air
flow to remove methane before it could accumulate. 9 It contends that,
because it would be impractical for the plan to identify where the bleeder
entries must be connected to the gob, the operator is required to provide
connections at locations that will induce drainage from all areas of the gob.
UMWA Br. 18. The UMWA also asserts that, contrary to the findings of the
judge, Inspector Carico testified that his method of testing for methane in
the gob was sufficiently accurate to indicate that a large amount of explosive
methane was present in the gob. UMWA Br. 20.
We affirm the judge's decision vacating the citation alleging a
violation of 30 C.F.R. § 75.316. Island Creek presented evidence at the
hearing, credited by the judge, that the gob was being adequately ventilated
in accordance with paragraph 10 of the mine's ventilation plan. MSHA
witnesses admitted that whether the gob was connected with the bleeders at
"strategic locations" is entirely dependent upon whether air was flowing
through the gob to induce the drainage of methane from the gob into the
bleeder entries. MSHA did not cppduct a ventilation survey to determine the
effectiveness of the mine's ventilation system. Island Creek did conduct such
a survey, which it believes established that a satisfactory quantity of air
vms moving through the gob and adjacent bleeders, and that the gob atmosphere,
including methane, was exiting the gob where intended. Island Creek's
witnesses testified that it maintained the stoppings in the development
entries so that it could control the air flow through the gob and that the
ventilation survey demonstrated that its controls were working. Island Creek
has been installing stoppings between the gob and the bleeder entries since at
least 1987 and MSHA has never questioned their presence even though the
ventilation plan has undergone semiannual review.
The judge credited the testimony of Island Creek expert witness Donald
Mitchell that it is not unusual to find methane in a gob and that methane
will gravitate to the higher elevations in the gob, which in this instance
were the areas where the inspectors took the methane readings. 13 FMSHRC at
645. The judge noted that Inspector Carico conceded that explosive
concentrations of methane are to be expected in some areas of a gob and that
the area he tested for methane was one of "the highest elevations in the [gob]
and that methane will go to that area even though it is enroute out of the
mine." ld. Finally, the judge noted that Carico also conceded that the
stoppings were installed to force the air to flow to another location where it
would leave the gob and that, as the air flowed away from the stoppings, it
would be picking up methane. 13 FMSHRC at 646. The ventilation plan,
contrary to the assertions of the UMWA, does not require the installation of
regulators at specific locations, other than between the headgate and tailgate
entries and the bleeders. Exh. G-4. The record indicates that Island Creek
had, in fact, installed regulators at those locations in the South Gob. Exh.
C-2.
i:J.

9

A regulator is a door, that can be of any size, located in a stopping.
The regulator can be opened or closed as needed. See DMMRT, at 910.

349

The judge concluded that the gob was being ventilated in a manner that
mixed and diluted the methane with air and that this mixture was coursing
through the gob into the bleeder system and out of the mine. 13 FMSHRC at
646. Substantial evidence supports the judge's findings and his conclusion
that Island Creek was in compliance with its plan -- a finding the Secretary
did not choose to appeal. If the Secretary believes that specific accumulations of methane create a hazard in gobs or other inactive areas of
underground coal mines, he should consider promulgating safety standards to
deal with this problem. If the Secretary believes that this mine requires
special provisions regarding methane in the gob, such as the installation of
regulators in the disputed stoppings, he should seek to amend the mine's
ventilation plan to specifically address the issue.

III.
Conclusion
For the foregoing reasons, we affirm the judge's decision.

Arlene Holen, Chairman

L. Clair Nelson, Commissioner

350

Distribution
Jerald S. Feingold,
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Mary Lu Jordan, Esq.
United Mine Workers of America
900 15th St., N.W.
Washington, D.C. 20005
Timothy M. Biddle,
Robert P. Davis, Esq.
Crowell & Moring
1001 Pennsylvania Ave., N.W.
Washington, D.C. 20004
Administrative Law Judge George A. Koutras
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

351

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

20006

Harch 4, 1993
KERR-McGEE COAL CORPORATION
Docket Nos. WEST 91-84-R
WEST 91-85-R
WEST 91-220

v.

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

BEFORE:

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

DECISION
BY THE COMMISSION:
This consolidated contest and civil penalty proceeding arises under the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)(the
"Mine Act" or "Act"), and presents the issue of whether miners may choose as
their representative for "walkaround" purposes under section 103(f) of the
Mine Act, 1 a union, or the agent of a union, that is not the miners'
collective bargaining representative under the National Labor Relations Act,
seq. (e.s amended) (1988) ("NLRA"). This case arose when an
from the
of Labor's Mine Safety and Health Administration
:Lssued co Kerr-McG "'e Coal Corporation ("Kerr-McGee") a citation
that Kerr-McGee had violated 30 C.F.R. § 40.4 when it failed to post
at it:s Jacobs Ranch Hine, a nonunion mine, the names of certain miners'
representatives not employed by Kerr-McGee. These individuals were agents of
1

The terli'. "walkaround" is used in reference to the rights granted miners'
under section 103 (f) of the Mine Act, which provides in pertinent
Subject to regulations issued by the Secretary, 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 ... for the purpose of aiding such
inspection and to participate in pre- or post-inspection
conference held at the mine ....
30 u.s.c. § 813(f).

352

the United Mine Workers of America ("UMWA") and were designated as miners'
representatives by certain miners employed at the Jacobs Ranch Mine. 2 The
inspector subsequently issued an order of withdrawal pursuant to section
104(b) of the Mine Act, 30 U.S.C. § 814(b), after Kerr-McGee declined to abate
the alleged violation.
Following an evidentiary hearing, Administrative Law Judge Michael A.
Lasher, Jr., upheld the citation and order. 13 FMSHRC 1889 (December 1991)
(ALJ). The judge concluded that, although the UMWA did not represent the
miners at the Jacobs Ranch Mine for collective bargaining purposes under the
NLRA, the designation of nonemployee UMWA agents as miners' representatives
did not constitute a "per se" abuse of the miners' representative process
under the Mine Act and the Secretary's implementing regulations at 30 C.F.R.
Part 40 ("Part 40"). For the reasons discussed below, we affirm.
I.

Factual and Procedural Background
A.

Factual Background

Kerr-McGee owns and operates the Jacobs Ranch Mine, a surface coal mine
employing approximately 270 miners and located in the Powder River Basin near
Gillette, Wyoming. The employees at the mine have never been unionized.
Dallas Wolf, an organizer for the UMWA, moved to Gillette in April 1990, for
the purpose of unionizing miners in the Powder River Basin, including the
Jacobs Ranch miners.
The UMWA held several meetings in Gillette that were organized by Wolf
and attended by a number of Kerr-McGee miners. In July 1990, the UMWA also
sponsored several days of safety training for Kerr-McGee miners. These
training sessions were presented by Robert Butera, a UMWA safety and health
representative. At the end of the training sessions, wolf urged those in
attendance to sign forms designa·ting l1Tolf and Butera as ·their miners'
representatives under Part 40. 3 Seven of the Jacobs Ranch miners designated
2

The regulations of the Secretary of Labor dealing with miners'
representatives are contained at 30 C.F.R. Part 40.
Section 40.4, entitled
nPosting at mine,"
A copy of the information provided the operator
pursuant to § 40.3 of this part [designating the miners'
representative] shall be pos'ced upon receipt by the
operator on the mine bulletin board and maintained in a
current status.
3

The Secretary's regulation defines the term "representative of miners"
as "[a]ny person or organization which represents two or more miners at a ...
mine for the purposes of the Act." It equates the term to "[rJepresentatives
authorized by the miners, miners or their representative, authorized miner
(continued ... )

353

Wolf and Butero as their miners' representatives and themselves as alternate
representatives. 4 The record reflects that neither Wolf nor Butero actually
acted in his capacity as miners' representative at the Jacobs Ranch Mine.
Under 30 C.F.R. § 40.3, miners' representatives are required to file
with MSHA information regarding their designation and identity and to provide
copies to the affected operator. Wolf mailed the miners' representative
designation form to the MSHA District Office in Denver and its receipt was
acknowledged. Kerr-McGee received its copy of the form and decided that it
would not post the designation of Wolf and Butero at the mine pursuant to
section 40.4 (n.2 supra), because it believed that it was not required to
accept agents of the UMWA as miners' representatives. Kerr-McGee did not
inform MSHA of its decision not to post the designation.
MSHA Inspector Jimmie Giles inspected the Jacobs Ranch Mine on October
25, 1990, in response to a complaint submitted to MSHA pursuant to section
103(g) of the Mine Act, 30 U.S.C. § 813(g), that the miners' representative
designation form had not been posted at the mine. Ron Crispin, Kerr-McGee's
manager of administration, informed In~pector Giles that the designation form
was not, and would not be, posted. Crispin read to Inspector Giles a prepared
statement that Kerr-McGee was not required to accept the designation of
nonemployees a.s miners' representatives. 5
Inspector Giles issued Kerr-McGee a citation alleging a violation of
section 40.4, for failure to post the designation form on the mine bulletin
board, and allowed Kerr-McGee 15 minutes to abate the condition by posting the
form. After Crispin again declined to post the designation form, Inspector
Giles issued an order of withdrawal pursuant to section 104(b) of the Act, 30
3 ( . . . continued)

representative," and other similar terms used in the Act. 30 C.F.R. § 40.l(b)(l)
Thus, under Part 40, any two miners at a mine may designate "any person
or organization" to represent them as a miners' representative.

rS, (2).

4

Prior to this designation, there had never been a miners' representative
designated under Part 40 at the mine. Since this designation, approximately 92
Jacobs Ranch miners have been designated as Part 40 representatives. S. Br. at
18-19 n.9.
5

The statement provides:
Kerr-McGee does not believe it can lawfully be required
to accept the designation of a non-employee walkaround
representative at the Jacobs Ranch Mine or to recognize
any other action by a non-employee. MSHA Inspectors are
entitled to, and encouraged to, talk to Jacobs Ranch
employees as a part of all inspections.
Inspections
should proceed
on
that
basis
without
outside
interference.

Exh. C. to Stipulation, Exh. M-7.

354

U.S.C. § 814(b), for refusal to abate the alleged violation. Kerr-McGee
finally abated the citation after receiving a letter from the MSHA district
manager stating that Kerr-McGee would be assessed a daily penalty (~ 30
U.S.C. § 820(b)) if it did not immediately abate the violative condition.
Kerr-McGee filed timely notices of contest of the citation and the order, and
the matter proceeded to an evidentiary hearing before Judge Lasher.
B.

Procedural Background

Following the hearing, and before submission of the parties' posthearing briefs, Kerr-McGee moved to reopen the record based upon newly
discovered evidence. Kerr-McGee asserted that, in an unrelated proceeding
after the hearing, its counsel had obtained from the UMWA several documents
establishing that certain statements made by Wolf in his pre-hearing
deposition in this matter were incorrect. Wolf had testified in his
deposition that he did not have any letters or written reports regarding this
case or his designation as a miners' representative. Kerr-McGee offered, as
its newly discovered evidence, a series of internal UMWA memoranda to and from
Wolf, which, it asserted, revealed that Wolf had been designated as a
walkaround representative in order to facilitate on-going UMWA organizing
activities.
In an unpublished order, the judge denied Kerr-McGee's motion to reopen.
The judge stated that the prerequisites for reopening a record for the
presentation of newly discovered evidence are:
the evidence [is] discovered after the completion of
the trial; due diligence on the part of the moving
party to discover the new evidence prior to trial is
shown or inferred; the evidence is not merely
cumulative or impeaching; the evidence is material;
and the evidence is such that a new trial would
probably produce a new result.
Unpublished Order at 2 (October 11, 199l)(citation omitted)("Order"). The
judge determined that Kerr-McGee did not establish that it had exercised due
diligence to discover the documents prior to trial. The judge next determined
that the evidence was largely cumulative, and that a number of the documents
had been discovered prior to trial and were either accepted into evidence or
dismissed by the judge as irrelevant. The judge also noted that the veracity
of Wolf's deposition testimony was a matter for impeachment and, as such, was
not a sufficient basis for reopening the case. Finally, the judge rejected
Kerr-McGee's argument that the newly discovered evidence would probably
produce a different result. The judge explained that the documents merely
revealed that union organizing activity was taking place in the Powder River
Basin, and that this was established and undisputed at trial. Order at 2-3.
In his decision on the merits, the judge concluded that the designation
of Wolf and Butera as miners' representatives at the Jacobs Ranch Mine did not
constitute a per se abuse of the miners' representative process, and that
Kerr-McGee's refusal to post the designation was not justified. The judge
first determined, upon examination of Part 40 and section 103(f) of the Mine

355

Act, that a union may represent miners for walkaround and other Mine Act
purposes even though it is not the collective bargaining representative of
those miners under the NLRA. 13 FMSHRC at 1901. The judge pointed out that
the language of section 40.l(b) (n.3 supra) expressly provides that a
"representative of miners" includes "any individual or organization" that
represents two or more miners, and does not set forth any restriction or
qualification that the representative must be recognized as such under other
labor laws. Id. (emphasis added). The judge relied on Utah Power & Light Go.
v. Secretary, 897 F.2d 447 (lOth Cir. 1990)("UP&L"), aff'g, Emery Mining
Corp., 10 FMSHRC 276 (March 1988), in which the United States Court of Appeals
for the Tenth Circuit, affirming the Commission, held that walkaround rights
may be extended to miners' representatives who are not employees of the
affected operator. Id.
The judge further determined that a conflict did not exist between the
Mine Act and the NLRA. The judge reasoned that the representative process has
distinct meanings and purposes under each Act. 13 FMSHRC at 1902. He
explained that under the NLRA, a representative is elected by a majority of
workers for a broad range of collective,pargaining purposes. In contrast,
under the Mine Act and the Secretary's Part 40 regulations, a representative
is chosen by two or more miners for the primary purpose of accompanying a mine
inspector during an inspection. Id.
The judge also noted that MSHA has consistently interpreted the term
"representative" in the Mine Act and Part 40 as any person qualified to be on
a mine site, regardless of whether that person is an employee of the mine
operator or a member of a labor or other organization. 13 FMSHRC at 1903.
Fina~ly, the judge observed that UP&L had clearly indicated that the Secretary
and an affected operator could take appropriate action against any miners'
representative who abuses the walkaround process by engaging in inappropriate
activities, such as union organizing, during walkaround. 13 FMSHRC at 190405, citing UP&L, 897 F.2d at 452. The judge held that instances of abuse must
be considered on a. case-by-case basis. The judge concluded that the exercise
of Mine Act rights by Kerr-McGee employees to designate nonemployee UMWA
members as their representatives was not an abuse of the miners'
representative process. 13 FMSHRC at 1905. The judge determined that "at
best [Kerr-McGee] showed [that the] UMWA used Part 40 as a 'tool' to create
employee interest and to enhance its standing." 13 FMSHRC at 1898 n.7.
Accordingly, the judge denied Kerr-McGee's contests of the citation and order,
and assessed a civil penalty o~ $300. 13 FMSHRC at 1906.
The Commission subsequently granted Kerr-McGee's petition for
discretionary review, which challenges the judge's decision on the merits and
his denial of the motion to reopen. The American Mining Congress, the
National Coal Association and the Wyoming Mining Association (collectively,
"industry amici"), jointly, and the UMWA, separately, filed amicus curiae
briefs in this proceeding, and the Commission heard oral argument.

356

II.

Disposition of Issues
A.

Motion to Reopen

Kerr-McGee argues that the judge erred in denying its motion to reopen
the record. We disagree.
Although the Commission's procedural rules, 29 C.F.R. Part 2700, do not
specifically address motions to reopen a hearing on the basis of newly
discovered evidence, Commission Procedural Rule 54(a), 29 C.F.R. § 2700.54(a),
authorizes Commission judges to regulate the course of hearings and to dispose
of procedural motions. The Commission also may properly look for guidance to
the Federal Rules of Civil Procedure ("Fed. R. Civ. P.")(29 C.F.R.
§ 2700.1 (b)), and precedent thereunder. A motion to reopen the record to
submit new evidence is not expressly addressed in the federal rules but,
rather, is committed to the sound discretion of the trial judge.
generally Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 331
(1971). In general, an abuse of discretion occurs when the trial court bases
its decision on an erroneous conclusion of law or where there is no rational
basis in the evidence for its ruling. See, ~. In re Coordinated Pretrial
Proceedings. etc., 669 F.2d 620, 623 (lOth Cir. 1982).
A motion for a new trial under Fed. R. Civ. P. 59 ("Rule 59") has
certain similarities and affords some guidance. See J. Moore, J. Lucas & G.
Grother, 6A Moore's Federal Practice~ 59.04[13](2d ed. 1992)("Moore's"). A
motion to reopen, however, seeks to offer additional evidence before a
decision has been rendered and, consequently, the standards for granting such
a motion are less stringent than those for a motion seeking a new trial. 6
Generally, in determining whether to grant a motion to reopen, it is
appropriate to consider the time when the motion is made, the character of the
additional evidence, and the effect of granting the motion. 6A Moore's at
gl 59.04[13i.
Yhe judge applied the post-judgment Rule 59 criteria, urged upon him by
Kerr-McGee, and did not expressly refer to the less stringent pre-judgment
test. In applying the somewhat similar Rule 59 criteria, however, the judge,
in effect, considered the essential factors of the pre-judgment test. Of
particular importance, the judge characterized the "new" evidence as
cumulative, and noted that a number of the allegedly newly found documents had
been discovered prior to trial and rejected at trial as irrelevant. Order at
2. The judge also determined that admission of the evidence would not have
altered his findings in any event. Order at 3. He explained that the
evidence merely demonstrated that union organizing activity was taking place
in the Powder River Basin, which had been established at trial and was not
disputed.
Under the circumstances, any error in setting forth the
stricter Rule 59 criteria was harmless.
6

The stricter criteria for a Rule 59
cited by the judge in his pre-trial order.

357

udgment motion are the ones

Because a rational basis existed for the judge's denial of Kerr-McGee's
motion to reopen, and the judge's error, if any, was harmless, we conclude
that the judge did not abuse his discretion. Accordingly, we affirm his order
denying the operator's motion to reopen the record.
B.

Designation of Wolf and Butera as Miners' Representatives
1.

Contentions of the parties on review

The thrust of the operators' 7 argument is that the Mine Act should be
construed to prohibit a union or a union member from being designated as a
"representative of miners," unless that union also represents the miners under
the NLRA. The operators assert that granting representative status to a
nonemployee union agent infringes upon an operator's right to control access
to its private property by nonemployees, including nonemployee union
organizers. In support, the operators rely heavily on Lechmere, Inc. v. NLRB,
502 U.S. __ , 117 L.Ed.2d 79 (1992).
Kerr-McGee distinguishes UP&L, '897 F. 2d 447, on the grounds that, in
that case, the nonemployee miners' representative was a union member who
sought to act as a representative at a union mine, whereas the present case
involves a nonunion mine. Thus, Kerr-McGee asserts that UP&L is not
controlling.
According to the operators, the Secretary's Part 40 Regulations and, in
particular, the definition of "representative of miners," are legally infirm.
The operators assert that the Part 40 definition of representative, which
allows for multiple representation by "any" individuals or organizations,
conflicts with provisions of the NLRA that prohibit a unionized employer from
dealing with any agent other than the official collective bargaining agent.
They argue that permitting a union member to act as a miners' representative
at a nonunion mine not only intrudes upon the operator's right under the NLRA
to control access to its private property by union organizers but also tends
to create a favorable impression among the miners towards the union. The
operators contend that the Secretary's interpretation of Part 40 is
unreasonable and that to permit the kind of representation involved here
amounts to a failure to accommodate Part 40 to the NLRA's regulatory scheme.
The operators contend that the designation of a union agent as a
walkaround representative at a nonunion mine constitutes an abuse of section
103(f), even under UP&L, because it is plainly for an ulterior purpose. KerrMcGee urges that the aim of designating UMWA representatives here was to
foster their organizing efforts rather than to promote health and safety and,
consequently, tha·t aim was abusive of the Mine Act.

7 Unless otherwise noted, the arguments of industry amici are included in
our discussion of Kerr-McGee's position and the term "operators" is used in
reference to their arguments.
Similarly, the arguments of amicus UMWA are
incorporated in our discussion of the Secretary's position.

358

The Secretary responds that the operators' suggested approach to the
miners' representative process is overly restrictive under the Mine Act and
the Part 40 implementing regulations. The Secretary notes that nothing in
Part 40 prohibits the Kerr-McGee miners from designating an agent of the UMWA
or any labor union as their miners' representative under the Mine Act, even
though the designated union is not the miners' collective bargaining
representative under the NLRA. The Secretary emphasizes that section 103(f)
of the Mine Act imposes no status limitations on who may serve as a miners'
representative, and, accordingly, Part 40 regulations simply mirror the
statute's broad approach.
The Secretary urges that deference should be given to his interpretation
of the Mine Act and to his interpretation of the regulations that he has
adopted.
Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 842-45 (1984). The
Secretary asserts that his interpretation of the relevant portions of Part 40
should be accepted, as it is reasonable, consistent with the Mine Act, and is
supported by his "contemporaneous construction" of Part 40, published at the
time Part 40 was promulgated. ~~e preamble to the regulations specifically
discussed and rejected the definition of "representative" as used in the NLRA,
explaining that the purposes of the representation process under the two
statutes were different. 8
The Secretary further contends that UP&L, 897 F.2d 447, is dispositive.
There, the Tenth Circuit held that nonemployees may serve as walkaround
representatives. Under UP&L, an operator may take appropriate action against
a designated representative only if he engages in spe~ific conduct unrelated
to safety or health. The Secretary contends that, as the judge found, KerrMcGee has failed to show instances of such abusive conduct. The Secretary
acknowledges that there was a union organizing campaign underway at the Jacobs
Ranch Mine, but argues that, as shown by the record, the designation of the
UMWA
was also intended to advance miners' safety. Thus, even

8

The preamble to Part 40 states:
[T]he NLRB definition is inappropriate because the NLRB
definition of "Representative" concerns itself 'vith a
in the context of collective bargaining.
The meaning of the word representative under this [A]ct
is completely different.
Additionally the rights of
nonunion miners would be severely limited by a
definition of 11 Representative of Miners" based on the
collective bargaining concept.
Furthermore,
the
"majority rule" concept is a fundamental component of
the
NLRB
definition
of
representative,
which
contemplates only any one union miner representative at
each mine.
The purposes of the Mine Act are better
served by allowing multiple representatives to be

43 Fed. Reg. 29508 (July 7, 1978).

359

if the miners' representatives possessed a "mixed motive," i.e., safety and
unionizing, there was no abuse of the walkaround function.
Finally, the Secretary argues that the Part 40 regulations do not
impermissibly conflict with the NLRA. The Part 40 regulations do not impinge
on Kerr-McGee's right under the NLRA to deny access to its property to
nonemployees engaged in union organizing because the miners' representative
has only a limited access, a carefully delineated right to assist with
inspections, and may not use that access to engage in organizing activities.
2.

Analysis

We find the judge's reasoning persuasive and conclude that this matter
is controlled by the decisions of this Commission and the Tenth Circuit in the
UP&L litigation. The general issue of whether an operator's miners may
designate an individual who is not an employee of the mine operator as their
miners' representative for walkaround purposes has been previously determined
by the Commission. In Emery, the Commission held that "as a matter of
statutory right a nonemployee may be chosen by the miners of a given mine as
their representative and ... such a representative may properly be afforded
the opportunity to participate in walkaround at that mine -- although without
compensation from the operator." Emery, 10 FMSHRC at 284-85, aff'd, UP&L, 897
F.2d at 449 52. The Commission's conclusion in Emery was based on the
language of section 103(f) of the Mine Act, which "imposes no employee-status
limitation as to whom [miners] may choose [as their own representative]." 10
FMSHRC at 284. The Commission determined that the Secretary's Part 40
regulations' "broad definition of representative is in accord with the
underlying statutory text [of section 103(f)]." 10 FMSHRC at 285.
In affirming the Commission's holding on this issue, the Tenth Circuit
concluded that the Secretary's and the Commission's interpretation of section
103 (
was "both reasonable and supportable" and held that miners may
authorize nonemployees to act as their representative under § l03(f) of the
Act. 897 F.2d at 452. In reaching this conclusion, the Court determined that
the underlying purpose of section 103(f) "can be furthered by allowing both
employees and nonemployees to act as miners' representatives for walkaround
purposes."
The Court noted that miners may benefit from the
participation of nonemployee representatives in walkaround because such
"may have greater expertise in health and safety matters than
an employee representative." 897 F.2d at 451.
In UP&L, the mine operator had argued that the Secretary's interof section 103(f) in the Part 40 regulations was not reasonable, in
, because it would allow the representative of a union to gain access to a
nonunion mine for purposes unrelated to the Act's safety objectives. 897 F.2d
at 452. In addressing this argument, the Court stated:
While we recognize UPL's concern that walkaround
rights may be abused by nonemployee representatives,
the potential for abuse does not require a
construction of the Act that would exclude nonemployee
representatives from exercising walkaround rights

360

altogether. The solution is for the operator to take
action against individual instances of abuse when it
discovers them.
Id. Contrary to Kerr-McGee's assertions on review, the Court did not base its
holding on the fact that, in that case, the miners were represented for NLRA
purposes by a union and, therefore, the des
of a nonemployee union
member as a miners' representative was permissible. Rather, the Court
interpreted the language of section 103(f) to permit representation by
nonemployees generally, including agents of a labor organization.
We discern no basis in section 103(f) or Part 40 for applying the
principles set forth in Emery(UP&L only to situations where the designated
representative is a member of a union that also represents the miners for
collective bargaining purposes under the NLRA. The language of section 103(f)
does not prohibit miners from designating agents of a union as their
walkaround representatives on the basis that such miners are not represented
by the union for collective bargaining purposes. To the contrary, the
Commission has held that, under the broad language of section 103(f), miners
possess the right to
a· -representative of their own choosing for
section l03(f) purposes. Emery, 10 FMSHRC at 284-85; Secretary on behalf of
Truex v. Consolidation Coal Co., 8 FMSHRC 1293, 1298 (September 1986).
Further, the operators' position would limit nonunionized miners' right to
designate representatives of their own choosing, thereby creating distinctions
between unionized and nonunionized miners that have no basis in the statute.
The Commission held in Emery that section 103(f) specifically provides
that the requirements set forth therein are "[s]ubject to regulations issued
by the Secretary" and that the Secretary's pertinent regulations at Part 40
are consistent with the language of section 103(f). 10 FMSHRC at 285.
Moreover, the Secretary's manner of enforcement of his regulations is
consistent with those regulations and with Emery. Thus, the Secretary says
that he does not determine who qualifies as a walkaround representative based
on a person's status or motives. Oral Arg. Tr. 45 48. Instead, the Secretary
focuses on the actual conduct of the miners'
during the
inspection. Oral
. Tr. 48. The Secretary states that it is irre~evant who
is chosen as a miners' representative so long as the representative's
"demeanor and behavior" is proper and consistent with the purposes of section
103 (f). Id.
The Commission is aware, as was the lOth Circuit ir1
, that allowing
a union agent limited access to mine property under section 103(f) is subject
to possible abuse. we agree with the Secretary and the j
that it is the
conduct of a miners'
, during a walkaround under section 103(f),
rather than the motivation of such representative, that must be examined to
determine whether there has been abuse. Although the UMWA
, wolf and
Butero, are organizing mines in the Powder River Basin, there has been no
showing here that they will, through their conduct, abuse the
and
corresponding responsibilities of section 103(f). Kerr-McGee's concerns as to
possible future problems are speculative. Conduct by a miners' representative
that constitutes abuse can be addressed on an individual basis by an operator

361

and the Secretary, while generally prese1.-ving the right of miners to select
representatives of their choice. See UP&L, 897 F.2d at 452.
Kerr-McGee also seeks reversal of the judge's decision on the basis that
Part 40, as applied here, conflicts with the NLRA. The NLRA broadly
guarantees employees the right to "bargain collectively through representatives of their own choosing .... " 29 U.S.C. § 157. The Mine Act, on the
other hand, is a more narrowly tailored statute that pervasively regulates the
safety and health of employees in one industry. In effect, the operators ask
the Commission to read into section 103(f) of the Mine Act the concept of
collective bargaining representation under the NLRA with the result that a
nonemployee agent of a union could not be a miners' representative unless he
is also a duly certified bargaining representative at that mine. When
promulgating Part 40, the Secretary concluded that it would be inappropriate
to incorporate the NLRA definition of a "representative" because "the meaning
of the '1-Tord representative under [the Mine] Act is completely different." 43
Fed. Reg. 29508
n.8 supra).
Although \ve cannot ignore other statutes when interpreting the Mine Act,
nothing in the Mine Act or general principles of administrative law requires
that the Secretary or the Commission defer to or incorporate the NLRA. Our
proper field of judicial inquiry is the .Mine Act. See &enerally PBGC y. LTV
Cor~, 496 U.S. 633, 645~47 (1990).
We agree with the Secretary that he is
not required to integrate the NLRA's concepts of collective bargaining
:Lnto his regulations implementing the Mine Act. Nor is this
Commission required to integrate NLRA concepts into its interpretation of the
Mine Act. See, ~. UMWA on behalf of James Rowe et al., etc, v. Peabody
Coal Co., 7 FMSHRC 1357, 1364-65 (September 1985), aff'd, 822 F.2d 1134 (D.C.
Cir. 1987).
The restrictions that have developed under the NLRA concerning
nonemployee access to an employer's property for organizing or related
·oc:.z·poses 2:~:Lse ·under 2, statute "whose very purpose is ·the governance of labor:~·:~:L3.t5_ons.'
7 FMSHRC at 1365. The discrete safety and
I1ee.lt:;,. :::,.:,rposc;, :;.f U1.e Hine Act, and "che text of section 103 (f), render these
NLl~A
J.napplicable here. As noted, the Secretary rejected the
approach advocated by the operators when he promulgated Part 40. See UP&L,
897 F. 2d at L:-52;
10 FMSHRC at 285
We hold that the concept of
or
under the NLRA is not determinative of the
process under Part 40.
The

Court's decision in Lechmere does not require a different
construed ·the provisions of the NLRA governing the access
;~10nemployee union organizers to employers' private property.
In
====' t:he Court was concerned with "the relationship between the rights of
employees under§ 7 of the [NLRA] ... , 29 U.S.C. § 157, and the private
property rights of employers." Lechmere, 117 L.Ed.2d at 85. The Court did
not address general legal principles relating to the balancing of property
of employers against federal regulatory requirements established under
other statutes, such as the Mine Act. Lechmere does not reverse walkaround
law as it has developed under the Mine Act and does not overrule UP&L.
:(eS'L;.lt.

362

Under the Mine Act, nonemployees may enter a mine for the limited
purpose of accompanying MSHA inspectors during their inspection of a mine.
The Mine Act entails pervasive regulation and a diminished expectation of full
oyment of private property rights.
For example, search warrants for
government inspections are not required because, in
, the Mine Act "is
specifically tailored to address [Congress' safety and health] concerns, and
the regulation of mines [that] it imposes is
pervasive and
defined that the owner of such a facility cannot help but be aware that he
'will be subject to effective inspection.'" Donovan v. Dewey, 452 U.S. 594,
603 (l98l)(citation and footnote omitted). Accordingly, the Court's analysis
of the property rights of employers in Lechmere, which relates solely to
employee organizing
under the NLRA, is not applicable to this case.
To the extent that Kerr-McGee is seeking a resolution of rights and
obligations under the NLRA, it is in the wrong forum.
If the Secretary,
either through regulation or enforcement, requires an operator to take
specific actions that could constitute an unfair labor practice or would
otherwise conflict with the NLRA, the proper forum to resolve such conflicts
is the National Labor Relations Board ("NLRB"). The NLRB may determine
whether the Mine Act's requirements or the Secretary's implementing
regulations serve as a defense to an unfair labor practice charge.

III.
Conclusion
For the foregoing reasons, the judge's decision is affirmed.

Arlene Holen, Chairman

~~~
Richard V. Backley, Commissioner -

L. Clair Nelson, Commissioner

363

Distribution
Charles W. Newcom, Esq.
Sherman & Howard
3000 First Interstate Tower North
633 Seventeenth St.
Denver, CO 80202
Curtis B. Hendricks, Esq.
Kerr-McGee Corporation
P.O. Box 25861
Oklahoma City, OK 73125
Colleen A. Geraghty, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Rosemary M. Collyer, Esq.
Thomas C. Means, Esq.
Crowell & Moring
1001 Pennsylvania Ave., N.W.
Washington, D.C. 20004
}fury Lu Jordan, Esq.
United Mine Workers of America
900 15th St., N.W.
Washington, D.C. 20005
Administrative :::..aw Judge Michael A. Lasher, Jr.
Federal Mine Safety & Health Review Commission
1244
Boulevard, Suite 280
Denver, Colorado 80204

,364

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

20006

22, 1993

UNITED MINE WORKERS OF AMERICA,
ON BEHALF OF DAN NELSON
Docket Nos. SE 88-92 D
SE 88-93-D

v.

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
AND ROBERT KIYKENDALL
and
UNITED MINE WORKERS OF AMERICA,
ON BEHALF OF DAN NELSON,
RONALD SONEFF, TOMMY BOYD,
STAN ODOM, AND CARROLL JOHNSON
v.

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
AND JOHN WEEKLY AND
'HILLARD (GENE) QUERRY
BEFORE:

Holen, Chairman; Backley, Doyle and Nelson, Commissioners

BY THE COMMISSION.
The United Mine Workers of America ("UMWA") filed these discrimination
complaints pursuant to the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 801 et seq. (1988), alleging that certain officials of the Department
of Labor's Mine Safety and Health Administration ("MSHA") had failed to
protect the confidentiality of miners who had reported violations of MSHA's
safety standards. The tmwA requested an order directing MSHA to stop
disclosing to mine operators the names of miners reporting safety violations
and sought assessment of civil penalties for MSHA's alleged violations of
section 105(c) of the Mine Act, 30 U.S.C. § 815(c). In an unpublished order
dated February 14, 1992, Administrative Law Judge Avram Weisberger dismissed
the UMWA's complaints on the basis of the Commission's decision in Wagner v.
Pittston Coal Group, 12 FMSHRC 1178 (June 1990), aff'd mem. sub. nom. Wagner

365

v. Martin, No. 91-2025 (4th Cir. Nov. 5, 1991). The Commission granted the
UMWA's petition for discretionary review and, at the parties' request, stayed
this matter in April 1992, pending completion of their settlement
negotiations.
On March 8, 1993, the UMWA filed a motion to dismiss this matter on the
basis that the parties have reached a settlement agreement and that it no
longer wishes to proceed with this case. The motion states that MSHA has
issued an internal memorandum "reaffirming MSHA's policy that confidentiality
be maintained during investigations of safety or health complaints." The
motion states further that MSHA has agreed to investigate all reported
violations of this policy.
Upon consideration of the motion and on the basis of the UMWA's
representations, our prior stay is dissolved and this proceeding is dismissed.

~~
Gommissio~
Richard V. Backley,
)

.Joyce A. Doyle, Gommissi

er

~~~

L. Clair Nelson, Commissioner
Distribution
Nary Lu Jordan,
United Nine Harkers of America
900 15th St., N.W.
Washington, D.C. 20005
Jerald Feingold, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Administrative Law Judge Avram Weisberger
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

366

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

20006

Harch 22, 1993

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket Nos. WEST 90-202-M
WEST 90-363-RM
WEST 90-364-RM

v.

CYPRUS TONOPAH MINING CORP.

BEFORE:

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

BY THE COMMISSION:
This consolidated contest and civil penalty proceeding, arising under
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq.
(1988)(the "Mine Act" or "Act"), involves a dispute between the Secretary of
Labor and Cyprus Tonopah Mining Corp. ("Cyprus") regarding two citations
issued to Cyprus alleging violations of 30 C.F.R. §§ 56.3200 and 56.3130. 1
The citations were later modified to allege that the violations were caused by
Cyprus' unwarrantable failure to comply with the mandatory standards.
1

30 C.F.R. § 56.3200, entitled "Correction of hazardous conditions,"

provides:
Ground conditions that create a hazard to persons
shall be taken down or supported before other work or
travel is permitted in the affected area.
Until
corrective work is completed, the area shall be posted
with a warning
entry and, v1hen left unattended,
a barrier shall be installed to impede unauthorized
30 C.F.R.

§ 56.3130,

entitled "Wall, bank, and slope stability,"

provides:
Mining methods shall be used that will maintain
wall, bank, and slope stability in places where persons
work or travel in performing their assigned tasks. When
benching is necessary, the width and height shall be
based on the type of equipment used for cleaning of
benches or for scaling of walls, banks, and slopes.

367

Following an evidentiary hearing, Administrative Law Judge Michael Lasher
found that Cyprus had violated the standards and that the violations were
caused by Cyprus' unwarrantable failure to comply with the standards, but that
they were not significant and substantial ("S&S") in nature. 13 FMSHRC 1523
(September 199l)(ALJ). The judge also concluded that the citations were not
duplicative, and could be modified following their termination. The
Commission granted Cyprus' petition for discretionary review, which challenged
all of these conclusions except the judge's determination that the violations
were not S&S. For the reasons that follow, we affirm the judge's rulings,
except for his determination that Cyprus' violation of section 56.3200 was
caused by its unwarrantable failure, which we reverse.
I.

Factual and Procedural Background
Cyprus owns and operates an open pit molybdenum mine in Tonopah, Nevada.
The lower pit of the mine, "Pushback One" ("PBl"), is the focus of this
proceeding.
On February 27, 1990, Arthur Ellis, an inspector from the Department of
Labor's Mine Safety and Health Administration ("MSHA"), conducted a regular
inspection of the mine. Inspector Ellis, accompanied by Mike Curran, Cyprus'
operations supervisor, observed that on the east wall of PBl there was only
one partial bench "about one quarter of the way from the top ... and no
benches the rest of the way down," and that the bench was partly full of loose
and unconsolidated material. 2 Tr. I 16-17, 20. He noticed that the east
wall was rather steep and had a "nose," or protrusion, that considerably
narrowed the middle of the pit floor. He observed that most of the benches on
the west wall of PBl were covered by loose and unconsolidated material and
were impassable.
Inspector Ellis also observed a dozer descending into PBl and was
informed by Mr. Curran and Robert Altamirano, Cyprus' safety manager, that
miners were building a new berm along the base of the west wall because a
previous berm had been filled with loose material that had sloughed from the
wall. Inspector Ellis was told by Curran and Altamirano "that material was
continually filling up the benches, and the berm was being built in an attempt
to prevent material from falling onto miners working at the pit bottom. The
inspector was concerned that, if the west wall were disturbed in the process
of building the berm, loosened material would collapse onto the dozer
operator. He suggested that the berm be rebuilt by hauling material into PBl
by truck, rather than by using existing material from PBl. This was
subsequently done.

2

A bench is defined as "a ledge, which ... forms a single level of
operation above which mineral or waste materials are excavated from a contiguous
bank or bench face .... " Dictionary of Mining. Mineral. and Related Terms, 96
(1968).

368

Later that evening, Inspector Ellis discussed his observations with his
supervisor, Roger Breland, and requested ground control advice from MSHA's
technical support division. The following day, on February 28, Ellis issued
Citation No. 3459560, which alleged an S&S violation of section 56.3200, and
stated:
There was loose material and rocks on high walls in
the Push Back One pit. Benches were full and did not
provide protection from falling material. The walls
were about 145 ft. high. An access road ran next to
the west wall and pumps were being utilized to pump
water at the bottom of the pit. An employee enters
the area to move and maintain pumps. The area was not
posted or barricaded to prevent travel alongside the
high walls.
S-Exh. 2. The citation was terminated on March 2, 1990, after the "entrance
to Push Back One pit was barricaded and posted to prevent entry into the pit."
S-Exh. 2.
Inspector Ellis also issued Citation No. 3645243 on February 28, which
alleged an S&S violation of section 56.3130, and stated:
Benches between the 5545 level and the 5400 level in
the Push Back One had accumulated with materials and
would not provide an adequate catch bench to protect
persons working below. An access road ran next to the
west wall and pumps were being utilized to pump water
from the bottom of the pit. Employee's [sic] enter
the area to move and maintain pumps.
S-Exh. l. The citation also provided that "[a]ll future mlnlng will include
benches that are cleanable and maintainable." S-Exh. l. On March 2, 1990,
the citation was terminated after mining activity in PBl was abandoned.
Inspector Ellis modified both citations on March l, 1990, prior to their
termination, by adding unwarrantable failure findings, thereby changing the
two l04(a) citations to one citation and one order issued pursuant to section
104(d)(l) of the Mine Act. The citation and order were again modified on
September 5, 1990, to change the number of persons affected by the
violations. 3
Cyprus subsequently filed notices of contest and also filed a motion for
partial summary judgment, alleging that the September 5 modifications were
improper because they occurred after the citation and order had been
terminated. The judge denied Cyprus' motion, and the matter proceeded to an
evidentiary hearing.
3
The citations were modified on various other occasions for minor or
technical reasons unrelated to the issues presented.

369

Following the hearing, the judge affirmed his pretrial ruling on the
post-termination modifications. 13 FMSHRC at 1527. The judge also rejected
Cyprus' allegation that the citations 4 were issued for the same condition in
the same area and, thus, were duplicative. 13 FMSHRC at 1549. The judge
reasoned that the requirements of sections 56.3200 and 56.3130, and the
conditions described in the two citations, differed. 13 FMSHRC at 1549-50.
The judge concluded that Cyprus had violated both sections 56.3200 and
56.3130. 13 FMSHRC at 1550-51. The judge further determined that the
violations were not S&S but were caused by Cyprus' unwarrantable failure to
comply with the standards. 13 FMSHRC at 1551-55.
On review, Cyprus challenges all of the judge's adverse determinations
and also argues that the judge did not address its claim that the Secretary
failed to plead violations with requisite particularity.
II.

Disposition of Issues
A.

Violation of section 56,3200

In concluding that Cyprus violated section 56.3200, the judge found:
there existed loose rock and material on walls and
slopes of Pushback 1, which together with full and
partly full, inadequately maintained, failing benches
created a hazard to miners working in the narrow pit
below and traveling along the haul road leading into
the lower pit area. These hazardous ground conditions
had not been taken down or corrected, and the area was
not posted with a warning against entry or otherwise
barricaded l:o impede entry ....
13 FMSHRC at 1550.
On review, Cyprus argues that the judge's conclusion is not supported by
substantial evidence. Cyprus further contends that the judge erred by
adopting an interpretation of the standard whereby the mere presence of loose
material would constitute a per se violation. Cyprus also contends that the
judge 1 s determination of the existence of a hazard is flawed because he failed
to consider that the west wall sloped to an angle of repose, and because the
factors he relied upon to determine the violation was not S&S could also
support a conclusion that there was no hazard.
We disagree with Cyprus's arguments. The judge did not interpret the
standard to require a finding of violation whenever loose material was
4

After finding the S&S allegations invalid, the judge modified the
citation and order to section 104(a) citations. Consequently, we refer to the
subject enforcement actions as "citations." See Mettiki Coal Corp., 13 FMSHRC
760, 764 (May 1991); Consolidation Coal Co., 4 FMSHRC 1791, 1794 (October 1982).

370

present. Rather, he expressly considered factors in addition to loose
material, stating that a hazard existed due to the "loose rock and material,
filled benches, failing benches, tension cracks, and narrow pit floor." 13
FMSHRC at 1536. While the judge noted the testimony of Cyprus's witnesses
that the west wall had reached an angle of repose, and was stable (See, ~.
13 FMSHRC at 1537-38, 1540-41), he credited testimony of the Secretary's
witnesses asserting that material on the west wall had a potential to move
and, in fact, was moving and reaching the pit bottom. 13 FMSHRC at 1535, 1551
n.27.
Cyprus' further contention that the judge should have considered the
same factors that he utilized in considering whether the violation was S&S to
determine whether there was a hazard is without merit. In establishing that a
violation is S&S, the Secretary must prove that there is a reasonable
likelihood that the hazard contributed to by the violation will result in an
~nJury.
6 FMSHRC 1, 3-4 (January 1984). Section 56.3200
requires that operators restrict miners' access to areas where hazardous
conditions exist, whether or not,;Lt is likely that the hazard will result in
an injury.
We also conclude that substantial evidence supports the judge's finding
that ground conditions on the east and west walls and pit floor created a
hazard within the meaning of section 56.3200. 5 See Donovan v. Phelps Dodge
Corporation, 709 F.2d 86, 92 (D.C. Cir. 1983). The judge credited Inspector
Ellis' testimony that the benches on the west wall were full, that there was
loose material on the faces, that the loose material "could come down and get
somebody," and that the berm along portions of the west wall was "filled up."
13 FMSHRC at 1529 n.8 & 1530. In addition, the judge credited the testimony
of David Ropchan, a mining engineer from MSHA's technical support division who
had observed the conditions in PBl on March 6, 1990, that the west wall was in
a "state of distress" in that there was a partial failure of the wall,
resulting in partly or fully covered, inaccessible and ineffective catch
benches. 13 FMSHRC at 1531, 1533. Mr. Ropchan testified that pieces of loose
material, up to several feet in diameter, existed near the top of the west
wall. 13 FMSHRC at 1532-33. He stated that such conditions were hazardous
because they could feed rock onto the slopes below and allow material to roll
into the pit. 13 FMSHRC at 1532. Ropchan observed that the rough surface of
the west wall would allow falling rock to bounce, become airborne, and assume
a "considerable horizontal velocity." 13 FMSHRC at 1533-34. He explained
that such loose material was a threat to miners and equipment in the pit
because the west wall benches would be unable to contain some falling
material, and the west wall stood over a very narrow travelway. Id. Ropchan
testified that
material and "material coming down with enough energy"
could roll over the berm or "blow" through it. Tr. II 38-39.
The judge also credited Ropchan's written report, in which he stated
that a berm
along the west half of the haul road was too close to the
5

Evidence is undisputed that PBl was not posted or barricaded against
entry and that miners were working in the area. Tr. I 63; Tr. III 15; 13 FMSHRC
at 1536.

3 71

wall and too small to "provide sufficient rock fall protection considering the
overall condition" of the west wall. 13 FMSHRC at 1535. Ropchan also stated
in his report that tension cracks existed along the crest of the west wall. 6
13 FMSHRC at 1534.
With respect to the east wall, the judge credited Inspector Ellis'
testimony regarding the scarcity of benches and the narrowness of the bottom
of the pit, allowing only limited room for a miner to escape falling rock. 13
FMSHRC at 1529-30; Tr. I 16-17, 20. Ropchan also testified that the east wall
would tend toward greater instability because of its protrusion. Tr. II 8586. The judge also credited Ropchan's testimony that the condition of the
wall posed some hazard to miners working in the narrow bottom of the pit. Tr.
II 30, 37; 13 FMSHRC at 1531 n.lO.
Cyprus challenges the judge's credibility determinations, arguing that
MSHA's witnesses failed to investigate the conditions sufficiently, and that
Cyprus' expert witnesses were better qualified than MSHA's. The Commission
has recognized that:
..
[e]xpert witnesses testify to offer their scientific
opinions on technical matters to the trier of fact.
If the opinions of expert witnesses conflict in a
proceeding, the judge must determine which opinion to
credit, based on such factors as the credentials of
the expert and the scientific bases for the expert's
opinion.
Asarco, Inc., 14 FMSHRC 941, 949 (June 1992).
The judge recognized Ropchan as well as two of Cyprus' witnesses, James
Savely, a senior geological engineer in Cyprus' technical service assistance
group, and Richard Call, the president of a geotechnical consulting firm, as
experts. Tr. ll 14; Tr. III 77, 116. The judge noted that, in weighing their
testimony, he would consider such factors as experience, qualifications,
familiarity with the precise conditions, and how convincingly the testimony
was stated. Tr. II 15. The judge credited the testimony of Ropchan and other
MSHA witnesses over that of Cyprus' witnesses because he found it to be more
convincing, reliable, and objective. 13 FMSHRC at 1534, 1546. The judge also
found Ropchan's conclusions regarding the conditions in PBl to be "consistent
with the general sense of the evidentiary record (including the various
photographic exhibits therein)." 13 FJ:1SHRC at 1534. In addition, Ropchan
testified that he had examined the mine conditions sufficiently to reach his
conclusions (Tr. II 91), and the judge credited this testimony. Furthermore,
the judge noted that the mining conditions observed by Ropchan had remained
materially unchanged from the time of citation. 13 FMSHRC at 1532 n.ll.
However, the judge noted that the conditions observed by Dr. Call were

6

Ropchan testified that such cracks are a precursor to slope failure.

II 28-29.

372

Tr.

different from those in existence of the time of citation. 13 FMSHRG at
1541. 7 we find no circumstances in this case warranting the unusual measure
of rejecting the j
's determination that the testimony of MSHA's expert
witnesses should be credited over the testimony of Cyprus' expert witnesses.
See
12 FMSHRC 363, 374 (March 1990).
Therefore, we conclude that substantial evidence supports the judge's
finding that ground conditions existing in PBl created a hazard within the
meaning of section 56.3200. we affirm the judge's finding that Cyprus
violated section 56.3200.
B.

Violation of section 56.3130

In concluding that Cyprus violated section 56.3130, the judge determined
that the use of
maintained benches was a necessary part of the
mining method employed in PBl, and that the benches had accumulated rock and
other material and did not serve as adequate catch benches. 13 FMSHRC at
1536, 1550. The judge also founa·that Cyprus had not otherwise maintained
wall, bank, and
stability. 13 FMSHRC at 1551 n.27.
Cyprus argues that the judge's determination is erroneous because the
judge misinterpreted the standard by holding that the "potential requirement
of benches was the paramount requirement" of the standard. C. Br. at 25.
Cyprus maintains that an operator is required to accomplish the purpose of the
standard, that is, provide stable walls, benches and slopes where miners work
or travel, by whatever mining method is appropriate. Cyprus also argues that
the standard requires cleaning and scaling of benches only when the mining
process is initiated. Cyprus further contends that the judge's finding of a
violation of section 56.3130 is not supported by substantial evidence and that
the standard is impermissibly vague.
Section 56.3130
requires the use of m~n~ng methods that
maintain wall, bank and slope stability where persons work or travel. The
standard also requires that "[w]hen benching is necessary, the width and the
height shall be based on the type of equipment used for cleaning of benches or
for scaling .... " 30 C.F.R. § 56.3130. The standard does not expressly
require benching, nor does it set forth specific parameters for cleaning or
maintaining benches if
are used.
The

to section 56.3130 further explains its application:
When benches are included in the "mining
method," there must also be a maintenance system
selected to prevent the deterioration of the ground
from
a fall of ground hazard. When required,

7

The judge explained, however, that the testimony of Mr. Savely and Dr.
Call had more probative value as to whether the violation was S&S, rather than
as to whether Cyprus had violated the standard, because they seemed to concede
the hazard of rock fall, and only gauged its probability of occurrence.
13
FMSHRC at 1542 n.l8.

373

the benches must be able to serve as catch benches.
MSHA agrees with the commenter who stated that many
factors contribute to the determination of bench width
and height. The standard provides a performanceoriented approach without restrictions on width and
height of benches, other than those necessitated by
the equipment selected for the maintenance function.
51 Fed. Reg. 36192, 36193 (October 8, 1986). The purpose of the standard is
to require mining methods that will maintain ground stability. The standard
contemplates that benches, when included as part of an operator's mining
method, must function as catch surfaces and must be maintained in order to
prevent fall of ground hazards. Benches, therefore, must be accessible to
maintenance equipment. 8
Evidence regarding the state of the benches in PBl and Cyprus' failure
to clean them is probative of the stability of the walls, banks, and slopes in
PBl. The judge concluded that the ~ast and west walls were not competent,
relying upon the failure of the benches, as well as other evidence that the
walls were not stable. As noted above, the judge credited Inspector Ellis'
testimony regarding the lack of space on the east wall benches to catch
material. The judge also credited statements in Ropchan's written report that
the east wall did "not have adequate catch benches to protect against falling
rock in the work and travel areas below." 13 FMSHRC at 1535. Cyprus
acknowledges that it employed benching on its east wall as a method of ground
control and that no consideration was given, when designing the benches, to
making them accessible for maintenance. Tr. II 143; C. Br. at 35.
With respect to the west wall, the judge determined that benching was a
necessary part of the mining method employed, in part because Cyprus had
originally constructed benches on that wall and had adjusted its doublebenching method to a single-benching method. Cyprus contends that, because it
encountered unexpected problems in the west wall, it had to alter its mining
methods and, on the day of the inspection, benches were no longer necessary
because the wall sloped to an angle of repose and a berm existed along
portions of its base. The record, however, reveals that, although Cyprus
relied upon other methods, it did not abandon benching. As Cyprus
acknowledged, when it adjusted its mining method due to conditions encountered
on the west wall, it inserted a bench at the 5475 foot level and inserted "a
wider than planned bench" on other portions of the west wall. C. Br. at 4,
33.
The judge credited MSHA witnesses' testimony that the west wall was in a
state of distress in that benches had failed or were partially full of fallen
material rendering some of them quite ineffective, and that a sufficient
8

We disagree with Cyprus' assertion that an operator is required under the
standard to clean benches only upon their initial construction. The standard
contemplates that benches must be cleaned whenever such activity would aid their
ability to catch material, or to prevent ground from deteriorating and creating
a hazard.

374

threat existed that the benches would be unable to catch material moving down
the wall. 13 FMSHRC at 1529 n.8, 1532-33. The judge also credited testimony
that material was moving down the wall and had partially filled an existing
berm. 13 FMSHRC at 1535. Cyprus' operations supervisor conceded that some
material from the wall had raveled to the bottom. Tr. III 33-34. In
addition, the judge credited testimony from Ropchan regarding the inadequacy
of the augmentation to the existing berm along portions of the west wall. 13
FMSHRC at 1535. In sum, substantial evidence supports the judge's finding
that the east and west wall were not stable and that the benches were not
maintained to fulfill their function as required by the standard.
We further agree with the judge that section 56.3130 is not
impermissibly vague. The Commission has previously recognized that, in order
to afford adequate notice, a mandatory safety standard cannot be "so
incomplete, vague, indefinite or uncertain that [persons] of common
intelligence must necessarily guess at its meaning and differ as to its
application." Ideal Cement Co., 12 FMSHRC 2409, 2416 (November 1990)
(citations omitted). Section 56.3130 incorporates a "performance-oriented"
approach so that it is "broad enough to apply to the wide variety of
conditions encountered." 51 Fed. Reg. at 36193. The appropriate test in
interpreting and applying such broadly worded standards:
is not whether the operator had explicit prior notice
of a specific prohibition or requirement, but 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.
Ideal, 12 FMSHRC at 2416. The judge properly found that a reasonably prudent
person would have recognized that section 56.3130 requires operators to adopt
mining methods that maintain wall, bank, and slope stability, and that
benches, when used, must be maintained so as to aid wall stability.
Accordingly, we affirm the judge's determination that Cyprus violated section
56.3130.

c.
In concluding that the violations were unwarrantable, the judge rejected
Cyprus' argument that the condition of the benches justified its failure to
clean them. 13 FMSHRC at 1552. He found that Cyprus never planned to
maintain its benches, and that the failure to clean them created the hazard of
falling rock. Id. In addition, the judge determined that Cyprus' conduct in
these instances was inconsistent with its abatement actions with regard to
previous violations of sections 56.3200 and 56.3130.
The judge concluded
that Cyprus' :.
failure to maintain and clean its benches was not
merely due to inadvertence or inattention since it is
beyond dispute that its management personnel were
quite aware of the continuity of conditions, [but]

375

proceeded intentionally to expose miners on the haul
road and in the very narrow pit despite ineffective
failing catch benches, and the presence of loose rock
and material.

In Emery Mining Corp., 9 FMSHRC 1997, 2004 (December 1987), the
Commission determined that unwarrantable failure is aggravated conduct
constit1~ting more than ordinary negligence.
This determination was derived,
in part, from the plain meaning of "unwarrantable" ("not justifiable" or
"inexcusable"), "failure" ("neglect of an assigned, expected or appropriate
action"), and "negligence" ("the failure to use such care as a reasonably
prudent and careful person would use, characterized by 'inadvertence,'
'thoughtlessness,' and 'inattention'"). Id. The Commission's determination
also was based on the purpose of unwarrantable failure sanctions in the Mine
Act, the Act's legislative history, and judicial precedent.
Id.
Prior to this proceeding, MSHA-inspectors had been concerned about the
stability of the high walls in PBl and had previously issued citations, which
were uncontested, for those conditions. In May 1989, nine months before
Inspector Ellis' inspection, MSHA Inspector Ron Barri had visited the mine, in
response to a miner's complaint about various matters including the condition
of the west wall. On May 31, and June 1, 1989, Inspector Barri issued two
citations that alleged S&S violations of sections 56.3200 and 56.3130. The
section 56.3200 citation stated that there "were large piece[s] of loose
material hanging on the west high wall ... above the ramp" and that the "area
was not posted or barricaded to prevent travel alongside the high wall." SExh. 18. The section 56.3130 citation stated that benches on the south end of
the east vmll "had been allowed to accumulate materials and would not provide
an adequate catch bench to protect haul truck traffic below," and that a
"maint·3:::lance progr&u for maintaining benches had not been established .... " s~
.<.xr;_
. :Sreland (supe:nrisor of Ellis and Barri) had inspected the mine
_)nne 19 8 9 , and ~!e ld a post~ inspection conference regarding the two
~it:at:Lons :Lssued
Inspec-tor Barri. At the meeting, Breland, Cyprus' General
Manager Bill Gibson, Curran, Altamirano, and a miners' representative
discussed the
walls, overall mining plan, and signs of failure in the west
\vall
Breland testified that they discussed the requirements of section
6. 3130 anci 56. 3200 "
extensively." Tr. I 111.
The testimony in the instant proceeding reveals that Cyprus apparently
believed that maintenance of a berm along portions of the west wall put it in
compliance with section 56.3200. In May 1989, when cited for violating
section 56.3200 because of conditions existing on the west wall, Cyprus had
abated the citation by
a berm along the base of the west wall. SExh. 18. Although Supervisory Inspector Breland testified that Cyprus had
been permitted to abate the earlier citation in such a fashion because MSHA
understood that Cyprus was going to lessen the angle of the west wall, Curran
testified that he did not understand that building the berm and lessening the
angle of the west wall \vere linked. Tr. I 172; Tr. III 30-32. Curran
understood that construction of the berm alone was sufficient to abate the
citation. Tr. III 31-32. The description of the abatement action for the

376

May 1989 citation does not indicate that the angle of the west wall had to be
reduced, but states only that "the west high wall in the
... has been
barricaded with a large berm along its full length .... " S Exh. 18. Mr.
Gibson also testified that, from the discussions of the closeout conference in
June 1989, he understood that building a berm was sufficient for safe
operation. Tr. II 211-12.
We also find significant the fact that on the day of Inspector Ellis'
inspection, Cyprus was in the process of constructing a larger berm at the
base of the west wall. The Commission has previously recognized that an
operator's pre-citation efforts in mitigating a violative condition are
relevant in reviewing an unwarrantable failure determination.
~. Utah
Power & Light Co., 11 FMSHRC 1926, 1933 (October 1989).
Because Cyprus' conduct apparently resulted from a good faith, albeit
mistaken, belief that its actions were in compliance with section 56.3200, we
conclude that substantial evidence does not support the judge's finding that
Cyprus' violation of 56.3200 wa~ .. caused by its unwarrantable failure.
generally Utah Power & Light Co., 12 FMSHRC 965, 972 (May 1990).
The record, however, supports the judge's conclusion that Cyprus'
actions in violation of section 56.3130 were a result of its unwarrantable
failure. The citation issued to Cyprus in June 1989, alleging a violation of
section 56.3130, specifically provided that catch benches in PBl "had been
allowed to accumulate[] materials and would not provide an adequate catch
bench to protect haul truck traffic below." S-Exh. 19. The citation also
provided that a "maintenance program for maintaining benches had not been
established." S-Exh. 19. In order to abate the citation, Cyprus was required
to clean a bench above a working area on the south wall. With respect to the
close-out conference regarding the citation, Breland testified:
Also the 3130 I specifically had gone out on several
of those benches 1.vith l"like Curran and my
superintendent. I ·talked to him about what was going
on there. They were or could have been accessed to do
the bench maintenance that's required as
of the
standard. However, they were not doing that and had
not been doing that, and I explained the requirement
there ·to keep ·those benches clear as
as there w-as
staff beneath them.
Tr. I 111. Thus, Cyprus had been advised in June 1989, that it was required
to adopt a maintenance program so that benches above -v;here miners worked could
be cleaned when necessary to maintain ground stability. Even after receiving
such notice from MSHA, Cyprus constructed benches that it never intended to
enter for maintenance purposes. Tr. II 111, 146.
Cyprus' experience with ground stability in PBl should have put it on
notice that bench maintenance would, most likely, be necessary, and, as
explained above, section 56.3130 requires an operator to maintain ground
stability. The standard contemplates that benches, when used, be accessible
to maintenance equipment. Cyprus continued to use benches in its mining, but

377

did not construct them so that they could be maintained. As the judge found,
the benches did not serve their function as catch benches, and the
unmaintained benches contributed to ground instability. 13 FMSHRC at 1550-51.
We conclude that substantial evidence supports the judge's conclusion that
Cyprus' failure to maintain the benches or take other adequate measures to
maintain stability was aggravated conduct. Accordingly, we affirm his finding
that Cyprus' violation of section 56.3130 was caused by its unwarrantable
failure to comply with the standard.
D.

Whether the citations are duplicative

Cyprus argues that the citations are duplicative because they address
the same conditions in the same area of the mine. However, the requirements
of sections 56.3200 and 56.3130 are different. Section 56.3130 requires that
an operator use mining methods that maintain wall stability and sets forth
additional requirements if benching is necessary. In contrast, section
56.3200 requires that, if a hazardous,ground condition occurs, it be corrected
and entry into the area be restricted until corrective work is completed. The
standards are related in that an operator's failure to mine in a way that
maintains stability may also result in a hazardous condition requ~r~ng an
operator to restrict access until the hazardous condition is corrected. As
the Commission has recognized:
[t]he 1977 Mine Act imposes a duty upon operators to
comply with all mandatory safety and health standards.
It does not permit an operator to shield itself from
liability for a violation of a mandatory safety
standard simply because the operator violated a
different, but related, mandatory standard.
El Paso Rock Quarries, Inc., 3 FMSHRG 35, 40 (January 1981), Thus, although
Cyprus' violations may have emanated from the same events, the citations are
not duplicative because the two standards impose separate and distinct duties
upon an operator. Accordingly, we affirm the judge's conclusion that the
citations are not duplicative.
E.

Modification of the citations following termination

Cyprus argues that the September 5, 1990, modifications to the citations
changing the number of persons affected by the violations, were improper
because the citations had been terminated. We agree in result with the
judge's conclusion that the subject citations were not improperly modified.
In Wyoming Fuel Corp., 14 FMSHRC 1282 (August 1992)("WFC"), the
Commission held that, absent legal prejudice to the operator, the Secretary's
modification of a section 104 citation, terminated pursuant to section 104(h)
of the Mine Act, 30 U.S.C. § 814(h), was permissible. 14 FMSHRC at 1287-92.
The Commission reasoned that termination of a section 104 citation is an
administrative action of the Secretary that is meant to convey that a
violative condition has been abated and to inform the operator that it will no
longer be subject to a withdrawal order pursuant to section l04(b), 30 U.S.C.
§ 814(b), for failure to abate.
14 FMSHRC at 1289. The Commission drew an

378

analogy between the Secretary's modification of a terminated citation or order
and the amendment of a pleading pursuant to Fed. R. Giv. P. 15(a), concluding
that a modification should be permitted unless the operator would be legally
prejudiced by the modification. 14 FMSHRG at 1290.
Here, Cyprus has offered no evidence that it was prejudiced by the
modifications but only argues that the modifications were improper as a matter
of law. We conclude that Cyprus' challenge to the modifications is without
merit.
F.

Particularity of citations

Cyprus argues that the citations failed to plead violations with
sufficient particularity because they do not clearly set forth the time or
location that the allegedly violative conditions existed and, furthermore,
that it was confused as to the proper method of abatement. Cyprus contends
that the judge failed to address this argument. In fact, the judge noted that
Cyprus maintains that "both enforcement documents (the Citation and the Order)
... are impermissibly vague." 13 FMSHRC at 1525 (emphasis added). The judge,
by considering specifically the merits of each alleged violation, implicitly
rejected Cyprus' particularity argument.
Section 104(a) requires that each "citation shall be in writing and
shall describe with particularity the nature of the violation, including a
reference to the provision of the Act, standard, rule, regulation, or order
alleged to have been violated." The Commission has generally recognized that
this requirement for specificity serves the purpose of allowing the operator
to discern what conditions require abatement, and to adequately prepare for a
hearing on the matter. See,~. Mid-Continent Resources,Inc., 11 FMSHRC
505, 510 (April 1989)(citations omitted); Jim Walter Resources, Inc., 1 FMSHRG
1827, 1829 (November 1979); Old Ben Goal Go., 2 FMSHRC 1187, 1190 (June 1980);
3 FMSHRC 1181 (May 1981).
We conclude that the citations were sufficiently specific to provide
notice to Cyprus that conditions existed that were alleged to be in violation
of the cited standards and that corrective action was necessary. Moreover,
Cyprus conducted extensive pretrial discovery that provided it with an
opportunity to gain the information necessary to prepare adequately for trial.
See, ~. Annotation, Construction and Application of Provision of 29 U,S.C.
§ 658(a) that OSHA Citation "shall describe with Particularity the Nature of
the Violation," 48 ALR Fed 466, § 6(b) (1980). In addition, the cited
conditions were, in fact, adequately abated. Accordingly, we affirm the
judge's implicit conclusion that the citations met the Act's specificity
requirements.

379

III.
Conclusion
For the foregoing reasons, we affirm the judge's findings that Cyprus
violated sections 56.3200 and 56.3130, that Cyprus' violation of section
56.3130 was caused by its unwarrantable failure to comply with the standard,
and that the citations were not duplicative, could properly be modified
following their terminations, and charged violations with sufficient
particularity. We reverse the judge's finding that Cyprus' violation of
section 56.3200 was caused by its unwarrantable failure.
Accordingly, we
remand to the judge for recalculation the penalty for Cyprus' violation of
section 56.3200.

Arlene Holen, Chairman

Richard V.

L. Clair Nelson, Commissioner

Distribution

R. Henry Moore, Esq.
Buchanan
600 Grant Street
58th Floor
Pit
, PA 15219
Colleen A. Geraghty,
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Michael A. Lasher, Jr.
Administrative Law Judge
Federal Xine Safety & Health Review Commission
280 Colonnade Center
1244 Speer Blvd.
Denver, CO 80204

380

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

20006

Ha r c h 2 5 , 1 9 9 3

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

Docket Nos. KENT 91-179-R
KENT 91-185-R

PEABODY COAL COMPANY

BEFORE:

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

BY THE COMMISSION:
This consolidated contest proceeding arises under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or
"Act"). The Secretary of Labor issued two citations to Peabody Coal Company
("Peabody") alleging violations of 30 C.F.R. § 75.316 (1990) 1 for operating
mines without approved ventilation plans. Administrative Law Judge Gary

1

30 C.F.R. § 75.316 (1990), which adopted the language of 30 U.S.C.
§ 863(o), provided as follows:
A ventilation system and methane and dust control
plan and revisions thereof suitable to the conditions
and the mining system of the coal mine and approved by
the Secretary shall be adopted by the
and set
out in
form on or before June 28, 1970.
The
plan shall show the
and location of mechanical
ventilation equipment installed and operated in the
mine, such additional or improved equipment as the
Secretary may
, the quantity and velocity of air
reaching each working face, and such other information
as the Secretary may
Such
shall be
reviewed by the operator and the Secretary at least
every 6 months.
The Department of Labor's Mine Safety and Health Administration ("MSHA")
revised its ventilation standards in 1992, superseding former section 75.316.
Ventilation plan requirements are now set forth at 30 C.F.R. §§ 75.370-.372

(1992).

381

Melick upheld the citations. 13 FMSHRC 1332 (August l99l)(ALJ).
Commission granted Peabody's petition for discretionary review.

The

Peabody raises the following issues on review: (1) whether a certain
ventilation requirement related to "deep cut" mining that the Secretary
insisted be included in Peabody's plans should have been issued pursuant to
the Mine Act's notice and comment rulemaking procedures; (2) whether Peabody
was required to negotiate in good faith with the Secretary over the deep cut
ventilation provision in the plans; (3) if such an obligation existed,
whether Peabody negotiated in good faith over the disputed provision; and
(4) whether MSHA acted reasonably in requiring the provision at issue.
For the reasons that follow, we affirm the judge's decision that the
ventilation plan provision was mine specific and that Peabody was obligated
to negotiate in good faith. We reverse with respect to the third issue,
i.e., we conclude that Peabody negotiated in good faith. We remand the case
to the judge for a determination of whether the disputed provision was, in
fact, suitable to these mines.
I.

Procedural and Factual History
A.

Factual Background

Peabody operates the Martwick Mine in Muhlenburg County, Kentucky, and
the Camp No. 2 Mine in Union County, Kentucky. Both are underground coal
mines that utilize a method of continuous mining known as deep cut mining. 2
MSHA's District 10 Office ("District 10") revoked Peabody's ventilation
plans at the Martwick and Camp No. 2 Mines because Peabody refused to adopt
a particular provision dealing with the ventilation of deep cuts. District
10 insisted that Peabody extend the line curtain during roof bolting to
within 10 feet of the row of bolts being set and to provide a certain
minimum air velocity. Under previously approved plans, the line curtain was
not extended into deep cuts until after the roof was fully bolted. MSHA
cited both Peabody mines for operating without approved ventilation plans in
violation of section 75.316.
1.

On December 4, 1990, District 10 informed the Martwick Mine that it
was conducting its regular six-month review of the ventilation plan pursuant
to section 75.316. Martwick submitted its plan on December 28, 1990. On
January 10, 1991, District 10 rejected the Martwick plan and informed
Peabody that it should include a provision outlining in detail the placement
of line brattice and the volume of air reaching the end of the line brattice
2
"Extended" or "deep cut continuous mining" is a method of m1.n1.ng that
cuts deeper than 20 feet from the last full row of permanent roof supports.
Remote~controlled continuous mining machines allow the operator to remain under
permanent roof supports when making extended cuts.

382

in places where roof bolting was in progress.
On January 17, District 10
and Peabody officials met.
The parties discussed deep cut ventilation
requirements.
The particulars as to what Peabody was told were
controverted.
On January 25, Peabody submitted a revised ventilation plan but failed
to outline how it would ventilate deep cuts. The plan was rejected.
Peabody then submitted a second revised ventilation plan that again did not
provide for the ventilation of deep cuts.
In explaining the omission in its
transmittal letter, Peabody stated:
This item has never been included in any previous
plans.
Peabody has operated under previous
ventilation plans at this location without safety
problems or conflicts concerning this issue.
Therefore, Peabody feels this plan submitted today
without this item included meets all applicable laws
and regulations.
Peabody attached to its letter a decision by Administrative Law Judge
William Fauver in Peabody Coal Company, 10 FMSHRC 12 (January l988)(ALJ),
dealing with ventilation requirements at another Peabody mine.
In that
decision, the judge found that MSHA's District 3 guideline calling for
ventilation of 3,000 cubic feet of air per minute during the roof bolting
process was not mine specific. Judge Fauver concluded that MSHA could not
insist upon inclusion of the provision because MSHA failed to show
"individual analysis, evaluation and negotiation" concerning each mine.
10
FMSHRC at 16.
Peabody asserted that its current situation and the case
decided by Judge Fauver were identical and that it should not have to
include the deep cut ventilation provision in its plan.
On February 11, MSHA cited Peabody for violation of section 75.316,
for operating without an approved ventilation plan.
Peabody submitted a
revised ventilation plan, under protest, containing the changes required by
MSHA.
2.

Camp No. 2 Mine

Peabody submitted its six-month plan for the Camp No. 2 Mine to
District 10 on November 28, 1990, and that plan was rejected on December 17.
Peabody submitted a revised plan on January 4, 1991. District 10 again
rejected the plan, informing Peabody that it must include a provision for
ventilation of the deep cuts during the roof bolting stage.
Peabody then
submitted another plan that included the following provision:
Deflector curtains shall be used to ventilate deep
cuts during the roof bolting cycle such that the
current of air shall be of sufficient quantity to
dilute, render harmless, and to carry away,
flammable, explosive, noxious, and harmful gases and
dust, and smoke and explosive fumes.

383

MSHA found this provision unacceptable and rejected the plan.
By letter to District 10 dated February 13, 1991, Peabody requested a
meeting and written notification of the reasons for the plan's rejection. A
meeting between Peabody officials and MSHA ventilation specialists was held
on February 19. Again, the particulars of MSHA's explanation to Peabody
were controverted.
On February 19, Peabody resubmitted its ventilation plan. The plan
contained no provision relating to the ventilation of deep cuts. MSHA
replied that the plan was unacceptable because it failed to explain how deep
cuts would be ventilated. On February 21, Peabody was again cited for
operating without an approved ventilation plan. Under protest, Peabody
submitted a revised plan complying with MSHA's demand.
B.

Procedural Historv

Peabody filed notices of contests of both citations and moved for
expedited hearings. The cases were ~gnsolidated and assigned for hearing.
A hearing was held on August 7 8, 1991. The judge bifurcated the hearing
and first heard the issue of whether the provision regarding the ventilation
of deep cuts was specific to the particular conditions of the Peabody mines
or was of such a general nature as to be subject to the notice and comment
rulemaking process for mandatory safety and health standards set forth in
section 101 of the Mine Act, 30 U.S.C. § 811. The judge concluded that
"MSHA's insistence upon the inclusion of these particular ventilation
requirements ... is not a general requirement subject to the rulemaking
procedures but rather is mine specific." 13 FMSHRC at 1335.
The judge based his conclusion on the testimony of the MSHA witnesses,
who outlined criteria that were examined on a mine-by-mine basis to
determine whether the deep cut ventilation provision would be required in a
particular plan. 13 FHSHRC at 1335. The judge found compelling the
testimony of Martwick Mine Superintendent Charles Jernigan that he was told
by HSHA "that the reason for the new requirements implemented at the
Martwick Hine was its high methane liberation and that mines with deep cuts
were being examined on a mine-by-mine basis." Id. The judge also attached
weight to evidence that two deep cut mines in District 10 that liberate
comparatively low quantities of methane were not required to incorporate the
provision at issue. Id.
After announcing this determination orally at the conclusion of the
first
of the hearing, the judge recessed the hearing until the
following morning and requested that the parties negotiate with respect to·
the ventilation provision. When no resolution was forthcoming, the judge
heard testimony on the issues of whether good faith negotiations over the
disputed provision had occurred between the parties and whether the
ventilation plan provision proposed by HSHA was valid.
The judge determined that Peabody had failed to negotiate in good
faith, as required by Carbon County Coal Company, 7 FMSHRC 1367 (September
1985). 13 FMSHRC at 1336. The judge reasoned that Peabody's "good faith

384

reliance on a colorable legal position," i.e., Judge Fauver's decision in
Peabody Coal, supra, did not excuse Peabody from "negotiating regarding the
specific underlying safety issue." Id.
The judge held that, given
Peabody's failure to negotiate in good faith, it was "clearly premature for
the Commission to intervene in the approval-adoption process." Id.
Accordingly, he declined to rule on the validity of the deep cut ventilation
provisions and affirmed the citations against Peabody.
13 FMSHRC at 1337.

II.
Disposition of Issues
A.

Whether the deep cut ventilation requirement was mine specific

Peabody asserts that the provision in dispute was not mine specific
and should have been implemented through the Mine Act's notice and comment
rulemaking procedures set forth in 30 U.S.C. § 811.
Section 303(o) of the Mine Act mandates the development of ventilation
plans as follows:
A ventilation system and methane and dust
control plan and revisions thereof suitable to the
conditions and the mining system of the coal mine
and approved by the Secretary shall be adopted by
the operator and set out in printed form within
ninety days after the operative date of this
title ....
30 U.S.C. § 863(o)(emphasis added).
The legislative history of section 303(o) explains that mine
ventilation plans must address the conditions of each mine:
[I]n addition to mandatory standards applicable to
all operators, operators are also subject to the
requirements set out in the various mine by mine
compliance plans required by statute or regulation.
The requirements of these plans are enforceable as
if they were mandatory standards.
Such individually
tailored plans, with a nucleus of commonly accepted
practices, are the best method of regulating such
complex and potentially multifaceted problems as
ventilation, roof control and the like.
S. Rep. No. 181, 95th Cong., 1st Sess. 25 (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
613 (1978).
The Commission and the courts have further emphasized the individual
nature of roof control and ventilation plans.
See Zeigler Coal Co. v.

385

Kleppe, 536 F.2d 398, 406-07 (D.C. Cir. 1976); Carbon County, 7 FMSHRC at
1370. See also Southern Ohio Coal Co., 14 FMSHRC 1, 10-11 (January 1992)
("SOCCO")(discussing Zeigler and Carbon County). Zeigler and Carbon County
set forth limits on MSHA's authority by prohibiting MSHA from imposing
general rules applicable to all mines in the plan approval process, but did
not resolve the question of whether MSHA may require the inclusion of a
provision that is applicable to a number of mines. In UMWA v. Dole, 870
F.2d 662, 669-72 (D.C. Cir. 1989), the D.C. Circuit, construing both Zeigler
and Carbon County, clarified that mine plans need not "be confined
exclusively to mine-specific conditions" but may contain generally
applicable provisions so long as the provisions address the particular
conditions of the mine to which they apply. 870 F.2d at 670. Dole
recognized that the Secretary should utilize mandatory standards for
requirements of "universal application." 870 F.2d at 672. Nonetheless, the
court emphasized that the Secretary possesses "considerable authority" to
determine which hazards are more properly addressed by the promulgation of
mandatory standards under section 101 of the Mine Act. 870 F.2d at 671.
The Court endorsed Carbon County for the proposition that the Secretary
commits an abuse of discretion by re'luiring·adoption of plan provisions
without consideration of the particular conditions of a mine or by imposing
plan provisions of "universal application" outside the mandatory standard
promulgation process. 870 F.2d at 672.
Thus, mine ventilation or roof control plan provlslons must address
the specific conditions of a particular mine. Such conditions, however,
need not be unique to the mine. Indeed, a general plan provision addressing
conditions that exist at a number of mines may be permissible providing
those conditions are present at the mine in question.
The judge determined that the deep cut ventilation provlslon at issue
was mine specific. 13 FMSHRC at 1334. He found that District 10 insisted
upon the new requirement at the Hartwick and Camp No. 2 mines primarily
because of the mines' high methane liberation rates. 3 He credited the
·testimony of MSHA witnesses as well as Peabody's mine superintendent in
determining that MSHA applied this requirement on a mine-by-mine basis.
Peabody asserts that the deep cut ventilation provision was being
applied across the district. Peabody terms the Secretary's position "selfserving," alleging that any mine-by-mine examination began only after this
litigation commenced, as shown by the Secretary's announcement at the
hearing that the new ventilation requirement would not be applied in one
seam at the Camp No. 2 mine. Tr. III 84; P. Br. 20. Further, the mine
3

Hartwick is subject to 15-day spot inspections under section 103(i) of
the Hine Act, 30 U.S.C. § 813(i), because it liberates more than 200,000 cubic
feet of methane during a 24-hour period. One MSHA official testified that MSHA
determined that ventilation of deep cuts was necessary at Martwick because of the
mine's methane liberation levels. Tr. 73. Camp No. 2 liberates methane at a
rate of over 500,000 cubic feet during a 24-hour period and is subject to a 10day spot inspection, pursuant to section 103(i) of the Mine Act.

386

plans that would not be required to incorporate the provlslon had not yet
been approved.
Peabody also asserts that the criterion of total methane
liberation is too simplistic a measure of safety.
We find that substantial evidence in the record supports the judge's
finding that the required provision was mine specific. All MSHA witnesses
testified that they addressed application of the new requirement in District
10 on a mine-by-mine basis.
The Martwick Mine superintendent testified that
MSHA officials explained to him that the plan provision was being
implemented based on methane levels at individual mines. The judge found
that two other deep cut mines in the district, which liberate low levels of
methane, would not be required to include the provision. While, as Peabody
argues, methane liberation is not the only relevant factor in evaluating
mine ventilation, a number of factors were considered by MSHA before
imposing the new plan provision. MSHA also took into account the depth of
the cut, the size of the continuous miner and the height of the coal.
Tr.
18-19, 121-27.
We conclude that the deep c.ut ventilation requirement was not applied
by rote process, as condemned in Carbon County, 7 FMSHRC at 1373, but,
instead, was based on specific conditions at the two mines. While the
requirement may also be appropriate for similarly situated deep cut mines,
its general application does not render it invalid.
See Dole, 870 F.2d at
669-72.
The record evidence does not suggest that the requirement is of
such universal application that the Secretary committed an abuse of
discretion by failing to promulgate it as a mandatory standard.
Accordingly, we affirm the judge's finding that MSHA's deep cut ventilation
requirement was mine specific.
B.

Whether Peabody negotiated in good faith

Peabody asserts that, even if the provision was sufficiently mine
specific in nature, it was nonetheless substantively invalid because it was
not "suitable" to the conditions in Peabody's mines within the meaning of
section 303(o) of the Mine Act and 30 C.F.R. § 75.316.
The judge did not
reach the merits of the provision because he determined that Peabody had not
fulfilled its duty of good faith negotiation with MSHA over the provision.
On review, Peabody urges that only MSHA, not an affected operator, is
required to conduct good faith negotiations over plans but that, in any
event, Peabody had so negotiated.
In support of its argument, Peabody
asserts that the good faith negotiation requirement is intended solely as a
check on the Secretary's potential abuse of power. We disagree.
The
Commission's and the courts' longstanding view has been that both the
Secretary and the operator are required to enter into good faith discussions
and consultation over mine plans. As the Dole court noted, "[t]he specific
contents of any individual mine [ventilation or roof control] plan are
determined through consultation between the mine operator and the [MSHA]
district manager." 870 F.2d at 667.
In Carbon County, the Commission
explained this process:

387

The requirement that the Secretary approve an
operator's mine ventilation plan does not mean that
an operator has no option but to acquiesce to the
Secretary's desires regarding the contents of the
plan. Legitimate disagreements as to the proper
course of action are bound to occur. In attempting
to resolve such differences, the Secretary and an
operator must negotiate in good faith and for a
reasonable period concerning a disputed provision.
Where such good faith negotiation has taken place,
and the operator and the Secretary remain at odds
over a plan provision, review of the dispute may be
obtained by the operator's refusal to adopt the
disputed provision, thus triggering litigation
before the Commission.
7 FMSHRC at 1371 (citation omitted)(emphasis added). See also Penn Allegh
Coal Co., 3 FMSHRC 2767, 2773 & n.8 (December 1981); Jim walter Resources, 9
FMSHRC 903, 907 (May 1987).
Thus, we affirm the judge's determination that both Peabody and the
Secretary were required to engage in good faith negotiations. However, we
conclude that the record does not support the judge's finding that Peabody
failed to negotiate in good faith. Rather, the record reveals that adequate
discussion occurred between the parties. Judge Fauver's decision, on which
Peabody relied, involved nearly identical facts. Peabody asserted that its
previously approved plans were suitable to the conditions of the two mines
and sought from MSHA the reasons for imposing the new requirement. Peabody
requested and attended meetings with MSHA to discuss the ventilation
provision and proposed an alternative.
Reliance on a cognizable legal position is not indicative of bad faith
negotiation by an operator in the plan approval process. Peabody
communicated its legal position to the Secretary and engaged in discussions
concerning the disputed provision. Having presented to the Secretary a
position that was arguably controlling, Peabody was not obligated to abandon
its position. Accordingly, we reverse the judge's conclusion that Peabody
failed to negotiate in good faith.
C.

The merits of the disputed urovision

we remand to the judge to decide whether the disputed prov1s1on was
"suitable" to Peabody's mines, as contemplated by 30 U.S.C. § 863(o). The
Secretary bears the burden of proving that the plan provision at issue was
suitable to the mines in question. See JWR, 9 FMSHRC at 907 (involving
ventilation plans), and SOCCO, 14 FMSHRC at 13 (involving safeguards).

388

III.

Conclusion
For the foregoing reasons, we affirm the judge's conclusion that the
ventilation plan provision was mine specific but reverse his conclusion that
Peabody did not negotiate in good faith.
We remand for consideration of
whether the disputed provision was suitable to the mines in question.

Arlene Hole , Chairman
/./}

('dvJ'vv-v-/~k4',
Richard V. Backley, Commissioner

~JL~
L. Clair Nelson, Commissioner

Distribution

C. Gregory Ruffennach,
Smith, Heenan & Althen
1110 Vermont Ave.
N.W.
Suite 400
Washington, D.C.
20005
Tina Gorman, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Administrative Law
Gary Melick
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

389

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR

WASHINGTON, D.C.

20006

March 31, 1993
SHERRELL STEVEN REID

v.

Docket No. KENT 92-237-D

KIAH CREEK MINING COMPANY

DIRECTION FOR REVIEW AND ORDER
In this discrimination proceeding arising under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)(the "Mine Act"), the
parties have filed a "Joint Petition for Discretionary Review/Joint Motion to
Vacate AW Decision, Approve SettlemE:rnt Agreement, and Dismiss Proceeding."
For the reasons set forth below, the petition and joint motion are granted.
On March 10, 1993, Administrative Law Judge Avram Weisburger issued a
decision finding that the complainant had not established a violation under
section lOS(c) of the Mine Act. Prior to the issuance of the judge's
decision, the parties had engaged in settlement negotiations. On March 12,
1993, they entered into a settlement agreement. Upon informing the judge's
office of the settlement, they learned that the judge had already issued his
decision.*
The judge's jurisdiction in this matter terminated when his decision was
issued on March 10, 1993. 29 C.F.R. § 2700.65(c). Under the Mine Act and the
Commission's procedural rules, relief from a judge's decision may be sought by
with the Commission a petition for discretionary review within 30 days
of the decision. 30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.70. The joint
petition for discretionary review is granted.
Oversight of proposed settlements is, in general, committed to the
Commission's sound discretion. See, ~' Pontiki Coal Corp., 8 FMSHRC 668,
674-675 (May 1986). The parties attached to their joint motion a copy of
their settlement agreement, which is signed by Kiah Creek's President and by
Complainant Reid. We have reviewed the settlement agreement, motion, and
record and, upon full consideration, we approve the settlement and grant the
motion. See, Duval Corporation, 8 FMSHRC 662 (May 1986); Western Fuels Utah, Inc., 11 FMSHRC 134 (February 1989); Birchfield Mining, 11 FMSHRC 1428
(August 1989); Medusa Cement, 12 FMSHRC 1913 (October 1990).

* We note that the judge issued his decision shortly after receipt of final
briefs. Parties should inform a judge when settlement negotiations may obviate
the need for a ruling on the merits.

390

Accordingly, this proceeding is dismissed.

L. Clair Nelson, Commissioner

Distribution

Tony Oppegard, Esq.
Appalachian Research & Defense Fund
of Kentucky, Inc.
630 Maxv7el ton Court
Lexington, KY Lr0508
for Sherrell Steven Reid
Billy R. Shelton, Esq.
Baird, Baird, Baird & Jones
PoOo Box 351
Pikeville, KY 41502
for Kiah Creek Mining
Administrative Law Judge Avram Heisberger
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

391

ADMINISTRATIVE LAW JUDGE DECISIONS

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

MA~ 1
CONSOLIDATION COAL COMPANY,
Contestant
Vo

1993

... CONTEST PROCEEDINGS
Docket No. PENN 91-1302-R
.. Order No. 3690652; 6/24/91
. Docket No. PENN 91-1304-R
. Order No. 3702374; 7/2/91
Docket No. PENN 91-1305-R
"
Order
No. 3690658; 7/3/91
"
.. .
•
0

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

0

0

0

0

~

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

~

Dilworth Mine

:

Mine ID

g

CIVIL PENALTY PROCEEDING

~

Docket No. PENN 91-1462
A.C. No. 36-04281-03740

v.

36-04281

Dilworth Mine
CONSOLIDATION COAL COMPANY,
Respondent

0
Q

DECISION

Appearancesg

Beforeg

Daniel Rogers, Esq., Consolidation Coal
company, Pittsburgh, Pennsylvania, for
Consolidation Coal Company.
Theresa Timilinu Esq. 0 U.S. Department of
Laborv Office
the Solicitoru Philadelphiau
Pennsylvaniau for the Secretary of Labor.

Judge Weisberger

These consolidated cases are before me based upon petitions
for assessment of a civil penalty filed by the Secretary of Labor
(Petitioner)u alleging violations of various mandatory safety
standards. Pursuant to notice, the cases were heard in
Waynesboro, Pennsylvania, on October 28, 1992. George Rantovich,
Randy cunningham, Ronald Gossard, Ronald Hixson, Marlon Whoolery,
James Samuel Conrad, Jr., and James W. Reed, testified for the
Petitioner. James Hunyady, John Burr, Patrick M. Wise, and
Robert Belesky, testified for Respondent.

39 2

Respondent filed a Post-Hearing Brief on January 11, 1993.
Petitioner's Proposed Findings of Fact and Brief was filed on
February 4, 1993.
I.

Citation No. 3702400
A.

Introduction

on June 5, 1991, on the s-o Section during the evening
shift, Paul Checoski, the mechanic on the section, locked and
tagged the power center supplying power to a 7,200 volt cable.
The cable was then moved, and another cable was attached to it by
John Holonich, a roof bolter, and John Rerko, a miner operator.
Neither of these was a qualified person meeting the requirements
of 30 C.F.R. § 75.153. In making the connection between the two
cables, threaded ends are screwed together by hand and then
tightened with a wrench if necessary. This is the only way for
the cables to be connected to one another.
Randy c. Cunningham, a roo.f bolter, and Don Jones, a
foreman, neither of whom is qualified pursuant to Section 75.153
supra, connected the extended cable to the load center.
Cunningham indicated that when he made the connection to the load
center, he and Jones "might have wiped some dirt out" (Tr. 56),
but 91 it wasn 1 t bad, it was just dry dirt." (Tr. 57) He also said
that the area was damp, and there were mud puddles at various
locations.
Once the connections were made, and before the power was
restored, Cunningham asked Sam Basle, the section foreman,
whether the connection should be inspected by a qualified person
before the cable is energized. Basle checked with the
maintenance foremanu cy Wilson. According to Cunninghamu Basle
said that Wilson told him said that such an inspection is not
necessary. When the cable was energized after the connections
had been madeu
functioned properly and there were no sparks.
On June 19v 199lv George Rantovich, an MSHA inspector,
inspected the subject mine in response to Section 103(g)
complaint that had been received in the MSHA office on June 13 1
or June 14u 1991. He issued a section 104(a) citation alleging a
violation of 30 C.F.R. § 75.511 based on the incident that had
occurred on June 5 6 1991. Specifically, the citation alleges as
followsg auEvidence indicates that on the 8-D section 72.00
cableu an examination by a qualified person was not conducted on
the additional cable connectors and plugs before the power was
restored on cable. gg [sic]
30 C.F.R. § 75.511, as pertinent, provides as follows: "No
electrical work shall be performed on low, medium, or highvoltage distribution circuits or equipment, except by a qualified
person or by a person trained to perform electrical work and to

393

maintain electrical equipment under the direct supervision of a
qualified person."
As his rationale for the issuance of the citation at issue,
Rantovich indicated that a person not qualified would not
recognize the dangers presented by the presence by mud and water
in the ends of the high voltage cables that had to be connected.
He indicated that should such mud and water be present and not
removed, there is a danger of an explosion causing injuries, once
the cables are connected and energized. Ronald J. Gossard, an
MSHA electrical supervisor corroborated Rantovich's testimony in
this regard. Respondent has not impeached or contradicted this
testimony.
B.

Discussion

The record is clear that the persons who connected the
extension to the cable, and the cable to the load center, were
not qualified as that term is defined in Section 75.153, supra,
nor were they performing this work under the direct supervision
of a qualified person. However, in order for the activities at
issue to be violative of Section 75.511 supra, they must fall
within the ambit of that section i.e., they must be "electrical
work 11 •
In this connection, Rantovich relied on the MSHA Program
Policy Manual ("PPM")v dated April 1, 1991, which defines
electrical work as "the work required to install or maintain
electric equipment or conductors". The PPM lists as examples of
work not required to be performed by a qualified person, inter
alia, the following:
"inserting low-and-medium-voltage cable
couplers into receptacles or withdrawing low-and-medium-voltage
cable couplers from receptacles". Rantovich and Gossard, in
essenceu argued that since coupling low and medium-voltage cables
are examples of work not requiring a qualified person, then
coupling a high voltage cable would be considered work requiring
a qualified person. Although weight is to be accorded the
Secretary 1 s interpretation of her regulations, the interpretation
is not binding where it goes beyond the plain meaning of the
regulations especiallyu where the regulationsv reiterate
statutory language.
(Seeu King Knob Coal COou 3 FMSHRC 1417u
1420 8 No3 9 (198ljj.
Section 75.511 suprau contains the exact language found at
Section 305(f) of the Federal Coal Mine Health Safety Act of
1969 8 (PoL. 91-173)u (nthe 1969 Act")u which has been
incorporated in the Federal Mine Safety and Health Act of 1977
("the 1977 Act 11 ) . Both the parallel language in the Senate
version of the 1969 Act, S.2917, and the House Bill, H.R. 13950,
provided that, "no work" shall be performed on high voltage
circuit or equipment except by qualified persons."
(emphasis
added)
The House of Representative Conference Report
accompanying S. 2917 specifically qualified this provision by
providing that, "no electrical work", is to be performed except

394

by a qualified person. (H.R. Rep. No. 91-761, 91st Cong., 1st
Session, at 25, found in Legislative History of the Federal Mine
Health and Safety Act of 1969, ("Legislative History of the 1969
Act"}, at 1479 (emphasis added). This language was continued and
enacted in Section 305(f) of the 1969 Act.
Neither the 1969 Act, nor the 1977 Act, nor the Code of
Federal Regulations, defined the term "electrical work". Since
the word "electrical" was added by the Conference Report, supra
and enacted in section 305(f} supra it must be concluded that it
was meant to limit or to modify the type of work required to be
performed by a qualified person or under his supervision. The
term "electric" or "electrical" is defined in Webster's Third New
International Dictionary, ("Websters") (1986}, as "1a: of
relating to, or produced by electricity •••• " The activities at
issue, connecting one end of the cable to another end by hand,
are clearly physical or mechanical acts and not "electrical"
work, although the activities are performed on electrical
equipment. 1
See, u.s. Steel Min·ing Co., 13 FMSHRC 1451 (Judge
Koutras} (1991); Consolidation Coal co., 12 FMSHRC 2643 (Judge
Weisberger) (1990).I thus find that the activities at issue
herein do not fall within the scope of section 75.511 supra, and
hence the citation at issue is to be vacated.
II.

Orders No. 3690652, 3690658, and 3702374, and
Citation Nos. 3690660, 3690659. and 3702375
A.

Order No. 3690652
Findings of Fact and Discussion

In the track haulage entry at Respondent 0 s Dilworth Mineu
power
supplied to the trolley wire by way of a 600 volt de
wire that is supported from the roof by being attached to wooden

planks (hangers) which are installed at 10 foot intervals, and
are bolted to the roof. An insulator attached by its top to the
plank, and by its bottom to the trolley wireu serves to insulate
the energized trolley wire from the wooden plank and the coal in
the roofo
on June 24Q 199lr Ronald Hixsonv an MSHA inspector, while
inspecting the track haulage entry at approximately 10~30 a.m.,
observed flames on one of the planks close to the No. 8 crosscut.
The plank, was 2 to 3 inches thick, 14 inches long, and 10 inches
wide. He said that the flames were 1 to 3 inches in height, and
covered an 8 inch square area. He indicated that there were
three different areas where the plank had been burnt. Also, he
1

To the extent that u.s. Steel Mining co., Inc, 5 FMSHRC
1752 (Nov. 1983) (Judge Broderick) cited by Petitioner is
inconsistent with my decision, I choose not to follow it.

395

said that the roof was warm. Power was then removed from the
wire by a switching it off, and the flames went out.
On June 24, 1991, the miners at the Dilworth mine were on
vacation, and accordingly there was no pre-shift examination of
the area in question. Hixson indicated in this regard that had
he not noticed the fire, it could have smoldered or developed
into a large fire, as a few hours could have elapsed before
someone entered the area. He noted the presence of combustible
materials such as the planksf and sloughage, and the presence of
heat in the roof. He indicated that, as a consequence, within
minutes there could have been a major fire? or explosion, had he
not immediately corrected the situation. He concluded that there
was an imminent dangerQ and an order was subsequently issued
under section 107 of the Federal Mine Safety and Health Act of
1977 ("the 1977 Act").
Once the power was removed and the flames went out, the
trolley wire was removed from· a clip which prevented electrical
contact between the trolley wire and the plank. Also, the area
of the roof that was warm was cooled with water. Subsequent to
these actions, Hixson left the underground area and, once outside
the mine, wrote and issued a section 107(a) withdrawal order
(Government Exhibit No. 4). 2
Section 3(j) of the 1977 Act supra defines an imminent
danger as 11 • • • the existence of any condition or practice in a
coal or other mine which could reasonably be expected to cause
death or serious physical harm before such condition or practice
can be abated".
(Emphasis added) It thus would appear that once
conditions constituting an imminent danger have been dealt
u and no
constitute an imminent dangerr the subsequent
issuance
an order under
107
not proper.
·definition

imminent danger contained

Section 3(j)

of the 1977 Actu supra is the same as that contained in the Coal
Mine and Safety Act of 1969 ("the 1969 Acte 1 ) u 30 u.s.c. § 801

seg.
once an

The Senate Report accompanying the 1959 Act states that
0
'
finds ~chat. an imminent. danger
Q
he
0

2

0

o

The following testimony
offers
possible
explanation why
did not
a \'llithdrawai order at 10~30 a.m.
10
when he encountered the ~'situation°' is as
lows~
When we
discovered the flame 1 the initial reaction was to get
out to
find out exactly how much we ~- how much of a problem we had.
Probably in that hour time period where we discussed what kind of
a violation or what kind of a citation that was going to be
issued. But it was not of primary concern at the time that we
found the situation." (Tr. 161).

396

would be ·required" to issue an order requiring the withdrawal of
workers from the section of the mine where the danger exists
" ••• until it is determined by an inspector that the condition no
longer existo 99 (S. Rep. No. 411, 91st Cong. 1st Sess. at 37
(1969)), reprinted in Legislative History of the 1969 Act, supra
at 163). To the same affect is the following language in the
Section by Section Analysis, of the Senate Report, supra, with
regard to the duration of the imminent danger order, "The order
remains in effect until the inspector determines that there is no
danger." (Legislative History supra at 215). The analysis
further states that, "The concept of an imminent danger as it has
evolved in this industry is that the situation is so serious that
miners must be removed from the danger forthwith when the danger
is discovered without waiting for any formal proceedings or
notice. The seriousness of the situation demands such immediate
action.n (Legislative History, supra at 215).
The House Report accompanying H.R 13950, the House version
of the Bill that became the 1969 ,.Ac1:., ~xplains that subsection a
of Section 104 deals with the finding of an imminent danger by an
inspector and that "When this occurs, the representative will
determine the area where the danger exists and immediately issue
an order requiring the mine operator to withdraw all persons,
except those necessary to take corrective action from the
affected area until the danger is abated." (H.R. Rep. No. 91563, 91st Cong., 1st Sess., at 8, reprinted in Legislative
History, supra at 1038). (Emphasis added)
Hence, in requiring inspectors to issue withdrawal orders in
the presence of an imminent danger, Congress clearly intended to
have miners immediately withdrawn once the dangerous condition is
discovered 7 and to remain withdrawn until there is no longer any
as determined by the inspector. Thus, to effectuate this
int.ent.c the t'lfithdrawal order should be issued during
:che t:ime t:he conditions constituting the imminent danger are in
existence. It does not serve any purpose to issue such an order
once the conditions are no longer an imminent danger.
(See, Utah
Power and Light COor 13 FMSHRC 1617 at 1621, wherein the
Commission 9
analyzing the legislative history of withdrawal
orders for an imminent danger concluded as follows~ ~~Thus, the
hazard ~o be protected against by the withdrawal order must be
impending so as to require the immediate withdrawal of miners. u')
Hencep
clear t:hat once the danger has been abated and is no
longer in existencep the hazard is no longer impending, and as
suchv the withdrawal of miners is no longer required.
In the instant case, in the judgment of Hixson, an imminent
danger presented itself because there were flames on the wooden
plank, the roof was hot, combustible material such as coal
sloughage, and wooden planks were present, and the mine was
considered to be gassy. However, the imminent danger order was

397

not written3 and issued until Hixson was outside the mine, power
to the wire had been turned off, the fire had been extinguished,
and cold water had been poured on the hot area to cool it. 4
Since there was no longer any imminent danger when the order was
issued, it cannot be found to be valid. 5 (See, consolidation
Coal co., supra.
B.

Citation 3690660

As a result of the conditions Hixson observed on June 24,
1991, he issued a section 104(a} citation alleging a violation of
30 C.F.R. § 75.516 in that " •.. due to the breakdown of the
insulator or dampness in the 8-D haulage at No. 8-D crosscut a
proper insulator to insulate the 550 volt de trolley wire from
the mine roof and wooden planks was not provided.n
30 C.F.R.

§

75.516 supra, as pertinent, provides that power

3

Section 107(d) of the 1977 Act, supra provides, in essence,
that withdrawal orders shall be given "promptly" to the operator
and 11 • • • shall be in writing" (emphasis added). Section 107(c) of
the Act mandates that a withdrawal order n ••• shall contain a
detailed description of the conditions or practices which cause
and constitute an imminent danger and a description of the area
of coal or other mine from which persons must be withdrawn and
prohibited from entering." In the case at bar, the written order
issued pursuant to Section 107 supra, was not issued until Hixson
was outside the mine and there was no longer any imminent danger.
4

In some circumstances a timely verbal order of withdrawal
subsequently committed to writing (See
Consolidation Coal Co. 14 FMSHRC 2066 (Judge Melick) (1992)).
However, the record does not convincingly establish that Hixson
issued a verbal withdrawal order at a time when the perceived
danger was in existence. On cross-examination, he indicated that
he did not tell Respondent~s representatives that he was going to
issue a withdrawal order as he approached the burning hanger
(tvooden
p
He also indicated v on cross-examination, that he
not
i l\l'hen he told Respondent's representative Patrick
who ~vas present, that 10 this was a 1.07 (a) situation and
people
wit.hdrawn 11 (Tr. 162)
valid where H:

o

c

Complainant's brief it is arguedp
essence 1 that the
stipulation by
parties that the 107(a} order was properly
served on Respondent, establishes that Respondent was given
proper notice that there was an imminent danger. The key issue
is not whether Respondent was aware of a dangerous condition, but
rather, whether Complainant issued a withdrawal order during the
time when an imminent danger existed. As set forth above, the
record does not establish that the withdrawal order was timely
issued.

39 8

wires "sha
be supported on well-insulated insulators and shall
not contact. combustible material 1 roof, or ribs." 30 C.F.R. §
75.516~1 defines the term "well-insulated" as follows:
"wellinsulated insulators is interpreted to mean well-installed
insulators. . . 01 Hixson explained that he issued the citation
alleging a violation of Section 75.516 supra, as the failure of
the insulation is a violation i.e., that the insulator did not
do what
was designed to do i.e., to keep the electricity in
the wire. Gossard testified that if the insulator fails,
electricity from the wire will then ground to the plank and roof,
causing heatv which could lead to combustion.
Gossard aJ.so indicated that the trolley wires at
Respondent 0 s mine were a 600 volt system, whereas the insulators
at issue were not designed specifically for use with a 600 volt
wire system. He said the insulators could be used with either a
300 or 600 volt wire system. He indicated, in essence, that
accordingly, tvhen t:he insulators are used with a 600 volt system,
arcing
more likely to occurif the insulators are not
functioning properly. In essence, he recommended using an
insulator designed to be resistent to moisture in order minimize
the risk of arcing.
Complainant cites the fact that combustion had occurred, (as
described
II(A) infra) as evidence that the hangers and
insulators failed to operate as designed. Complainant also
refers to Hixsonns testimony which sets forth his opinion that
Section 75.516 supra is intended to prevent the hazards attendant
upon contact between power wires and combustible materials. In
connectionf Complainant argues that since combustion
::;ccurred" electrical current from the trolley wires came in
~ont.c:ac'~:
lflooden plank. For the reasons that
~o~_ows
arguments to be without merit.
aec~icn

~ence

'''d'eli

5.516 supra requires that wires such as the trolley
issue shall be supported on "well-insulated insulators
combustible materials roof or ribs".
cf Section 75.516 supra indicates that
::.;:: p
:q t.he insulators are not
·trolley wires contact combustible

5.516=1 defines well insulated insulators as
1-installed insulators". At best, the evidence
herein tends to establish that the insulators did not serve their
intended purpose due perhaps to moisture. However, there is a
lack of evidence to base a conclusion that the insulators were
not "well-installed". There is no evidence in the record to base
a conclusion as to the manner in which the insulators were
installed" Indeedv the parties stipulated that the insulators at

399

issue were "well installed".
(Tr. 115) Thus, I conclude that the
trolley wires were well insulated.
2.

Trolley wires in contact with combustible material

Also, Section 75.516 supra is violated if the trolley wire
comes in "contact" with combustible material .. roof or ribs.
Section 75.516 supra contains the identical language that was set
forth in Section 305(k) supra of the 1969 Act and which was
incorporated in the 1977 Act. Neither the 1969 Act nor the
regulations clarify as to whether section 305(k) (Section 75.516
supra) intended to prohibit physical or electrical contact
between a trolley wire and combustible material. However,
enlightenment as to as to Congressional intent
found in the
legislative history of the 1969 Act. The Senate Report,
its
section by section analysis, indicates that section 206(g) of the
Senate Bill, whose language was reiterated in Section 305(k) of
the 1969 Act, requires that all power conductors be nnot allowed
to touch combustible material; roof, or ribs."
(Legislative
History, supra at 193). To the same affect~ the House Report in
its analysis of Section 305(1) of the House Bill whose language
was reiterated in Section 305(k) of the 1969 Act, states that
Section 305(1) requires that all underground power conductors be
91 not allowed to touch combustible materials,
roof or ribsyzy.
(Legislative History, supra, at 1079}. Thus, I conclude that
Congress intended that trolley wires not touch combustible
material i.e. not come in physical contact with these materials .
There is insufficient evidence before me to conclude that
the trolley wires were touching any combustible material. None
of the witnesses who vJere present at the time" Hixsonr Marlan
Whoolery a union '1!-JOrk-around r or P.atr~.ck 'YL
:Respondent. 0 s
safety escort, provided
description of the
relationship of the
t:o
or plank. Hixson indicated that once the power was off and the
flames went out 9 he took the trolley wire out
located
at the bottom of the insulator between the insulate:':' and the
trolley t'lfire See Government El;:hibH: No, :::::::
does
not establ
that the
tvas 'couchinar the
combustible surfaces o
~,
Wh.oolery ,, indicated that when he observed
9lan1t burning
the hanger was no longer attached to the
i=~f:ter the pov1er
was turned offu he removed the hanger from the
If the vlire
was attached to the hanger, but the hanger was not attached to
the plank, I cannot conclude that the wire was in contact and
touching the plank or other combustible materialo
Therefore, for all the above reasonsr it is concluded that
Petitioner has not established a violation herein of Section
75.516 supra as alleged.

400

c.

Order No. 3690658

On July 3, 1991, Hixson, upon entering the 7-D track entry,
observed smoke "billowing" from the base of a hanger (Tr. 149).
He said that he then had the power turned off. Hixson said that
--the roof was extremely hot where the pipe hanger was attached to
the roof. According to Hixson, there was a one-foot distance
between the hanger and the roof.
The hanger was attached to the
roof by a pipe which was not insulated. An insulator separated
the roof from the energized wire. Hixson said that the roof felt
hot for about two feet around the pipe. According to Hixson, the
roof consisted of coal, shale and rock, and sloughage was
present.
After approximately an hour, the roof had cooled off, and
there was no longer any smoke observed. Whoolery, who was
present with Hixson, indicated that after the power was turned
off, he was not part of a conversation between Hixson and Wise
but heard "bits and pieces" and that "I think it was explained it
was a 107-A" (Tr. 187). According to Hixson, "right after the
power was removedn, he told Respondent's personnel that he was
going to issue an imminent danger withdrawal order (Tr. 169).
Hixson issued a written imminent danger order outside the mine at
11:35 a.m., after a new hanger was installed to replace the one
that had become hot.
The critical issue for determination is whether an imminent
danger still existed when Hixson issued a 107(a) withdrawal
order. The order was issued in writing at 11:35 a.m., outside
the mine, clearly after the condition constituting on imminent
danger was no longer
existence. The earliest that Hixson
orally informed Respondent that he was going to issue a
withdrawal order was after
power was removed from the mine
hanger. Once power >:qas ::::amoved g the "heavyii smoking stopped; but
there was
l smoking and "hot spots <u (Tr" 17 o) • The roof was
u1 extremelyic hot around the area where the pipe entered the roof
(Tr. 150). The order subsequently issued by Hixson cites the
01
following conditions as constituting the imminent danger~
A hot
hanger " . was
" . the hanger had gone to ground causing
t.he mine roof
become i.:1ot vli th a large amount
smoke. The
mine roof ... had coal
this area" [sic). In his testimony,
Hixson explained that
presence of smoke indicated a fire, and
that he issued the 107(a) order because there was an
"uncontrolled" fire that had a potential for disaster (Tr.159).
Ron Gossard, an MSHA electrical-supervisor testified, in essence,
that smoke indicates that combustion was taking place. According
to Gossard, the presence of smoke can lead to smoke inhalation,
exposure to carbon monoxidef and the impediment of exit from the
mine. He also indicated that the amount of heat in the coal roof
is dependent on the amount of current that passes into the coal
strata, as well as the passage of time. I accept his testimony
due to his expertise and experience. Hence, I find that even
6

401

though power had been turned off when Hixson orally advised
Respondent that he was going to issue a 107(a) order, there still
was a fir.e in the coal roof.
Gossard opined that given the
combustion, the roof will fracture and "in all probability" drop
out of the main mine roof (Tr. 237). When this occurs, particles
of smoldering coal are exposed and "can very readily" burst into
flames (Tr. 237). This "could happen quickly" (Tr. 237) Gossard
also indicated that with the roof falling out, "there's a very
distinct possibility that when this roof fractures it will bring
a long section of trolley wire down with it" (Tr. 238). In this
event trolley wire contacting the rail will cause arcing.
Within the framework of this testimony I affirm the oral
notification of withdrawal issued by Hixson when the power was
turned off, and subsequently committed to writing as Order No.
3690562.
D. Citation No. 3690659
On July 3 0 1991, in addition to the imminent danger order,
Hixson issued a Citation alleging a violation of Section 75.516
supra. According to Hixson, smoke was coming from the point
where the pipe hanger was attached to the roof. He did not
specifically indicate that the trolley wire was touching the
roof, or any other combustible material. Whoolery indicated that
there was a glow around the insulator, the plastic on the trolley
wire was smoldering, and that coal in the roof was burning. He
too did not specifically state that the trolley wire was touching
any combustible material. Neither Whoolery nor Hixson nor any
other witness or any ether evidence has indicated the manner in
which the insulators were installed. I thus find that it has not
been established that the insulators were not well installed. It
has
been established that the trolley wire was in
contact with any combustible material, roof
ribs. ThUSp for
the reasons set forth aboveg II {B) infra, I conclude that
has
not been est.ablished that there was any violation of Section
75.516 supra, and thus Citation No. 3690659 must be dismissed.

or

E.

Order No. 3702374

On
p
19 91 9 J-ames Samuel Conrad v Jr r an MSHA
inspector" was at the subject mine to perform a methane spot
inspectiono At approximately Bg45 a.m.v in the track haulage
entryv he observed that the roof was smoldering and there was
smoke around the metal rod in the roof. He said the roof was
warm to touch for an approximately five foot radius around the
smoke. He said that the only obvious reason for this heat was
the failure of an insulator, as there was no other source to
generate ·smoke out of a hole where the metal rod had been placed
in the coal. He then cut off power to the trolley wire, removed
the insulator from the rod, and proceeded to pick down coal from
the roof. Water was applied for approximately 45 minutes to cool
the roof. Also the hanger was replaced.
o

402

conrad indicated that there was coal four inches into the
roof. In addition, he said that sloughage was present, and there
were wooden cribs in the intersection. He said that all these
items were combustible"
James w. Reed, a union walk-around who was with Conrad, also
..observed a ~&good bit 11 of smoke coming out of the coal in a 4 foot
wide area surrounding the pipe hanger (Tr. 224). He also said
that the slate '!1-Jas hot t.o the touch above the coal. He indicated
that the coal from the roof that had been 91 picked down" had
fallen to the ground. {Tr. 226) He said that this coal was still
"smokingeu. when it t ..Tas on the ground (Tr~226).
According to his
testimonyu the coal was hosed down
about a little more than
10 minutes, and 9ait was cooled down pretty much and we felt we
had
pretty much in control"
.227). [sic] He said that at
approximately 9~35 a.m.il the situation was nunder control and we
left .•• ". (Tr. 229) Prior to
time, Conrad did not orally
advise Respondent of any withdrawal order.
At about 10~35 aom., after the imminently dangerous
conditions ceased to existu conrad told Respondent's
representative Robert Veleskyu that he probably will issue a
section 107 order with regard to
hot hanger.

At iC.ne end of the inspection at about 1:00 p.m., Conrad
issued a written imminent danger order indicating that the order
was issued 8~45 a.m. 0 and terminated 9:35a.m. In essence,
Conrad said he did not issue the order earlier, because "I was
more concerned with the facts of dealing with the condition at
hand. And I felt the paperwork was just a preliminary thing, a
s
indicated that he took
had previously issued a

, find t.hat 'the evidence
not establish that the 107 (a)
order was issued at a time when the conditions constituting an
imminent danger lvere still
existence. Therefore as explained
c !I(
jnfra~ ! conclude
Section 107(a) order was
issueC:o
c~tation

No. 3702375

July 3, Conrad issued
citing the conditions
by him on July 2, and alleging a violation of 30 C.F.R.

75.516. In the citation he
that a "shorted out
insulator that was supporting the energized trolley and feed wire
caused the roof coal in the immediate mine roof to catch fire."
However, there is no evidence in the record with regard to the
manner in which the insulators were installed. Specifically,
there is no evidence that the insulators were not well installed.
Also, there is no evidence that the trolley wire was touching the
roof or any other combustible material.

403

Therefore, for the reasons set forth above, II(B) infra, I
find that it has not been established that there was a violation
of Section 75.316 supra. Accordingly the citation should be
dismissedo
ORDER
It is hereby ORDERED that Order No. 3690658 be affirmed and
Notice of Contest Docket No. PENN 92-1305-R be DISMISSED. It is
further ORDERED that the following Orders and Citations be
DISMISSED: 3690652, 3690659, 3690660
702374, 3702375 and
3702400.

~vram Weisberger
Administrative Law Judge

Distribution:
Daniel Rogers, Esq., Consolidation coal Company, 1800 Washington
Road, Pittsburgh, PA 15241 (Certified Mail)
Theresa c. Timilin, Esq.v Office of the Solicitor, U. s.
Department of Labor, Room 14480 Gateway Building, 3535 Market
Street, Philadelphia, PA 19104 (Certified Mail)
nb

404

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

1993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

. CIVIL PENALTY PROCEEDING
&

Docket No. KENT 92-752
15-16666-03512

AoC. No.

v.
No. 3 Mine
WILLIAMS BROTHERS COAL
COMPANY, INCORPORATED,
Respondent

DECISION
Appearances:

Before~

Mary Sue Taylor, Esq., u.s. Departmeni: of Labor,
Office of the Solicitor, Nashville, Tennessee
for Petitioner'fl
Hufford Williams, Vice President, Williams Brothers
Company, Incorporated, pro se,
for Respondent.

Judge Feldman

In this proceeding the Secretary seeks to impose a civil
penalty on
respondent for an alleged non-significant and
substantial violation
the mandatory safety standard
Section
ol605(d),,
C.FoRo §77.1605(d "! Pllrsuant~to noticer an
evidentiary hearing was held in Prestonsburg, Kentucky, wherein
Clifford Crum testified on behalf of the Secretary and Hufford
Williams testified for the respondent. The parties stipulated to
my jurisdiction
this matter and waived the
ing of posthearing briefs.
the culmination of the hearing, I issued a
bench decision vacating
citation
issue and dismissing this
case. This decision formalizes my bench rulinga
The dispositive facts
this matter are not
disputeo
On March 23v~1992v Mine Safety Inspector Clifford crum issued
Citation No. 3810327 for an alleged violation of Section
77.1605(d). The citation was based upon one inoperable right
lower front headlight and two inoperable rear taillights on the
respondent's Caterpillar front-end loader, Model No. 9808,
1

section 77.1605 (d) provides: "Mobile equipment shall be
provided with audible warning devices. Lights shall be provided on
both ends when required."
The subject front-end loader was
equipped with the requisite audible warning system. (Tr.46).

405

located on the surface of the respondent's underground No. 3
Mine. 2 It is undisputed that the front-end loader had three
operational headlights on the front and two operational
headlights on the rear. It is also undisputed that two
operational headlights on the front and two operational
headlights on the rear satisfy the requirements of Section
77.1605(d). (Tr. 31-32). Inspector Crum testified however, that
the respondent was cited under the theory that all equipment on a
piece of machinery must be operational. (Tr. 20-21). In this
regard, crum considered the violation to have been abated when
the respondent replaced the front headlight and removed the
inoperable taillights. (Tr. 19-20). At the hearing, I issued the
following bench decision which is edited with non-substantive
changes:
The issue is whether Section 77.1605(d) has been
violated. This section requires loading and haulage
equipment to have lights on both ends. The operable
part of this section is lights in the plural sense.
In issue is the condition of the front and rear of this
front-end loader. Starting with the front, the
equipment has a standard two light operational mode
with two additional headlights that can be added as an
option.
The undisputed testimony indicates that three of the
four front headlights were operational. Mr. Crum's
testimony indicates that if only two headlights were
operational and there were only two headlights
installed on the vehicle, there would be no violation.
However, we have the anomalous situation of a citation
issued for three operational headlights where only two
headlights are required.
My view
Section 77.1605(d) is that if two lights are
sufficient, certainly three lights are sufficient.
Although it would have been preferable to have the
fourth light operational 8 I find that the three
operational headlights satisfied Section 77.1605(d)
with regard ·to the front of the loader.
Turning to the rear end of the loaderv the testimony
reflects two operational headlights. What were not
operational were two taillights. Mr. Crum testified
that removal of these inoperable taillights abated the
2

The loader is only used on the surface to load stockpiled
coal into dump trucks.
It travels approximately 50 to 60 feet
during the loading process. It is used only during the day shift
from approximately 6:00a.m. until 3:00p.m. (Tr 41-43).

406

alleged violation with respect to the rear of the
vehicle. I am hard pressed to conclude that there's
been a violation with regard to the rear because the
taillights were inoperable if removing the taillights
abates the situation.
Therefore, I conclude that both the front and rear of
the loader satisfied the requirements as intended under
Section 77.1605(d) in that headlights were provided on
both ends. I am hereby vacating the citation and
dismissing the case. {See Tr. 56-58).
ORDER
In view of the above, Citation No. 3810327 IS VACATED and
this civil penalty proceeding IS HEREBY DISMISSED.

~---.®~ ~-- >

Jerold Feldman
Administrative Law Judge

Distribution:
Mary Sue Taylor, Esq., Office of the Solicitor, u.s. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215 (Certified Mail)
Mr. Hufford Williams, Williams Brothers Coal Co., Inc.f 415 Card
Mountain Roadv Mouthcardu KY 41548 (Certified Mail)

vmy

407

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

20006

~~AR 5 1993
CIVIL PENALTY PROCEEDING

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

Docket No. WEVA 93-64
A.C. No. 46-01867-03937
Blacksville No. 1

CONSOLIDATION COAL COMPANY,
Respondent

SUMMARY DECISION
Before:

Judge Merlin

The above captioned case is a petition for the assessment
of civil penalties filed by the Secretary of Labor against
Consolidation Coal Company pursuant to section 105(d) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C.A. § 815(d),
and section 2700.27 of Commission regulations, 29 C.F.R. § 2700.27.
The twelve citations which were issued under section 104(a) of
the Act, 30 U.S.C.A. § 814(a), charge violations of section
50.30-l(g) (3) of the Secretary's regulations, 30 C.F.R.
§ 50.30-1(g) (3), for overreporting of employee hours on the
Quarterly Employment and Coal Production Report (MSHA Form
7000-2)
0

This case involves the same issue as in Consolidation Coal
Co.u Docket No. WEVA 93-7u wherein the parties filed cross

motions for summary decision.
14 FMSHRC ____ (March 4, 1993).
In that case, I determined that summary decision was proper under
Commission rules, 29 C.F.R. § 2700.64(b), since no issue of
material fact was in dispute, but rather only the appropriate
amount of penalties to be assessed in accordance with statutory
criteria.
30 U.S.C.A. § 820(i). To date the parties in this
case have not filed cross motions. However, since the issues and
parties in this case are identical to those in WEVA 93-7 (only
different mines are involved) I find that summary decision lies
here as well.
In Docket No. WEVA 93-7, the summary decision rejected the
Secretary 0 s motion for imposition of a $500 penalty for each
overreporting of employee hours subsequent to my May 24, 1990,
decision in Consolidation Coal Co., 12 FMSHRC 1129, but prior to
the Commission's June 9, 1992, decision, 14 FMSHRC 956. Instead
penalties of $100 apiece were assessed for such violations. The
summary decision in WEVA 93-7 is controlling and therefore,
penalties of $100 each should be assessed for the violations
herein.

408

In light of the foregoing, it is ORDERED that the
secretary's findings of violations for the twelve citations in
the subject penalty petition be AFFIRMED.
It is further ORDERED that penalties of $1,200 be ASSESSED
and that the operator PAY such penalties within 30 days from the
date of this decision.

~~

Paul Merlin
Chief Administrative Law Judge

Distribution:
RobertS. Wilson, Esq., u.s. Department of Labor, Office of the
Solicitor, 4015 Wilson Boulevard, ... R,oom 516, Arlington, VA 22203
(Certified Mail)
Daniel E. Rogers, Esq., Consolidation Coal Company, Consol Plaza,
1800 Washington Road, Pittsburgh, PA 15241-1421 (Certified Mail)

409

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

MAR 8 1993
CIVIL PENALTY PROCEEDING

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

Docket No. KENT 92-415
A. C. No. 15-16448-03562 A

v.
Christian Energies No. 2
Mine

FRED JONES, EMP. BY CHRISTIAN
ENERGIES, INC.,
Respondent

DECISION APPROVING SETTLEMENT

Appearances:

Before:

J. Philip Smith, Esq., Office of the Solicitor,
U. s. Department of Labor, Arlington, Virginia,
for the Secretary;
Mr. Fred Jones, Williamsburg, Kentucky, pro se.

Judge Maurer

This case is before me upon a petition for assessment of
civil penalty under section 110(c) of the Federal Mine Safety and
Health Act of 1977 (the Act). At hearing, on January 27, 1993,
Kentucky 2 petitioner filed a motion to approve a
agreement and ·to dismiss the case. A reduction in
from $11 p 400 ·to $2800 was proposed because of the limited
resources of the respondent. I have considered the
representations and documentation submitted in this case,
including the representations on the record at hearing, and I
conclude that the proffered settlement is appropriate under the
set
section 110(i of the Act.
WHEREFORE 1 the motion for approval of settlement is GRANTED,
ORDERED that respondent pay a penalty of $2800 in 14
monthly installments of $200 each, beginning within 30 days
of the date of this order, and continuing until paid in full.

urer
ative Law Judge

410

Distribution:
J. Philip Smith, Esq., Office of the Solicitor, U. S. Department
of Labor, 4015 Wilson Boulevard, 4th Floor, Arlington, VA 22203
(Certified Mail)
Mr. Fred Jones, 3707 Lot Mud Creek Road, Williamsburg, KY 40769
(Certified Mail)
dcp

411

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

1993

. CIVIL PENALTY PROCEEDING
.
. Docket No. KENT 92-748
A.C. No. 15-14074-03610

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

v.

Martwick Underground

PEABODY COAL COMPANY,
Respondent

.
DECISION

Appearances:

Darren Courtney, Esquire, Office of the
Solicitor, U.s. Department of Labor,
Nashville, Tennessee, for Petitioner;
David R. Joest, Esquire, Peabody Coa1
Company, Henderson, Kentucky for Respondent

Beforeg

Judge Melick

This case is before me upon the petition for assessment
of civil penalty filed by the Secretary of Labor pursuant
to Section 105(d) of the Federal Mine Safety and Health Act
of 1977, 30 u.s.c. 801, et seg., the "Act," charging the
Peabody Coal Company (Peabody) with one violation of the
mandatory standard at 30 C.F.R. Section 75.400 in a citation
issued pursuant to Section 104(d)(1} of the Act. 1
The citation
baru No. 3417103 0 alleges a vvsignificant
and substantial 99 violation and charges as follows:

Section 104(d}(l) of the act provides 6 in part,
as follows~
91
u upon the inspection or a coal or other mine,
an authorized representative of the secretary finds that
there has been a violation of any mandatory health or safety
standard, and if he also find that, while the conditions
created by such a violation do not cause imminent danger,
such violation is of such nature as could significantly and
substantially contribute to the cause and effect of a coal
or other mine safety or health hazard, and if he finds such
violation to be caused by an unwarrantable failure of such
operator to comply with such mandatory health or safety
standards, he shall include such finding in any citation
given to the operator under this Act."

412

Coal dust and float coal dust were permitted
to accumulate under the bottom rollers with
the bottom rollers running in the coal dust at
twelve locations along the 2nd North West main
conveyor belt, three rollers between Nos. 6, a,
and 70 crosscuts and (1) between No. 71 and 72
with accumulations measured 12 inches deep,
five feet long and four feet wide, measured
with steel tape, No. 1 sample collected, one
between Nos. 75 and 76 crosscut, one between
No. 81 and 82 crosscut, four (4) bottom rollers
running in coal dust at No. 84 crosscut No. 2
spot sample collected, accumulative measured
at locations five (5) feet long 1 eleven inches
deep and four feet wide, one roller in coal
dust at No~ 88 crosscut, accumulations measured
five (5) feet long and 12 inches deep
four (4) feet wide No. 5 Spot sample collected
and one bottom roller runnJng- in coal dust at
No. a 9 crosscut.
·
·
The cited standard provides that "[c]oal dust,
including float coal dust deposited on rock-dusted
surfaces, loose coalu and other combustible materials,
shall be cleaned up and not be permitted to accumulate
in active workings, or on electric equipment therein."
At hearings Peabody admitted the twelve cited violative
conditions and conceded that those conditions constitued a
"significant and substantial" violation. It denies only that
the violation was the result of its "unwarrantable failure."
ununwarrantable failureva has been defined as conduct that is
u<not justifiableuo or is 00 inexcusable. ou
aggravated
conduct by a mine operator constituting more than ordinary
negligence
See Youghiogheny and Ohio Coal Co.P 9 FMSHRC
2007 (1987)u Emery Mining corporation 6 9 FMSHRC 1997 (1987).
Within this framework of law, it is clear that the admitted
illegal accumulations in this case were the result of
Peabody 8 s unwarrantable failure.
According to the undisputed testimony of Mine
Safety and Health Administration (MSHA) inspectoru
Darrold Gamblinu the twelve cited accumulations in fact
existed on October 28u 1992 7 as he described them in the
citation at bar. The existence of such a large number of
significant accumulations along the northwest belt line
in itself constitutes such an obvious and unusual number
and size of violative conditions that it may reasonably
be inferred from that evidence alone that management knew
of the conditions. Moreover, the absence of any evidence
of any concurrent cleanup efforts in the presence of such

413

a large amount of accumulations constitutes an inexcusable
omission of an aggravated nature. See Peabody Coal Company,
14 FMSHRC 1258 (1992).
In addition, the undisputed testimony of Peabody's
belt examiner, David Arbuckle, that the conditions he
reported in the belt inspection report (Joint Exhibit
No. 2) needed correction on October 25, 1991 (i.e.,
"second northwest-clean bottom rollers from No. 68 to
No. 83-bad [top roller] No. 94") also clearly describes
a serious and major problem with the accumulation of loose
coal in proximity to an ignition source. Again, according
to Arbuckle's undisputed testimony, that problem remained
uncorrected at the time of the examination three days later
when he again inspected the area and again noted in the
belt inspection report that the same coal accumulations
still needed correction. Since these reports were countersigned by the mine foreman or other "certified official"
of Peabody 1 the operator was placed on written notice of
the condition and failed to 'correct it for at least
three days.
It may reasonably be inferred that this was
one of the conditions also cited on October 28, by Inspector
Gamblin since it was within the same area cited by Gamblin.
These aggravated circumstances are sufficient alone to
constitute unwarrantable failure.
Finally, the practice at the Martwick Mine at the
time of the instant violation of failing to note in the
belt inspection reports that "corrections" to the conditions
noted in the reports (in this case, the cleanup of coal
accumulations) had in fact been made was a particularly
serious omission of an aggravated nature and constitutes
high negligence
For this adcii tional and independent
reason the violation herein was the result of unwarrantable
failure
o

a

Considering the above evidence 0 it is clear that the
Secretary has sustained her burden of proving that the
violation charged in Citation Noo 3417103 was the result
of the unwarrantable failure of "the operator to comply
\.d th the law
o

414

ORDER
Citation No. 3417103 is AFFIRMED and Peabody Coal
Company is directed to pay a civil penalty of $500 within
30 days of the date of this decision.

~::\ lcl

Ga
Meli k
Administr_tive Law
703-756-62 1

\\

Distribution:

\

Darren Courtney, Esq., Office of the Sol1citor,
u.s. Department of Labor, 2002 Richard Jones Road,
Suite B-201, Nashville, TN 37215 (Certified Mail)
David Ro Joest, Esq., Peabody Coal Company,
1951 Barrett Court, P.O. Box 1990, Henderson,
KY 42420-1990 (Certified Mail)
/lh

415

udge

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

q
v

1993

.

DISCRIMINATION PROCEEDING
... Docket
No. KENT 92-867-D
.. MSHA Case
... No • MineNo. BARB CD-92-14

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
ROBERT C. TEANEY,
Complainant

l.

ROBERT C. TEANEY,
Intervenor

0
0

e
0

..
...•
..

v.

BLACK MOUNTAIN COAL MINING,
INCORPORATEDe
Respondent
ROBERT C. TEANEY,
Complainant
v.

:

BLACK MOUNTAIN COAL MINING,
INCORPORATED,
Respondent

DISCRIMINATION PROCEEDING
Docket No. KENT 93-264-D
MSHA Case No. BARB CD-92-53
No.

].

Mine

AMENDED DECISION APPROVING SETTLEMENT
Before

Judge Melick

Pursuant to Commission Rule 65(c}u 29 C.F.R. § 2700.65(c)
the Decision Approving Settlement issued in these proceedings
on February 23 8 1993, is hereby amended to include within its
incorporated terms payment by Respondent of attorney fees for
uOOO
counsel for Robert c. Teaney. It is further noted
that payment of backpay of $3u600, interest of $400, and
attorney fees of $1,000 has correspo dingly been
de within
the corrected timeframe of 30 days
om the date o hearing.
This Amended Decision must ~ pos d at the mine o fice in
accordance with the terms o0 the~et lement.

lJ
Gary

Admin'

416

Judge

Distribution:
Donna E. Sonner, Esq., Office of the Solicitor,

u.s. Department of Labor, 2002 Richard Jones Road,
Sui:t;e B-201, Nashville, TN 37215 (Certified Mail)

William A. Hayes, Esq., 2309 Cumberland Avenue,
P.O. Box 817, Middlesboro, KY 40965 (Certified Mail)
Tony Oppegard, Esq., Mine Safety Project of the
Appalachian Research and Defense Fund of Kentucky,
Inc.f 630 Maxwelton Court, Lexington, KY 40508
(Certified Mail)
/lh

417

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

2CXX>6

Harch 9; 1993
CIVIL PENALTY PROCEEDING

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

Docket No. PENN 92-765
A. C. No. 36-04281-03785

v.
CONSOLIDATION COAL COMPANY,
Respondent

Dilworth

DECISION APPROVING SETTLEMENT
ORDER TO PAY
Before:

Judge Merlin

The above-captioned case was-the subject of an extensive
conference call between the undersigned and counsel for both
parties on January 28, 1993.
In accordance with the conference call discussion on February 8, 1993, the Solicitor filed a motion to approve settlement
of the two violations.
The originally assessed penalties were
$684 and the proposed settlements are for $684.
I have considered the representations and documentation submitted in this case
along with the discussions on January 28, and I conclude that the
proffered settlement is appropriate under the criteria set forth
in section 110(i) of the Act.

In l
of the foregoing, the motion for approval of
settlements
GRANTED, and it is ORDERED that the operator pay a
pena
of $684 within 30 days of the date of this decision.

---

~--------

--~ll~~~~~ n .

Paul Merlin
"' ~Chief Administrative Law Judge

D

(Certified Mail)

Richard W. Rosenblitt, Esq., Office of the Solicitor, U.S.
Department of Labor, 14480 Gateway Bldg., 3535 Market st.,
Philadelphia, PA 19104
Daniel Rogers, Esq., Consol Inc., Consol Plaza, 1800 Washington
Road, Pittsburgh, PA 15241
rdj

418

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

Mt~!< 9
CONSOLIDATION COAL COMPANY,
Contestant

2()()06

1993
CONTEST PROCEEDING
Docket No. WEVA 91-224-R
Citation No. 3315515; 2/14/91

v.
Docket No. WEVA 91-227-R
citation No. 3315517; 2/19/91
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Respondent

Docket No. WEVA 91-229-R
Citation No. 3315562; 2/21/91
Arkwright No. 1 Mine

SECRETARY OF LABOR,
MINE SAFE'rY AND HEALTH
ADMINISTRATION (MSHA) 1
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEVA 92-1159
A. C. No. 46-01452-03876R

v.
Arkwright No. 1 Mine
CONSOLIDATION COAL COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
ORDER TO MODIFY
ORDER LIFTING STAY
ORDER OF DISMISSAL
ORDER TO PAY
Before:

Judge Merlin

The above-captioned cases were the subject of an extensive
conference call between the undersigned and the parties on
February 1, 1993. on February 12, 1993, the Solicitor filed a
motion to approve settlement of the eighteen violations involved
in this case. Three of the violations, Citation Nos. 3315515,
3315517 1 and 3315562, were also the subject of notice of contest
proceedings, WEVA 91-224-R, 91-227-R and 91-229-R. The originally assessed penalties were $4,380 and the proposed settlements
are for $2,677.
The Solicitor advises that the operator has agreed to pay
the originally assessed penalty for nine of the violations,
citation Nos. 3315515, 3315562, 3306386, 3306387, 3314481,
3314482, 3314883, 3306397, and 3314484.
I have reviewed these

419

violations along with the Solicitor's motion and find that the
proposed penalties are appropriate. The Solicitor moves to dismiss Citation Nos. 3315576, 3315577, 3315578, 3315579, and 3315580
because they were previously contained in WEVA 91-1833 and were
incorrectly duplicated in this case.
The Solicitor also requests that Citation Nos. 3315517,
3315573, 3315574 and Order No. 3306392 be modified.
citation No. 3315517 was issued for a violation of 30 C.F.R.
75.1403 because the red reflector for a turn was off the shaft
heading switch. The originally assessed penalty was $157 and the
proposed settlement is $94. The Solicitor requests that the
citation be modified to reduce the likelihood of injury from
reasonably likely to unlikely and to delete the significant and
substantial designation.
The reason for the reduction and
modification is that gravity was less than originally thought.
As the Solicitor advised during the conference call, the indicator was visible under normal lighting even without the reflector.
§

Citation No. 3315573 was issued for a violation of 30 C.F.R.
77.1104 because fine dry coal and coal dust accumulated on the
raw coal crusher frame and floor, and fine damp coal accumulated
at the transfer. The originally assessed penalty was $157 and
the proposed settlement is $94. The Solicitor requests that the
citation be modified to reduce the likelihood of injury from
reasonably likely to unlikely and to delete the significant and
substantial designation. The reason for the reduction and
modification is that gravity was not as high as originally
thought.
As the Solicitor advised during the conference call,
the raw coal crusher was run only once a week and not for a long
enough time to
heat to ignite the combustible material.
§

Citation No. 3315574 was issued for a violation of 30 C.F.R.
77.402 because an electric drill in the repair shop was
equipped with a switch lock. The originally assessed penalty was
$213 and the proposed settlement is $120. The Solicitor requests
that the citation be modified to reduce the likelihood of injury
from reasonably l
to unlikely and to delete the significant
and substantial designation.
The reason for the reduction and
modification is that gravity was not as high as originally
thought. As the Solicitor advised during the conference call,
the drill had recently been purchased and was stored in a sealed
box awaiting modification of the switch to comply with the Act
which would have been done before normal mining operations began.
These circumstances also reduce negligence.
§

Order No. 3306392 was issued as a 104(d) (2) order for a
violation of 30 C.F.R. § 75.400 because float coal dust
accumulated on the bottom, roof and ribs from halfway between
Nos. 2 and 3 entries to the No. 4 entry. The originally assessed
penalty was $769 and the proposed settlement is $350. The

420

Solicitor request that the order be modified from a 104(d) (2)
order to a 104(a) citation and that negligence be reduced from
high to moderate. The reason for the modification and reduction
is that negligence was not as high as originally thought. As the
Solicitor advised during the conference call the accumulation
arose because the miner responsible to rock dust this area was
assigned to other duties in order to abate citations that had
been written earlier by the inspector.
The operator's conduct
was therefore not "aggravated''· Emery Mining Corp., 9 FMSHRC
1997 (Dec. 198 7)
I have considered the representations and documentation
submitted in this case along with the discussions on February 1,
and I conclude that the proffered settlements are appropriate
under the criteria set forth in section 110(i) of the Act.
In light of the foregoing, the motion for approval of
settlements is GRANTED.
It is ORDERED that Citation Nos. 3315517, 3315573, and
3315574 be MODIFIED to reduce the likelihood of an injury from
reasonably likely to unlikely and to delete the significant and
substantial designations.
It is ORDERED that Order No. 3306392 be MODIFIED from a
104(d) (2} order to a 104(a) citation and to reduce negligence
from high to moderate.
It is further ORDERED that the stays in WEVA 91-224-R, 91227-R and 91-229-R be LIFTED and that these cases be DISMISSED.
It
further ORDERED that Citation Nos. 3315576, 3315577,
3315578, 3315579, and 3315580 be DISMISSED without prejudice to
the operatoris notice of contest or the Secretary 1 s penalty
petition filed in Docket No. WEVA 91-1833.
It is further ORDERED that the operator pay a penalty of
$2,677 within 30 days of the date of this decision.

~=\-==~ ~

-==-~~\~=~ ~
Paul Merlin
Chief Administrative Law Judge

Distribution:
(Certified Mail)
Charles M. Jackson, Esq., Office of the Solicitor, u.s. Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203
Daniel E. Rogers, Esq., Consol, Inc., Consol Plaza, 1800 Washington Road, Pittsburgh, PA 15241-1421
rdj

421

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

MAR g

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

20006

CIVIL PENALTY PROCEEDING
Docket No. WEVA 92-1011
A. C. No. 46-01452-03860

v.
CONSOLIDATION COAL COMPANY,
Respondent

Arkwright No. 1

DECISION APPROVING SETTLEMENT
ORDER TO MODIFY
ORDER TO PAY
Before:

Judge Merlin

The above-captioned case was the subject of an extensive
conference call between the undersigned and the counsel for both
parties on February 1, 1993.
In accordance with the conference call discussion,
the
Solicitor, on February 12, 1993, filed a motion to approve
settlement of the two violations involved in this case.
The
originally assessed penalties were $338 and the proposed settlements are for $265o
The Solie
advises that the operator has agreed to pay
the originally assessed pena
for Citation No. 3717918.
I
have reviewed this
lation along with the Solicitor's motion
and find that the proposed penalty is appropriate.
With
to the other violation in this case, Citation
Noo 3717916, the Solicitor requests that the citation be modified
by changing the evaluation of negligence from moderate to low and
reducing the proposed penalty from $288 to $215.
Citation No.
3717916 was issued for a violation of 30 C.F.R. § 75.503 because
the conduit for the right side bolter emergency stop switch on
the continuous mining machine was pulled out of
gland. As
became apparent during the conference call, the reason for the
reduction and modification was that the condition had not been
present when the equipment was examined earlier in the shift but
must have developed immediately prior to the issuance of the
citation.
I have considered the representations and documentation
submitted in this case along with the discussions on February 1 1
and I conclude that the proffered settlements are appropriate
under the criteria set forth in section 110(i) of the Act.
422

In light of the foregoing, the motion for approval of
settlements is GRANTED.
It is ORDERED that Citation No. 3717916 be MODIFIED to
reduce negligence from moderate to low.
It is further ORDERED that the operator pay a penalty of
$265 within 30 days of the date of this decision.

Paul Merlin
Chief Administrative Law Judge
Distribution:

(Certified Mail) ·-

Charles M. Jackson, Esq., Office of the Solicitor, u.s. Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203
Daniel E. Rogers, Esq., Consol Inc., Consol Plaza, 1800 Washington Road, Pittsburgh, PA 15241-1421

423

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

20006

1993
CIVIL PENALTY PROCEEDING

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

Docket No. WEVA 92-1054
A. C. No. 46-01455-03902

v.
CONSOLIDATION COAL COMPANY,
Respondent

Osage No. 3

DEGISION APPROVING SETTLEMENT
ORDER TO MODIFY
ORDER TO PAY

Before:

Judge Merlin

The above-captioned case was the subject of an extensive
conference call between the undersigned and the parties on
February 1, 1993. On February 5, 1993, the Solicitor filed a
motion to approve settlement of the six violations involved in
this case. The originally assessed penalties were $1,725 and the
proposed settlements are for $1,052.
The Solicitor advises that the operator has agreed to pay
the originally assessed penalties for five of the violations,
citation Nos. 3718022, 3718025 1 3718184, 3718185, and 3718186.
The Solicitor requests that Order No. 3718027 be modified from a
104(d) (2) order to a 104(a) citation and the penalty reduced from
$851 to $178. The Sol itor advises that the degree of faul·t was
not as high as originally thought. The cited combustible materials were not immediately removed so as to accomplish abatement
because the miner on the section had been assigned to abate
another more serious violation. Therefore, although the operator
was at fault its conduct cannot be characterized as Haggravated 11
as that term has been interpreted and applied by the Commission
to establish unwarrantable failure.
Westmoreland Coal Co., 7
FMSHRC 1338 (Sept. 1985); Emery Mining Corp., 9 FMSHRC 1997 (Dec.
1987). The agreed upon settlement reached at the February 1
conference call, wherein the reasons for the modification and
reduction were discussed 1 was approved by the undersigned.
I have considered the representations and documentation
submitted in this case along with the discussions on February 1,
and I conclude that the proffered settlements are appropriate
under the criteria set forth in section llO{i) of the Act.
In light of the foregoing, the motion for approval of
settlements is GRANTED.

424

It is ORDERED that Order No. 3718027 be MODIFIED from a
104(d) (2) order to a 104(a) citation and to reduce negligence
from high to moderate.
It is further ORDERED that the operator pay a penalty of
$1,052 within 30 days of the date of this decision.

Paul Merlin
Chief Administrative Law Judge
Distribution:

(Certified Mail)

Roberts. Wilson, Esq., Office of the Solicitor, u.s. Department
of Labor, 4015 Wilson Blvd., ,;Arlington, VA 22203
Daniel Rogers, Esq., Consol Inc., Consol Plaza, 1800 Washington
Road, Pittsburgh, PA 15241-1421

rdj

425

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

~1AR 1 0 1993
SHERRELL STEVEN REID,
Complainant

DISCRIMINATION PROCEEDING
Docket No. KENT 92-237-D

v.

No. 1 Mine
KIAH CREEK MINING COMPANY,
Respondent
:OEC:ISION

Appearances:

Tony Oppegard, Esq., Mine Safety Project of the
Research and Defense Fund of Kentucky,
Incorporated for Complainant.
Billy R. Shelton, Esq., Baird; Baird, Baird &
Jones, P.S.C. for Respondent.

Appalachia~

Before:

Judge Weisberger
Statement of the Case

This case is before me based upon a Complaint filed by
Sherrell Steven Reid, (Complainant) on January 21, 1992, which
alleges, in essence, that he was discharged by Kiah Creek Mining
Company; (Respondent) in violation of Section 105(c) of the
Mine Safety and Health Act of 1977 ("the Act").
Respondent f
an answer on February 3, 1992v and the case was
assigned to me on February 201' 1992. on March 2,
1992 7
a ·telephone conference call initiated lby the undersigned
with counsel for both parties, the parties indicated that they
wanted to explore settlement of this case. In a subsequent
conference
on March llv 1992, the parties indicated that
~hey were not able to settle this case~ and it was agreed that it
be set f,or hearing June 10-11, 1992 7 and a Notice was issued on
March 13e 1992r to that affect" On May 15, 1992, Respondent
to continue which was not opposed by Complainant.
lias
and the matter was rescheduled for hearing
15-17i 1992. The case was subsequently heard on
Paintsviller Kentucky, and also on October lr
7 Kentucky.
The parties were granted time to file post hearing briefs
three weeks after receipt of the transcript of the hearing. The
hearing transcript was received in the office of Administrative
Law Judges on October 23, 1992. On December 2, 1992,
Respondent 9 s counsel filed a statement indicating he and
complainant's counsel agreed to request an extension until
January 15, 1993 for the filing of Briefs. This request was

426

granted.
On January 15, 1993, Complainant's counsel sent by
facsimile a request for an extension to February 8, to file his
brief due to "caseload demands", and indicated that Respondent's
counsel did not object to this request. This request was
granted, but it was indicated that no further extensions will be
granted. On February 4, 1993, Complainant's counsel sent by
facsimile a request for an extension until February 14, 1993, to
file his brief citing that he was overwhelmed by his caseload
commitment. The request was granted. Respondent filed its Brief
on February 5, 1993, and Complainant filed his brief on February
9, 1993. on March 3, 1993, Complainant's Reply Brief was
received. Respondent 0 s Reply Brief was received on March 5,
1993.
Findings of Fact and Discussion
Charles Steven Reid 1 , a miner, had been employed by
Respondent at its No. 1 underground mine for approximately for
four-and-a-half months until he was fired on August 13, 1991.
According to Reid, no one prior·to August 13, 1991, including his
foreman William E. Whetsel 1 had complained to him or issued any
warning about the quantity of his production.
On the evening shift August 13, 1991, Reid's Section was
involved in pillar mining. According to Reid, he was instructed
by his foreman, William Whetsel, to cut into the heading at the
No. 4 entry towards the old works. Reid indicated that during
the shift he indeed made such a cut, and also cut into the
heading toward the old works at entry No. 3. Essentially, he
testified that, for safety reasons, he cut into these two
headings for only 14 feet, removing 9 car loads of coal. He
indicated that he did not cut any further for fear of
encountering methaneu black damp, or water, which are all found
·the old
,
testified that when he took the first
cut off entry Noo 5, he cut only 13 or 14 feet deep. He
indicated that he was concerned about the hazards of a roof fall
due to a crack in the roof. In addition, the third cut that he
took extended only 14 feetu as he heard thumping which he said
was indicative of 2 bad roof" Reid indicated that for the same
reasons v and also due "co dribbling from the roof f his fourth cut
was limited to only 13 to 14 feet. He also limited his fifth cut
to only 14: feetr as he felt. that cutting any further would be
hazardous
During the shift Whetsel did not reprimand Reid for any of
his actions. After approximately 6 hours into the shift, Whetsel
ordered the crew to go above ground early. According to Reid,
complaint identifies the Complainant ~s Sherrell Steven
Reid.
At the hearing, the Complainant gave his name as Charles
Steven Reid.
1The

427

after the crew reached the surface, Whetsel told him that
" ••. there 1 s no use for you to come out tomorrow because I've got
nothing for you to do on the second shift any more" (Tr.91). In
addition, Reid said that Whetsel told him "you didn't get enough
coal worth s tout of them places" (Tr. 91). Reid testified
that he toldWhetsel as follows:
"You and I know that the top is
bad up there and if I cut them any deeper, I would have
endangered my life."(sic)
(Tr. 91) He said that in response
Whetsel told him that he had dry chained.
In contrast, Whetsel indicated that at the end of the shift
he told Reid that he (Reid) was dry chaining and that he was not
needed any more. According to Whetsel 1 he discharged Reid
because he 11 felt we could run coal better then what we did" (Tr.
63). On cross-examination, Whetsel indicated that he told Sammy
Fraley, Jr., Respondentts superintendent, that he had fired Reid,
and that were only nine cuts taken, and only 95 car loads
produced. In this connection, Reid indicated that when he spoke
to Fraley after being fired'byWhetsel, the latter told him that
Whetsel had indicated that he had fired Reid for dry chaining,
and not getting enough coal. According to Reid, Fraley indicated
to him that the production reports showed 9 cuts and 95 loads,
and that it was his position to support Whetsel.
Fraley did not
specifically rebut this testimony of Reid.
Whetsel indicated that on August 13, 1991, he had timed
Reid, and it was taking him 85 seconds to load a buggy, whereas
the normal time is approximately 30 seconds. According to
Fraley, when Whetsel called him on the evening of August 13, to
tell him that he had fired Reid, Whetsel told him that he had
discharged Reid for dry chainingu and that he was taking up to 85
seconds to load a buggy"
Essentially f it:
Complainant 0 s position that because he
had engaged in protected activitiesf any of his actions that
resulted in decreased coal production constituted a justified
work refusal, and hence these activities are protected. Hence,
an analysis must be made of Reid 0 s activities to determine if
these activi·ties are protectedu and if his conduct can be ·termed
a 'lfJOrk refusal.
Protected Activities
The first cut that Reid took on the evening of August 13r
off of the No. 5 entryp (see Complainant's Exhibit No. 2) was
only 13 to 14 feet deep, resulting in a quantity of coal which
filled only 8 cars. According to Reid, in essence, he did not
cut any deeper because there was a crack in the roof. He
indicated the crack was 2 to 3 inches below the level of the rest
of the roof. He also observed draw rock, approximately 6 inches
to 1 1/2 feet thick, and saw pieces of coal dribbling down from
the roof.
In contrast, James Burlin Adkins the chief electrician

428

on the day shift, testified that he was in the area in question
between the day shift and evening shift on August 13, and did not
see any cracks in the roof of the No. 5 heading. To the same
effect, Michael Taylor, the miner operator on the day shift on
August 13, described the roof on the No. 5 entry as being of
sandstone.
He said that there were no problems, and that he had
not observed any cracks. Rodney Coleman, who assisted Reid on
the evening shift of August 13, 1991, moving cables of the miner,
also described the roof as being of sandstone.
He said that he
did not remember any cracks or defects in the roof. He was asked
whether he heard any thumping of the top, or saw any dribbling on
the ribs in the number five entry, and he said he did not
remember "seeing anything" (Tr.l57) I find this testimony to be
insufficient to rebut the positive testimony of Reid as to his
observation of cracks in the roof in the evening of August 13.
Reid also limited the length of cuts No. 3 and 4 that he
took (See Respondent's Exhibit No. 2), and thus decreased
production due to the conditions of the roof which he described
as very bad. He said he had heard thumping, and observed
dribbling. Goebel Burke, Michael Taylor, Whetsel, and Fraley,
all essentially described the roof at the working face as being
of sandstone, and in good condition. However, no witnesses
specifically contradicted or impeached Reid's testimony as to the
conditions that he observed in the roof on the evening of August
13, when he took cuts 3 and 4. In this connection, Larry Haley,
the shuttle operator on Reid's shift, said that the roof in the
No. 5 entry was cracked real bad and was ready to fall out. Paul
Helton, who previouslyu worked as an MSHA inspector and roof
control specialist, testified that, in general, a miner operator
is in the best position to know how safely a cut can be madeo
Taylor "~,1'ho runs cl
r <testified t:o the same effect"
issue for resolution

whether Reid 0 s failure to
take full cutsp constitutes a valid work refusal protected by the
Act. It is well established that under Section 105{c) supra, a
miner has the right to refuse to perform work which he reasonably
believes poses a safety hazard" (See 9 Robinetteg 3 FMSHRC 803
198l}Q Pasula 7 2 FMSHRC 2786 (1981)), Within the framework of
the facts set forth abover I find that Reid reasonably believed
that cuts deeper than the cuts he had made in the areas referred
to as Noo lv 3 and 4
Respondent 1 s Exhibit Noo 2, posed a
discrete safety hazard considering the roof condition observed by
himo According to Reid, he pointed out the cracks in the roof to
Whetsel, and the latter told the crew to watch the cracks. In
contrast, Whetsel indicated that he did not discuss the roof
conditions with Reid on August 13. Even if Reid's version is
found more credible, his prima facie case is beset with
difficulty, inasmuch as, at no time during the work shift of
August 13, did he communicate to Whetsel or any one else in
management that he refused to cut beyond 13 or 14 feet in the
areas in question due to safety concerns with the conditions of

429

the roof.
In teeco, Inc. v. Ricky Hays, 965 F.2d 1081 (D.C. Cir.,
1992), the o.c. Circuit Court considered the appeal of an
operator from a decision by Commission Judge Koutras who had
found that a miner who was fired for not performing one part of
his job, was discriminated against under section 105(~) supra of
the Act, where he had unsuccessfully complained to a supervisor
about the dangers performing th.is task, even though he did not
bring to his employer's attention the fact that he was refusing
to perform this task. The court in Leeco, supra, in remanding
to the Commission for reconsideration of how the miner's conduct
therein qualified as an activity protected under Section 105(c)
of the Act, specifically held that it was " ••• unable to sustain
the ALJ's conclusion that such a concealed stoppage is protected
by the Act." (Leeco, supra at 1085.)
The court, in Leeco, supra
at 1085 indicated, in essence, that to conclude that a failure to
perform a job amounted to the same thing as a communicated
refusal because the operate~ was already aware of safety related
complaints 11
obviously represented a significant extension of,
if not a departure from pre-existing law . . . • " The Court in
Leeco, supra, at 1084 in its review of existing law noted as
follows:
o ••

So far as we can tell in all prior Commission and
court decisions upholding a miner's right to refuse
unsafe work, the miner has expressly or implicitly made
his employer aware of the fact that he would not
continue to perform his assigned task. See, e.g.,
Gilbert, 877 F.2d at 458. Price v. Monterey Coal Co.,
12 FMSHRC 1505 (1990); Secretary ex rel Pratt v. River
Hurricane Coal Co.u 5 FMSHRC 1529 (1983); Bush, 5
FMSHRC
Magma Cooper Co.u 4 FMSHRC 1985
(1982);
v. Dunmire & Estle v.
Coal Co.u 4 FMSHRC 126 (1982); Robinette; 3 FMSHRC at
807.
Hencep as explained
Leeco, supra, existing law has not
recognized a minerqs right to refuse unsafe work in a situation
where the miner has not made his employer aware that he would not
continue to perform his assigned task.
Thus, in light
existing law, I cannot find that the scope
of protected activities set forth in section 105(c) of the Act
supra, extends to a miner who has not communicated his work
refusal for safety related concerns to his employer. Accordingly,
I conclude that complainant has not established that his actions
in not cutting beyond 13 to 14 feet in the areas in question,
were protected under Section 105(c) of the Act. Accordingly, I
conclude that his discharge did not violate Section 105(c) of the
Act supra, and thus his complaint of discrimination must be
dismissed.

430

ORDER

It is hereby ORDERED that this case be DISMISSED.

~i~

Administrative Law Judge

Distribution:
Tony Oppegard, Esq., Mine Safety Project of the ARDF of Kentucky,
Inc., 630 Maxwelton Courtv Lexington, KY 40508 (Certified Mail)
Billy R. Shelton, Esq., Baird, Baird, Baird, & Jones, P.S.C., 415
Second Street, P.O. Box 351, Pikeville, KY 41502 {Certified
Mail)
nb

I'BDBRAL JU:BB SU'Bft AIID BBAL'l'B llBVl:BW COIIlll:SS:IOII
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

01993

M';R
',P, . -1l

CONTEST PROCEEDING

JIM WALTER RESOURCES, INC.,
Contestant

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

.
.
.
.

Docket No. SE 92-249-R
citation No. 2804441; 3/13/92
Mine No. 7

0

..
.

Mine ID 01-01401
CIVIL PENALTY PROCEEDING
Docket No. SE 92-328
A.C. No. 01-01401-03887

0

v.

Mine No. 7

JIM WALTER RESOURCES, INC.,
Respondent
DECISION
Appearances:

R. Stanley Morrow, Esq., Birmingham, Alabama, for
Contestant/Respondent;
William Lawson, Esq., Office of the Solicitor,
UoSo Department of Labor, Birmingham, Alabama, for
Respondent/Petitionero

Before~

Judge Fauver

The companyis notice of contest and the Secretaryvs petition
for civil penalties were consolidated for hearing and decisionu
under the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§ 801 et seg"
Nine of the ten citations involved were settled.
A hearing was held on the remaining charge, Citation No. 2804441.
Having considered the hearing evidence and the record as a
wholeu 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.
Jim Walter Resources, Inc., operates an underground
coal mine, known as Mine No. 7, which produces coal for sale or
use in or substantially affecting interstate commerce.

432

2.
On March 13, 1992, Federal Mine Inspector Bill Deason
inspected the No. 1 longwall section of Mine No. 7. He observed
that the operator had dangered off approximately 75 feet of the
travelway in the No. 4 entry because of bad roof (beginning at
the forward crosscut), that some roof had fallen in and near the
crosscut (as shown in Exhibit G-2), and that in ~ntry No. 3, near
the crosscut, there were a crack across the entry and a brow. He
found that the roof conditions constituted a hazard to miners who
were required to travel through the crosscut, and therefore
issued citation No. 2804441, charging a violation of 30 C.F.R.
§ 75.202. The regulation provides that "The roof, face and ribs
of areas where persons work or travel shall be supported or
otherwise controlled to protect persons from hazards related to
falls of the roofu face or ribs and coal or rock bursts."
§ 75.202(a).
3.
The company promptly submitted a supplement to its roof
control plan, providing for additional roof and rib support in
the area where the miners were traveling. Specifically, it
proposed to support the area by installing additional timbers on
five foot centers in the No. 3 ~;ntry to a point outby the brow,
and to install additional cribbing on five foot centers from the
rib line to the shields in the No. 3 entry (as shown in Exhibit
G-3). The plan was promptly approved by MSHA and the citation
was terminated. The supplemental plan, although acknowledging
that it was 81 submitted as a result of the conditions being
experienced'1 , was submitted under protest by the company, which
stated in the plan: "No. 7 Mine does not agree with the necessity
of the plan and is only doing so to abate the citation issued
11
Exhibit G-3.

4.
The company had previously dangered off a travelway in
No. 3 entry because of bad roof, so that in the course of two
shifts travelways in Nose 3 and 4 entries were dangered off
because of bad roof.
No. 3 entry had been re-opened before
No.
entry was closed.

5.
Advancement of the longwall put stress on the roof
across the crosscut intersecting Nos. 3 and 4 entries, as
evidenced by the conditions observed by Inspector Deason.
Additional roof support was needed to protect the miners who
traveled through the crosscut in the area shown in Exhibit G-3)"
DISCUSSION WITH FURTHER FINDINGS

I find that the evidence sustains the inspector~s finding
that the roof where the miners were traveling was hazardous and
required further support to comply with 30 C.F.R. § 75.202(a).
The company contends that the citation is unenforceable
because it was based upon an unwritten, arbitrary policy of the
Subdistrict Manager of MSHA's Birmingham Office. About ten years
ago, the Subdistrict Manager (Mr. Weekly) adopted an enforcement
policy to cite a violation if the forward longwall crosscut was
used as a travelway without additional roof support or

433

safeguards. Mr. Kenneth Ely, an MSHA supervisor, testified that
Mr. Weekly's concern was that roof pressures created by advancing
the longwall exerted substantial pressure on the forward
intersection of the longwall entries (such as the forward
crosscut connecting Nos. 3 and 4 entries) and that, as a regular
occurrence, the roof in that area would deteriorate and present a
hazard of falling without warning.
The Secretary contends that this enforcement policy is not
arbitrary but was arrived at on the basis of the Subdistrict
Manager's review of roof control plans, accident reports, etc.,
and his discussions with MSHA supervisors, inspectors, and roof
specialists, as well as his own background and experience in
mining and mine safety and health. Mr. Ely testified that the
MSHA inspectors attempted to "marry" the manager's policy to
existing mine conditions, and that MSHA recognizes that
enforcement citations and orders must be supported by the facts
independent of a managervs policy.
The company contends that the managerus policy is not
enforceable because it was not promulgated in accordance with
§ lOl(a) of the Act, which requires formal rulemaking procedures
(in compliance with § 553 of the Administrative Procedure Act)
for any rule "promulgating, modifying, or revoking a mandatory
health or safety standard."
The Commission has held that MSHA 6 s Program Policy Manual's
"instructions are not officially promulgated and do not prescribe
rules of law binding upon [the Commission]." Old Ben Coal
Company 2 FMSHRC 2806, 2809 (1980). A fortiori, a Subdistrict
Manager's unwritten policy is not a safety standard or
modification binding on the Commission and cannot independently
support a § 104(a) citation. Rather 9 it is a local MSHA office
directive to inspectors" Citations or orders issued under such a
policy must stand or
on their factual merits based on
actual mining conditions.
The evidence as to the mining conditions sustains the
inspector 1 s finding of a violation of 30 C.P.R. § 75.202.

Considering the cr~~eria
civil penalties
·the
i7
I find ·that a civil penalty of $800.00
for this violation.

§ llO(i) of
appropriate

CONCLUSIONS OF LAW

1.
§

The judge has jurisdiction in these proceedings.

2.
Jim Walters Resources, Inc.u violated 30 C.F.R.
75.202 as alleged in Citation No. 2804441.

434

ORDER
WHEREFORE IT IS ORDERED within 30 days from the date of this
Decision, Jim Walters Resources, Inc., shall pay the approved
settlement civil penalties of $2,814 and a civil penalty of $800
for the violation charged in Citation No. 2804441, for a total of
$3,614 in civil penalties.

~;[~~4-,

Administrative Law Judge

Distribution:
William Lawson, Esq., Office of the Solicitor, u.s. Department of
Labor, 2015 Second Avenue North, Suite 201, Birmingham, Alabama
35203 (Certified Mail)
R. stanley Morrow, Esq., Jim Walter Resources, Inc., P. o. Box
830079, Birmingham, Alabama 35283-0079 (Certified Mail)
jfcca

435

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

MAR 1 0 1993
CONSOLIDATION COAL COMPANY,
Contestant

CONTEST PROCEEDINGS
Docket WEVA 92-657-R
Citation No. 3108710;1/13/92

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

Docket No. WEVA 92-658-R
citation No. 3108711;1/13/92

.•

Humphrey No. 7 Mine
Mine ID 46-01453

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

CIVIL PENALTY PROCEEDING
Docket No. WEVA 92-838

A. C. No. 40-01453-04005

v.
Humphrey No. 7 Mine
CONSOLIDATION COAL COMPANY,
Respondent

!DECISION
Appearances

Charles

. Jacksonu

.,

of the Solicitor,

u.s. Department of Laboru Arlington; Virginia for
the Secretary of Labor;
Daniel RogersQ Esq.u Consolidation Coal companyu
Pittsburghu Pennsylvaniav for Consolidation Coal
Companyo

Before~

Judge Weisberger
statement of the Case

These consolidated proceedings involve the issue of the
validity of various citations and orders issued by the Secretary
(Petitioner), to the Operator (Respondent), alleging violations
of various mandatory safety standards. Pursuant to notice, a
hearing was held in Washington, Pennsylvania, on December 1,
1992. At the hearing, Petitioner moved to vacate Order
No. 3108710 (Docket WEVA 92-657-R) , and this motion was granted
based on the representations and documentation submitted by

436

Petitioner. Petitioner also moved to approve a settlement that
the parties had reached with regard to Citation Nos. 3108711,
3108762, 3108920, and 3108604. These motions were granted based
upon the representations of counsel. In addition, Petitioner
moved to withdraw citation No. 3108711, and this motion was
granted based upon the representations of counsel.
At the hearing, Charles J. Thomas testified for Petitioner,
and Mike Jackson, and Stanley Brozick, testified for Respondent.
Petitioner filed a post-hearing brief on January 21, 1993.
Respondent filed a post-hearing brief on January 29, 1993.
Findings of Fact and Discussion
I.

Violation of 30 C.F.R.

§

75.1003(c)

on January 16, 1992, MSHA Inspector Charles J. Thomas, while
inspecting the 6 SW Longwall at Respondent's Humphrey No. 7 Mine,
approached the working section.Jn a covered personnel carrier.
Two other personnel carriers were located inby on this same
track, one in front of the other. The trolley wire, which
supplies power to the personnel carrier, and which was suspended
from the roof of th~entry, was not guarded above the outby
personnel carrier.·· Thomas issued Citation No. 3108919 alleging
that 9 • • • the trolley wire is not guarded over the extra
personnel carrier at the man-trip station", in violation of
30 C.F.R. § 75.1003. At the hearing, the parties agreed that
the issue to be determined is whether the cited condition
constitutes a violation of 30 C.F.R. § 75.1003 which, as
pertinent, provides that ntrolley wires shall be guarded
adequately ••. (c) at man-trip stations". The initial issue
to be determined is ~Jhether the personnel carriers are 9umanao ,, and vlhether
area where the outby carrier was located
on January 16r 1992 was a "man-trip station".
ij

A.

Man-Trips

The personnel carriers at issue are coveredu have a capacity
of transporting 12 men and are used to transport a longwall
crewu consisting of
men to and from the section. The
personnel carrier has two trolley poles~ one located at the inby
end of the carrier" and ·the other at the outby end of the
carrier" These poles are utilized to make the connection with
the overhead trolley wire and thus provide power to move the
personnel carriere When the personnel carrier is traveling inby
it uses only the inby trolley pole. To prepare the personnel
carrier for the outby trip 1 the operator of the carrier has to
remove the inby trolley pole from the trolley wire and connect it
to the pole "dog." The operator must then "undogtt the outby
pole, and connect it to the trolley wire.
The term "man-trip" is not defined in either the regulations

437

or in Section 310(d) of the Federal Mine Safety and Health Act of
1977, "the 1977 Act", or Section 310(d) of the Federal Coal Mine
Health and Safety Act of 1969 ("the 1969 Act"), both of which
contain the same language as Section 75.1003, supra.
According to Stanley Brozick, Respondent's Safety Supervisor
at the mine in question, he does not know of any definition of
the term "man trip." He opined that a covered carrier is not a
"man-trip"e He explained that prior to 1971 or 1972, Respondent,
and other operators, utilized uncovered "man-trips" pulled by
locomotives to transport miners to and from the section. He
indicated that these man-trips did not remain on the section, but
instead dropped persons off as they travelled inby. He indicated
that the places where persons entered and exited the man-trip
were termed mantrip stations. However, Brozick indicated that,
now, a "man-trip" is considered synonymous with the term "portal
bus. 15 Mike Jackson, a safety escort employed by Respondent at
the Humphrey No. 7 Mine, concurred. In contrast, Thomas opined
that a nman-trip 91
the saillE? as a personnel carrier as the
latter carries miners. Hence, the record fails to convincingly
establish a recognized definition in the mining industry of the
term nman-trip" • 1
Respondent refers to 30 C.F.R. § 75.1403-6 and 30 C.F.R.
75.1403-7 as support for its proposition that personnel
carriers powered by electricity from a trolley wire are not to be
considered man-trips, which are pushed or pulled by locomotives.
Sections 75.1403-6, supra. and Section 75.1403-7 supra, contain
criteria by which an inspector is to be guided in issuing
safeguards to minimize hazards with respect to the transportation
of men.
Separate criteria are provided for "self-propelled
personnel carriers 11
for man=trips~ • The terms 1'self90
:propelled personnel
and 11 man-trip 11 are not defined in
75ol403 6
and Section 75.1403-7 9 supra. There
no indication that a personnel carrier powered by electricity
from a trolley
u
which it is connected by way of a pole
attached to the personnel carrieru is not within the scope of the
ter:m 00 man-trip" u~
§

19

1

In UoSo Steel Companv, Inco, 7 FMSHRC 865 at 868 (1988) the
Commission set forth its analysis of Section 75ol003 supra as
1

Petit.ioner u at t.he hearing v made reference to the following
definition of the "man-trip" as set forth
A Dictionary of
Mining. Mineral. and Related Terms (United States Department of
the Interioru (1967)): na. A trip made by mine cars and
locomotives to take men rather than coal, to and from the working
places." Inasmuch as this defines the term "mantrip" when used
as an adverb, it is not of much probative value with regard to a
definition of that term when used as a noun, as in the instant
case.

438

follows:
As the language of section 75.1003 specifies, in
order to effectuate the purpose of the standard,
guarding is especially necessary at mantrip stations.
Miners are discharged at such stations and pass under
trolley wire in the process. Further, a common hazard
·- presented by unguarded trolley wire at a mantrip
station is the possible shock hazard to the mantrip
operator when he stands to remove the trolley pole from
the overhead wire.
Clearly the hazards intended to be protected against by
Section 75.1003, supra, apply to all vehicles transporting miners
that are powered by trolley wires. Since the carriers at issue
are used to transport miners to and from the working section, I
find that they are man-trips within the purview of Section
75.1003, supra.
B.

Man-trip Station

During normal mining operations, one personnel carrier is
left in place to be used, in the event of an emergency, by those
personnel working on the section between shifts. The other
carrier transports men to the section at the beginning of the
shift, and then transports them from the section at the end of
the shift.
During normal mining operations, a specific area, such as
the one in question, is used by miners to get off the personnel
carrier at the beginning of the shift, and to enter the personnel
carrier at the end of the shift" Howeveru as the longwall mining
advances outby, the area in which the miners get on and off the
personnel carrier is also moved outbyo According to Thomas, the
locations where miners enter and exit the personnel carrier are
moved outby approximately once a week, depending upon the speed
at which the longwall face advances outbyo Respondentvs
witnesses have not contradicted or impeached this testimony.
In u.s. Steel Company, Inc., suprav at 868v t:he Commission;
evaluating whether the location where the man-trip therein
stopped was a uvman-trip station" at which the trolley wire must
be guarded? held that no ••• a mantrip station can be established
through routine or regular stopping practice 1 as well as by
explicit designation" Such a construction of the standard is
founded in the practicalities of daily mining operation and
furthers the protective concerns of Congress cited above." In
this connection, the Commission, in U.S. Steel, supra, at 867,
analyzed the legislative intent regarding the enactment of the
language in the 1969 Act that is repeated in Section 75.1003(c},
supra, as follows:
The primary purpose of the guarding requirement in

439

section 75.1003 is to prevent miners from contacting
bare trolley wires. As noted above, this standard
repeats section 210(d) of the Mine Act, 30 u.s.c.
§ 870(d), which, in turn, was carried over unchanged
from section 310{d) of the 1969 Coal Act, 30 u.s.c.
§ 801, et seg., (1976) (amended 1977).
The legislative
history of the 1969 Coal Act relevant to section
75.1003 reveals a strong Congressional concern with the
hazards associated with bare trolley wires:
This section requires that trolley wires
and trolley feeder wires be insulated and
guarded adequately at doors, stoppings, at
mantrip stations, and at all points where men
are required to work or pass regularly ••••
Alsov this section would require temporary
guards where trackmen or other persons work
in proximity to trolley wires and trolley
feeder wires. The·Secretary or the inspector
may designate other lengths of trolley wires
or trolley feeder wires that shall be
protected .
••. The guarding of trolley wires and
feeder wires at doors, stoppings, and where
men work or pass regularly is to prevent
shock hazards.
Because of the extreme hazards created
by bare trolley wires and trolley feeder
wires, the committee intends that the
Secretary will make broad use of the
authority to designate additional lengths of
trol
and trolley feeder wires that
shall be protected.

s. Rep. No. 411, 91st Cong., 1st Sess. 77 (1969), reprinted
in Senate Subcommittee on Labor, Committee on Labor and Public
Welfare 1 94th Cong.u 1st Sess.u Part 1 Legislative History of the
Federal Coal Mine Health and Safety Act of 1969, at 203 (1975)~
In u.s. Steel, supra,
868 1 the Commission, in analyzing
Section 75.1003, supra, indicated that to effectuate the purpose
of Section 75.1003,
, guarding is necessary at man trip
stations where miners are discharged and walk under trolley
wires. Also recognized was the hazard at a man-trip station of a
possible shock to the man-trip operator when he stands to remove
the trolley pole from the overhead wire.
According to Thomas, in essence, due to the requirement of
only a 12 inch minimum clearance between the rib and the carrier
on the tight side of the entry, the operator of the carrier
normally slides back an access door in the roof of the carrier to
allow him to reach up and "undog" the trolley pole and attach it

440

to the trolley wire. Since the pole must be "undogged" from a
spring, and placed on the trolley wire, which according to Mike
Jackson, Respondent's expert, is located a minimum of 16 inches
from the roof of the carrier, I conclude that there was a
possible shock hazard to the man-trip operator when engaging in
this activity under unguarded wire at the area in question at the
beginning and end of a shift.
Further, since the use of the area in question by miners
to exit and enter personnel carriers was not random or a onetime-only stop, but instead was used regularly, although for a
limited time, I conclude within the framework of u.s. Steel,
supra, that the particular location in question was a man-trip
station. Since the trolley wire above the area in question was
not guarded, I conclude that Respondent violated Section 75.1003
supra.
II.

Significant and Substantial

According to Thomas, in order to "undog" the trolley pole
and place it on the trolley wire, operators of the carrier in
question have their arms, head and shoulders outside the access
door, and on top of the carrier. He indicated that he has driven
a portal bus, and he positioned his head outside on top of the
carrier while "undogging" the trolley wire. He also said that
most of the operators he observed performing ~his procedure,
positioned their head outside, on top of the carrier. He
indicated that if a person 6-foot tall was required to do this
procedure, his head would be a foot from the wire.
Thomas indicated that he has always seen operators
performing the Q1 undogging 11 procedure using two hands. Thomas
indicated that
takes two hands to "undog" the pole, as it is
spring loadedo According to Thomasu in the procedure of moving
the pole from the 11 dogn to the trolley wire, the operator 1 s hand
would be between an inch and a foot away from the wire. He
indicated that generallyu the operator would be exposed to the
hazard of shock or burn; if he were to come in contact with the
trolley 'Vdre when he reached
to 10 undog" 'che trolley pole and
on the wire.
Thomas opined that a reasonably serious injury was
reasonably likely to occur as a result of the lack of guarding
hereino He explained that contact with the wire would have been
reasonably likely to occur, as the procedure of undogging the
pole and placing it on the wire had to be performed twice a
shift, on each of three daily shifts. He indicated that
generally the working conditions are cramped, and that if the
operator should get mud on his shoes and slip, he then "could"
come in contact with the wire (Tr.82). On-cross-examination he
indicated that such contact "may occur someday" (Tr.83).

441

Jackson indicated that he has operated a carrier and, in
generalv he used one hand to put the pole on the wire. He also
indicated that there is no reason for the operator to place his
head out of the vehicle.
In this connection, he indicated that
an operator would be less likely to put his head out if the wire
is unguarded, as the visibility is better, and it is thus easier
to ~ee where to place the pole on the wire. Brozick indicated
that the base of the pole is practically at eye level. Hence,
according to Brozick, to release the "dog", it is not necessary
for the operator's head to be above the carrier except, on
occasion, if the roof is low.
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.P.R. § 814(d) (1). A violation is properly designated
significant and substantial "if, based upon the particular facts
surrounding the violation there exists a reasonable likelihood
that the hazard contributed-to will result in an injury or
illness of a reasonably serious nature." Cement Division,
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).
In Mathies Coal Co.v 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 isv a measure of danger to
safety-contributed to by the violation; {3) a
reasonable likelihood that the hazard contributed
to will result in an injury; and (4) a reasonable
likelihood that the injury in question will be of
a reasonably serious nature.
In United States Steel Mining Company, Inc.v 7 FMSHRC 1125v
1129 0 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.n u.s. Steel Mining Co.,
6 FMSHRC 1834, 1836 (August 1984). We have emphasized
that, in accordance with the language of section
104(d) (1), it is the contribution of a violation to
the cause and effect of a hazard that must be
significant and substantial. u.s. Steel Mining

142

company, Inc., 6 FMSHRC 1866, 1868 (August 1984);
U.S. Steel Mining Company, Inc., 6 FMSHRC 1573,
1574-75 (July 1984).
The question of whether any particular violation is
significant 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).
The first two elements of the Mathies test have been met,
inasmuch as I have found that there was a violation of 75.1003
supra. The evidence also clearly establishes that, due to the
violation herein, the hazard of contact with a 120 volt trolley
wire resulting in injuries was contributed to. The issue herein
is whether the third element of Mathies has been met, i.e.,
whether there was a reasonable likelihood of an injury producing
event, i.e. contact with the unguarded trolley wire. Certainly,
given the proximity of the wire to the roof of the carrier, there
was a possibility of the operator making inadvertent contact with
the unguarded wire in the procedure of "undogging" the pole, and
placing it on the wire. Petitioner has not described with
specificity the exact manner in which the undogging of the
trolley pole is performed, aside from Thomas' testimony that the
"dog" is spring loaded and two hands are required to perform this
procedure. Also, the distances between the operators hands and
the trolley wire that Thomas testified to are, at best,
estimates, and vary with the height of the roof and the height of
the operator. Petitioner has not proffered documentation of any
incidents where inadvertent contact with an unguarded wire has
JCesulted from 00 undogging'1 a pole from a carrier of the type in
issuer and placing it on a t:rolley wireo For all these reasonsr
I conclude that
has not been established that there was a
reasonable likelihood of contact with the wire. Accordinglyv it
has not been established that the violation herein was
significant and substantial.
IIL

Penalty

According to Thomas~ the cited condition would have been
obvious to a trained foreman, as it was obvious to him.
Also 5 on July 30v 1990v October 11, 1990 5 November 12, 1991,
and November 25 5 1991, Respondent had been previously cited for
not having a guarded trolley wire at a man-trip station, and
Respondent paid the penalties assessed for these violations.
Further, Thomas indicated that, prior to the date of the
citation, at issue, he had a discussion with the mine foreman,
and John Haizer, the superintendent, with regard to how much
guarding was necessary. I conclude that Respondent's negligence
herein was moderate. Further, considering the gravity of the
violation, as evidenced by Thomas' testimony that should one come

443

in contact with the electric trolley wire, burns or electric
shock could result, and considering the remaining factors set
forth in section 110(i) of the Act, I conclude that a penalty of
$300 is appropriate for this violation.
ORDER

It is hereby ordered that (1) Respondent shall, within
30 days of this decision, pay a civil penalty of $300 for the
violation cited in Citation No. 3108919, and a civil penalty of
$930, based on the granting of the parties' Motion to approve a
settlement regarding Citation Nos. 3108711, 3108762, 3108920, and
3108604; (2) Order No. 3108710 (Docket No. WEVA 92-657-R) is
VACATED; (3) Citation No. 3108711 be withdrawn; and (4) Citation
No. 3108919 be amended to a violation that is not significant and
substantial.

~We~

Administrative Law Judge

Distribution:
Charles M. Jackson, Esq., Office of the Solicitor,

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

Arlington, VA

22203 (Certified Mail)

Daniel Rogers, Esq., Consolidation Coal Company, 1800 Washington
Road, Legal Department, Pittsburgh, PA 15241 (Certified Mail)

444

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

MAR t 0 1993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEVA 92-935

A. C. No. 46-01318-04064

v.

Robinson Run No. 95 Mine
CONSOLIDATION COAL COMPANY,
Respondent
DECISION
Appearances~

Before:

Charles M. Jackson, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia, for
the Secretary of Labor;
Daniel Rogers, Esq., Consolidation Coal Company,
Pittsburgh, Pennsylvania, for Consolidation Coal
Company.

Judge Weisberger
Statement of the Case

This case
before me based upon a petition for assessment
l penalty filed by the Secretary (Petitioner) , alleging a
v
the Operator (Respondent of 30 C.F.R. § 75.517. An
answer was
filed, and pursuant to noticey the case was
scheduled for hearing on December 2, 1992p in Washington,
Pennsylvania, and heard on that date. Richard Gene Jones, and
Michael G. Kalich, testified for Petitionerff and Richard Lee
Moatsp testified for Respondent. The parties filed post-hearing
briefs on January 22 2.993.
Findings of Fact and Discussion
I.

Violation of 30 C.F.R. § 75.517

On March 12v 1992, Richard Gene Jones, an MSHA Inspector,
inspected the 5-North Conveyor System of Respondent's Robinson 1 s
Run No. 95 Mine. He observed a 12/4 power 120 volt cable that
was not in place hung on the wall, but instead was lying on the
ground in rib sloughage. When he picked it up, he noticed that
the outer jacket rubber insulation was torn for approximately
five inches. He also indicated that beneath the area where the
rubber insulation was torn, some of the insulation surrounding

445

the copper wires had been "peeled" or "scraped" and he could see
the wiring inside {Tr.30). Jones issued Citation No. 3107821
alleging a violation of 30 C.F.R. § 75.517 in that the 12/4 power
cable "is not insulated adequately qnd fully protected. Near the
off-track side switch there is a location in the cable with an
extensively damaged 5-inch place that exposes the electrical
dama-ged conductors •••• "
(sic) Section 75.517, supra,---provides,
as pertinent, that power cables "shall be insulated adequately
and fully protected. " 1
According to Jones, the purpose of the rubber outer jacket
is to provide protection to the cable wires from moisture, and
dust.
It also protects the cable from being hit by foreign
objects. According to Jones 1 the outer jacket also provides
electrical insulation.
The outer jacket of the cable in question was completely
removed for a distance of approximately 8 inches in length. The
width of the exposed area extended approximately 180 degrees
around the circumference of the cable. Further, the insulation
surrounding the individual interior copper wires was damaged, and
was no longer providing physical protection against moisture and
dust. Nor was it providing electrical insulation, i.e.
protection from phase-to-phase, and phase-to-ground contact.
Respondent's witness, Richard Lee Moats, did not rebut or impeach
the testimony of Jones in these regards. Nor did Respondent
offer any other evidence impeaching or contradicting Jones'
testimony in these regards. Accordingly, based on Jones'
testimony, I find that inasmuch as the cable in issue was not
insulated adequately and fully protected, Respondent herein did
violate Section 75.517u supra.

II

Significant and Substantial

lyu it was Respondent's position at the hearing
thatv in essenceu a violation of Section 75.517u supra, does not
occur in the absence of the proof that the violative condition
was caused by the Operatorqs negligence.
I do not find this
argument persuasivev as it is well established that the mandatory
safety regulations impose strict liability on the operator.
(See 1 Western Fuels-Utah; 10 FMSHRC 256 (1988); Asarco. Inc.;
8-FMSHRC 1632 (1986)). As such, if the facts establish that a
certain condition is violative of a mandatory standard, an
operator .is liable even in the absence of any negligence on its
part. A discussion of the Operator's negligence is set forth
subsequently in this decision (Section III, infra) as it relates
to the issue of the operator's penalty.

446

According to Jones the violation herein is significant and
substantial. A "significant and substantial" violation is
described in section 104(d) (1) of the Mine Act as a violation "of
such nature as could significantly and substantially contribute
to the cause and effect of a coal or other mine safety or health
hazard." 30 C.F.R. § 814(d) (1). A violation is properly
desi-gnated significant and substantial ttif, based upon-~'the
particular facts surrounding the violation there exists a
reasonable likelihood that the hazard contributed to will result
in an injury or illness of a reasonably serious nature." Cement
Division, National Gypsum Co. 1 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 'Gypsurnthe Secretary
of Labor must prove:
(1) the underlying violation
of a mandatory safety standard; (2) a discrete
safety hazard--that is, a measure of danger to
safety-contributed to by the violation; {3) a
reasonable likelihood that the hazard contributed
to will result in an injury; and (4) a reasonable
likelihood that the injury in question will be of
a reasonably serious nature.
In United States Steel Mining Company, Inc., 7 FMSHRC 1125,
1129, the Commission stated further as follows:
We have explained further that the third element
t:he Mathies formula oqrequires that the Secretary
establ
a reasonable
ihood that the hazard
contributed to wi
result in an event in which there
is an injury. 01 U.S. Steel Mining Co. 6 FMSHRC 1834,
1836 (August 1984)" We have emphasized that, in
accordance
the language of section 104(d) (1), it
the contribution of a violation to the cause and
effect of a hazard that must be significant and
substantialo U.S" Steel Mining Company, Inc", 6 FMSHRC
1866f 1868 (August 1984)t u.s. Steel Mining Company,
Inc.u 6 FMSHRC 1573ff 1574~75 (July 1984).
1

The question of whether any particular violation is
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).
si~nificant

447

With regard to the first element of Mathies, supra, I have
already found that the evidence establishes a violation of
Section 75.517, a mandatory safety standard.
According to Jones, should the power cable be energized, a
person coming into contact with the unprotected non-insulated
section of the exposed power cable could suffer burns,-~lectric
shock, or heart fibrillation. He also indicated that should
phase-to-phase, or phase-to-ground contact occur as a consequence
of the lack of the rubber insulation around the copper wires,
arcing could result, which could cause a fire, especially in the
presence of methane. In the main, this testimony of Jones has
not been contradicted, and, in essence, finds support in the
testimony of Michael G. Kalich, an MSHA electric inspector, who
also testified for the Petitioner. I thus find that the second
element of Mathies, supra, has been met. Accordingly, the
critical issue to be determined is whether the third element of
Mathies, supra, has been met, i.e., whether there was a
reasonable likelihood of either aperson coming in contact with
the energized exposed portion of the cable, or of phase-to-phase,
or phase-to-ground contact in the cable when energized.
The cable was attached to a coal feeder at one end. The
other end of the cable was attached to an on/off switch which
allows a miner to operate the coal feeder from a remote position.
When cited by Jones, the cable was not energized, as the section
was idle, and was not producing coal. The circuit breakers which
energized the cable were both in the off position. Hence, there
was no hazard at that time.
Howeverf it
critical, when making a determination as to
whether a condition is significant and substantial, to evaluate
that condition in terms of the continuation of normal mining
operationso (See U.S. Steelv 6 FMSHRC 1573, 1574)o In this
connection, Kalich explained that, when production would resume,
the circuit breakers at the power center and feeder would be
re-setu thus causing electric power, 120 volts, to flow to the
damaged area of the cable in question. Richard Lee Moatsu a mine
escort who testified for Respondentv stated that the foreman of a
section normally instructs his crew, at the beginning of the
shift before work commencesu to check all cables and, as such,
the crew would have located the damaged area prior to
reintroducing electric power. Moats is neither a member of a
work crew working in the area, a foreman, or supervisor of a
foreman. Accordingly, I do not place much weight on his
testimony as to specifically what occurs in the area in question
in normal mining operations.
According to Moats, on the date the citation was issued,
after the power was turned off, he examined the damaged area. He
indicated he saw that two of the copper wires had been severed.
on the other hand, Jones testified that it was extremely hard to

448

see the wires as they were too extensively damaged to check. He
said that it was difficult to tell if the wires were touching.
However, he indicated that he did not examine the wires to see if
they were touching. I observed Moats' demeanor, and I find his
testimony credible that, upon looking inside of the cable, he did
see that two wires were not touching, and I accept his testimony
in this regard.
--According to Moats, since two of the wires were severed, the
femco monitoring system would prevent the circuit breakers at the
power center from being reset, and power would not flow to the
wires in question. In contrast, according to Kalich, if two of
the wires in the cable are severed, current will still flow to
these wires. Further, in rebuttal, Kalich stated that the femco
system at the power center serves as protection only from the
power center to the feeder, and does not monitor the 12/4 cable
in issue, whose only protection is a 10 amp fuse. He indicated
that the feeder contains a transformer which reduces 480 volts of
current entering the feeder to,120 volts, which is transferred
out to the cable in question. Kalich explained that,
accordingly, if two of the wires in the cable are severed, only
120 volts would go beyond the transformer in the feeder to the
high side of the transformer. Kalich explained that accordingly,
there would not be enough current to trip the breaker, which is
set for 480 volts. Moats, who was recalled in rebuttal, did not
contradict the specific testimony of Kalich in these regards.
Accordingly, and based on Kalich's extensive work experience as
an electrical inspector, I accept his testimony in these regards.
According to Jones, when he originally passed the cable in
question and observed that it was not in its place on the rib,
but instead was on the ground in sloughage, he bent to pick it up
to put it back on the rib. In this regard, he indicated that men
the working crew automatically pick up cables that are laying
on the floor. Respondent did not contradict or impeach the
testimony of Jones in this regard. I therefore accept it.
According to Kalich, arcing would result even if two of the
wires were severedQ as they could come in contact when the cable
is picked up. Also, Kalich indicated that even if the wires
barely touched, arcing could resultu which could lead to a fire.
He also noted that normally it could take up to a minute for a
fuse to blow, and thatv in the one minute interval, arcing upon
phase-to-phase or phase-to-ground contact can occur.
I find the testimony of Moats that two of the four wires
were severed, to be insufficient to diminish the likelihood of
contact between the wires, given the fact that the interior wires
were bare for approximately three inches, as testified to by
Jones and not contradicted by Moats. Further, according to the
uncontradicted testimony of Kalich and Jones, since the damaged
cable was in coal sloughage, and the coal seam is considered to

449

be very volatile, arcing from the cable can result in ignition.
This testimony was not contradicted by Respondent or impeached.
Jones also noted the presence of methane on the date of the
citation. Although the amount of methane found at the face was
within the permissible range, and the area in question was
approximately 450 feet from the face, it should be noted that the
mine- is considered to be a liberator of methane, as if--tiberates
a million cubic feet in a 24 hour period.
According to Moats, on the date the citation was issued, an
emergency stop located at the feeder was locked out.
Accordingly, it would have to be unlocked and then reset to allow
power to flow. Moats indicated that, based upon his review of a
schematic diagram, Government Exhibit No. 3, he concluded that
with the emergency stop switch activated, power is cut off to the
cable in question. Moats, in his testimony, however, did not
specifically refer to the flow of power in this schematic diagram
to support his opinion. In contrast, Kalich, indicated the
specific circuit that is af~ected by the emergency stop. 2 He
also indicated that the flow of power to the remote switch, via
the cable in question, is a separate circuit. 3 Hence, according
to Kalich with the emergency stop switch activated power still
flows to the cable in question. Moats did not rebut this
testimony. Hence, due to the detailed nature of this testimony
and the expertise of Kalich, I accept it.
Within the framework of all of the above, I conclude that
there was a reasonable likelihood of either a person coming in
contact with the exposed portion of the cable when energized, or
of arcing from the cable when energized causing a fire. Jones
and Kalich essentially testified that a person coming in contact
with the bare exposed wire in the cable would reasonably likely
suffer from burns; electrical shock, or fibrillation. Their
testimony also indicated that in the event of fire caused by
arcing, smoke inhalation, carbon monoxide poisoning, or other
injury would have been reasonably likely to have occurred.
Respondent has not rebutted this testimony and, accordingly, I
have accepted it. Thereforer for all the above reasons, I
conclude that it has been established that the violation herein
was significant and substantial (See U.S. Steel, supra).
IIIo

~ENALTY

I find, based on the testimony of Petitionervs witnesses,
that once power would be restored, and normal operations' would
resume, should one contact the bare exposed wire, or should
2The
3

green and yellow lines on Government Exhibit No. 3.

See the red lines below "A" on Government Exhibit No. 3.

150

arcing occur, serious injuries could result.
was of a high degree of gravity.

Thus, the violation

According to Kalich, the rib near where the cable at issue
was locat.ed appeared as if a bumper of a car, or something sharp,
had hit it or rubbed against it. He also noted the presence of
sloughage such as loose, fine coal, which also supported this
conclusion. He said that when he made his inspection at
approximately 9:25a.m., the shift was idle, and the coal that
had been knocked from the rib appeared fresh. He thus opined
that the incident knocking the cable off its place on the wall
and removing the insulation, occurred during the midnight shift.
He further opined that during an inspection of the belt which was
required to be performed between 5:00a.m. to s:oo a.m., the
person making the inspection would have passed this area and
should have observed the cable in question.
He also indicated
that when he cited the cable, a supervisor was working 100 feet
outby and, although he would not have seen the cable, he would
have passed this area during the shift. on the other hand, Jones
could not establish with any certainty the exact time when the
incident occurred. Considering all of the above and, taking into
account the further factors set forth in Section llO{i) of the
Act, I find that a penalty of $250 is appropriate.
ORDER

It is ordered that within 30 days of this decision,
Respondent pay a civil penalty of $250 for the violation found
herein.

~is~

Administrative Law Judge
Distribution6

Charles M. Jackson, Esq.f Office of the Solicitor,
Department of Labora 4015 Wilson Boulevard 9 Room 516 9

UoS"

Arlington~

VA

22203 (Certified IVIail}

Daniel Rogers 1 Esq. 1 Consolidation Coal Company, 1800
Washington Roada Legal Department 9 Pittsburgh 9 PA 15241
nb

451

I'BDBRAL JaiiB SAJ'BTY DD HEALTH. RBVJ:D CO.IDUSSXOH
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FAllS CHURCH, VIRGINIA 22041

M
1'\R ·1 ''l i OQ3
~!!""! . .iL. ,;} ...

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

v.

CIVIL PENALTY PROCEEDING
Docket No. WEVA 92-783
A.C. No. 46-01816-03805
Gary No. 50 Mine

UNITED STATES STEEL MINING
COMPANY, INCORPORATED,
Respondent
··DECISION
Appearances:

Javier I. Romanach, Esq., Arlington, Virginia, for
Petitioner;
Billy M. Tennant, Esq. 6 Pittsburgh, Pennsylvania,
for Respondent.

Before:

Judge Fauver

This is a civil penalty case under 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
wholev I find that a preponderance of the substantialu reliable
and probative evidence establishes the Findings of Fact and
further findings in the Discussion belovn
FINDINGS OF FACT
Safeguard No. 3238838
1. MSHA Inspector James Bowman conducted a regular
inspection at Respondent 1 s Gary No. 50 Mine on May 23r 1989.
The mine produces coal for sale or use in or substantially
affecting interstate commerce.
2. The inspector observed two vehicles whose trolley poles
frequently came off the trolley wire as they traveled along the
track, thereby de-energizing the equipment.
3. He found that the problem was caused, at different
locations, by kinks, bends and twists in the wire and by an
excessive distance between the track and the trolley wire.

Lt52

4. He found that the loss of power created a number of
transportation hazards, including loss of illumination,
communication and brakes, and the fact that as the pole swung
loose it could propel or loosen rock, strike persons, and create
arcs and sparks.
5. Based upon his evaluation of the hazards, Inspector
Bowman issued Safeguard No. 3238838, which requires that trolley
wire "be installed within a gauge where anti-swing devices can be
used on all equipment and installed without excessive kinks,
bends, and twists that de-energize track equipment while
traveling along the track within reason. 11
6. The conditions found by Inspector Bowman were abated by
repairing the wire trolley and by moving the track closer to the
wire"

Citation No. 3579261
7. MSHA Inspector Earl Cook conducted a regular inspection
at Gary No. 50 Mine on February ~,, 1992.
So As he traveled along the 5K track entry in a jeep, the
trolley pole came off the trolley wire at numerous locations,
thereby de-energizing the equipment.
9o

He found that this condition violated Safeguard

No. 3238838 and therefore issued Citation No. 3579261.

DISCUSSION WITH FURTHER FINDINGS
Safeguard No. 3238838
Under the Act and regulationsu MSHA inspectors have the
authority to issue safeguards based upon hazards involving
·::ransportation
men and materials in underground coal mines.
safeguard regarding a specific transportation hazard may be
issued at one mine even if that hazard is commonly encountered at
other mines. Southern Ohio Coal Co. 0 14 FMSHRC 1, 5-8 (1992).
In Southern Ohio Coal Co.u 7 FMSHRC 509 (1985), the
Commission distinguished safeguards from safety standards adopted
through rulemaking procedures. The latter are liberally
construedu but safeguards issued by an inspector are to be
narrowly construed. Thusu recognizing safeguards as an
cgunusually broad grant of regulatory power u n the Commission
stated~

••• [A] safeguard notice must identify with specificity the
nature of the hazard at which it is directed and the conduct
required of the operator to remedy such hazard. We further
hold that in interpreting a safeguard a narrow construction
of the terms of the safeguard and its intended reach is
required. [Id. at 512.]

453

In BethEnergy Mines, Inc., 14 FMSHRC 17 (1992), the
Commission reaffirmed its holding in Southern Ohio Coal Co.,
stating:
••• [A] safeguard must be interpreted narrowly in order to
balance the Secretary's unique authority to require a
safeguard and the operator's right to fair notice of the
conduct required of it by the safeguard
The focus of
judicial inquiry is on whether the safeguard is based on
specific conditions at a mine and, as to those specific
conditions, whether it affords the operator fair notice of
what is required or prohibited by the safeguard. [Id. at
25.]

See also Rochester and Pittsburgh Coal Co., 14 FMSHRC 37, 41
(1992)Q

On May 23, 1989, MSHA Inspector James Bowman inspected 6-B
and 6-C track entries at the subject mine. He testified that:

When I went to those two sections, there was two vehicles on
the track. I was following one and I think it was numbers
33 and 97, and the poles would come off in almost exactly
the same -- would come off in exactly the same spots
numerous different times on those two tracks. It was
probably more than 30 times because I was, you know -- there
were so many that I just quit counting. so, what I started
looking for was the causes for the pole to come off the wire
to de-energize the piece of equipment. And the causes of
that was the gauge of the wire in relation to the rail and
kinks, bends and twists in the wire. [Tr. 12.]
Pursuant to 30 C.F.R. § 75.1403, Inspector Bowman issued
Notice to Provide Safeguard No. 3238838g which stated:
was inadequately installed in 6-B and 6-C
that the wire gauge was much wider than the
track. Kinksv bends and twists were present in the trolley
wire, causing the trolley pole to de-energize on numerous
occasions. The wire gauge is so wide that anti-pole swing
devices can not be used at several locations along the 6-B
6-C track entries by Jeep No. 97 and personnel carrier
sec~1ons

No~

33o

This
Notice
Provide Safeguardo All trolley wire shall
installed within a gauge where anti-swing devices can be
on
equipment and installed without excessive kinks,
bendsv and twists that de-energize track equipment while
traveling along the track within reason.

The safeguard thus noted two conditions that caused a
transportation hazard of the pole coming off the wire. First, at
various places the wire was not installed close enough to the
track so that the trolley pole with an anti-swing device would
stay on the trolley wire. Inspector Bowman testified that "what

454

I saw was the wire so far outside the gauge that it was
impossible for the wire to -- for the pole to stay on the wire
because the anti-swinging device would not allow it to swing far
enough to reach the distance that they had the wire from the
rail." Tr. 17-18.
second, the safeguard stated that "kinks, bends and twists
were present in the trolley wire, causing the trolley pole to deene~gize ··~·

11

The safeguard required that trolley wire be installed within
a gauge where anti-swing devices can be used on all equipment and
installed without "excessive kinks, bends, and twists that deenergize track equipment while traveling along the track within
reason~"

The Secretary contends that 81 excessive 81 refers to any kink,
bend or twist in the wire that causes the pole to fall from the
trolley wire. The company contends that the word "excessive"
means an excessive number of kinks, bends or twists that cause
the pole to fall from the wire and that, in any event, if there
is ambiguity the safeguard is not·enfo:tceable because it fails to
give fair notice of the prohibited conduct.
find that the term 11 excessive" as used in the safeguard
reasonably refers to the degree of distortion in the wire caused
by any kinkf bend, or twist and that if any of these causes the
trolley pole to fall from the wire it is "excessive" within the
meaning of the safeguard.
I

The phrase 91 while traveling along the track within reason"
reasonably means "at a reasonable rate of speed given the track
conditions and equipment in the area,n as stated by Inspector
Bowmano Tlro 5lo
Inspector Bowman t.estified that the two prohibited
conditions (excessive distance
wire from track and any
excessive kink 0 bend 0 or twist) created a transportation hazard
of the trolley pole becoming disconnected from the trolley wire.
This hazard created further hazards. The swinging pole could hit
a person 0
could propel or loosen rocks, it could cause sparks
and arcs 9 and 9
disconnecting the powerv it would cause a loss
of communicationy _ights, and brakes. In additionu when the
distance from the track to the trolley wire was too wide to use
the anti=swinging deviceu employees or supervisors might be
tempted to block out or tie off the anti-swinging device in order
to keep the pole connected to the wire. This would create a
hazard of operating without this important safety protection.
I find that the safeguard was "based on an evaluation of the
specific conditions at the mine and the determination that such
conditions created a transportation hazard in need of correction"
and that it "provided the operator with sufficient notice of the
nature of the hazard at which it (was] directed and the conduct
required of the operator to remedy such hazard." Southern Ohio

455

Coal Company. 14 FMSHRC 1, 13, (1992).
Citation No. 3579261
on February 4, 1992, Inspector Cook issued Citation No.
3579261, charging a violation of Safeguard No. 3238838 and 30
c.F.R. § 75.1403, citing five locations where the gauge from the
track to the trolley wire was too wide to keep the trolley pole
(with an anti-swing device) from falling from the trolley wire
and ten locations where kinks in the trolley wire caused the pole
to fall from the wire.
The cited conditions were abated by sliding the track to
within a gauge that would allow the pole to stay on the wire
while using an anti-swing device and by removing the kinks in the
trolley wire.
I find that the conditions cited by Inspector Cook were
proved by the evidence and constituted a violation of Safeguard
No. 3238838 and 30 C.F.R. § 75.1403.
The company contends that if a violation existed, it was
not "significant and substantial."
The Commission has held that a violation is "significant and
substantial n if there is a ••reasonable likelihood that the hazard
contributed to will result in an injury or illness of a
reasonably serious nature." u.s. Steel Mining Co .. Inc., 7
FMSHRC 327, 328 1 (1985); Cement Division, National Gypsum Co., 3
FMSHRC 822, 825 1 (1981); Mathies Coal Co., 6 FMSHRC 1, 3-4,
(1984). This evaluation is made in terms of "continued normal
mining operations" without abatement of the violation (U.S. Steel
Mining Co .• Inc,u 6 FMSHRC 1573, 1574 (1984)) 1 and must be based
on the particular facts surrounding the violation"
(Texasgulf.
~ 10 FMSHRC 498v
1988) Youghiogheny & Ohio Coal Company, 9
FMSHRC 1007
1987))o
Analysis of the statutory language and the Commission 9 s
decisions indicates that the test of an S&S violation is a
practical and realistic question whether the violation presents a
substantial possibility
resulting
or disease 9 not a
requirement that the Secretary of Labor prove that it is ~
probable than not that injury or disease
resulto See
judges 0 decisions in Consolidation Coal Companyu 14 FMSHRC 748752 (1991) and Mountain Coal Co., 14 FMSHRC 748-752 (1991). The
statutef which does not use the phrase uBreasonably likely to
occur~ or ~reasonable likelihood" in defining an S&S violation,
states that an s&s violation exists if "the violation is of such
nature as could significantly and substantially contribute to the
cause and effect of a coal or other mine safety or health hazard"
(§ 104(d) (1) of the Act; emphasis added).
Also, the statute
defines an "imminent danger" as 11 any condition or practice •..
which could reasonably be expected to cause death or serious

456

physical harm before (it] can be abated," 1 and expressly places
s&S violations below an imminent danger. 2 It follows that the
commission's use of the phrase "reasonably likely to occur" or
"reasonable likelihood" does not preclude an S&S finding where a
substantial possibility of injury or disease is shown by the
evidence, even though the proof may not show that injury or
disease was more probable than not.
As stated above, the violation of Safeguard No. 3238838
presented a number of safety hazards: a disconnected trolley
pole would stop the power immediately causing a loss of lights,
communication, and brakes; 3 the disconnected pole could strike
someone, it could propel or loosen rocks and it could cause
sparks. Also, a wide gauge between the track and trolley wire
could tempt employees or supervisors to block out the anti-swing
device in order to keep the pole from falling from the wire.
This would create another hazard of the pole striking them.
Taken as a wholeu I find that the hazards caused by the risk of a
disconnected trolley pole presented a reasonable likelihood of an
accident involving serious injury.
considering the criteria for a civil penalty in § 110(i) of
the Act, I find that a penalty of $690 is appropriate for this
violation.
CONCLUSIONS OF LAW

§

1.

The judge has jurisdiction.

2.

Safeguard No. 3238838 was validly issued.

3. Respondent violated Safeguard No. 3238838 and 30 C.F.R.
75.1403 as alleged in Citation No. 3579261.
ORDER

Respondent
the date c~:

penalty of $690 within 30 days

decisiono

~~:r~v~
W2ll1am Fauver
'
Administrative Law Judge
Section 3{j}
the 1969 Mine Actu unchanged by the
Federal Mine Safety and Health Act of 1977o
2

Section 104(d} (1) limits S&S violations to conditions
that 91 do not cause imminent danger .••. 11
3

With the power off, all vehicle lights would go off, and
the vehicle phone would not transmit, although the driver could
hear incoming messages. Electric brakes would be inoperative.
Backup brakes would be available if they were working properly.

457

Distribution:
Javier I. Romanach, Esq., Office of the Solicitor, u.s.
Department of Labor, 4015 Wilson Boulevard, Suite 516, Arlington,
Virginia 22203 (Certified Mail)
Billy M. Tennant, Esq., United States Steel Mining Company, Inc.,
600 Grant Street, Pittsburgh, Pennsylvania 15219 (Certified
Mai~)

/fcca

458

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

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

v.

CIVIL PENALTY PROCEEDINGS
Docket No. CENT 92-141
A.C. No. 34-01692-03501JNG
Docket No. CENT 92-163
A.C. No. 34-01692-03502JNG

PERRY SISK;
Respondent

Kanima Mine
DECISION

Appearances:

Ernest A. Burford, Esq., Office of the Solicitor,

u.s. Department of Labor, Dallas, Texas,
for Petitioner;
Perry Sisk, pro se, Checotah, Oklahoma,
for Respondent.

Before:

Judge Lasher

This proceeding arises on the filing by the Secretary of
Labor of two complaints proposing penalties
the above two
dockets pursuant to Section llO(a} of the Federal Mine Safety and
Health Act of 1977: 30 DoS.C. § 820(a) wherein the Secretary
seeks assessment of penalt
for a total of eight alleged violationso seven
Docket No. CENT 92-141 and one in Docket No.
CENT 92-163.
At t.he hearing of these two consolidated proceedings in
le Rockf Arkansas 8 on January 21 9 1993 9 a bench decision was
rend~red (T. 57-63) which decision is here AFFIRMED.
It.
noted tha'c the actual occurrence of the violative conditions and practices described in the eight citations was conceded by Respondent both prior to and during the hearing (T. 12,
34), who made a substantial challenge, however, to the question
of the jurisdiction of the Mine Safety enforcement process over
his particular operation and on that basis contends that there
being no jurisdiction there of course could not be violations of
the Act of implementing regulations.
At the outset of the hearing the parties stipulated that the
Administrative Law Judge had jurisdiction to determine the matter

459

and also that the penalty levels reflected in MSHA's initial
proposed penalties would not affect the ability of the Respondent
to continue in business.
It was also stipulated and it also appears (See Ex. D-1)
that Respondent has not history of previous violations and that
Respondent, upon notification by MSHA of the occurrence of the
violations, proceeded in good faith to timely abate the same. 1
Based on the evidence presented of record I find that Respondent is a sole proprietorship owned by Mr. Sisk and that in
September 1991, when the citations in question were issued, approximately 11 total employees were on the payroll. At this time
Respondent had a contract with Inter-Chem Coal Co., Inc., coal
brokers, to pick up coal at the Kanima Mine owned by Wendall
Johnson.
Respondent was not a subcontractor of Wendall Johnson who
owned the surface coal mine in question where Respondent picked
up the coal for delivery elsewhere, but rather, was an independent contractor as is more fully shown subsequently.
The Kanima Mine, located five miles east of Stigler, Haskell
county, Oklahoma, had a stockpile located some one and one-half
miles from the entrance to the mine at which were located scales.
Respondent's contract with Inter-Chem which ran for a period
of approximately ten weeks called for Respondent to pick up coal
from the stockpile and deliver the same to Oklahoma Gas and
Electric Power Plant in Muskogee, some 70 miles distant.
Respondent used four trucksu each having its own driver
(Mr" Sisk drove one of the trucks himself) who would, on a typ
cal day
at the mine at approximately six a.m., proceed to
·the stockpile, load the trucks (taking approximately 20 minute to
tal)u and then proceed to Muskogee. The trucks would be weighed
before being loaded and again after being loaded. While the
truck was being weighed, it would be necessary for the truck
driver to
out of the truck and go into the scale house, a
distance of approximately five steps, to sign a ticket. After
delivery of the coal to Muskogee, the trucks on a typical day
would return to the Kanima Mine and repeat the process. On a
typical day during the ten-week period, each of the four drivers

In terms of the mandatory statutory penalty criteria, there remain
for subsequent consideration the size of the Respondent and the seriousness of
the violations and any negligence involved in the commission thereof, since I do
subsequently determine that there does exist jurisdiction over the Respondent
under the 1977 Mine Act.

460

would pick up and deliver four loads at the Kanima Mine.
four truck drivers were employees of Mr. Sisk.

The

Mr. Sisk did not have an identification number assigned by
MSHA until after the subject citations were issued.
The primary business of Wendall Johnson, doing business at
the Kanima Mine, was selling coal from the stockpile in question.
Mr. Sisk, as reflected by his assumption of the responsibility for abating the infractions cited by MSHA and the other clear
evidence of the employment relationship with the truck drivers in
question shown in the record, had control over and the responsibility for the safety of the working conditions of these
employees.
In the 1977 Amendment to the Mine Safety Act, Congress
amended the definition of a "mine operator" to include "any
independent contractor performing services or construction at
such mine," 30 U.S.C. § 802(d).
The Mine Act declares that the "operators" of the nation's
mines have primary responsibility for preventing the existence of
unsafe and unhealthful conditions, 30 U.S.C. § 801(e).
In Bituminous Coal Association v. Secretary of Interior, 547 F.2d, 240,
246-247 (4th Cir., 1977), herein BCOA the Court interpreted the
definition of "operator" to include independent contractors performing services at the production-operator's mine, and held that
the Secretary has the power to cite the independent contractor,
the operator, or bothr for independent contractor violations.
1

The Secretary's administrative rule on independent contractors found at part 45, 30 C.F.R. (see§ 45.2, definitions), defines independent contractor as nany person, partnership, corporation, subsidiary of a corporation, firm, association, or other
organization that contracts to perform services or construction
at a mine." Here,
clear that the Respondent fits this
definition of independent contractor~ since he is a person performing services at a mine. This
in accord with the Senate
Committee report on the 1977 Amendments, stating that, 91 It is the
intent of this committee that doubts be resolved in favor of inclusion of a facility within the coverage of the Act. 19 Senate
Report No. 91-181, 95th Congress, reprinted in U.S. Code and
Congressional Administrative News (1977), 3401, 3414.
Here also, the Respondent's connection was more than just a
one-time or brief incursion on mine property such as occurred in
the case of an electric facility company employee meter reader
who read a meter monthly near a mine access road in Old Dominion
Power Co. v. Donovan, 722 F.2d 82 (4th Cir. 1985).
In that case,
the Fourth Circuit determined there was no jurisdiction, since
the meter employee rarely went on to mine property. By contrast,

461

the meter employee rarely went on to mine property.
By contrast,
in this case, Respondent's employees during the period in question regularly were on mine property performing work directly
related to the business of the mine itself. The contacts here
occurred every day over a period of some ten weeks.
See Secretary v. Lang Brothers, Inc., 14 FMSHRC 413 (Sept. 24, 1991) for
the proposition that such a period of time and exposure constitutes much more than a de minimus contact. 2
CONCLUSIONS OF LAW:

1.
Respondent is subject to the provisions of the 1977
Mine Act:
2.
Respondent having so conceded, the eight violations
described in the eight citations contained in the two subject
dockets are found to have occurred~
PENALTY ASSESSMENT:

In addition to the penalty assessment factors previously
found, it is further determined that Respondent is a small
operator and that the gravity and negligence determination made
by the Inspector on the fact of the citations, there being no
challenge to the contrary, are accurate. Based on these
findings, ,I find no reason to either raise or lower the MSHA' s
proposed assessment in this matter.
ORDER

Respondent SHALL 1 within 30 days from the issuance of this
written decision PAY to the Secretary of Labor the total sum of
$285.00 ($50.00 for Citation No. 3407357 in Docket No. CENT 92163~ $39 each for Citation Nos. 3407346, 3407347Q 3407349,
3407355 3407356; and $20.00 each for Citation Nos. 3407348 and
3407359.

/(', ~· Jz

/~~~-~

r

Michael A. Lasher, Jr.
Administrative Law Judge
2

As Petitioner contends, Respondent had a "continuing presence" at the
mine (T. 56).

462

PBDBRAL Ja11B SAI'BTY A11D BDL'l'B RBVIBW COJIKISSIOII
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
(303) 844-5266/FAX (303) 844-5268

MAR 1 6 1993
CIVIL PENALTY PROCEEDING

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

Docket No. WEST 91-109-M
A.C. No. 48-00007-05548

v.

Mountain Cement company

MOUNTAIN CEMENT COMPANY,
a Wyoming Partnership,
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEST 92-321-M
A.C. No. 48-00007-05563A
Mountain Cement Company
Albany County, Wyoming

Vo

PAUL MILLER, JR., employed
by MOUNTAIN CEMENT COMPANY,
Respondent
SECRETARY OF LABORr
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
·
Petitioner

CIVIL PENALTY PROCEEDING
Docket No., WEST 92-322-M
A.C. No. 48-00007-05565A
Mountain Cement Company
Albany County, Wyoming

Vo

PAUL ESTEVEr employed by
MOUNTAIN CEMENT COMPANY
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEST 92-323-M
A.C. No. 48-00007-05566A

v.

Mountain Cement Company
Albany County, Wyoming

JAMES F. MAY, employed by
MOUNTAIN CEMENT COMPANY,
Respondent

463

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

v.
RICK G. WILSON, employed by
MOUNTAIN CEMENT COMPANY,
Respondent

CIVIL PENALTY PROCEEDING

.
..
..

Docket No. WEST 92-324-M
A.C. No. 48-00007-05568A
Mountain Cement Company
Albany County, Wyoming

:

.
e

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
WILLIAM SMITH, employed by
MOUNTAIN CEMENT COMPANY,
Respondent

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

CIVIL PENALTY PROCEEDING
Docket No. WEST 92-325-M
A.C. No. 48-00007-05569A
:

.

Mountain Cement Company
Albany County, Wyoming

0

..
..

CIVIL PENALTY PROCEEDING

0
0

Docket No. WEST 92-358-M
A.Co Noo 48-00007-05567A
Mountain Cement Company
Albany Countyu Wyoming

THOMAS Go JACKSONu employed
by MOUNTAIN CEMENT COMPANYu
Respondent

0

0

Q
0

SECRETARY OF LABORe
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)u
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEST 92-376-M
A.C. Noo 48-00007-05564A

0
0

0
0

0
0

STEVEN M. BONER, employed
by MOUNTAIN CEMENT COMPANY,
Respondent

.
...
.
0

464

Mountain Cement Company
Albany County, Wyoming

DECISION APPROVING SETTLEMENT
Before:

Judge Morris

These cases are civil penalty proceedings initiated by
Petitioner against Respondents pursuant to the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. § 801 et ~ (the
"Act"). 'Dhe civil penalties sought here are for the violation
of Section 110(a) and Section llO(c) of the Act.
The eight cases herein were assessed penalties totaling
$7,900. The Secretary agreed to settle the cases for voluntary
civil penalty payments totaling $5,300.00.
The proceedings all involve MSHA Citation No. 3451535 which
was issued to the corporate mine operator on June 7, 1990, citing
a violation of 30 C.F.R. § 56.15006.
The violation was issued beg(iuse special protective clothing
was not worn by an employee attempting to poke and unplug the
preheat tower.
The Secretary's investigation of the serious burn
injury accident, related to the issuance of the above-cited violation, indicated that it was an established practice, by both
management and employees at this mine, to unplug or poke the
preheat tower without wearing protective clothing.
It is the Secretary's position that each of the above-named
Respondents, acting as agents of the corporate mine operator
within the meaning and scope of Sections 3{e} and 110(c) of the
Mine Act, ,knowingly authorized, ordered, or carried out the
aforesaid violation of the corporate mine operator. Further, it
is the SecretaryPs position that each of the respondents allowed
and condoned the existence of the practice not to use, or require
<the use of u the hot suit when efforts related to unplugging the
preheat tower took place 9 prior to the issuance of the aforesaid
violation.
The Respondents each take the position that~ but for purposes of the
Actr nothing contained here
shall constitute
an admission by any of the Respondents that they knowingly violated the Mine Act or its regulations.
The Settlement agreement involves the full payment of the
proposed penalty for the company case filed in Docket No. WEST
91-109-Mo
It also includes the full payment of the proposed
penalty for Docket No. WEST 92-376-M, which involves the agent
who was on duty at the time the accident occurred, and which
resulted in the violation being issued. The settlement further
includes reduced penalties of $500o00 for each of the other
Section 110(c) cases involved in these proceedings.

465

Therefore, the settlement is allocated among the various
cases as follows:
Docket No.

A/0 No.
48-00007

WEST 91-109-M

-05548

WEST 92-358-M

fenalt:t:

Settleaent

Mountain
Cement Co.

$1,500

$1,500

-05567-A

Thomas Jackson
Vice President

1,200

500

WEST 92-323-M

-05566-A

James May
Superintendent

1,000

500

WEST 92-322-M

-05565-A

Paul Esteve
Superintendent

1,000

500

WEST 92-324-M

-05568-A

Rick Wilson
Shift Foreman

800

soo

WEST 92-321-M

-05563-A

Paul Miller
Shift Foreman

800

500

WEST 92-325-M

-05569-A

William Smith
Shift Foreman

800

500

WEST 92-376-M

-05564-A

Steve Bonar
Shift Foreman

800

800

$7,900

$5,300

R.esQQndent

TOTALS

The Secretary submits that the violation involved a degree
of both negligence and seriousness because it resulted in a
miner's suffering a serious burn injury, and that it was abated
good
ith after
issuance. The Secretary further submits
corporate operator is a medium-size operator with an average
history of
violations for an operation
size. It is
also noted that none of the agent Respondents has a prior history
of Section 110{c} violations"
I have reviewed the settlement and I find it is reasonable
and in the public interest¢ It should be approved.
Accordinglyg I enter the following:
ORDER

1.

Tne settlement agreement is APPROVED.

2.
In WEST 91-109-M and WEST 92-376-M the Petition for
Assessment of a Civil Penalty and the proposed civil penalties
are AFFIRMED.

466

3.
Respondent's Mountain Cement Company and Steve Bonar
are ORDERED TO PAY to the Secretary of Labor their respective
penalties of $1500 and $800 within 30 days of the date of this
decision.
4.
In the remaining six cases, the Petition for Assessment
of a Civil Penalty and the amount of the Proposed Settlement are
AFFIRMED.
5.
Respondents Jackson, May, Esteve, Wilson, Miller, and
Smith are ORDERED TO PAY to the Secretary of Labor within 30 days
their respective penalties of $500 each.

Law Judge

Distribution~

Robert J. Murphy, Esqo, Office of the Solicitoru u.s. Department
of Labor, 1585 Federal Office Buildingo 1961 Stout Street,
Denver, CO 80294
(Certified Mail)
Edward H. Fitch" Esq." Office of the ·solicitoru U.Sa Department
of Labor 0 4015 Wilson.Boulevardu Arlingtonu VA 22203
(Certified
Mail)
Allen Gardzelewskiu Esq. 9 CORTHELL' KINGu P.O. Box 1147u
Laramieu WY 82070
C~ertified Mail)
Phillip Nicholasu Esq., NICHOLAS LAW OFFICEu P.O. Box 928,
Laramie, WY 82070
(Certified Mail)
ek

467

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

MAR 1 61993
CIVIL PENALTY PROCEEDING

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

Docket No. WEST 92-45-M
A.C. No. 05-04119-05510

v.

Docket No. WEST 92-88-M
A.C. No. 05-04119-05511

NOLAND INCORPORATED,
Respondent

Noland Pit
DECISION

Appearances:

Kristi Floyd, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Kent F. Williamson, Esq,, Cortez, Colorado,
for Respondent.

Before:

Judge Morris

The Secretary of Labor, in these civil penalty proceedings,
charges Noland Incorporated, ("Noland") with violating safety
regulations promulgated under the Federal Mine Safety and Health
l\ct of 1977 p 30
oSoCe § 801
(the 00 Act9°).
A hearing on the merits was held in Durango, Colorado on
September 22 9 1992.

The
mitted the

waived the fil
of post-trial briefs and subon oral argument.
Stipulation

At the commencement of the hearing the parties filed a
written stipulation and they agreed as follows:
1. Respondent is engaged in mining and selling of sand and
gravel in the United States and its mining operations affect
interstate commerce.
2.
~espondent is the owner and operator of the Noland Pit,
MSHA I.D. No. 05-04119.

468

3. Respondent is subject to the jurisdiction of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et ~ ("the
Act").
4.

The Administrative Law Judge has jurisdiction in this

matter.
5.
The subject citations and orders were properly served by
a duly authorized representative of the Secretary upon an agent
of Respondent on the date and place stated therein, and may be
admitted into evidence for the purpose of establishing their
issuance.

6. Additionally, Citation Nos. 3630511, 3630517, 3630518,
3630648, 3630650, 3630651, 3630654 and 3630614KF and order
numbers 3630615 and 3630617 are admitted into evidence for the
truthfulness and relevancy of the facts and designations
contained therein. The sole issue remaining with regard to the
above listed citations and ordE?.:LS is whether the plant was in
operation at or about the time of the inspections. This issue
alone will determine whether the alleged violations occurred.
(See Judge's order of February 6, 1993).
7. Order numbers 3630620 and 3630646 are admitted into
evidence for the purpose of establishing their issuance and not
for the truthfulness or relevancy of any statements asserted
therein.
8.
The exhibits to be offered by Respondent and the
Secretary are stipulated to be authentic but no stipulation is
made as to their relevance or the truth of the matters asserted
<therein.
9o

li

The proposed penal
to continue business.

l l not affect Respondent's

10. The operator demonstrated good faith in abating the
violations.
11. Respondent
production
1990.

a small mine operator with 4 560 tons of

12. The certified copy of the MSHA Assessed Violations
History accurately reflects the history of this mine for the two
years prior to the date of the citation.
In view of paragraph 6 of the stipulation as to the truth
and relevancy of the ten citations/orders therein, it is appropriate to set forth the text of the enforcement documents.

469

citation Nos. 3630511, 3630517, 3630518,
3630648. 3630650, 3630651, 3630654, 3630614
and Order Nos. 3630615 and 3630617
citation 3630511 alleges Respondent violated 30 C.F.R.
56.12040. 1 The violative condition cited by MSHA reads as
follows:

§

The metal cabinet/enclosure containing
motor circuit 480VAC switchgear for the
"Telsmith Cone Crusher" motor and the
91
Pioneer Screen" drive motor was observed
having unsafe access. Operating controls,
such as overload relay reset button and
circuit breaker ON-OFF levers were not
installed so that they can be operated
without danger of contact with energized
conductors, parts and terminals. Voltage in
this cabinet was 4"80VAC. The cabinet door
was not locked and hot-line tools were not
available as an alternative measure.
If a
person was to unintentionally contact an
energized 480VAC component there could easily
be an electrocution. Normal practice is not
to enter equipment when energized however it
has been done on occasions without incident.
Citation No. 3630517 alleges Respondent violated 30 C.F.R.
56.12001. 2 The violative cited condition by MSHA reads as
follov.Js ~

§

The
lityj
ion transformer
located at the MCC room was not properly
breakers or fuses of the
correct type and capacityo The transformer
is believed to be 15KVA, single phase, 60KZ;
primary wired for 480VAC and the secondary
for two voltages 240/120v. The primary was
protected by an MCP (Meter Circuit
30 amp circuit breaker set to trip

§

56,120~0

Installation of operating controls

Operating controls shall be installed so that they can
be operated without danger of contact with energized
conductors,
2

§

56.12001

Circuit overload protection.

Circuits shall be protected against excessive overload
by fuses or circuit breakers of the correct type and
capacity.

470

at 120 amps. The secondary conductors from
the transformer were not protected by fuses
or a breaker. The individual branch circuits
at the 100 ap panel were protected by circuit
breakers.
Citation No. 3630518 alleges Respondent violated 30 C.F.R.
56.12018. 3 The violative condition cited by MSHA reads as
follows:

§

Some principal power switches located at
the genset van MCC room were not labeled to
properly show what they control and identification could not be readily made by location. These were on 480 and 240/120 VAC
circuits.
Citation No. 3630648 alleges Respondent violated 30 C.F.R.
56.14201. 4 The violative condition cited by MSHA reads as
follows:

§

The entire length of the conveyors were not
visible from the the starting switches inside
the crusher control van, and an audible
waring (sic) system was not provided to warn
persons that the conveyors would be starting.
Citations No. 3630650 alleges Respondent violated 30 C.F.R.

3

§

56.12018

Identification of power switches.

Principal power switches shall be labeled to show
which units thev control, unless identification can be
made readily
-location.
4

§

56.14201

Conveyor start-up warnings.

(a) When the entire length of a conveyor is visible
from the starting switch, the conveyor operator shall
visually check to make certain that all persons are in
the clear before starting the conveyor.
(b) When the entire length of the conveyor is not
visible from the starting switch, a system which
provides visible or audible warning shall be installed
and operated to warn persons that the conveyor will be
started. Within 30 seconds after the warning is given,
the conveyor shall be started or a second warning shall
be given.

471

56.11002. 5
follows:

§

The violative condition cited by MSHA reads as

Handrails were not provided on the access
stairway to the generator/electrical trailer
to prevent a person from slipping or falling!
The trailer floor was about 43 inches above
ground level.
Citation 3630651 alleges Respondent violated 30 C.F.R.
The violative condition cited by MSHA reads as
follows:

S 56.18002. 6

Records were not being kept by the operator
that a competent person designated by the
operator was examining each working place at
·least once each shift for conditions which
may adversely affect safety or health.
It is
intended that such,·examinations will assist
the operator in detecting potentially dangerous conditions which can unnecessarily
expose persons to hazards.
Unsafe conditions were found as a result of
this inspection resulting in the issuance of
citations and orders. It is apparent that
effective safety exams are not being conducted as required by the standard.

§

56"11002

Handrails and toeboards.

Crossovers, elevated walkways, elevated ramps, and
stairways shall be of substantial construction provided
with handrails, and maintained in good condition. Where
necessary, toeboards shall be provided.
6

56.18002

Examination of working places.

(a) A competent person designated by the operator
shall examine each working place at least once each
shift for conditions which may adversely affect safety
or health.
The operator shall promptly initiate
appropriate action to correct such conditions.
(b) A record that such examinations were conducted
shall be kept by the operator for a period of one year,
and shall be made available for review by the Secretary
or his authorized representative.
(c) In addition, conditions that may present an
imminent danger which are noted by the person conducting
the examination shall be brought to the immediate
attention of the operator who shall withdraw all persons
from the area affected (except persons referred to in
section 104 (c) of the Federal Mine Safety and Health Act
of 1977) until the danger is abated.

472

These records shall be made available for
review by the Secretary or his authorized
representative.
§

Citation No. 3630654 alleges Respondent violated 30 C.P.R.
56.15001. 7 The violative cited by MSHA reads as follows:
First aid material at the Noland Pit did
not include a stretcher and blanket in the
event of an emergency.

Citation No. 3630614 alleges Respondent violated 30 C.F.R.
56.1410?. 8 The violative condition cited by MSHA reads as
follows:

§

The head pulley, tail pulley and belt drive
on the 5X16 conveyor under the Red Pioneer
screen were not guarded to protect a person
from contact with the pinch points. The head
pulley was approxima."t:.ely ·57 inches above
ground level, the tail pulley was approximately 9 inches above ground level and the
drive was approximately 60 inches above
ground level. The pinch points were easily
accessible while the conveyor was in operation.
This condition existed for 6 days.
This is an unwarrantable failure condition.
§

Order No. 3630615 alleges Respondent violated 30 C.P.R.
56.14107. 9 The violative cited by MSHA reads as follows:

7

•§ 56.15001

~irst-aid

aaterials.

Adequate first-aid materials, including stretchers and
blankets, shall be provided at places convenient to all
working areas.
Water or neutralizing agents shall be
abailable where corrosive chemicals or other harmful
substances are stored, handled, or used.
g

§

56.14107

Moving machine parts.

(a) Moving machine parts shall be guarded to protect
persons from contacting gears, sprockets, chains, drive,
head, tail, and takeup pulleys, fly-wheels, couplings,
shafts, fan blades, and similar moving parts that can
cause injury.
(b) Guards shall not be required where the exposed
moving parts are at least seven feet away from walking
or working surfaces.
9

Cited in footnote 8.

473

The head pulley on the output #1 conveyor
was not guarded to protect a person from
contact with the pinch point. The pinch
,points were approximately 62 inches above
ground level and easily accessible while in
operation. The condition existed for at
least 6 days. This is an unwarrantable
failure condition.
Order No. 3630617 alleges Respondent violated 30 C.F.R.
56.14107. 10 The violative condition cited by MSHA reads as
follows:

§

The head pulley on the primary reject
conveyor under the primary screen was not
guarded to protect a person from contact with
the pinch points. The pinch points were
approximately 53 inches above ground level
and easily accessible while the conveyor is
in operation. This condition has existed for
at least 6 days. This is an unwarrantable
failure condition.
Discussion and Further Findings

The parties stipulated that the sole issue in connection
with the above citations and orders is whether the plant was in
operation at or about the time of the inspection. That issue
will determine whether the alleged violations occurred.
(Stipulationv paragraph 6).
On
credibility issue I credit the testimony of Randy
Smith. He was the Noland Crusher operator for eight years before
quitting in March 1991. He quit because of an accident involving
his uncle, Wayne Noland. When he quit in March 1991, the plant
was running while he didn 1 t think it was in "full operation" it
was "1 producing sand. ou
credit Mr. Smith since
appears to be a totally disin·terested 'toJi tness. At the time he quit the company, he was
running a 950 loader stacking sand.
(Tr. 67).
In such an
occupation he would be in a position to know if the plant was in
operation. He also indicated the plant had produced about 500
yeards of sand.
(Tr. 68).
The testimony of Randy Smith that the plant was in operation
is further confirmed by MSHA's inspector Ronald J. Renowden. He
indicated •that after returning from the house (from reviewing
to

Cited in footnote 8.

474

Part 50 records) the pit and the crusher were operating.
(Tr.
87). Also there was material corning off the belts and going into
the crusher. The whole plant, including every conveyor, was in
operation.
(Tr. 88).
Mr. Dennehy also testified that when the inspectors returned
to the plant from Mr. Noland's horne they noticed they were
feeding the feed hopper and the crusher.
In addition, material
was coming off the belt screens and being stockpiled.
(Tr. 21).
Respondent's witnesses, Ricky F. Noland and Wayne Noland,
testified as to many reasons why the plant was not operational.
The new crusher was being assembled; test runs were still being
conducted; a second conveyor and hopper had to be built; a lot of
different construction had to be done. Further, the various
electrical amperages had to be set; on the day of the inspection
there was no power at the wash plant. When the plant started up
on March 26, 1991, Mr. Noland was aware everything had not been
aligned and adjusted.
Respondent's evidence is not persuasive since Respondent was
able to start the plant on the same morning the inspectors
arrived.
It is true that Mr. Noland thought he was operating the
plant at MSHA's request. But the fact is that he was able to
1
'turn onn the plant at about 10 a.m. on the morning of the inspection. This causes me to conclude the plant was "in operation" at or about the time of the inspection.
While Mr. Noland had requested a CAV (Compliance Assistance
visit) inspection from MSHA there is no indication he would
receive such an inspection. In factu Mr. Renowden told Mr. Rick
Noland that
didn 1 t think MSHA could do a CAV inspection.
(Tr.
79p

80)

0

For the foregoing reasons and on the basis of the sole issue
as presented by the parties I find the plant was "in operation"
at or about the time of the inspection. Accordingly 1 the eight
citations and two orders received in evidence herein should be
affirmed.

Civil Penalties
Section llO(i) of the Mine Act mandates consideration of six
criteria in assessing civil penalties.
The stipulation here indicates Noland as a small operator
producing some 4,560 tons of production in 1990.
The stipulation further indicates the penalty will not
affect the operator's ability to continue in business.

475

Exhibit G-1 establishes a favorable prior history with only
five assessed violations for the two year period ending March 25,
1991.

Noland was negligent since the violative conditions were
open and obvious.
I consider the gravity of the violative conditions in
Citation Nos. 3630511, 3630517, and 3630518 to be high since
these violation involve electrocution hazards.
The gravity involved in citation Nos. 3630648 1 3630650,
3630651 and 3630654 is moderate and do not involve life
threatening hazards.
Citation No. 3630614 and Order Nos. 3630615 and 3630617
involve unguarded equipment. Such conditions can cause severe
injuries including amputati9~· The gravity is accordingly high.
The penalties contained in the order of this decision are
appropriate.
Order No. 3630620

The facts involved in this order and the subsequent order
are more complex than in the previous 10 citations/orders.
In
view of this factor it is appropriate to enter findings of fact
based on the credible evidence.
As a threshold matter, the parties stipulated that the above
two orders are admitted into evidence for the purpose of establishing their issuance and not for the truthfulness or relevency
of any asserted therein.
Order No. 3630620 alleges a violation of 30 C.F.R.
The condition alleged by MSHA to be violative of
the regulation reads~
§

56.14107. 11

The wash plant feeder which was driven by a
chain drive attached to the tail pulley of
the wash plant feed conveyor was not guarded
to protect a person from contact with the
pinch points and chain drive. The pinch
points and chain drive were approximately 24
,inches above ground level and approximately 9
ft from the hopper's opening. The pinch
points & chain drive were easily accessible
while in operation. This condition has

11

Cited in footnote 8.

476

existed for at least 6 days. This is an
unwarrantable failure condition.
In connection with this order it is uncontroverted that
Citation No. 3630614 is the underlying D-1 citation.
(Tr. 25,
Ex. G-3).
Having considered the hearing evidence and the record as a
whole, I find that a preponderance of the substantial reliable
and probative evidence establishes the following:

Findings of Fact
1.
The sand plant (also called the wash plant) was not in
operation on March 26.
It had probably last been in operation in
late October when freezing conditions caused the company to pull
the pump.
(Tr. 129, 130).
2.
On the day of the inspection there was no power at the
sand plant. The plant is separate from the crusher.
(Tr. 25,
117, 129, 130).
3.
The guard had been removed to clean up behind and around
the conveyors.
(Tr. 119-121).

4.
The sand plant had not been in operation from January
1991 through March 26, 1991 because of the power disconnect.
(Tr. 146) .

Discussion and Further Findings
It
apparent the sand wash plant was not in operation nor
it. have the capabil
<to operate since power was not
available.

A plant operator and the plant electrician should know if
this portion of the plant could function.
In the previous 10 citations I relied on the testimony of
MSHA"s witness 9 Mr. Renowden. Howeveru that testimony is not
persuasive here since Mr. Renowden was not testifying as to the
conditions at the wash plant.
Mr. Dennehy, who issued this order stated he "never saw the
wash plant in operation."
(Tr. 55, 56).
In addition, Randy Smith stated:
wash plant."
(Tr. 69).

"I don't know about the

Since the sand plant was not operating nor capable of
operating there could be no moving machine parts to cause injury
as provided in C.F.R. 56.14107.

477

For the above reasons Order No. 3630620 should be vacated.
Order No. 3630646

This Order alleges a violation of 30 C.F.R. § 56.14112(b). 12
The condition alleged by MSHA to be violative of the regulation
reads:
The guard on the left side of the sand
stacker tail pulley had been removed,
allowing access to the fins on the self
cleaning tail pulley. This conveyor was
located in the wash plant. The fins were
.approximately 1 ft above ground level and
easily accessible while in operation. This
condition has existed for at least 6 days.
This is an unwarrantable failure condition.

The previous findings of fact set forth in connection with
Order No. 3630620 are appropriate and are incorporated herein.
not

The same basic conditions exist since this machinery could
operated no violation of C.F.R. § 56.14112 could occur.
Order No. 3630646 should be vacated.

law I

Based on the foregoing findings of fact and conclusions of
enter the following:
ORDER

ion No. 3630511 is AFFIRMED and a
$50 is aSSESSED.
2.
$50

Citation No. 3630517 is AFFIRMED and a civil penalty of
ASSESSED.
No.

12

l penalty of

§

56.14112

3630518

AFFIRMED and a civil penalty of

Construction and maintenance of guards.

(a) Guards shall be constructed and maintained to(b) Guards shall be securely in place while machinery
is being operated, except when testing or making
adjustments which cannot be performed without removal of
the guard.

478

Citation No. 3630648 is AFFIRMED and a civil penalty of
4.
$30 is ASSESSED.
5.
Citation No. 3630650 is AFFIRMED and a civil penalty of
$30 is ASSESSED.

Citation No. 3630651 is AFFIRMED and a civil penalty of
$30 is ASSESSED.
6.

Citation No. 3630654 is AFFIRMED and a civil penalty of
$30 is ASSESSED.
7.

Citation No. 3630614 is AFFIRMED and a civil penalty of
8.
$300 is ASSESSED.
9.

Order No. 3630615 is AFFIRMED and a civil penalty of

$300 is ASSESSED.
10.
Order No.
$300 is ASSESSED.

3630617 is AFFIRMED and a civil penalty of

11.

Order No. 3630620 is VACATED.

12.

Order No. 3630646 is VACATED.

Law Judge

Distribution~

Kristi Floydu Esqo~ Office of the Solicitor, u.s. Department of
Labor, 1585 Federal Office Buildingu 1961 Stout Street, Denver,
co 80294 (Certified Mail)
Kent F. Williamson, Esq., Post Office Box 1618, 215 North Linden
Street, Suite D, Cortez, co 81321
(Certified Mail)

sh

479

FEDERAL MINE SAFETY AND HEALTH REVIEW COJ'-iMISSION

1244 Speer Boulevard
80
DENVER, COLORADO 80204-3582
(303) 844-5266/FAX (303) 844-5268

MAR 1 6 1993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
'
Petitioner

CIVIL PENALTY PROCEEDING

Docket No. WEST 92-139-M
.c. No. 05-02798-05518

v.
S CLL
~-,

2? 1a:r~t

CALCO INCORPORATED,
Respondent

Appearances:

of the Solicitor,
Tambra Leonard,
"" Off
U.S. Department of ~acor, Denver, Colorado,
for Petitioner-;
Robert K. Murrayu
for Respondent.

Before~

Judge Morris

The Secretary of Labarr
and
Health Administration (MSHA}
porated ("Calco 0 ) with violating five
regulations
promulgated under the Federal Mine Safety and Health Actu 30
U.S.C. § 801 et. seq. (the ~ .A.ct"
6

Hearings were held
Denver
1992 9 and January Bu 1993.
The parties waived
expedited decision.

Coloradc.
and

an

At the commencement of the hearing t:he parties filed a
written stipulation stating as follows~
1.
Calco is engaging in mining and selling of quick- lime
and limestone in the United States; and
mining operations
affect interstate commerce.

480

2.
Calco is the owner and operator of Salida Plant Mine,
MSHA I.D. No. 05-02798.
3.
Calco is subject to the jurisdiction of the Federal
Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et. ~ (the
" Act").

4.
matter.

.The Administrative Law Judge has jurisdiction in this

5.
The subject citation was properly served by a duly
authorized representative of the Secretary upon an agent of
respondent on the date and place stated therein, and may be
admitted into evidence for the purpose of establishing its
issuance, and not for the truthfulness or relevancy of any
statements asserted therein.
6.
The exhibits to be offered by respondent and the
Secretary are stipulated to be authentic but no stipulation is
made as to their relevance or the truth of the matters asserted
therein.
7.
The operator demonstrated good faith in abating the
violation.
8.
Calco is a MetaljNon-metal mine operator with 38,401
tons of production in 1991.
The five citations involved here allege violations of 30
C.P.R. § 55.14107 a)
provides:
machine parts shall be guarded to
persons from contacting gears,
sprocketsr chains, drive, head, tail, and
take-up pulleys, fly-wheels, couplings;
shafts: fan blades, and similar moving parts
that can cause
BACKGROUND
.~THOR LEE ~LLIS has been a metal/non-metal mine inspector
for five yearso
Prior to MSHA his experience was in underground
mining,

On August 6, 1991, Mr. Ellis inspected Calco's Salida plant.
The plant manager, Lawrence Martinez, accompanied him on the
inspection.

481

Citation No. 3905779
The above-numbered citation reads as follows:
A tail pulley and chain and sprock sprocket
guard were not provided on the screen plant
conveyor, exposing employees to the possibility of being caught in the pinch points.
The tail pulley and chain drive was located
under the feed hopper and approximately 6 11
·above ground level.

EVIDENCE
Mr. Ell
issued this citation when he found there was no
guard on the tail pulley or chain drive under the feed hopper.
Exhibits R-1 and R-2 are photographs of the screen plant conveyor
and Exhibit P-2 is a schematic drawn by the inspector.
Exhibit
P-2 depicts the chain sprocket, tail and head pulleys and identifies pinch points as No. 1, No. 2, and No. 3. The area outlined in red on Exhibit P-2 shows the outside parameters of the
side of the screen plant conveyor.
The chain sprocket has grease fittings at the tail pulley
and drive and the pulley itself is 12 inches above the ground.
The pinch points are located at the bottom and at the chain drive
sprocket. The belt, which moves material uphill, is 30 inches
wide. The pulley moves at 60 to 70 RPM, and the sprocket moves
a·t approximately 100 RPM.
In the inspector's op
it was reasonably l
ly that an
accident oould occurc However he agreed that the distance between the side wall of the conveyor and the pinch points was a
narrow 18 inches.
The inspector indicated that an employee would
maintain the plant conveyor twice a shift by servicing the equipment and removing the spillingsc
A like
injury could be permanently disablingu including
the loss of a limb.
MSHA records indicate that 75 to 80 percent of fatalities
caused by moving machine parts involve conveyor belts. (Ex. P-3Q
P-9) o

The citation was terminated by the installation of a spring
guard placed around the pinch points and by further agreement
that the company would not use any shovels to remove accumulations under the equipment. The grease zerts themselves were
moved outward 18 inches to 2 feet from their present location.

482

To accomplish this, holes were made in the outside panel of the
plant conveyor.
It is 10 feet from the outside edge of the conveyor to the pinch points.
It is 18 inches from the tail pulley
to the chain sprocket.
In the inspector 1 s opinion, miners would be in close proximity to shovel and remove spillage. Accidents have occurred involving the use of tools and workers have been sucked into pinch
points and killed or disabled. The equipment the inspector had
in mind was shovels, hoesQ and hammers. However, he had never
seen such an injury occur.
LAWRENCE MARTINEZ testified for Calco. He is the plant
manager and is familiar with the citations. Mr. Martinez confirmed that the conveyor belt itself was 18 inches from the side
of the conveyor when the conveyor is installed.
(The conveyor is
not installed in photographs R-1 and R-2.)

No maintenance is performed on the equipment when it is
operating as the unit has a lockout to shut down operations and
this is the procedure used by Calco. It was Mr. Martinez's
opinion that it was not possible for any miner to be caught in
the pinch points. They would not crawl back in the narrow space
to clean up any accumulations. Mr. Martinez agreed the grease
zerts are maintained once a shift when the equipment is shut down
and locked out. He also indicated that employees have never
entered without a lockout.
MICHAEL OVERSOLE is the Calco maintenance supervisor. He
testified that no one could be caught in the pinch points. There
is a very narrow space between the pinch points and the side
wall. Anyone would have a
~f
time in getting back there.
when accumulat.
c the conveyor is lifted with a
loader and since
is on wheels it is pushed out of the way of
any accumulations.
Mr. Oversole further
a hole near the structure
measuring 2 feet
2 feet marked on Exhibit P-2).
It is possible to go through this hole ·co grease the zerts. This would not
be done unless the equipment vJas locked out
However 1 it is possible to grease the zerts
'thout ·turning off the equipment.
If
a miner was greasing or adjusting the belt 1 he could be seen from
·the outside of the conveyor
o

o

VIRGIL FULLER, a Calco employee, is in charge of lubrication
and greasing the equipment and he has greased it on numerous occasions. In fact, no one else greases it.
Mr. Fuller described in detail the disconnect and the lockout procedures. During lockout when Mr. Fuller greases the tail

483

pulley, it
necessary for him to bend over, turn sideways and
squeeze back into the area of the bushing.
The opening is about
15 inches.
Mr. Fuller does not enter through the holes in the rear of
the equipment. He enters from the open conveyor side and then
moves into the narrow space. {Tr. 206).
DISCUSSION AND FURTHER FINDINGS
The disposition of this citation turns on the construction
to be given to the cited regulation, Section 56.14107(a).
Should
the regulation require compliance in all places irrespective of
whether a miner might contact the moving machine parts. On the
other hand, should the scope of the regulation be limited to situations where there is a reasonable likelihood that a miner could
contact the moving machine parts.
The regulation stripped-of its surplusage merely states that
"moving machine parts shall be guarded to protect persons from
contacting ... moving parts that can cause injury." In this case
it is uncontroverted that Calco always follows a lockout procedure. However, MSHA's regulation does not recognize lockouts as
an exception to compliance.
In short, compliance with the regulation is required.
In sum, the Mine Act and the standards promulgated thereunder are to be interpreted to ensure, insofar as
possible, safe and healthful working conditions for miners.
Westmoreland Coal Co. v. FMSHRC, 606 F.2d 417, 419-420 (4th Cir.
1979) .
On the basis of the evidence presented here and for the
foregoing reasonsp
conclude that this citation should be af'-'irmed and a penalty assessedo
SIGNIFICANT AND SUBSTANTIAL
A violation
properly designated as being of an S&S nature
based on the particular facts surrounding that violation,
there exists a reasonable likelihood that the hazard contributed
to
ll result
an injury or illness of a reasonably serious
nature.Qu Cement Division, National Gypsum Co., 3 FMSHRC 822, 825
{April 1981). In Mathies Coal Co., 6 FMSHRC 1 (January 1984) 1
the Commission further explained~
11

,

In order to establish that a violation of a
mandatory standard is significant and substantial under National Gypsum the Secretary
must prove: (1) the underlying violation of a
'mandatory safety standard; (2) a discrete
safety hazard--that is, a measure of danger
to safety--contributed to by the violation;

484

(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.
6 FMSHRC at 3-4, See also Austin Power Co., v. Secretary,
861 F.2d 99, 104-05 (5th Cir. 1988) aff'g 9 FMSHRC 2015, 2021
(December 1987) (approving Mathies criteria).
The facts here establish a violation of the underlying
guarding regulations. A measure of danger to safety was contributed to by the violation" Given the difficulty of entering
and working on an 18 inch space coupled with the company's evidence of a lockout procedure 0 it would appear the facts fail to
establish (3) of the Mathies formulation. However, the Commission has recently indicated that "the Mathies test requires an
evalua·tion of the violation at . the time of the citation including
an examination of the risk of serious injury, given the presence
of the violative condition in normal mining operations." Gatliff
Coal Company, Inc., 14 FMSHRC 1982 (December 1992).
Here it appears the equipment was unguarded and a worker
could be seriously injured (establishing (4) of the Mathies formulation}. Normal mining operations would not involve a shutdown and lockout.
Further, it is not possible for the operator
to prevent a worker from maintaining the equipment in close
proximity to the unguarded pinch points.
the
the

The operator abated this violative condition by extending
~nches to 2 feet through the outside panel of
such an abatement should protect the workers on
s
~he s s al
ions are affirmed.
CIVIL PENALTIES
Section 2.10

the Act mandates consideration of six
appropriate civil penaltieso

Calco
a small operator since it produced 38,401 tons of
limestone anC.
ime
2991. The penalties contained in the
order are
considering the operator size.
Pena
ll not cause the operator to discontinue in business.
However§
evidence shows the operator's weak financial
condition and this factor has been considered.
(See sealed Ex.
R-7.)

The operator has a favorable history.
Exhibit P-1 indicates
the operator paid six violations in the two-year period ending
August 5, 1991.

485

Calco was negligent since the violative condition of Citation No. 3905779 was open and obvious.
If a worker became entangled in the pinch points, he would
be seriously injured; hence, the gravity must be considered as
high.
Calco demonstrated statutory good faith in abating the violative conditions.
Citation No. 3905781
The above-numbered citation reads as follows:
A tail pulley guard was not provided on the
limestone feed conveyor belt, exposing employees to the possibility of being caught in
the belt pinch points. The tail pulley was
located about 2i above ground level. An employee passes through this area several times
a shift.

EVIDENCE
Mr. Ellis issued this citation when he found exposed pinch
points on the operator's limefeed tail pulley.
Specifically, the
pinch points were at the bottom of the tail pulley.
The described area is shown slightly behind the angle iron to the front
of the hopper as shown in Exhibit P-4. There was no guard and an
employee that was observed in this area was cleaning up with a
broom and shovel.
can be seen on the floor of the area in
The
ley moves at 60 to 80 RPM and
in constant motion.
The pinch point is 2 inches off the ground and the inspector believed an injury could easily happen as a miner could slip and
fall.
Further 9 his clothing could be caught in the pinch point.
In addit
to cleaning
around the area, it would also be necessary to grease and adjust the belt. In the inspector's opinion9 injury could include loss of a limb"
The condition was terminated by
on the equipment.

instal

of a guard

The distance from the tail pulley to the angle iron is 3 to
4 inches; it is the same distance to the pinch point.
Mr. Martinez testified for Calco that there was no guard on
this equipment. However, the pinch point was one foot above the
floor and a person would have to be very low to the ground to get
his hand into the pinch point. He would, in fact 1 have to fall
at a perfect angle to become entangled.

486

The angle iron shown in Exhibit P-4 is the same as the angle
iron on the side away from the camera. Exhibits R-3 and R-5 show
the guards that were installed by the operator.
The only reason anyone would be in this area would be to
clean up or service the equipment. Workers shovel the gravel
while the belt is moving.
A worker could stick his hand directly into the pinch point.
Mr. Martinez would shut off the equipment if the belt had to be
worked on.
The metal screens shown in Exhibits R-3 and R-5 were installed after the citation. As a result of the installation,
no one person can reach into the pinch points. The machine is
greased three times a week.
It is necessary to clear the rubble
every shift or every other shift.
Mr. Oversole testified the pinch point was under the
angle iron a foot or so off of the floor.
In his opinion, the
frame provides adequate protection from the pinch point, and it
was his view that no one could fall into the return belt of the
equipment.·
Miners would be in the general area of the conveyor when it
was running.
VIRGIL FULLER, testifying for Calco, indicated he is familiar with the equipment in Exhibit P-4. The pinch point is at the
bottom of the equipment about 7 inches above the floor.
However!
if a person slippedp he could not get tangled up
the pinch
point. The angle iron frame provides adequate protection from
t:he pinch point. However 7 he would a sic that a guard be put
there.
If anyone came in contact with the pinch point, it would
be a deliberate attempt because it would not be an inadvertent
act.
On cross-examination Mr. Fuller agreed that it would be
possible to reach into the pinch point but that in his opinion
the point was inaccessible. It is 6 to 8 inches to contact the
pinch point.
You could not get your hand in and out quickly.
Howeverf a person could purposely put his hand into the pinch
point.
DISCUSSION AND FURTHER FINDINGS
The position of the pinch point indicates from the evidence
that it would be difficult for a miner's body to become en tangled. However, entanglement with clothing could occur. Given the
strict compliance imposed by Section 56.14107(a), it is necessary

487

for the operator to guard against the stated contingency even
though the occurrence of that contingency might be unlikely.
For the above reason, Citation 3905781 should be affirmed.
SIGNIFICANT AND SUBSTANTIAL
The formulation in Mathies and Gatliff apply here.
The reocord generally meets the Mathies criteria. Following Gatliff,
the evidence indicates a risk of serious injury exists particularly if a miner's clothing becomes entangled in the pinch point.
Even though such entanglement is remote, workers in close proximity were exposed.
The S&S allegations should be affirmed.
CIVIL PENALTIES
In connection with Citation 3905781, the operator must be
considered as negligent since employees work in the area and the
condition was open and obvious.
Further 9 gravity must be considered as high since if a
worker became entangled he could be seriously injured.
The remaining penalty criteria have been previously
discussed.
Citation No. 3905782
The above-numbered

on reads as

follows~

The
guard was nc~ adequate, head
pulley
was not provided and back parportion of chain drive guard was not provided
on the No. 2 limefeed conveyor belt, exposing
employees to
of being caught
The tail pulley was
located approximately 2 above cement floor
and the head pulley and chain drive were in
front of and above 18" to 24" from a ladder
used by employees to check on small grizzly
and clean rocks from grizzly which is between the ladder and head pulley (about 18 11
to 24" wide). This is done on a regular
basis.
EVIDENCE
Mr. Ellis wrote one citation for three different conditions
on the same piece of equipment.

488

Concerning the tail piece, an inadequate guard, as shown in
Exhibit P~6, was on the equipment. After abatement, the new
guard is shown in Exhibit R-6.
In addition to the above-described condition at the tail
pulley, there were also pinch points at the head pulley and in
the chain drive to its right. The condition at the head pulley
is shown in Exhibit P-5. The pinch points are where the conveyor
contacts the head pulley. since the material is moving uphill
into the grizzly, the pinch point would be on the far side of the
head pulley and away from a worker.
Additional pinch points are shown in the chain drive which
appears to be partially enclosed and to the right of the head
pulley.
These pinch points are 7 feet off the ground and only accessible by a ladder. It is necessary for employees to climb the
ladder to pick any large rocks off of the grizzly and this cleanup occurs several times a shift.
The head pulley moves at 60 to 80 RPM and the sprocket (to
the right in P-5) moves at 120 RPM.
Mr. Ellis expressed the view that if a miner on the ladder
lost his balance 1 his clothes or part of his body could become
entangled. He considered it reasonably likely that there could
be a permanent disabling injury or loss of limb.
Mr. Ellis agreed that the pinch point at the conveyor and
t.he head
l
<:Jere 3~1 2 feet away from a worker on the ladder.
In addit
involved would be increased by the 18inch head pul
He also indicated the pinch point was 2 feet 9
inches from the face of the ladder. The limestone would be moving uphill toward the ladder. He believed a person's arm can
reach 2 to 3 feet depending on the turn of the torso. He be,
person or his clothing could be caught in all three of
involved here.
1.\'lr. Martinez ·testified the manner in which he stepped on the
second rung to throw rocks out of the grizzly. He had never been
concerned that an employee could be hurt by slipping or falling.

Exhibit R-6 shows the tail pulley after a guard was
attached. The pinch point itself at the tail pulley is within 5
inches of .the floor. Mr. Martinez believed that if a person laid
down on the floor he could put his hand in the pinch point.
Mr. Martinez indicated the equipment is maintained three
times a week.
Further 1 they have adjusted the belt with the
conveyor running.

489

Mr. Oversole indicated a worker could not contact the pinch
point at the bottom of the tail pulley unless he was really
trying.
Mr. Oversole has cleaned out the grizzly himself and it is
only necessary to go up the ladder high enough to see the rocks.
This is usually four rungs down from the top.
The first rung is
at chest level and there is no need to go any highero
Mr. Fuller expressed the view that the pinch point on the
He further indicated
tail pulley was 7 to 8 inches above ground.
the guard that was installed at the time of the inspection was
adequate.
In connection with the head pulley:
a worker normally goes
up two rurigs on the ladder and is leaning forward.
It is unlikely he will fall backwards.
To get tangled up in the head pulley,
you have to go higher on the ladder. and reach around the head
pulley to contact the conveyor belt.
Mr. Fuller has climbed the ladder to clean out the grizzly
on two or three occasions. He has cleaned out the grizzly when
the conveyor was moving.
In his opinion 1 you cannot reach the
pinch point from a position of being waist high on the ladder.
Mr. Fuller indicated he is a rank and file person with Calco
and he has not been paid for testifying.
He has been employed
there for eight years, and the company runs a safe operation.
DISCUSSION AND FURTHER FINDINGS
Concerning the tail pulley~
the evidence establishes
guard a'c t.he t.ime of t.he inspection '(,vas not adequate.
E:x:hibi t
P-6 shows the opening between the old guard and the conveyor.
While it was claimed that the metal piece along the edge of the
conveyor also served as a guardu it is apparent that a sufficient
opening exists for a person to slip a hand or clothing or even a
tool into ·the pinch point through the unguarded opening.
(Cornpare Ex. P-6 and Ex. R-6r the before and aftero)
The operator's witnesses testified as to the difficulty of
contacting the pinch point and the necessity of reaching over the
head pulley to make that contact"
rvm not persuaded by that testimony as it is all premised on how high the employee stands on
the ladder.
The employee, if he slips, would almost automatically reach forward since he can only fall if he goes backwards.
He thereby exposes himself to contacting the pinch point formed
by the conveyor and the head pulley.
Citation No. 3905782 should be affirmed and a penalty
assessed.

490

2_JGNIFICAN'1' .AJN.D SUBSTANTIAL

The formulation in
applies here. The evidence establishes an underlying
lation of 30 C.F.R. §56. 14107(a). A
discrete measure of danger to workers was contributed to by the
unguarded equipment. The var
conditions in this citation
indicate a reasonable likelihood existed that the hazard will
result in an injury.
~~
also reasonable that an injury would
be serious and possibly fatal.
The S&S allegat
3905782.

be affirmed as to Citation No.

The operator 1.vas
were open and obvious.

as these violative conditions

of be
cenight in pinch points results in
considered high.

The possibil
the gravity as be

The add ional c
viously
scussed.

il penal

criteria has been previ-

The above-numbered citation reads as follows:
The head pul

cemen~:.

about.: :o
6 f e·:e"i: above

could touch 'the
The cha

f2_o;:;~:,

and tail pulley guard were
that a person could reach
.ouch the pulleys on
::~e:_·c . . exposing
caught
ley was
:2 •· i~i.::O'lr:e c.1 cement floor and the
6; high above a
through

abcv.e ·:::::~tc:::

on August 6, 1991 .
.":·· sma1l guard. The pulley itself
ce111en·t.
loor
The head pulley was
c:~:nother conveyor.
A worker
bars welded onto it.
were exposed.

'

Mr. Ellis believed the guard was not adequate as it did not
cover the pinch points. There was nothing covering the tail
pulley on the back. About 8 to 10 inches were uncovered.
If a
worker was caught by the moving machine part, he would be
injured.

491

Exhibit P-7 is a photograph of the head pulley and the drive
on Conveyor No. 1. The head pulley is in the center of the
photograph and the pinch points are at the top.
In the inspector's opinion, the bars on the head pulley
create additional pinch points.
The conveyor belt moves material uphill and the pinch points
would be on top.
There are pinch points at the sprocket where it meets the
chain.
In Mr. Ellis's opinion the pinch points were not adequately
guarded at the bottom of the tail pulley and a worker could be
caught by the moving shaft.
Mr. Ellis expressed the,.view that it was reasonably likely
that an accident would occur since employees walk by this area
and service the equipment. Workers would also clean up if a
spill occurred. Both the tail pulley and head pulley are cleaned
up on a daily bas
At the tail pulley Mr. Ellis observed
gravel that had been spilled.
Mr. Ellis also believed that the loss of a hand, finger, or
arm was possible, and he considered it easy for a worker to be
injured if he slipped or fell into the pinch points. He had seen
workers cleaning with a broom and shovel and the equipment could
be pulled into the pulley. In addition, clothes could be caught.
The head
6 feet above the ground and 2 feet from
"the walkwayo
If a worker tripped and fellu he could only fall
the area of
tail pulley. He could not fall into head
ley area.
The inspector believed the company was negligent since the
violation could be easily seen and management should have known
about it.
The inspector testified that workers have been injured by
equipment of
type and he identified Exhibits P-3 and P-9 as
MSHA reports generally relating to injuries involving moving
machine parts. He has also learned of a number of instances
involving tools and, as a result, he marked this violation as
possibly causing a permanent disability.
Inspector Ellis agreed that he measured the vertical distance to the center of the head pulley. The distance was 72
inches, plus or minus 2 inches. It was also 1-1/2 to 2 feet from
the frame over to the conveyor. It was 7-1/2 feet to the unguarded pinch points from where Mr. Ellis was standing to make
his vertical measurement.

49 2

Mr. Ellis was familiar with 30 C.F.R. § 56.14107(b), which
provides as follows:
Guards shall not be required where the exposed moving parts are at least 7 feet away
from walking or working surfaces.
It was Mr. Ellis's opinion that the guards were not
adequate.
LAWRENCE MARTINEZ, plant manager, testified the bars welded
on the head pulley are 1/4 to 3/8 of an inch. The distance from
where he was standing below the head pulley was 6 feet vertically
and 2 feet laterallyf or a total of 8 feet.

The company has a lock-out procedure and does not grease the
equipment when it is running. Exhibit R-13 shows the head pulley
of the conveyor.
Virgil Fuller is shown in R-13. Mr. Fuller is 6 feet tall
and to reach the pinch point he would have to reach an additional
foot.
In Mr. Martinez's opinion the pinch point in the vicinity
of the head pulley is inaccessible. Further, the addition of the
3/4 inch riser did not create any additional pinch point.
Exhibit R-14 shows the feed conveyor tail pulley section.
The tail pulley is not greased when the· machine is "on the run."
The conveyor belt is adjacent to where people walk several
times a day.
shows the head pulley and Exhibit R-14 shows
·:::.he
MICHA~L OVERSOLE testified the parallel ribs welded on the
head pulley were 3/8 of an inch round stock mild steel. There
was 2 inches between each rib. There was a 1/4 inch gap. A
~erson could not get a finger into the 3/8 inch gap.

In Mr. Oversole 1 s opinion? the guarding on the equipment was
adequate when the citation was issued.
Mr. Oversole agrees that he adjusts the conveyor belts when
they 1 re installedv and then once after they stretch for wherever
adjustment is needed. They do not grease the head pulley area
and they clean around the head pulley and tail pulley once a
shift.
Exhibit P-6 appears to show a gap but it could not be more
than 2-1/2 inches. It would be possible to get a hand in this
area but you still could not reach the pinch point.

493

VIRGIL FULLER, in addition to his other qualifications, is
also an emergency medical technician certified by the State Board
of Health.
In addition, he is a licensed minister and preaches
when requested.
Mr. Fuller identified himself in Exhibit R-13 where he is
reaching upward and standing against a conveyor belt.
Even in
that position, he is 10 to 12 inches from the pinch points.
Mr. Fuller is 6 foot 1 inch; the vertical distance adjacent
to the head pulley is 6 feet and the horizontal distance to the
head pulley is 1 1/2 to 2 feet.
Measured on a curve with a tape measure, it is 88 inches
from the ground level to the pinch point. The measurement would
be 7 feet .4 inches. In Mr. Fuller's opinion, it would not be
possible to become tangled up in the conveyor, nor could a worker
become tangled in the head pulley.
Exhibit R-14 shows the tail pulley and it was received as an
accurate photograph of the present guard. The opening in the
tail pulley area is 2 1/2 to 3 inches and it is an additional 18
inches to the pinch point. No worker at Calco could reach the
pinch points.
On the head pulley the welded ribs were 3/8 inch when new.
A worker could only get his fingers between the conveyor and the
head pulley if he did so purposely. The tail pulley pinch point
is inside the frame and if a worker put his hand into the open
area he would have to go an additional 8 to 10 feet to reach the
pinch pointe and this would not be possible.
Mr. Fuller indicated he services the equipment when it is
operating at four grease points on the drive side and he has a
grease tube permanently affixed to the machine.
A pinch point could be contacted if a person had a reach of
88 inches. Mr. Fuller could not reach the pinch point nor would
his shirt sleeve become entangled.
In Exhibit R-13 he is leaning as far as he could go and
could only go an additional 1 inch.
Mr. Martinez could reach the pinch point because he is
taller.
The equipment is greased once a week.
on the floor near this equipment.

There's often gravel

On the head pulley there is a grease zert 8 to 10 inches
outside of the guards.
In.addition, there is a grease tube.

494

When Mr. Fuller rebuilt the guards they had to be extended.
Exhibit P-6 shows the tail pulley guard.
There's a 2-1/2 inch gap in the bottom of the skirting. The
skirting is a 1/4 inch by 4 inch piece of metal and, in addition,
a 1/2 inch by 5 inch rubber skirting. The skirting serves to
keep the material on the belt.
DISCUSSION AND FURTHER FINDINGS

AMENDMENT
This case originally commenced December 1992. At that time
the Secretary sought to amend her citation so as to include
therein allegations that the sprocket and chain drive guard were
unguarded.
Respondent claimed surprise and its motion for a continuance was granted.
The case was re-set to January 8, 1993. No
written amendment was filed, but inasmuch as the parties had
discussed the nature of the amendment at the December hearing,
the operator could not have been surprised by the amendment and
the Secretary was permitted to orally amend the citation and add
in the citation an allegation that the "sprocket and chain drive
guard" were unguarded or not adequately guarded.
This citation involves a question of law.
The
Ol\: .Laitl is l.Nhether moving machine parts should
guarded when those exposed moving parts are "at least 7 feet
away from wall<.ing or t'>lorking surfaces 11 as contained
Section
56.14107 (b).
~e

It is clear that the vertical measurement under the head
pulley was at
6 foot and the horizontal distance was 1 1/2
eto 2 feet.
The Secretary argues that t.he distance involved
should be ' 1 as the crow
' 9 On the other hand 0 the operator
correctly argues that even the crow could flYv he (the crow)
could not fly through the lower conveyor belt.
In Exhibit R-13
Mr. Fuller is leaning on the lower conveyor belt and reaching
forward in the direction of the head pulley pinch points.
In connection with this matter, I find the operator's testimony to be credible concerning the distance involved between
the walking or working surface and the exposed moving parts.
That distance, as Mr. Fuller testified, was 7 feet 4 inches.
By
virtue of Section 56.14107(b) no guards are required under these
circumstances.

495

I further credit the operator's testimony as to the tail
pulley.
The operator, in my view, is in a better position to
describe the relative distances from the opening in the tail
pulley guard to the pinch point. While I agree there is an
opening, there is no credible evidence that any worker could
reach to the pinch point even if he placed his hand deliberately
in the area.
The sprocket and chain guard drive which the Secretary
claims was also unguarded is a greater distance from the floor
than the head pulley is from the floor.
Accordingly, the
sprocket and chain guard drive is greater than 7 feet from the
working surface and under § 56.14107(b) no guarding is required.
(See Exhibits P-7 and R-13.)
For the foregoing reasons Citation No.3905783 should be
vacated.
Citation No. 3905784
The above-numbered citation reads as follows:
A tail pulley guard was not provided on the
Briq conveyor belt, exposing employees to the
possibility of being caught in the belt pinch
points. The tail pulley was of the selfcleaning type and located about 1' above
bacement (sic) floor.
Employees must pass by
tail pulley to get to electrical switch gear.
~THUR ELLIS issued the above citation when he observed a
self-cleaning
pulley without a guard. Workers were exposed
to the possibility of being caught by the pinch points and this
could cause a serious injury to a worker.

Exhibit P-8 is a drawing purporting to show the tail pulley
as well as a door to the motor control center.
The drawing
Mr. Ellis s best recollection of the scene.
pinch point
at the bottom of the tail pulley.
addition to persons being entangledp tools could also be
entangledo

In

It was a foot from the tail pulley to the ground and the
inspector estimated that the pulley moves at 60 to 80 RPM.
From
the pulley to the door is 10 feet.
Workers would go alongside the conveyor to get to the door.
In rebuttal testimony Inspector Ellis stated he was in error
on this point. He indicated there was no walkway along the side

496

of the briquette conveyor"
side of the conveyor.

Exhibits R-8 and R-11 each show a

Mr. Ellis noted that in the area near the pinch points
workers sometimes went to service the equipment.
He believed that the violation was significant and substantial and reasonably likely to cause an injury. The most likely
injury would be loss of a limb as a worker could trip and fall
into the pinch point or be pulled into the equipment.
He believed it was easy for an accident to occur as employees pass this area several times a day.
The tail pulley was a foot off the floor.
He considered the
negligence to be moderate as management should have known of the
condition.
LAWRENCE MARTINEZ testifi~.d that the ceiling deck as shown
on Exhibit R-11 is 4 feet above the briquette conveyor. Anyone
walking in this area would necessarily stoop over.
It would not
be possible to walk alongside the conveyor without stooping down.
Exhibit R-9
taken from the adjacent walkway with the
camera pointing upward on the conveyor belt.
The tail pulley has sealed bearings and no maintenance is
required except to change the bearings. On Exhibit R-10 the
material is transported uphill. The pinch points on the tail
pulley are difficult to see due to the installation of guards
after the citation was issued.
Exhibit. R-11 shows t.he briquette conveyor with the photograph taken from underneath the platformo
The briquetter system is only operated about 16 hours a
month and it depends upon the requests made by the customers for
the briquette products. The briquetter is usually operated about
·two months.
The function of ·the briquetter is to take powder or rock and
briquette it much like a charcoal briquette.
Employees walk by this area daily and the panels shown in
the background of R-8 hold electrical switches to operate the
equipment.
On August 6 1 1991, there were no guards on the conveyor.
Mr. Martinez drew a plan view of the briquetter building.
He identified the various portions of the building as well as the
described platform which was 4 feet above the floor.

497

He indicated a walkway is located at the end of the conveyor
belt, and if you fell, you would not fall into the conveyor belt.
A switch gear is right at the end of the walkway.
The electrical controls shown in the back of Exhibit R-8
were for the blower, the bag house, and related equipment.
It is possible to turn off the blower; the bag house, and
related electrical equipment while the briquetter is still running.
It is possible to turn the machinery on and off if a
spillage occurs.
Theregs no necessity to maintain the equipment
while the system is running.
MICHAEL OVERSOLE, maintenance superintendent, agrees with
Mr. Martinez's drawing in R-12.
He indicated the conveyor is
protected from an accident due to the platform.
A worker could
not become entangled even if he slipped and fell.

If the briquetter is running, the lime will burn your eyes
but visibility is no problem when you enter the area.
It is necessary to walk by the end of the tail pulley to
reach the electrical controls.
VIRGIL FULLER handles the lubrication of equipment in the
plant.
The briquetter has sealed bearings so there is no occasion to be in the vicinity of the conveyor belt.
In addition 1 a
worker could not get tangled up in the pinch points on the belt
and any entanglement would have to be deliberate.
The briquetter
system operates about 16 hours a month.
unde:::See
the

Mr. Fuller goes onto the walkway he checks the
and checks the alignment of the conveyor belt.
:R-12
fying the walkway area and the area where
located.)

DISCUSSION AND FURTHER FINDINGS
·ts R-8 ~ R-9 ~ I-.:t-10 r and R-11 are photographs of the
In the background of R-8 are the
control ·the briquetter.
To reach these
a workman would have to pass by the tail pulley.
Exhibits
R-8 and R-11 show spillage from the briquetter.
Removal of that
llage would require a worker to be in close proximity to the
unguarded pitch points which were described in detail by the
inspector"
The operator contends there's no necessity for any workers
to be in close proximity to the unguarded tail pulley.
However,
Exhibit R-9 clearly shows an electrical panel directly above the
conveyoro
The electrical panels, according to the evidence,

498

control the operation of the bag house, et cetera.
These electrical panels above the tail pulley, however, do not control the
running of the actual briquetter itself.
I do find from Exhibit R-9 that the electrical panels are in
quite close proximity to the tail pulley.
For this reason, this
citation should be affirmed since entanglement is a definite
possibility.
Citation No. 3905784 should be affirmed and a penalty
assigned.
SIGNIFICANT AND SUBSTANTIAL
The formulation in Mathies applies. The evidence establishes an underlying violation of 30 CFR 56.14107(a).
A discrete measure of danger to workers was contributed to by the unguarded tail pulley.
It appe~rsthere is a reasonable likelihood that the hazard will result in an injury.
A worker using
the electrical panel could become entangled.
If such an event
occurred, injury could possibly be fatal.
The

S&S

allegations are affirmed.
CIVIL PENALTIES

The operator was negligent as this condition was open and
obvious.
The gravity must be considered as high in view of the
possibil
of entanglement.
Other st.atutory

has been previously discussed.
ESTOPPEL

asserts
ROBERT MURRAYf president and counsel for Calco 9
other MSHA inspectors have not. cited the company for the conditions observed
Mr. Ell
As a general ruleu equitable estoppel cannot be asserted
against the Secretary. Kina Knob Coal Company, Inc. 1 3 FMSHRC
1417u 1421-22 (June 1981).
Furtheru prior non-enforcement does
not bar the Secretary from citing violative conditions.
conesville Coal Preparation Companyr 12 FMSHRC 639, 672 (April 1990.)
For the foregoing reasons, I

enter the following:

ORDER
1.
Citation No. 3905779 is AFFIRMED and a penalty of $50
is ASSESSED.

499

Citation No. 3905781 is AFFIRMED and a penalty of $50
2.
is ASSESSED.
3.
Citation no. 3905782 is AFFIRMED and a penalty of $75
is ASSESSED.

4.

citation No. 3905783 is VACATED.

Citation No. 3905784· is AFFIRMED and a penalty of $50
5.
is ASSESSED.

Law Judge

Distribution~

Tambra Leonard, Esq., Office of the Solicitor, u.s. Depart-ment
of Labor 9 1585 Federal
ice Buildingv 1961 Stout Street,
Denverv co 80294
(Certified Mail)
Robert K. Murray, Esq.u CALCO INC., P.O. Box 1520, Golden, CO
80402-1520
(Certified Mail)

ek

500

FEDERAl MINE SAFETY AND HEAlTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE lAW JUDGES
2 SKYLINE, 1Oth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

MAR 1 71993
BOBBY GENE STROUTH,
complainant

. v.

DISCRIMINATION PROCEEDING
0
0

CAVALIER MINING CORPORATION,
Respondent

Docket No. VA 91·-34-D
NORT CD 90-16

ORDER OF DISMISSAL
Appearances:

Before:

Edward G. Stout, Esq., Bressler, Curcio & Stout,
P.C., Bristol, Vt!"ginia, for Complainant;
No appearance for Respondent at the hearing.

Judge Maurer

This case came on to be heard on December 15, 1992, in
Abingdon, Virginia. No appearance was made on behalf of
respondent because the respondent is currently involved in
bankruptcy. This bankruptcy, originally filed under Chapter 11
has since been converted to a Chapter 7 bankruptcy proceeding
from which there may or may not ever be any funds left over for
distribution.
In the meantime, section 362 of the Bankruptcy
Code (11 u.s.c. § 362) provides for a stay that effectively
prohibits this discrimination action from proceeding to judgment.
In consideration of these circumstances, the complainant has
filed a motion to withdraw his complaint in this matter, without
prejudice to him refiling
, at his option, within 90 days after
respondent is discharged from its bankruptcy proceeding. The
respondent does not object to the grant of this motion.
In light of the foregoing circumstancesu the complainant 6 s
motion to withdraw his complaint and dismiss this caseu without
prejudice 7 is GRANTED.
hereby ORDERED that this case be DISMISSED without
prejudice to the complainant refiling it with this commission, at
his optionq within 90 days after respondent is discharged from
its bankruptcy proceeding.

aurer
rative Law Judge

50 l

Distribution:
Timothy w. Gresham, Esq., Penn, Stuart, Eskridge & Jones,
208 E. Main Street, P. o. Box 2288, Abingdon, VA 24210 (Certified
Mail)
Edward G. Stout, Esq., Bressler, Curcie & Stout, 600 Cumberland
street, P. o. Box 1478, Bristol, VA 24203 (Certified Mail)
dcp

502

FEDERAL MINE SAFETY AND JJEAT.TH REVIEw COMMISSION
OFFICE OF ADMINISTRATIVE LA~ JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

MAR 1 81993
CIVIL PENALTY PROCEEDINGS

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

Docket No. KENT 90-100
A.C. No. 15-04322-03530

v.

Docket No. KENT 90-215
A.C. No. 15-04322-03531

GATLIFF COAL COMPANY 1 INC.
Respondent

Gatliff No. 1 Mine
NOTICES OF CONTEST

GATLIFF COAL COMPANY 1 INC.,
Contestant
'-

v.

..

.
•·

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

Docket No. KENT 89-242-R
Citation No. 3178703; 8/3/89
Docket No. KENT 89-243-R
Citation No. 3178704; 8/3/89
Docket No. KENT 89-244-R
Citation No. 3178706; 8/3/89
Docket No. KENT 89-245-R
Citation No. 3178707; 8/3/89
Docket No" KENT 89-246-R
No. 3178708; 8/3/89
Docke·t No. KENT 89-247-R
Citation No. 3178709; 8/3/89
Docket No. KENT 89-248-R
No. 3178710~ 8/3/89
Docket No. KENT 89-249-R
Citation No. 3178711; 8/3/89
Docket No. KENT 89-250-R
Citation No. 3178712; 8/3/89
Docket No. KENT 89-251-R
Citation No. 3178713; 8/3/89
Docket No. KENT 89-252-R
Citation No. 3178714; 8/3/89
Gatliff No. 1 Mine
Mine ID No. 15-04322

50 3

DECISION APPROVING SETTLEMENT
Before:

Judge Melick

The captioned cases were remanded by the Commission on
December 7, 1992, for reassessment of civil penalties for
Citation No. 3178705 in Docket No. KENT 90-100 under Section
110(i) of the Federal Mine Safety and Health Act of 1977
(the Act). Petitioner thereafter filed a motion to approve
a settlement agreement as to this citation. A reduction in
penalty from $4,000 to $500 is proposed. I have considered
the fact that following trial and appeals to this Commission,
the original Section 104(d) order was modified to a Section
104(a) citation without "unwarrantable failuren findings.
I have also considered the trial transcript and evidence in
this case and I conclude that the proffered settlement is
appropriate under the criteria set forth in Section 110(i)
of the Act.
WHEREFORE, the motion for approval of settlement is
GRANTED, and it is ORDERED that Respondent pay a,penalty
of $500 within 30 days of this order for the vio ation
charged in Citation No. 3178705.

I

i

I

I

rlry Mel ck
Jld:minist ative

Judge

f

Distribution~

Anne T. Knauff, Esq.u Office of the Solicitor,
u.s. Department of Labor, 2002 Richard Jones Road,
B-201, Nashville, TN 37215 (Certified Mail)
Robert Io Cusick, Esq., Wyatt, Tarrant and Combs,
2600 Citizens Plaza, Louisville, KY 40202 (Certified Mail)

lh

504

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

,, ,.,
M;P,f(

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

(• ·i:'/;:1,
. '. 1 f.\ 3

CIVIL PENALTY PROCEEDINGS
Docket No. WEVA 92-799
A.C. No. 46-01968-03982

v.
CONSOLIDATION COAL COMPANY
Respondent

Docket No. WEVA 92-800
A.C. No. 46-01968-03983
Docket No. WEVA 92-801
A.C. No. 46-01968-03986
Blacksville No. 2
DEC.ISION .

Appearances:

Before:

Caryl Casden, Esq., u.s. Department of Labor,
Office of the Solicitor, Arlington, Virginia
for Petitioner;
Daniel Rogers, Esq., Consolidation
Coal Companyu Pittsburgh, Pennsylvania,
for Respondent.

Judge Feldman

These single citation proceedings are before me as a result
of petitions for civil penalty filed by the Secretary of Labor
~ursuant to Section 105 d) of the Federal Mine Safety and Health
Act of l977!i 30 u.s.c. §801 et §§!;L..u The Act). This matter was
heard
Iviorgan·town" ttlest Virginia on November 17 1992 p at which
time Richard McDorman testified on behalf of the Secretary and
Kenneth Ryan and David Lemley testified on behalf of the
respondent. At the hearing 1 the petitioner moved to settle
Docket No. WEVA 92-799 which involves a $20 proposed assessment
Citation No. 3718465 for an
leged non-significant and
substantial violation of 30 C.F.R. §75.517. This citation
alleges a damaged cable jacket on the trailing cable of a loading
machine" The proposed settlement involves the respondent 0 s
agreement to pay the penalty as assessed. The petitioner 0 s
motion for approval of settlement was granted at the hearing and
will be incorporated as part of this decision.
The remaining dockets each involve 104(d) (2) orders for
violations designated as significant and substantial which
allegedly occurred as a result of the respondent 1 s unwarrantable
failure.
The parties' post-hearing briefs and their stipulations
concerning the pertinent jurisdictional issues and the relevant
civil penalty criteria found in Section 110(i) of the Act are of
record.

505

PRELIMINARY FINDINGS OF FACT
Docket No. WEVA 92-800

Richard McDorman has been a Mine Inspector for approximately
four years. He also has fifteen years experience in the mining
industry including employment as a mine foreman. His educational
background includes a Bachelor of Science Degree in Mine
Engineering from West Virginia University. (Tr. 22-23).
On July 9, 1991, McDorman conducted a preinspection
conference at the Blacksville No. 2 Mine with the respondent's
management personnel. (Tr. 50). At this conference, the
importance of having conventional firefighting hose for each
working section was discussed. As an alternative to standard
1 1/2 inch diameter firehose, McDorman advised management that
the 1 1/4 inch diameter waterline attached to the continuous
miner could be used as a firehose. This could be accomplished if
the operator obtained a fitting adapter that would enable a 1 1/2
inch firefighting nozzle to be connected to the end of the 1 1/4
inch waterline. In accordance with McDorman's suggestion, the
respondent obtained the requisite fitting adapter and special
wrenches. (Tr. 51).
On November 6, 1991, McDorman inspected the firefighting
equipment in the No. 6 South Section of the Blacksville No. 2
Mine. McDorman was accompanied by company representative David
Lemley and Bill Keechal, the miner's representative. The No. 6
South Section is a continuous miner section with seven entries.
In this section the water supply outlet for the fire suppression
system was located at the loading point. 1 McDorman noted that
the firehose located near the loading point, for use in the event
of
at a working face, was 500 feet in length. (Tr. 29,312). To determine if this hose length was adequate, McDorman
used the foreman 9 s section map to determine the distances between
the water supply at the loading point and the working faces of
each entry. McDorman ascertained that the distance from the
water supply t.o the No. 7 working face, the entry in which the
continuous mining machine was then located, was 486 feet and
within reach of the hose. (Tr. 30,72}. However, the 500 foot
hose was inadequate for the No. 1 and No. 2 working faces which
were 660 and 580 feet from the water supply line, respectively.
(Tr. 33,34). Although McDorman did not witness the continuous
mining operations in the No. 1 and No. 2 entries, McDorman and
respondent witnesses Kenneth Ryan and David Lemley testified that

1

The loading point is the location at which coal is brought
in shuttle cars from the working face and loaded onto a conveyor
belt for transportation outby. (Tr.76).

506

the water supply and section loading point location had not been
moved since the No. 1 and 2 entries were mined approximately one
week before. (Tr. 97,122,135-136).
After determining that the conventional firehose could not
reach the No. 1 and No. 2 faces when they were being mined,
McDorman inspected the waterline at the continuous miner to
determine whether it could be adapted for use as a firehose. 2
(Tr. 38). As noted by McDorman at the preinspection conference,
such adaptation requires a standard 1 1/2 inch nozzle and a
special fitting to plumb the nozzle to the 1 1/4 inch continuous
miner waterline. Although a nozzle was present in the section,
it took. approximately 45 minutes to locate the necessary fitting.
McDorman testified that three mine personnel on the section, as
well as Section Foreman Kenneth Ryan, were all unfamiliar with
the procedure for plumbing the nozzle to the waterline at the
continuous miner. (Tr. 46,48). 3
As a result of his inspecti,qJ1, McDorman issued Order No.
3716493 for an alleged significant and substantial violation of
30 C.F.R. §75.1100-2(a) (1). This mandatory safety standard
requiresv in pertinent part, that"··· waterlines shall extend to
each section loading point and be equipped with enough firehose
to reach each working face ...• n 4
FACT OF OCCURRENCE
Docket No. WEVA 92-800

The respondent, in its brief, argues that the Secretary
should not prevail because the No. 7 entry observed by McDorman
during continuous miner operations was less than 500 feet from
t.he 'tvater supply at the loading pointo Alternatively, the
respondent asserts that the subject order is defective because it
concerns an alleged failure to train personnel in the use of the
2

This water hose is used to supply water to the continuous
machine for the purpose of dust suppression and for a fire
suppression system in the event the continuous miner catches fire.
(Tr.34)o This water hose is not considered adequate as a firehose
because
has no nozzle to project water. (Tr. 35-36,39).
3

The Mine Safety and Health Administration's Program Policy
Manual allows the waterline on the continuous miner to be used as
a firefighting hose if it is equipped with a standard firefighting
nozzle. (Tr. 35-36, Ex. P2).
4

Section 75.1100-2(a)(l) provides three exceptions to the
requirement of sufficient firehose for reaching each working face
which were not present and are not relevant in this case.
(Tr. 41).

507

special fitting hardware for the continuous miner water supply
line rather than a substantive violation of the cited mandatory
safety standard in section 75.1100-2(a) (1).
The essential facts are not in dispute. The 500 foot length
of hose in the No. 6 South Section could not reach the working
faces in the No. 1 and No. 2 entries. Although these were idle
faces at the time of McDorman's November 6, 1991, inspection,
these entries were mined the previous week. It is undisputed
that this hose could not reach these working faces at that
time. 5 The testimony also reflects that the water supply line
to the continuous miner could not be adapted for firefighting
purposes. Although the No. 1 and No. 2 entry faces were idle at
the time of McDormanQs inspection, his observations, given the
fact that the water supply had not been recently moved, provided
an adequate basis for his conclusion that a violation had
occurred. 6 Therefore, the order citing a violation of Section
75.1100-2(a) (1) was properly_ issued and will be affirmed.
Docket No. WEVA 92-801

At the hearing, the respondent stipulated to the occurrence
of the violation cited in Order No. 3314602 of the mandatory
safety standard contained in 30 C.F.R. §75.807. Section 75.807
requires, in pertinent part, that all underground high-voltage
transmission cables must be installed or placed so as to afford
protection against damage, and that these cables must be guarded
where miners regularly work. In addition, these cables must be
securely anchored, and properly placed to prevent contact with
trolley wires.
In
of the respondent~s stipulationv the facts
surrounding
issuance of Order No 3314602 can be briefly
summarized. On September 16 1991 8 Mine Inspector McDorman
inspected the No. 6 North supply track of the respondent's
Blacksville No. 2 Mine. At approximately 3:15a.m., McDorman
noticed a 7u200 volt high voltage cable lying on the mine floor
3

Respondent witnesses Ryan and
ey testified about an
additional 500 foot firehose in a barrel approximately 1,200 feet
from the loading point in the No.6 South Main Haulage Section.
(Tro 112 ll5p 131) o As this hose was in the Main Haulage Section
rather than the No. 6 South Sectionv it was not available as a
firehose for the No. 1 and No. 2 working face entries.
In
addition, McDorman testified that no one told him about this
additional hose at the time of his inspection. (Tr. 137-138).
6

A citation need not be based on the issuing inspector's
direct observations if there is a basis for concluding that the
cited violation has occurred. See Emerald Mines Company v. FMSHRC,
863 F.2d 51, 63 (D.C. Cir. 1988).

508

for a distance of approximately 250 feet, 15 feet inby block 30.
(Tr. 146,151,230). one block further inby McDorman noticed an
additional section of high-voltage cable on the floor for a
distance of 25 feet. (Tr.l51). The cable was lying only three to
five feet from one side of the track. (Tr. 146). In another area
of the mine, near the Orndorff shaft, McDorman observed highvoltage cable contacting the DC feeder wire. (Tr. 151). He
noticed that there were grooves in this cable where it had been
rubbed by the trolley feeder wire. (Tr. 147).
The subject high-voltage cable was described as 2 1/2 inches
in diameter surrounded by an exterior rubber jacket insulation.
(Tr. 148,158,259). This cable is shielded with a metal sheathing
around the wires embedded inside the cable. The purpose of this
shielding is to contain a high-voltage charge inside the cable
and to trip a circuit breaker in the event that the cable is
damaged. (Tr. 192-193). The high-voltage cable is normally hung
from the mine roof with spads and wire placed approximately ten
to twenty feet apart. (Tr. 190-191).
With regard to the fallen cable, McDorman expressed his
concern for mine personnel riding in a mantrip or jeep which
could derail and damage the cable. In such an event, the
occupants could sustain shock, electrical burn or electrocution.
McDorman also testified that the cable observed rubbing against
the trolley feeder wire was a potential ignition source if the
insulation was penetrated. (Tr. 155,178-179).
FURTHER FINDINGS AND CONCLUSIONS
~ignificant

and Substantial

next issues for determination are whether the firehose
and high-voltage cable violations cited by McDorman were properly
designated as significant and substantial. The Commission has
held that a violation is "significant and substantial" if, based
on the particular facts surrounding that violationc there exists
uaa, reasonable likelihood that the hazard contributed to will
result
an injury or illness of a reasonably serious nature. 10
Cement Division, National Gypsum Co., 3 FMSHRC 822 1 825 (April
1981)
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission further explained~
o

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

509

contributed to will result in an injury; and (4) a
reasonable likelihood that the injury in question will be of
a reasonably serious nature.

Docket No. WEVA 92-800
Applying the Mathies test, it is clear that the first
element is satisfied as a result of the respondent 9 s failure to
provide adequate firehose as required by Section 75.1100-2(a) (1}.
The second and third elements in Mathies must be viewed in the
context of safety standards that are intended to prevent or
minimize injury in the event of an emergency. Violations of such
standards create discrete safety hazards that are fundamental
contributing causes to injuries although they may not be the
proximate cause of such injuries. For example, the failure to
have adequate escapeways in a mine would be a fundamental cause
of serious or fatal injuries should a fire occur although it may
not be considered the proximate cause. Likewise, the failure to
have an adequate length of firehose that will reach the working
face is the functional equivalent of having no firehose at all.
This creates a discrete and continuing safety hazard which
impedes mine personnel from defending against the persistent
danger of a fire in an underground mine.
It is inconceivable, given the remedial nature of the Mine
Act, particularly in this case involving a mine meeting the
criteria of section 103(i} of the Act, that Congress contemplated
that the inability to fight fire could be construed as a nonsignificant and substantial hazard. Thus, I conclude that the
absence of firehose that could reach the working faces is a
that results
a discrete safety hazard, and,
is
reasonably 1
that the continued existence of this hazard
material
contribute
serious or fatal
uries when
viewed
the context
continued mining operations" 7

This conclusion
cons~s·cen·t with 'che Court of Appeals'
discussion of respirable dust exposure, whereinu it recognized that
a presumption that a violation is significant and substantial is
consistent .with Congressional intent where the violation exposes
miners to the cumulative effects of a fundamental hazard.
See
Consolidation Coal v. FMSHRC, 824 F.2d 1011, 1085-1086 (D.C. Cir.
1987)o
I construe the continuing inability to fight fire, which
has not been adequately rebutted by the respondent, as a
fundamental hazard constituting a significant and substantial
violation.

510

Therefore, the violation was properly characterized as
significant and substantial without addressing the issue of the
likelihood of fire. 8
Docket No. WEVA 92-801

As noted above, a significant and substantial violation
requires a finding of a reasonable likelihood that the hazard
contributed to by the violation will result in an injury or
illness of a serious nature. In this case, the respondent has
conceded that the high-voltage cable exposed on the mine floor
next to the supply track and the cable exposed to the trolley
feeder wire constitute violations of Section 75.807. It is clear
that the exposure of this high-voltage cable to possible
derailment and to the moving trolley feeder wire creates a
discrete safety hazard associated with the possibility of
electric shock injury or fire.
However, I am not convinced that the evidence of record
demonstrates a reasonable likelihood that this hazard will result
in serious injury. In this regard, the risk of injury is
diminished by the number of events which must occur.
Specifically, there must be (1) a derailment of a vehicle
carrying mine personnel; (2) the derailment must occur in an area
where the 275 feet of cable is exposed in this mine which
contains approximately 15 miles of track (tr.242); (3) the
vehicle must derail on the side of the track where the cable is
exposed (tr.236); (4) the derailed vehicle must come into contact
with the cable and penetrate the rubber jacket insulation; (5)
the metal shielding must fail to trip the circuit breaker and
prevent serious injury~ and (6) the disconnecting devices
intended to immediately de-energize the voltage cable in the
event of damage must also fail (trol54-156)o Given this series
events which must occur before mine personnel are exposed to
the risk of serious injuryu I am unable to conclude that the
cable in proximity to the supply track created a reasonable
likelihood of such injuryo With regard to the cable exposed to
the trolley feeder wirev McDorman admitted that this conditionp
alonep should not be viewed as a significant and substantial
violationo (Tro 194)
Consequentlyv I am removing the
significant and substantial designation from Order Noo 3314602o
o

8 While

I am not specifically addressing this issue, I wish to
note that the excessive quantities of methane liberated by this
Section 103(i) mine, and, the potential ignition sources described
by McDorman, provide a basis for concluding that it is reasonably
likely that fire and resultant serious injuries could occur. (Tr.
101-104).

511

unwarrantable Failure

The remaining issue concerns whether the subject violations
are attributable to the respondent's unwarrantable fai
The
commission has noted that unwarrantable failure
u&aggravated
conduct, constituting more than ordinary negligence,
a mine
operator in relation to a violation of the Act. u; E:mery Mining
Corporation, 9 FMSHRC 1977 (December 1987): Youghiogheny & Ohio
Coal Company, supra; Secretary of Labor v. Rushton Mining
Company, 10 FMSHRC 249 (March 1988)o The Commission has held
that "unwarrantable failuren requires conduC't t:hat:
not:
justifiable or behavior that
inexcusable"
more than ordinary negligence characterized
11 thoughtlessness 11 and 11 inattentionGs.
9 FMSHRC at 2001, 2010.
Docket No. WEVA 92-800

McDorman 1 s op1n1on that' ·the inadequate
a result
of the respondent's unwarrantable failure is
by
McDorman's own testimony. Significantly, in response ·to
McDorman's suggestion at the preinspection conference, the
respondent did obtain the fittings and ·the special T,vre.nch
necessary to convert the waterline on the cont.
firehose. The fact that this hardware could net be
located contributes to the fact of the violation. However, as
the respondent took the trouble to acquire this
, its
unknown whereabouts is more appropriately attributable to
ordinary negligence manifested by inadvertence
than
aggravated conduct requiring a conscious disregard or
indifference to the risk associated
equipmento With regard
the
McDormanus testimony that
determine the distances to the
distances were not obvious and these
change. Therefore, distances greater
overlooked as a result of ordinary
am modifying McDorman°s 104(d) 2',
104(a) citationo
Docket No. WEVA 92-801

The record supports an unwarrantable
respect to the respondentus violation
threshold matter, the 275 feet
fal
was
clearly visible from the jeeps and mantrips traversing the 6
North supply track. (Tr. 183-184,266)" Moreoverp this concHtion
was well known to management in that it \vas repeatedly
in
the preshift examination book prior to the afternoon
starting at 4:00p.m., on September 15, 1991, and
'to the
Lemley, the
midnight shift on September 16, 1991. In factv
respondent's safety escort, testified that the
ft foreman told

512

him at the beginning of the midnight shift that he had sent
wiremen to rehang the cable. (Tr. 243-244). However, the cable
was not reinstalled at 3:15 a.m. when McDorman issued Order No.
3314602 to Lemley
Thusp the condition was not corrected even
though it had been noted in the preshift examination book
approximately 12 hours before. 9 Finally, at the hearing the
respondent stipulated to the fact that it received seven previous
citations for violation of the same mandatory safety standard
pertaining to high-voltage cable during the proceeding 24 month
period. (Tr. 171,184,185).
The failure of the respondent to correct the condition
despite
repeated reference in the preshift examination book,
particularly when viewed in the context of its history of similar
violations evidences a conscious disregard of the risk
associated tvith the downed cable. lUthough I have concluded that
this violation was not
ficant and substantial in nature, the
condition posed a risl<. of serious electric shock injury or
electrocu·tion lvhich 1tJarranted the respondent 1 s immediate
attention. Thus, I conclude that the petitioner has met its
burden of es·tablishing an um·Jarrantable failure on the part of
the respondent.
ULTIMATE CONCLUSIONS

As noted above, I am removing the unwarrantable failure
component of Order No. 3716493 in Docket No. WEVA 92-800.
Consequently t.his order is modified to a 104 (a) citation. The
gravity of this violation
serious and the underlying
negligence associated ~rith this violation is moderate. In view
and the
il penalty criteria contained
~he Act, I am assess
a penalty of $750.
33lt.\ 602
Docket No. WEVA 92-801,
associated with this violation to be
electrocutiono However I have removed
designation. r find that the
r despit.e .it:.s repeated entry in
of
ar violations,
proposed penalty.
of the .Act, I am
I'Tc.

J:::.t:
, t.he respondent claimed that it \1'as prevented from
::r:ehanging the high-voltage cable because it t>~as required to abate
another viola·tion cited by McDorman for an unguarded trolley
switch. I find Lemley 1 s testimony in this regard to be lacking in
credibility. (Tr. 250-256). Moreover, this testimony was rebutted
by McDorman. (Tr. 203-206).

513

Finally, I am incorporating the $20 settlement for Citation
No. 3718465 in Docket No. WEVA 92-799. My decision in this
regard is consistent with the statutory criteria and is supported
by the Secretary 1 s presentation in support of the settlement
motion at trial.
ORDER
Based upon the above findings of fact and conclusions of
law, it IS ORDERED that:
(1)

Order No. 3716493 is modified to a citation issued
under Section 104(a) of the Act and IS AFFIRMED as
modified.

(2)

Order No. 3314602 IS AFFIRMED and the
significant and substantial designation for
the underlying violation IS DELETED.

(3)

The proposed settlement agreement concerning
Citation No. 3718465 IS APPROVED.

(4)

The respondent SHALL PAY a total civil
penalty of $1,670 within 30 days of the date
of this decision. Upon receipt of payment,
these matters ARE DISMISSED.

~~~~~

~==ld
Feldman
Administrative Law Judge
Distribution~

caryl L. Casden, Esq., Office of ~ne Solicitorr u.s. Department
of Laboru 4015 Wilson Boulevardp Room 516, Arlingtonu Virginia
22203 (Certified Mail)
Daniel E. Rogers, Esq.c Consolidation Coal Company, 1800
Washington Road, Pittsburgh? PA 15241 (Certified Mail)

514

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

M~;; 1 8 1993
SECRETARY OF LABOR 1
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
:

v.

Docket No. KENT 92-610
A.C. No. 15-15637-03539
Docket No. KENT 92-700
A.C. No. 15-15637-03540

BROKEN HILL MINING COMPANY,
INCORPORATED,
Respondent

No. 1 Mine

DEFAULT DECISION

Appearances:

Before~

Mary Sue Taylor". E:sq., u.s. Department of Labor,
Office of the Solicitor, Nashville, Tennessee
for Petitioner;

Judge Feldman

These cases are before me based upon petitions for
assessment of civil penalties filed by the Secretary against the
respondent corporation. This matter was heard on January 21,
1993, in Huntington, West Virginia. At the hearing, the
Secretary presented his direct case through the testimony of Mine
Inspectors John Church and Buster Stewart. Although being duly
served with Notices of Hearing dated November 18 1992, and
January 13, 1993, the respondent failed to appear at the
scheduled hearingo For the reasons noted below, I find the
respondent has defaulted in this matter" Consequently, I am
issuing the following default judgment in accordance with
commission Rule 63(b), 29 C.F.R. §2700.63(b).
1

As noted at trial, Hobart Andersonu President of the
corporation 9 has had ample notice of this proceeding.
on the day of the hearing I directed counsel for the petitioner
call Mr. Anderson's office at 9~00 a.m., to determine why he
hacl not arrived at the hearing. Mr. Anderson 9 s office is only a
few minutes from the hearing location. Mr. Anderson 1 s secretary
was advised that a default decision would be issued if he did not
appear at the hearing by 10 a.m. Although Mr. Anderson 1 s
secretary stated that she would contact him by beeper,
Mr. Anderson failed to appear.
~espondent

On January 22, 1993, Mr. Anderson called me to apologize for
his failure to participate in the hearing.
On January 28, 1993,
I issued an Order to Show Cause directing Mr. Anderson to explain
why a default decision should not be issued. Mr. Anderson

515

replied on February 18, 1993. In his response, Mr. Anderson
apologized and stated that, "There was confusion on my part as to
the date of hearing. I did not realize that the hearing was on
for that date." Mr. Anderson's "confusion" does not constitute
an adequate justification for his failure to appear.
Despite Mr. Anderson's failure to attend, I required the
Secretary to present its direct case to support the 104(a)
citations and 104(b) orders issued in these proceedings. The
testimony of Inspectors Church and Stewart concerning the
occurrence of the violations as alleged and the significant and
substantial nature of these violation is of record and need not
be repeated. Therefore, I am affirming the citations for the
specified violations as issued.
Howeveru I am troubled by the rationale provided by
Inspector Stewart for the issuance of the 104(b) orders. The
respondent
apparently mining its No. 1 Mine on a contract
basis. Mining operations were suspended approximately January 1,
1992, when Island Creek Coal Company sold its ownership interest
in the No. 1 Mine to A. T. Massey. During this change in the
underlying ownership of the mine, the respondent's coal
production activity was temporarily suspended and the mine was
placed in non-productive status. (Tr.40-41). Inspector Stewart
testified that the 104(b) orders associated with the citations
noted below were issued to ensure that the cited violations would
be abated prior to the respondent's resumption of coal
production. In this regard, Inspector Stewart testified that:
I issued the [104(b) orders] because compliance and
noncompliance could not be determined, you know, there
'i,vas no one at the mines (sic). You didn 1 t know whether
or whether they wasn 1 t fixed (sic). And
extended them all the time that I felt was
necessary and justified. (Tr. 46).
!nsoector Stewart further testified that he did not intend
the l04(b) orders. However, he stated that he could not
find anvone a·t the mine in order to determine if the violations
been ~batedc (Tr.81-82). Finally, Inspector Stewart
fied that it was his belief that the 104(b) orders increased
the proposed pena
for the underlying citations. (Tr. 94)o
Section 104(b) of the Mine Act authorizes the issuance of
withdrawal orders for failure to abate a citation. Section
104(a) of the Act, however, requires that the operator be
afforded a reasonable abatement period to correct a violative
condition.
In the current case, the abatement orders were issued
because the mine was idle and the inspector was unable to
determine if the violation was terminated. It is the failure to
abate rather than the inspector's inability to determine if
abatement has occurred which provides the basis for the

516

imposition of sanctions under Section 104. 1 The Secretary has
failed to establish that the pertinent violations were not abated
at the time of the March 13r 1992, issuance of the subject
orderso Accordingly, the 104(b) orders must be vacated.

In view of the above, I am vacating the l04(b) orders shown
below and I am reducing the assessed penalties for the underlying
violations associated with these .orders. My decision with
respect to the citations and orders in issue is as follows:
Docket No, KENT 92-610
30 C.P.R.

Citation or
Or«5\er Noo

."rYPe of Action

Date

section

Proposed
Penalty:

Assessed
Penalty:

3814394

9/25/91

104

c

75.523-3

$112

$112

3814395

9/25/91

104 (a) c

75.523-3

$112

$112

3805841

12/12/91

$240

3/13/92

104 (a) c
104 (b) 0

75.1722A

3806378

$160
vacated

805842
3806379

12/12/91
3/13/92

104 (a) c
104 (b) 0

75.523-2(c)

$240

$160
vacated

3805843

12/12/91

104 (a) c

75.503

$ 85

$ 85

3805845

12/12/91

(a)
(b)

$240

3/13/92

104
104

75.523-2(c)

80634,2

$160
vacated

0"

104
104

a)
b

75a400

$325

$218
vacated

::; 2 5,/9 J~
,n. 3/92

l04.
2.04

(a)
(b)

$305

0

$204
vacated

lOLl,

(a)

C

$305

$204
vacated

~r

2

..!~

91

/!. 3/92

(a)

c
0
I"'
,_

r"

75.523-3

104 (b) 0

1

Although the operator is obliged to keep the inspector
informed concerning its progress in its abatement efforts,
imposition of this obligation presupposes active mining
operationso

517

3805844
3806341

12/12/91
3/13/92

104 (a) c
104 (b) 0

75.503

$240

$160
vacated

3805847
3806344

12/12/91
3/13/92

104 (a) c
104 (b) 0

75.316

$325

$218
vacated

ORDER
ACCORDINGLY, a Default Judgement IS ENTERED in favor of the
Petitioner, and the Respondent IS ORDERED to pay a civil penalty
of $1,793 in satisfaction of the violations in issue.
Payment is
to be made within (30) days of the date of this decision.

Jerold Feldman
Administrative Law Judge
Distribution:

Mary Sue Taylor, Esq., Office of the Solicitor, U.S" Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215 (Certified Mail}
Mr. Hobart w. Anderson, President, Broken Hill Mining Co., Inc.,
P.O. Box 989v Ashland, KY 41105 (Certified Mail)

518

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

MAR 1. 91993
I

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

CIVIL PENALTY PROCEEDINGS

~ECRETARY

Docket No. KENT 92-543
A. C. No. 15-11620-03531

v.

:

Hall No. 2 Mine
PYRP~ID

MININGQ INCORPORATED,
Respondent
DECISION

Appearances:

Before:

Darren L. Courtney, Esq., u.s. Department of
Labor, Office of· 'the Solicitor, 2002 Richard Jones
Road, Nashville, Tennessee, for Petitioner;
Frank Stainback, Esq., Holbrook, Wible, Sullivan,
& Mountjoy, P.S.c., owensboro, Kentucky for
Respondent.

Judge Weisberger
Statement of the Case

At issue in this civil penalty proceeding is whether the
operator (Respondent) violated 30 C.F.R § 48.27(a) as alleged by
MSHA inspector Darrel No Gamblin in an order he issued under
section 104(g) (1 of the Federal Mine Safety and Health Act of
1977 °0 t.he Act 00 y
Pursuant to notice v a hearing in this mat·ter
o

1

In the 104(g) (1) Order (Order No. 3416888g Government
Exhibit No. lv Page l}u Gambling referred to a Citation issued
the same date alleging a violation of 30 C.P.R. § 48.27" Subsequentlyf on December 23p 1991p the order was amended to delete
this reference and in its placeu an addition to the order was
made indicating a violation of 30 C.F.R. § 48.7. At the hearing
in this matter on December 8, 1992f Petitioner served the Respondent with a written modification of the original 104(g) (1) order
amending it to indicate a violation of 30 C.F.R. § 4B.27f rather
than 30 C.F.R. § 48.7. Respondent 9 s counsel accepted service, but
argued that this modification "comes to late". However, Respondent's counsel indicated, in essence, that he was not alleging
prejudice if this modification were to be allowed. He also stated
that he was not surprised by the amendment. Also, at the hearing,
evidence presented by both parties pertained to the issue of a
violation under Section 48.27 supra rather than Section 48.7
supra.

519

was held in Evansville, Indiana, on December 8, 1992.
Darryl N. Gamblin testified for Petitioner and Ricky Stone,
Curtis J. Bryant and Mike Hollis testified for Respondent. On
February 17, 1993, Respondent's brief was received. Petitioner's
Proposed Findings of Fact and Post Hearing Brief was received on
february 22, 1993. Respondent's Reply Brief was received
,ebruary 25, 1993. on February 29, 1993i Petitioner's Reply
~rief was received.
Findings of Fact and Discussion

The auger m~n~ng site at issue is operated by Westlo, Inc.,
("Westlo") under contract with Respondent. On May 29, 1993, at
7:00a.m., Respondent instructed one of its employees, Ricky
stone, to go and work at the subject site.
stone arrived at the
site at approximate 7:10 a.m-. He was assigned to operate a
bulldozer that had been modified with a conveyor ("stacker").
Prior to that time, Stone had never operated a stacker although
he had 12 years experience operating heavy equipment including
bulldozers.
Gamblin asked stone if he had received any type of training,
and Stone indicated that he had not. Gamblin also asked Curtis
J. Bryant, the Westlo on-site supervisor, about training. Bryant
told him that he was showing Stone around. According to Gamblin,
Bryant did not indicate that Stone was being task trained. There
was no record of Stone having been task trained for this piece of
equipmentu and Stone did not have any certificate regarding task
\. . ra1.n1.ng.
'\,.,.

~

0

Gamblin issued an order requiring the withdrawal of Stone
pursuant to Section 104(g)(l) of the Act on the ground that he
had not received task training. Gamblin explained that the prime
hazard of operating a stacker is getting caught between the
conveyor system and the rollerso
Gamblin indicated that subsequent to the issuance of the
orderu he discussed the order with Charles KennedyQ Respondent's
mine superintendentu and the latter did not indicate that Stone
was task trained. Alsov Gamblin spoke to Mike Hollisv
Respondentas safety directoru over the telephone regarding the
order. According to Gamblin, Hollisu did not indicate that Stone
was task trained, but indicated that he had been trained on a
bulldozer.
Stone testified that before he operated the stacker at
issue, curtis J. Bryant, the Westlo supervisor on the site,

520

showed him how to operate the stacker. He said that Bryant
showed how to e•kickv' the conveyor in and out of gear, how to move
it, and how back it under the auger. He said that Bryant spent
about one hour providing the training.
According to Stonef when Gamblin asked him if he had task
he did not know what Gamblin was talking about, and
\said "what is task training" (Tr. 71). stone indicated that
Gamblin did not respond, but started to write the citation.

~raining,

Bryant testified that when Stone arrived on May 29, 1991,
the first day of operations: he took him to the stacker, and
explained the function of each lever on the equipment. Bryant
said that he showed Stone how to hook the stacker to the
conveyorff and Stone then did this procedure 2 or 3 times while
Bryant stood there to see that Stone was operating the stacker
properly. According to Bryant, he then spent about an hour
working with Stone showing him the operation of the stacker.
Bryant remained approximately 30to 4D feet away when Stone
operated the equipment. Bryant explained that when Gamblin
issued the 104(g) withdrawal order on May 29, 1991, he had not
yet filled out the paper work on Stone's training, and that he
still had to train Stone on some additional matters. Bryant
explained that he still had to train stone in further operations
such as aligning the Yi·tail piece of the stacker underneath your
conveyor on your the auger correctly". (Tr. 103) [sic]. He also
had to train Stone to direct the alignment of coal trucks under
the stacker.
According to Stone, on June 4v 1991, he returned to the
premises and in front of Gamblin Bryant showed him the same
things
before on May 29. He said this
minutes v and t.he order was 'chen
abatedL
He
ved a certificate"
The Commissionu in Southern Ohio Coal Co. 9 14 FMSHRC 1781,
{November 23 1992) set forth the following with regard to
the burden OY proof regarding the violation of a safety standard
as follows
imposes on
Secretary the burden of
proving a
of a safety standard. See Garden Creek
Pocahontas Companye 11 FMSHRC 2148u 2152 (November 1989);
Consolidation Coal Comoanvc 11 FMSHRC 966 9 973 {June 1989). 19
Hence 2 in order for the challenged 104(g} (1) order to be
sustainedu the Secretary must establishu a violation by
Respondent of 30 C.FcR. § 48.27 supra whichv in essence, requires
the following tasJc training;
a. Instruction in the health and safety aspects and
safe operating procedures related to stacker operation
given in an on the job environment (30 C.F.R. §
4 8. 2 7 (a) ( 1) ) ; and
b.
Supervised practice during non-production (30
c . F • R. § 4 8 • 2 7 (a) ( 2 ) ( i) ) ; or
1785 0

521

c.
Supervised opera~lon during production (30 C.F.Ro §
48o27(a) (2) (ii))
o

It is incumbent upon the Secretary to establish that Stone
did not receive such training. There is no record of Stone
~aving received such training.
Stone was not given a certificate
pertifying that he had-received such trainingu and neither Bryant
~or Stone indicated to Gamblin that Stone had received "task
trainingn. Howeveru I observed the demeanor of Stone and Bryant,
and found their testimony credible that Bryant had in fact, prior
to Gamblin°s arrival, provided Stone with approximately an hour
.of instruction and supervision regarding the operation of the
stacker. (c.fo 9 L.J 0 s Corporation 9 14 FMSHRC 1278 (1992)).
Howeveru the training was not complete, as Bryant still had to
train Stone to line up the stacker and the auger; and to direct
the alignment of coal trucks under the stacker. Nonetheless,
Stone operated the stacker until the transmission ~ 9 hung 19 between
two gears and it became inoperativeo
(Tr.69)
Section 48.27
supra providesv in this connectionv that a miner shall not
perform new work tasks until,.training 91 has been completed. g'
Since Stone operated the stacker before training was completed,
Section 48.27 supra was violated by Respondent" 2
Gamblinv in his orderv indicated that the violation herein
was significant and substantialo Howeverf no testimony was
offered in support of this conclusion.
In Mathies Coal co.,
6 FMSHRC 1 (January 1984)v The Commission set forth the elements
of a "significant and substantial" violation as follows:
In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gvpsum the Secretary of
Labor must: prove~
· :'..); t.h·e underlyinq v]_olct"tion of a
mandatory safety standard~
\2) a discrete safety
hazard--that 2s, a measure f danger to safety-contributed to by the violation;
(3) a reasonable
likelihood that the hazard contributed to will result
in an injury; and,
4) a reasonable likelihood that
the injury in question-will be of a reasonable serious
naturec
6 FMSHRC, supra, c:rt 3-4,ol;

2

I do not find that Respondent was still in the process of
training Stone when citedo -Once Stone began to operate the
loader after the one hour instructionv there is no evidence that
Bryant provided any further instruction. Bryant remained in the
areaf and had told Stone that 91 if he had was having any problems
or did not understand anything just holler at me" (Tr. 91) o
However 1 there is no evidence that Bryant took any action to
actively direct or observe Stone operating the stacker.-

522

In United sta"i::es Steel Mining company, Inc. , 7 FMSHRC 1125,
1129 (August 1985)u the Commission stated further as follows:
We have
further that the third element of the
Mathies formula requires that the Secretary establish
a reasonable
lihood that the hazard contributed to
will result
an event in 'lt..rbich there is an injury".
U.S •.Steel J:>iining Co. f
(August. 1984) .,

6 FMSHRC 1834, 1336

Although
can result from lack of training in
operating a stack~en: t:.he record is devoid of any proof that there
was a reasonable .;;.
ihood of the occurrence of an injury of a
reasonably S(""r
~'i::lture that was contributed to as a result of
the violation
(Seer !,Yathies Coal Co., 6 FMSHRC 1, 3-4
(January 198,!l,
u the record indicates that Stone
had .12 years
operating heavy equipment including
bulldozers.
,
·the testimony of Bryant and Stone
credible regarding ~he extent of training provided to Stone.
I
also accep~:
Q
based ·on observations of their
demeanor, that on June 4, approximately five minutes of training
was provided to Sb:me Hh.i.ch was accepted by Gamblin in abating
the order at:
also indicated that this training did
not include
the training previously given
on May 29
\r!hen c:'_·t.ed"
that Respondent was in
substan'tia·l
it.h
48o27 supra when cited.
For
all these reasons I conclude that the violation was not
significant and subs·tant.ia1. For the same reasons I conclude
that the violat
tvas of a low level of gravity, and that
Respondent
to
a slight degree in connection
t'\l'ith the
Considering all remaining factors set forth
Actc ~ f
that a penalty of $20 is
ls~~~r found herein.
o

(I

Nco 341688 he amended to indicate a

substantial.
It is further
30
, as a civil

¥

fi

I)

/J

l~~
Avram Weisberger
Administrative Law Judge
Distribution~

Darren Lo Courtney
., Office of the Solicitor, u.s.
Department of Laboru 2002 Richard Jones Road, Suite B-201,
Nashville, TN 37215 {Certified Mail)
l<'rank Stainbacku Esq., Holbrook, Wible, Sullivan, & Mountjoy,
~.S.C., 100 St. Ann Street, P.O. Box 727, Owensboro, KY 423020727 (Certified Mail)

nb

523

FEDERAL l!IIRE SAFE'fi' AtiD BEAilPH REviEW COIIIIISSIOII
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

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

v.

. CIVIL PENALTY PROCEEDING
.

Docket No. CENT 92-136-M
A.C. No. 41-00076-05537

0
0

Chico Plant No. 57

CHICO CRUSHED STONE
PARTNERSHIP,
Respondent

0

0

DECISION
Appearances:

Daniel curran,,.Esq. 1 Office of the Solicitor,
U.S. Department of Labor, Dallas, Texas, for
Petitioner;
c. Gregory Ruffennach, Esq., Smith, Heenan
and Althen, Washington, D.C., for Respondent

Before~

Judge Melick

This case is before me upon the petition for civil penalty
filed by the Secretary of Labor pursuant to section 105(d) of
the Federal Mine Safety and Health Act of 1977, 30 u.s.c. 801,
et seg., the "Act," charging Chico Crushed Stone Partnership
(Chico) in a citation issued pursuant to section 104(d)(l) of
the Act with one violation of the mandatory standard at 30 C.F.R.
(5 56. 3200" 1
Secretary also issued Order No. 3899014 under

Section 104(d)(l) of the Act provides as follows:
upon any inspection of a coal or other mine u
an authorized representative of the Secretary finds
that there
been a violation of any mandatory health
or safety standardu and if he also finds that, while
the conditions created by such violation do not cause
imminent dangeru such violation is of such nature as
could significantly and substantially contribute to the
cause and effect of a coal or other mine safety or health
hazard, and
he finds such violation to be caused by an
unwarrantable failure of such operator to comply with such
mandatory health or safety standards, he shall include
such finding in any citation given to the operator under
this Act. If, during the same inspection or any subsequent
inspection of such mine within 90 days after the issuance
of such citation, an authorized representative of the
Secretary finds another violation of any mandatory health
or safety standard and finds such violation to be also
uu

u

524

Section 104(b) of the Act for Chico's alleged failure to abate
the violation charged in the citation. 2
The general issue before me is whether Chico violated
the cited regulatory standard andv if so; whether the violation
was "significant and substantial, ~ 8 whether the violation was
the result of the operator 8 s nunwarrantable failure," whether
the subsequent order of withdrawal was properly issued
pursuant to Section 104(b) of the Act and the appropriate
civil penalty to be assessed"
·
The citation at. bar, No" 3899013 r alleges a violation of
the mandatory standard at. 30 CaF oRo § 56 o 3200 and charges as
follows~

[~~u]

been scaled

The b [sic] west highwall at the Jones
Property had loose material" hanging from it.
The highwall is app. 100 feet high and employees
are required in the area at various times" The
Findings~

fno 1 (continued)
caused by an unwarrantable failure of such operator to
so comply, he shall forthwith issue an order requiring the
operator to cause all persons in the area affected by such
violation, except those persons referred to in subsection (c)
to be withdrawn fromo and to be prohibited from entering,
such area until an authorized representative of the Secretary
det.er:m.ines that such.
has been abateClo "'

Section 104(b) of the Act provides as followsg
auif, upon any follow-up inspection of a coal or

other mineo an authorized representative of the Secretary
finds {1} 'chat a violation described
a citation issued
~ursuant
subsection a) has not been totally abated
the period
time as original
fixed therein or
as subsequently extended, and (2) that the period of time
the abatement should not be further extendedp he shall
ae~ermine
extent of the area affected by the violation
~hall promptly issue an order requiring the operator of
such mine or his agent
immediately cause all personsu
except those persons referred to in subsection (c} 9 to be
withdrawn from, and to be prohibited from enteringv such
area until an authorized representative of the Secretary
determines that such violation has been abated.n

525

last shot was shot on 5/3 and the walls had not
been scaled. 3
This is an unwarrantable failure.
The cited standard provides as follows:
Ground conditions that create a hazard to persons
shall be taken down or supported before other
work or travel is permitted in the affected area.
Until corrective work is completed, the area shall
be posted with a warning against entry and, when
left unattendedc a barrier shall be installed to
impede unauthorized entryo
In May 1991 the pit area of Chico Plant No. 57 located
on the nJones Property" had adjacent highwalls on the north,
south and west sides. On May 6, 1991, only the northern
200 feet of the 400 foot west highwall was actively being
mined for its limestone product. The west highwall was
80 to 100 feet high in the area being actively mined {see
Exhibit No. P-2). The mining cycle consisted of drilling
and firing explosive shots from the top of the highwall,
examining the area for unfired shots and hanging material,
removing the blasted limestone product (muck) from the pit
and cleaning the top for the next shot.
It is undisputed that at the time Citation No. 3899013
was issued on May 6 1 1991, muck or debris consisting of
varying sized limestone rocks that had recently been blasted
off the northern half of the west highwall lay at the base
of
highwall some 20 to 50 feet high and extended into
<:Che
to abou·t 150 feet from t:.he base of the highwall o
credible testimony of blaster Donny Lee Ruddick supports
finding that debrisp apparently overburden consisting of
soil and rocks blasted from the topu also lay at the base
of the highwall around the ggpoint" (see Exhibit No. P-2)
-- the only other area identified by the Secretary as being
the scope of the citation at baro According to Ruddickfs
testimony, supported by the blasting records (Exhibits R-3
through R-5)u this material remained following blasting on
April 26 and May 1 1991 v and ii:Tas 35 ·t.o 50 feet high at the
base
the highwall and extended at a 37 degree angle of

3

At hearing the cited area of the west highwall was
further delineated on Exhibit P-2 as the area outlined in red.

526

repose to about 75 feet from the base. It is noted that
MSHA Inspector Kirk also acknowledged that there were in
fact bc:>ulders in this area up to 24 inches by 24 inches in
size. He could not, however, recall that the material was
piled at the dimensions described by Ruddicke
According to Inspector Kirk, at the time he issued
the citation, the muck at the base of the highwall provided
a sufficient barrier so that the loose material on the highwall presented no hazard to persons. Indeed, he testified
that there would in fact be no hazard to persons from loose
material on the highwall unless and until the muck was cleared
to within 10 feet of the highwall. Kirk testified, however,
that it is MSHA .. s policy to nevertheless charge the mine
operator with a violation under the cited standard even
though no present hazard exists if men are in the process
of ren1oving the muck -- apparently based on the possibility
that at some time in the future persons might become exposed
to the~ hazard if the muck was cleared to within 10 feet of
the highwall face and no action',was taken to scale the loose
material off the highwall.
~rhe Secretary's position is however untenable.
It
is a l>asic premise of our system of jurisprudence that one
may not be penalized for a violation that may or may not be
commi t:ted in the future. In any event, the cited standard
protects only against existing hazardous conditions, not
future~ possibly hazardous conditions.
Moreover, since the
Secre1:.ary concedes in this case that "ground conditions"
on thE~ highwall did not "create hazards to persons" at
the t:ime the citation was issued, there clearly could be
no vir:>lation of the cited standard" The citation would
also
on the basis that the 00 affected area 00 involving
hazard was, according to the Secretaryu only within
10
the highwall and there
no evidence that any
~ 0 tvork or travel ov occurred within that affected area.

Under the circumstances the Secretary has failed to
sustain her burden of proving that a violation has occurred"
Citation Noo 3899013 and Order Noo 3899014 9 issued under
Section 104(b) of the Act and premised upon that citation,
must accordingly be vacated"

527

ORDER
Citation No. 3899013 and Order No. 3899014 are
hereby vacated and this civil penalty proceeding is
DISMISSED.

ary Me. ick

Adminis~rative
70 3-7 56~ 6261

Distribution:
Daniel T. Curran, Esq., Office of the Solicitor,

u.s. Department of Labor, 525 ?outh Griffin Street,
Suite 501, Dallas, TX 7520~

.~rtified

Mail)

Michael Heenan, Esq., Smith 1 Heenan and Althen,
1110 Vermont Avenue, N.W., Suite 400, Washington, D.C.
20005-3593 (Certified Mail)
/lh

528

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

MAR 2 4 1993
MONTEREY COAL COMPANY,
Contestant

:

v.

CONTEST PROCEEDING
Docket No. LAKE 92-216-R
Citation No. 3842177; 1/24/92

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

v.

No. 1 Mine
Mine ID 11-00726

.

. , ·0·

CIVIL PENALTY PROCEEDING
Docket No. LAKE 92-252
A.C. No. 11-00726-03701
No. 1 Mine

MONTEREY COAL COMPANY,
Respondent
DECISION
Appearances~

Before~

Miguel J. Carmona, Esq., U.S. Department of Labor,
Office of the Solicitoru Chicago, Illinois, for
the Secretary of Laborv
Thomas c. Meansp Esq.v Crowell & Moringu
Washingtonr D.C.r for Monterey Coal Company.

Judge Weisberger
Statement of the Case

At issue in these consolidated cases is the validity of a
citation issued on January 24u 1992v by MSHA inspector Jimmy Ray
Lee alleging a violation of 30 C.F.R. § 75.606 as follows: "The
trailing cable supplying power to the number 1332 ratio feeder
was not protected to prevent damage from mobile equipment. The
cable had tire tracks on it for a distance of eight feet and was
pushed into the mine floor 2 inches." Section 75.606 supra
provides as follows: "Trailing cables shall be adequately
protected to prevent damage by mobile equipment."
Pursuant to notice, the cases were scheduled for hearing,
and were heard in st. Louis, Missouri, on December 15, and 16,
1992. At the hearing, Jimmy Ray Lee, Jerry Collier, and Lonnie
Conner, testified for Petitioner. Raymond Houlihan, Floyd w.

529

Johnson, Paul Mihalek, Robert Whitmore, Allan Silkwood, and
Richard Mottershaw, testified for Respondent. Subsequent to the
hearing, Respondent filed a post-hearing brief on January 27,
1993.
on January 29, 19~3, the Secretary filed a post-trial
briefo On February 5, 1993, Respondent filed a reply brief.

I.

Findings of Fact

1.
The floor of the entry in question is 18 feet wide. A
roadway in the entry is 10 feet wide with loose material on
either side. The widest vehicle that travels the roadway in this
area is nine feet wide.
2.
On January 24, 1992u a cableu which was attached to a feeder
and was not energized, was lying not in the floor of the entry
but was approximately three feet from the rib in loose material
that had accumulated from sloughage off the rib. The cable was
close to the demarcation between this material and the roadway,
but it was not in the roadway-~ The cable was not in the normal
path of the vehicles that travel the entry in question. 1
3.
An eight foot long section of the cable had rubber tire
track marks on it indicating that it was run over, for
approximately an eight foot distance, by either a rubber-tired
battery or diesel mobile vehicle. MSHA inspector Jimmy Ray Lee
issued a citation alleging a violation of Section 75.606 supra.

4.
The cable had been pushed approximately two inches into the
material by the vehicle that had run over it.

no evidence in
run overc

record as to why and exactly

of the
into which the cable had
been
when
was run over was clay mixed with rock dust.
There were also pieces of crushed stone in the material. There
is no
measurement of the depth of the loose materialu or
However 7 underneath the
clay Has

1

According
Allan Sil1cvroodff the safety superintendent of
subject mineu employees are instructed to drive toward the
right side inbyv in order to avoid the cables and other equipment
that are placed along the left side inby. Thus, there appears to
be corroboration for the opinion of Floyd w. Johnson, the
construction coordinator at the mine, that a vehicle travelling
the normal path would not have hit the cable in issue and run
over it. However, it appears not to be controverted that, in
fact, a vehicle did run over the cable in question for a distance
of eight feet.
~he

530

7.
Lee examined the cable visually and by touch. No damage to
the outer insulation was noted. Nor was any abnormality detected
upon this examination which would indicate the existence of
internal damage. Also, a megger test was performed which
indicated a reading of infinity.
This reading exceeded the
requirements for a determination that the inner insulation around
the three power conductor and two ground wires was not broken.
After these examinations, Lee moved the cable to within a few
inches of the rib, and abated the citation.
8.
Jerry Collier, a supervisory electrical engineer employed by
MSHA, opined that had the cable not been moved in abatement, it
could have been run over again, and its insulation could have
been punctured by a sharp object laying on the floor. He also
indicated that in the process of being run over, the cable could
be crushed, which could cause a conductor to act as a knife, and
cut another conductor or ground cable, causing an electrical
short and possible arcing. He indicated that if the cable were
to be repeatedly being run over and crushed, the inner conductors
would be bared.
Floyd w. Johnson, Respondent's construction coordinator,
testified, in essence, that he never encountered a megger test
indicating a fault with insulation as a consequence of a cable
being run over by a vehicle with rubber tires. He opined that,
accordingly, even if vehicles would continue to run over the
cable, it would not be further damaged, as it was "smashed into
the ground. No longer was anything coming in contact with it"
(Tr. 172). In contrast, Collier indicated that there can be
internal damage to the conductors even if there is no such
indication in the megger test. In this connection, Robert
Whitmore 7 a staff electrical engineer for Respondentu agreed that
it.
possible <that internal damage would not show up
a :megger
test. Thus 7
accept Collier 9 s opinion and find that
possible that there was internal damage to the conductors. Since
there is no evidence why and exactly when the cable was run over,
I cannot find that had the cable not been repositioned in
abatement it would not have been run over again given continued
ruining operations.
II.
A.

Discussion

Violation of Section 75.606 supra

As correctly argued by Respondentu Section 75.606 1 supra
imposes a standard regarding the adequacy of protection against
damage. It is essentially Respondent's position that because the
cable was not in fact damaged, as established by visual
inspection, inspection by touch, and megger testing, it must be
concluded that the standard was not violated, as the cable was
adequately protected. Respondent also refers to the protective
aspects of the construction of the cable, the placement of the

531

cable outside the roadway on loose gob where it was cushioned,
the lack of evidence that it was run over more than once, and the
agreement of the witnesses that it was run over by a vehicle with
rubber tires. Respondent also argues that had Congress intended
to require the placement of the cable ~o afford protection
against damage it would have done so, as it so specified in other
sections of the Act. 2 I do not accept Respondent's arguments for
the reason that followo
In analyzing the scope to be accorded the wording of Section
75.606, supra 3 ~ reference is made to the Legislative History of
Section 207(f) of the Federal Coal Mine, Health and Safety Act of
1969 (~The 1969 Act") (Public Law 91-173). The Senate Report
indicates as follows regarding its analysis of Section 306(f) of
the Senate Bill (S.2917), whose language was continued in Section
206(f} supra of the 1969 Act as follows:
"Trailing cables must
also be protected against damage from other mobile equipment. As
the wheels or tread links of mining machines pass over trailing
cables, the insulation is torn from the cables causing shock
hazards and short circuits which can easily result in a mine
fire.
In 1968 two mine fires were caused by not protecting
cables from damage by mobile equipment." (S. Rept. 91-411, 91st
Congress, 1st Sess., September 1969, at 71 1 (Reprinted, in
Legislative Historv of Federal Coal Mine Health and Safety Act of
(Public Law 91-173), ("Legislative History"), at 197.
Hence, in enacting section 306(f) supra, Congress was concerned
with the recognized hazard of insulation being torn from cables
as a result of being run over by wheels of mining machines.
Clearly, exposure to this hazard can result from the cable's
location, as well as from inadequate insulation. In other words,
can be protected from damage by its construction, as
c improper placement of the
we~l as
, can expose the cable to
torn frora it as a result of being
run over. Congressiona1 concern would be thwarted if the
protection mandated by Section 306(f) supra of the 1969 Act
lbe interpreted narrowly
to include the location of a
~he

~ne record tends to establish that the
was not damaged. However, an analysis must be
of t.he condition
at the time
cited, but
continuation of mining

Cl~ed,

2Respondent

citest in this regard, 30 u.s.c.

§

868(h), and

30 UoS.C. § 870.
3

The wording of Section 306 (f) supra, was incorporated by
reference in the Federal Coal Mine Health and Safety and Health
Act of 1977, ("the 1977 Act") set forth as a regulatory safety
standard in Section 75.606 supra.

532

operations must be taken into account. In this connection, I
take into account the following factors: the presence of pieces
of crushed stone in the material where the cable was lying, the
presence of a hard limestone floor underneath the loose material
and clay, the location of the cable in the material close to the
demarcation between the loose material and the roadway, the
relative narrow tolerance between the 9-foot wide vehicles that
travel the roadway and the 10-foot wide roadway, the fact that
the cable was indeed run over at least once4 , the lack of an
explanation to indicate that the incident in question in which a
vehicle ran over the cable was a one-time-only event, and the
possibility that there may have been internal damage to the
conductors in the cable in spite of the megger test. Within this
framework I conclude that had the cable not been moved, there was
a possibility of additional incidents of it being run over,
leading possibly to damage to the insulation of the cable, or to
the interior conductors. Hence, I conclude it has been
established that the cable was not adequately protected to
prevent damage by mobile equipment4 I find that Respondent did
violate Section 75.606 supra as alleged.
B.

Significant and Substantial

The law is well established with regard to the requisites in
establishing that a violation is significant and substantial as
alleged herein by Lee.
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.FoR § 814(d (l)o A violation
properly designated
ignificant and substantial "
based upon the particular facts
surrounding the
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.c 3 FMSHRC 822, 825 (April 1981).

Seef u.s. Steel Mining Co.~ 6 FMSHRC 155 (January 1984)
Judge MelicJc) (violation of Section 15.606 supra upheld where a
cable was found under a tire) ; See also, National King Coal
13 FMSHRC 33 9 38 (January 1991) (Judge Cetti) (violation of 75.306
supra established where a cable was damaged by mobile equipment.
As dictum, it was noted that MSHA does not have to prove that a
cable was damaged in order to sustain a finding of a violation of
Section 75.606). For the reasons set forth above, I choose not
to follow u.s. Steel Mining co., 6 FMSHRC 1664 (Sept 1984) (Judge
Koutras) (citation alleging a violation of Section 75.606 supra,
was ordered vacated, where the cable that had been run over was
not damaged).
4

533

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 g'requires that the Secretary
establish a reasonable likelihood that the hazard
contributed to will result in an event in which there
is an injury. 00 U.S. Steel Mining Co. 9 6 FMSHRC 1834,
1836 (August 1984). We have emphasized that, in
accordance with the language of section 104(d) (1), it
is the contribution of a violation to the cause and
effect of a hazard that must be significant and
substantial. U.S. Steel Mining Company, Inc., 6 FMSHRC
1866, 1868 (August 1984); U.S. Steel Mining Company,
Inc., 6 FMSHRC 1573, 1574-75 (July 1984).
: have already found a violation herein of a safety
standard. ~lsoJ
~ound that the violation herein contributed to
the hazard cf damage to the insulation of the cable and inner
wires.
Should this occur, an electrical shock could result to a
person handling the cable. Arcing or an electrical short could
also resultc triggering a fire. Henceu I find that the first two
elements of Mathies u supra·' have been met. Thus, the issue for
resolution is whether ·there t.vas a reasonable likelihood of the
occurrence of an injury producing event ioe. electric shock to a
minerr or a short or arcing causing a fire or an explosion.

=

At 'the t.ime the condition was cited u the cable was not
energizedo Howeverr Lee testified that immediately prior to the
issuance of the citation he observed two miners walking from the
coal feeder 5 to which the cable was attached, toward the power
5

The feeder is used solely in connection with coal
production. When cited, the area in question was devoted to
construction and not coal production.

534

center. These employees told him that they were going to
energize the cable. 6
In essence, according to Lee, once power would have been
restored to the cableu injuries would likely have resulted. In
this connectionu he said that miners handle the cable when the
feeder is moved to another location, and hence could come in
contact with a damaged cable, leading to electrical shock, burns,
or even a fatality.
Collier cited statistics indicating 21
electrocutions between 1970 and 1987 as a result of mishandling
cables, 132 non-fatal injuries between 1983 and 1987 due to
damaged cables resulting in a loss of 1,675 workdaysv 40
accidents involving persons handling cables and contacting bare
cables, and seven fatalities resulting when persons handled
cables and touched bare conductors.
Collier opined that there was a reasonable likelihood that
the cable in question was damaged. He indicated that there can
be internal damage to the cable j:;l'lat d.oes not show up in a megger
test. In this connection, he testified that even a little damage
can set up a hazardous condition. He cited a fatal accident that
occurred in 1981 where only a pinhole in a cable (as a result of
carbon tracking) led to a loss of insulation on the interior bare
wires which resulted in a fatality. He also opined that should
the violative condition have continued, there was a reasonable
likelihood that a serious accident would have resulted. He
indicated, in essence, that when mobile equipment runs over a
cable, it has "a crushing effect" (Tr. 79). He also indicated
that contact with a sharp object on the floor when the cable is
run overu could lead to a puncture which could result in a real
hazard. He also indicated that when the cable s run over 9 the
be damaged ~~ven
conductors eventual
immediate: ·! t is undisput.ed tha'c
order for an
fire, or
explosion to occuru there first must be some damage to the cable.
Although the cable was run overp an examination by visually
inspecting it. and touching
, did no"c raveal
damage to the
cable's outer jacke"co While ·the cable
have been
ect to
additional incidents of being run over, it would appear that the
likelihood of damage was mitigated by the fact that the one-andthree-auarter inch diameter cable had been pushed approximately
t.:wo inches
:material upon '>:Jhich h::. t<Jas :resting¢
6

Raymond Houlihanu the construction foremanu was asked
whether men were assigned to work on the feeder the day the
citation was issued, and he indicated that he could not recall.
I find this testimony is not sufficient to rebut Leeus specific
testimony that men told him that they were going to energize the
cable.

535

material was described as soft, and on top of a layer of fire
clay that also was described as soft. Further, mobile equipment
in the area that could possibly run over the cable all had rubber
tires.
In addition, the cable was not in the roadway itself
where vehicles travel, but on soft material adjacent thereto.
Although Collier testified regarding the numbers of injuries
occasioned by contact with exposed cables, these figures do not
indicate how many incidents occurred as a result of a cable
having been run over. Nor do these statistics indicate whether
the exposed cables had been previously visually inspected or
subject to a megger test.
In this connection, according to
Johnson, over a 13 year period he had inspected "a lot" of cables
that had been run over by rubber-tired equipment, and never saw
or found a damaged cable. He also said "I have never megged one
thatus showed bad" (Tr. 165) [sic]. Richard Mottershaw,
Respondentvs Safety Regulatory Compliance Specialist, testified
in the same fashion. 7 Respondent's statistics indicate that from
1970 through 1992 there have not been any incidents of reportable
electrical shock accidents from trailing cables. Also, the cable
at issue is described by its manufacture as having rope-laystranded conductors which " •.• insure excellent flexibility and
resistance to wire breakage", and, "An extra-heavy-duty jacket
is reinforced with webbing to provide maximum protection from
mechanical damage, the cause of most portable cable failures."
(Exhibit C-1)
It is possible that internal damage could have existed and
yet not have been revealed in the megger test. However, Robert
Whitmore, Respondent's staff electrical engineer, testified that
in the absence of damage to the outer jacket of the cable, any
internal damage not revealed by the megger test, would not result
in any danger to minersv especially if the conductors are tested
one phase c:"c a t:ime. He indicated that this was the manner in
which the cable in question was tested. His testimony in this
regard has not been rebutted or impeached by Petitioner.
Thereforeu for all the above reasons, I conclude that it has
not been established that there was a reasonable likelihood of an
injury producing event as a consequence of the violation herein.
Hence it is concluded that the violation was not significant and
substantial.

7

Robert Whitmore, employed by Respondent in a staff
electrical engineering position, testified that the No. 1 Mine's
electrical supervisor told him that in the eleven months
subsequent to the issuance of the citation in issue, the cable
has remained in service, and there have not been any accidents,
injuries, or maintenance trouble with this cable.

536

c.

Penalty
L

Negligence

Lee indicated that he had issued 3 or 4 citations covering
the same violation. However, there is no specific evidence as to
how long the cable in issue had been lying near the edge of the
demarcation between the loose material and the roadway before it
was cited on January 24. Whitmore indicated that the cable was
not in that position when he left the area the previous day.
According to Houlihan, the cable had been in the area for about
two months and had not been run over before the accident at issue
occurred.
According to Mottershaw, the cable had been used for
several months without injury.
It is Respondentws policyf as set forth in the testimony of
Houlihan, that a cable must be inspected visually by walking
around it before it is energized. Also, once it has been
ascertained that a cable has been run over, it is Respondent's
policy to visually check it, andperform a megger test before it
is energized. Based on all the above, I conclude that Respondent
was negligent herein only to a slight degree.
2.

Gravity

Should the violative condition have resulted in a breach of
the cable 1 s insulation, it could have led to either an electrical
shock, electrocution, fire, or explosion. However, as discussed
above, infra, the possibilities of this occurring are somewhat
remote. Considering these factors, as well as the remaining
statutory criteria, set forth in Section llO(i) of the Act, as
stipulated to by the parties at the hearingu I find that a
penalty
$125
appropriate for
violation.
ORDER

It is ORDERED that the citation herein be amended to reflect
the fact that it is not significant and substantial. It is
further ORDERED that
Respondent pa1 a civil penalty of $125
':Ji thin 3 0 days of 'this decision.
/1

/I
&
h

l )
~~

!

sb~ger

~dministrative

537

c

Law Judge

Distribution:
Miguel J. Carmona, Esq., Office of the Solicitor, u.s. Department
of Labor, 230 s. Dearborn Street, 8th Floor, Chicago, IL 60604
(Certified Mail)
Thomas c. Means, Esq., Glenn D. Grant, Esq., Crowell & Moring,
1001 Pennsylvania Avenue, NW, Washington, DC 20004-2505
(Certified Mail)
nb

538

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

BUCK MOUNTAIN COAL COMPANY,
Contestant

CONTEST PROCEEDING
Docket No. PENN 93-221-R
Order No. 3082392, 3/05/93

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

Buck Mountain Slope Mine
Mine I.D. No. 36-02053

.
0

DECISION

Appearances:

Before~

Richard Kocher, Buck Mountain Coal Company, R.D.4,
Pine Grove, Pennsylvania, for Contestant;
Gretchen Lucken, Esq., Office of the Solicitor,
u.s. Department of Labor, Arlington, Virginia
for Respondent.

Judge Barbour

This proceeding concerns a Notice of Contest filed by Buck
Mountain Coal Company ("Buck Mountain") pursuant to Section 105
of the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§ 801 et seg" (1988) (the "Mine Act" or "Act 11 ) 9 challenging the
propriety of an order of withdrawal, issued pursuant to section
103 ) of the Act 30 u.s.c. S 813(k), at its Buck Mountain Slope
Mine on March 5, 1993. The notice of contest was received by the
Commission shortly before the close of business, Friday,
March 12, 1993. In addition to contesting the order of
withdrawal, Buck Mountain requested that the contest be heard on
an expedited basis. Pursuant to that request a hearing was
convened on Thursday, March 18, 1993, in Tremont, Pennsylvania. 1

It is appropriate to note that the hearing could not have been held
on such short notice without the complet'e cooperation of counsel for the
Secretary and the representative of Buck Mountain and without the assistance of
the representatives of the Pennsylvania Department of Environmental Resources,
Bureau of Deep Mine Safety, who went out of their way to accommodate the parties
and the Commission by making space available for the hearing at the Department's
office in Tremont.
It is also appropriate to note that due to the need for expedited
resolution of the case, this decision has been prepared without the benefit of
the transcript.

539

BACKGROUND OF THE CONTEST
Buck Mountain Slope Mine is an anthracite coal mine located
in eastern Pennsylvania, approximately 70 miles north and eas;t of
Harrisburg. The mine employs five to six miners who work a
single shift. The mine is owned and operated by Buck Mountain, a
partnership composed of three partners.
On the morning of March 5, 1993, a methane explosion
occurred in the underground portion of the mine, on the No. 4
Level East Gangway Section. Three miners were burned and taken
to the hospital.
(As of the date of the hearing, one miner
remained hospitalized.) The accident was immediately reporttad
and a MSHA rescue and investigation team was sent to the min•a.
To insure the safety of persons in the mine and to control the
situation while MSHA conducted its accident investigation, MSHA
issued the section 103(k) order that is the subject of this
proceeding. The order states:
The mine has experienced a three (3) miner
non-fatal ignition accident in the
underground No. 4 Level East Gangway Section.
This order is to assure the safety of any
person in the coal mine. An investigation
will be conducted to determine the safety of
the mine. Only those persons selected from
company officials, the Pennsylvania State
Officials, miners representatives, and others
deemed by MSHA to have information relevant
to the investigation may enter or remain in
the affected area.

The order was issued at 9~35 a.m. 0 and it affected the
entire underground portion of the mine. Forty minutes later it
was modified as follows~
The 103(k) Order No. 3082392 0 dated 3-5-93f
modified to ensure ·that there
no
misunderstanding of the following
requirements associated with the order.
They are~
(1) ventilation facilities and fan
operations will not be altered and changed
without prior approval; (2) the plans to
restore the mine to normal operation must be
approved by MSHA prior to this investigation;
(3) relocation or changing of mine equipment
material or facilities must be approved by
MSHA prior to their init[i]ation(;]

540

(4) relocation or changing of mine equipment
material or facilities must be approved by
MSHA prior to implementation.
G. Exh .. 3 at 3.
Following issuance and modification of the order, the MSHA
accident investigation commenced. As of the hearing date, the
immediate investigation had been completed, although a report of
the in\restigation and its findings had not been issued. In
addition, John Shutack, District Manager of MSHA District No. 1,
the district in which the mine is located, testified that he and
District No. 1 personnel still must conduct a review and
evaluation of the entire ventilation system at the mine.
On March 11, 1993u Shutack sent to Buck Mountain three (3)
letters, each advising Buck Mountain that portions of its
ventilation plan had been revoked in conjunction with the
investigation. The first letter revoked a portion of the plan
which had been granted on January ··11, 1988, and which allowed
Buck Mountain a waiver from the requirement that its mine fan be
continuously in operation. See G. Exh. 4 at 1; G. Exh. 1 at 1.
Under regulations in effect when the waiver was granted, an MSHA
District Manager could waive the requirement that a main mine fan
be kept in continuous operation if he was satisfied that the
waiver would provide no less than the same measure of protection
to miners. See 30 CFR §§§ 75.300, 75.3001-1, 75.300-3 (1988) • 2
The letter states, "This is to advise you that your
request for waiver from continuously operation of the main fan,
approved on January 11 1 1988, for your Buck Mountain Slope Mine,
has been reviewed in conjunction with the investigation of the
explosion of methane gas accident that occurred on March 5~ 1993~
and
hereby revokecL 00 Go Exh. 4, at L
Similarly worded
letters revokad Buck Mounta 1 s "request for waiver from line
brattice maintained within 10 feet of the face" and Buck
Mountain 9 s 91 waiver to equip your fan with a manometer [rather
than with a pressure-reading gage.] uo Id. at 2-3"
(See 30 CFR
§ 7 5 3 3 0 (b) ( 2 j ( 19 8 8 )
3 0 CFR § 7 5 • 3 7 1 ( 1 ) ( 19 9 2 ) v 3 0 CFR
o

75.300-2(a)

3

(1988)

30 CFR § 75.310(a) (4) (1992) .)

Buck Mountain was adamantly opposed to the revocations.
BucJ( Mountain personnel expressed to MSHA District 1 personnel 1
including Shutack 9 their opposition to any requirements to
continuously operate the main mine fan; install line brattice to
within 10 feet of the face and equip the fan with a
2

The regulation was subsequently revised, and the regulation currently
in effect states in pertinent part, "[m] ain mine fans shall be continuously
operated, except as otherwise approved in the ventilation plan." 30 CFR § 75.311
(1992).

541

pressure-reading gage rather than a manometer. Buck Mountain,
which had not resumed mining since the accident, believed that if
it turned on the fan in order to begin again to mine, it would
signal its acceptance of the waivers and be unable to turn it off
without being in violation of its ventilation plan. It had
similar concerns regarding the other two revocations.
When Buck Mountain was unable to persuade Shutack to rescind
the revocations, Richard Kocher, the foreman at Buck Mountain,
filed the notice of contest on Buck Mountain's behalf. The
pleading states in pertinent part:
Main fan stoppage plan had a waiver to shut
fan off after men are out of coal mine. The
Arlington Inv[estigation] Team shut down all
ventilation • • . now they want to run fan 24
hrs . . . . There is not any reason to operate
fan 24 hrs. a day(,] 7 days a week.
The same reasons I have stated go on the line
brattice petition and waiver to equip fan
with a manometer.
The fan operated like this for 7 years,
starting 1 hr. before preshift, and never had
any methane trouble.
Notice of Contest.
At the commencement of the hearin~, Richard Kocher, stated
that he would represent Buck Mountain.
The Secretary was
represented by Gretchen Luckenv who called Shutack and MSHA
Inspector Clyde Turner 'co ·testify on MSHA 9 s behalf. At the close
of the hearing the parties orally presented their positions and
waived briefing of the issues.
THE EVIDENCE
Manager Shutack was the first to testify. Shutack
1987 Buck Mountain had applied for the waivers
the center of the current controversy, and he
identified copies of Buck Mountainws applications. G. Exh. 2.
Shutack explained that the applications were investigated and

3

Also present at the hearing to advise or consult with Kocher were
David Williams, a certified mining engineer, and Ronald Lickman, owner of the
Buck Mountain coal rights and of the land on which the mine is situated. With
the agreement of counsel for the Secretary, Williams and Lickman were permitted
to not only consult with Kocher, but also to cross-examine the Secretary's
witnesses and to make statements on Buck Mountain's behalf.

542

that as a result of the investigations, he approved the waivers.
G. Exh. 1. Shutack noted the language in the letters of approval
that the approvals "may be modified or terminated if warranted by
subsequent changing conditions or in the event an inspection or
investigation reveals .
[non]compliance with • • • [the
waivers']. provisions." Id.
With regard to the waiver of the requirement to operate the
fan continuously, Shutack stated that the assertion on Buck
Mountain's application that in the five years prior to applying
for the waiver the mine had an average methane percentage of "O
percent" was checked against MSHA inspection· records and was
found to be accurate. G. Exh. 2 at 2. (In other words, prior to
granting the waiver, MSHA was satisfied that there was no history
of methane at the mine.)
Shutack, then described the events of March 5, 1993, how he
was advised of the explosion and how he immediately went to the
mine where the section 103(k) order was issued. MSHA's
investigation of the accident followed, during which MSHA sought
to re-establish ventilation in the mine in order to thoroughly
examine the mine in search of the cause of the explosion.
Shutack explained that during the course of the investigation, it
was determined that the mine was subject to erratic liberations
of methane, ranging from 1 percent to 5 percent or higher. 4
According to Shutack, it was also determined that Buck Mountain
was not maintaining line brattice to within 20 feet of the face,
as required under its waiver and that the mine map was not
accurate. 5 This latter finding was disturbing to Shutack in that
the map showed seals existing in the intake air slope which were
notv in factu in existence. Shutack feared that methane or
carbon monoxide could seep into the mine from the unsealed and
worked-out-areaso Shutack stated that without accurate knowledge
the conditions potentially affecting ventilation he could not
be certain the mine was adequately ventilated and could not
consider any waivers from the mandatory ventilation requirements.
Shutack agreedu howeveru that during the course of the
investigation the main mine fan was not run continuously and that
there even were times on March 6 when electrical problems caused

Methane. presents an explosion hazard when found in concentrations
between 5 percent and 15 percent. See Wyoming Fuel Co., 13 FMSHRC 1210, 1213
n. 3 (August 1991).

s

Although citations were issued alleging violations of mandatory
safety standards by Buck Mountain due to these and other conditions, the merits
of the alleged violations are not at issue in this proceeding.

543

the fan to be-shut off while MSHA inspection personnel were
underground. However, Shutack maintained that MSHA personnel
were specially trained for underground investigative work and
were alert to the dangers of inadequate ventilation.
Shutack was asked about air samples taken during the course
of the inspection. He stated that on March 6 very little methane
had been found.
(See G. Exh. 6 at 1). However, immediately
after the explosion, explosive methane levels and higher were
found in the chute and gangway near the explosion area.
(Bottle
sample No. !6765 revealed 13.3 percent methane in the No. 6 Chute
and bottle sample No. F3032 revealed 22.86 percent methane in the
No. 4 Level Gangway - No. 6 Chute. Id. at 3-4.) Shutack did not
know, however, if any samples were taken to establish whether the
methane that was detected had come from the unsealed, worked-out
areas of the mine, and he admitted that he could not say for
certain that these areas were a source for methane or other air
contaminants. In fact, he did not know the source of the methane
that had exploded and that continued to be found in the mine.
Finally, Shutack testified that the area where the explosion
had occurred was a "blind area," a dead end which was difficult
to ventilate. He agreed that if the No. 5 and No. 6 Chutes were
connected, ventilation would be improved greatly and methane
would be much less likely to accumulate.
Shutack testified that the immediate post-accident
investigation revealed the need for a survey and evaluation of
the entire ventilation system at the mine to make certain
methane was being diluted, rendered harmless and carried away.
He had determined that the section 103{k) order could not be
modified or terminated and the survey could not begin until Buck
Mountain agreed to run continuously the main mine fan (under
the waiver the company had been allowed to start it one-half hour
before the mine ~as preshifted)u to install line brattice to
within 10 feet of the face (rather than to within 20 feet
as allowed under the waiver) and to install a main fan
pressure-reading gage (rather than to use a manometer as allowed
under the waiver)o
Shutack further stated that he orally informed Kocher of
these conditions and formally advised the company of them by the
letter dated March 11, 1993u G. Exh. 4. 6 If Buck Mountain
complied with these conditions, a review of the entire
ventilation system of the mine could commence. In addition, Buck
Mountain would be required to submit a new ventilation plan.

6
In addition to representing conditions for the lifting or
modification of the Section 103(k) order, the letters are also understood by the
parties to constitute revocation of part of the mine's ventilation plan.

544

on cross-examination, Shutack agreed there were potential
hazards to the miners from the fan running continuously. In the
winter the slope could ice-up and the buggy could derail.
Furtheru there was little, if any, clearance along the slope from
which men could work to remove ice.
Shutack testified, that he was not forever wedded to the
revocation of the waivers and that he was not precluding the
approval of similar waivers in the future. However, given the
accident and the information currently at his disposal, he
believed he had to insist that Buck Mountain accept revocation of
the waivers before the section 103(k) order could be terminated.
CLYDE TURNER
MSHA Inspector Clyde Turner testified that he was a member
of the MSHA team that investigated the accident. Turner
described that part of the investigation in which he
participated. According to Turner, on March 10, 1993, the main
mine fan was started at 6:00 a~m., prior to the investigation
team entering the mine. The team went underground and around
11:45 a.m.u turned off the underground auxiliary fans and air
movers. Team personnel were stationed at various spots and
instructed to monitor methane levels. Turner testified that
after approximately 30 minutes, .2 percent methane was detected
in the gangway. At the face of the No. 5 Chute methane was found
to be .5 percent and in the No. 6 Chute methane was found at
levels of up to 1 percent. Turner believed that if the main mine
fan had been stopped methane would have accumulated to the
explosive range in two and one-half to three hours.
Turner also believed that the problem with not having the
continuously tvas that methane could build up to
,.eveLs; above
explosive range while the fan was shut off.
'Jnce t.he fan started the levels would begin to decrease, which
-~'lfould result in methane in the explosive range spreading through
·the mine as the ventilation moved the methane around and
out of the mine" Turner could think of no
tmder which i·t would be safe to allow methane
andv as he stated~ the first and most
defense to methane was to ventilate it, which was why
fan operation was required unless specifically
the ventilation plan. Turner believed that unless
continuous
operation was~requiredQ the explosion of March 5,
t-.rould recur sooner or later"
::Can

Turner was asked his opinion why the mine, which had been
virtually free of methane, had begun to experience methane
liberations. He stated that the depth at which mining was taking
place could be a factor in that methane was more likely to be
released at greater depths. Further, he stated that methane was
known to be liberated in "pockets" and Buck Mountain might be

545

mining through such a pocket. He admitted that as mining
progressed it was possible the area currently liberating methane
could be by-passed and the mine could again be virtually
methane-free. However 6 he did not expect that this would be the
case. He stated ·that in his experience once methane was
encountered the problem persisted.
Under questioning from Kocheru Turner agreed that on March
7, the day mine ventilation was restored, all methane in the mine

had been rendered harmless and carried away within one hour.
(On
March 7 the fan had not run continuously.) He also agreed that
if the fan ran continuously there was a good possibility of
winter ice building up on the slope. Men would have to chop the
ice to remove it and in so doing could fall and injure
themselves. He further agreed that because operation of the fan
would prevent closure of the door at the slope portal, there was
a potential fire hazard in that a brush fire in the area of the
mine could enter the mine through the portal door opening.
However, Turner was quick to~note that these hazards were
speculative, whereas the hazard about which he was concerned
methane -- was actually present. 7
RICHARD :KOCHER

Buck Mountain 1 s case was presented through cross-examination
of the Secretary 1 s witnesses and through the statements of
Kocher. Kocher presented as evidence and read into the record
two statements explaining why, in Buck Mountain's viewv the main
mine fan does not have to be run continuously to remove methane
from the mine. See c. Exhs. 1 and 2. Kocher pointed out that
during his preshift examinations of March 6 and 7 before
was re=established
affected area he found
methane
highest
amount
4.8 percent on March
the No" 6 Chute, c. Exh. 1
at .2. Howeverv after ventilation was re-established the most
found was .9 percent and most tests revealed much less -- either
1 percent or no methane at
1.
• at 3-4 .
• 2: or
Further 8 Kocher contended that :methane found
MSHl\
Qublind~Q No. 6 Chuter "the chute where
ventilation
ll
greatly enhanced when the chute is cut
·through t.o ;che No. 5 Chute. c.
. 2
L
contention 7
however P fl
in t.he face of the MSHA bottle sample results
which showed traces of methane inby
main fan before
ventilation was restored. Go Exh. 6 at 1 and 2:o
Further,
Kocher contended that during MSHAus investigation on March 5-11 1
when the fan was shut off all nightu no methane was found in the
mine. c. Exh. 2 at 1. (This contention, however, is
officials was in the

7

At the close of Turner's testimony; the Secretary rested.
Buck
Mountain, through Lickman, moved for a directed verdict. I denied the motion.

546

contradicted by Turner's uncontested testimony concerning the
results of his in-mine methane tests on March 10.) Kocher, also
noted that ventilation at the last open cross-cut in the mine was
12,000 cubic feet per minute, more than twice the 5,000 cubic
feet per minute required by the regulations. Id.
(MSHA does not
dispute this contention.)
Kocher emphasized that for the past 7 years, with the
exception of the March 5 accident, there had been no accident at
the mine. He maintained that since the mine has been in
operation the fan has been started in the morning and has been
shut off after work; and that given the dedication to safety at
the mine and the fact that no methane was found at the mine prior
to March 5, there is no reason to change the ventilation plan
because nwith the ventilation plan we already have & the large
quantity of air flow that [the] fan produces[,] [the methane] is
proven controllable." c. Exh. 2.
RONALD LICKMAN
In his closing statement, Lickman summed up Buck Mountain's
position: That the Secretary had not proven the existence of
methane in such dangerous quantities that the fan should be run
around-the-clock, especially when continuous operation of the fan
could lead to other hazards endangering miners.
THE VALIDITY OF THE ORDER
Section 103(k) of the Act, the section under which the
contested order was issued, states:
In the event of any accident occurring in a
coal or other miner an authorized
representative of the Secretaryu when
presentu may issue such orders as he deems
appropriate to insure the safety of any
person in the coal or other mine, and the
operator of such mine shall obtain the
approval of such representativeu in
consultation with appropriate State
representatives, when feasible, of any plan
to recover any person in such mine or to
recover the coal or other mine or return
affected areas of such mine to normal.

The section gives MSHA plenary power to make post-accident
orders for the protection and safety of all persons. Miller
Mining Company, Inc. v. FMSHRC, 713 F.2d 487, 490 (9th Cir.
1983). Section 3(k) of the Act, 30 u.s.c. § 802(k), includes an
explosion within the statutory definition of "accident", as does

54 7

the Secretary's regulatory definition of "accident", found at 30
CFR § 50.2(h) (5). Thus 1 there can be no doubt the explosion of
March 5, 1993, was the type of occurrence that properly could
trigger a section 103(k) order to insure the safety of persons in
the mine.
It is likewise clear that given the issuance of the order,
Buck Mountain cannot resume mining without the approval of MSHA,
provided MSHA's conditions for the· resumption of mining are
reasonably related to insuring the safety of persons in the mine.
The testimony establishes that MSHA is ready and willing to
approve such a resumption provided Buck Mountain accepts the
conditions upon which MSHA insists. There is no suggestion that
the conditions are incapable of being carried out. Moreover, I
am persuaded that under the present circumstances, they are both
reasonable and necessary to insure safety.
The explosion of March 5 is a calamity that overshadows this
proceeding. The distress a~? concern of Buck Mountain's
representative and consultants over what has occurred was readily
apparent at the hearing. The only thing fortunate about the
accident is that the three miners involved were injured, rather
than killed, which is cold comfort indeed.
The thrust of Shutack's testimony is that he believes Buck
Mountain should be required to continuously operate the fan,
advance line brattice within 10 feet of the face and install a
manometer at least until there has been a complete review of the
mine's ventilation system. Shutack credibly testified that
without the institution of these procedures, he will be unable to
initiate and complete that review.
The evidence suggests that at this time implementation of
·the provis
enhance; not diminish, the effectiveness of the
mine ventilation system's ability to dilute, render harmless and
carry away methane. Given the fact methane is being liberated
now in potentially dangerous quantities, as graphically
established by the explosion; the fact that the source of the
meL.nane
F
at this point, uncertain; and given the fact the old,
\ifor]<ed-out areas are not effectively sealed off from the intake,
as MSHA had supposed, it seems the height of responsibility and
reason ceo ins
upon Buck Mountain 1 s acceptance of the
provis
prior to modifying or terminating the order.
It
afterall, the Secretary's duty systematically to
evaluate the conditions and practices at the mine and keep the
section 103(k) order in effect until he can determine the hazards
that caused the explosion have been corrected and will not recur.
In light of the current conditions at the Buck Mountain Slope
Mine, I conclude that, to make such a determination, the
Secretary may insist that Buck Mountain implement the three
provisions at issue.

548

Thereforev I find Order No. 3082392 was properly issued and
is valid.
THE SECTION 103(K) ORDER
AND

THE MINE VENTILATION PLAN
There is an aspect of this case that deserves further
comment. As the parties recognize and as the record reveals the
three provisions MSHA insists be implemented before MSHA will
terminate or modify the section 103(k) order are contrary to
provisions in Buck Mountain's current ventilation plan. Should
Buck Mountain choose to implement the provisions in order to
allow MSHA to terminate or modify the section 103(k) order while
MSHA conducts its complete review of the miner's ventilation
system 1 Buck Mountain will not, in my view, be signaling the
acceptance of the provisions as a permanent part of its
ventilation plan. Rather, the effect of Buck Mountain's
acceptance would be temporarily to suspend the provisions of the
ventilation plan while MSHA initiates and completes its review of
the ventilation system. When the review is finished, the
suspension will no longer be in effect, and MSHA must then advise
Buck Mountain regarding the results of its studies and regarding
any changes
proposes in the existing ventilation plan.
It will be at this point that the well recognized principles
of Secretarial approval and operator adoption of a ventilation
plan come into effect. If differences then exist between the
Secretary and Buck Mountain concerning the provisions, the
Secretary and Buck Mountain must negotiate in good faith and for
a reasonable period concerning the dispute. If they remain at
:;dds,
raay be ob·tained by Buck Mountain refusing to adopt
or provisionsr thus triggering litigation
Commiss
See Carbon County Coal Co., 7 FMSHRC 1367u
~3 1
September 1985).
o

It must be emphasized that the validity of the provisions
dispute as a part of Buck Mountain 9 s ventilation
not. a'::: issued in this caseu and it would be improper to
that regard. Because there is no
Elllegation by
Secretary that Buck Mountain is in violation of
2:ts
lation planq the plan is not before me. Rather, the
issue
~he validity of the section 103(k) order.
To rule
en the merits of the ventilation plan would be to express the
of declaratory judgement the Commission has cautioned is
unwarranted under the Mine Act. Kaiser Coal Corp., 10 FMSHRC
1165, 1170-117.1 (September 1988).

549

ORDER

In view of the foregoing, Buck Mountain's contest is DENIED
and Section 103(k) Order No. 3082392 is AFFIRMED.

Yw;
df. &?t-1tDurt.David F. Barbour
Administrative Law Judge
(703) 756-5232
Distribution:
Gretchen Lucken, Esq., Office of the Solicitor, u.s. Department
of Labor, 4015 Wilson Boulevard, Suite 516, Arlington, VA 22203
(Certified Mail)
Richard Kocher, Partner, Buck Mountain Coal company No. 2,
R.D. 4, Pine Grove, PA 17963 (Certified Mail}
Richard Lickman, 101 N. Centre street, Suite 309,
Pottsville, PA 17901 (Certified Mail)
Jepy

sso

FEDERAl MINE SAFETY ANO HEAlTH REVIEW COMMISSION
1730 K STREET NW. 6TH FLOOR
WASHINGTON, D.C.

20006

March 26, 1993
SECRETARY OF LABOR,
MINE SAFETY AND.HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

v.

CIVIL PENALTY PROCEEDING
Docket No. PENN 92-715
A. C. No. 36-04281-03782
Dilworth Mine

CONSOLIDATION COAL COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
ORDER TO MODIFY
ORDER ..TO PAY

Before:

Judge Merlin

The above-captioned case was the subject of an extensive
conference call between the undersigned and counsel for both
parties on January 28, 1993. On March l, 1993, the Solicitor
filed a motion to approve settlement of the four violations
involved in this case. The originally assessed penalties were
$1,086 and the proposed settlements are for $937.
In accordance with the conference call discussionu the
Solicitor advises that the operator has agreed to pay the originally assessed penalty for two of the violationsv Citation Nos.
3699761 and 3679100.
The Solicitor requests that the penalties
for citation Nos. 3691011 and 3691019 be reduced and the
tions be modified.
Citation No. 3691011 was issued for a violation of 30 C.F.R.
because the operator did not danger and tag a plug for a
power circuit which was being worked on. The originally assessed
penalty was $506 and the proposed settlement is $425. The
Solicitor also requested that the citation be modified by reducing the type of injury from fatal to permanently disabling
because the voltage was not as great as originally thought.
The
agreed upon settlement was reached at the January 28 conference
call wherein the reasons for the modification and reduction were
discussed and approved by the undersigned.
§ 75.509

Citation 3691019 was issued for violation of 30 C.F.R.
75.1722 because a crossunder provided for the No. 1 belt was not
guarded. The originally assessed penalty was $168 and the
proposed settlement is $100. The Solicitor also requested that
the citation be modified by deleting the significant and substantial designation. The Solicitor advised that the reason for

551

the modification is foot traffic underneath the belt was unlikely
when the belt was moving.
I have considered the representations and documentation
submitted in this case along with the discussions on January 28,
and I conclude that the proffered settlements are appropriate
under the criteria set forth in section 110(i) of the Act.
In light of the foregoing, the motion for approval of
settlements is GRANTED.
It is ORDERED that Citation No. 3691011 be MODIFIED to
reduce the type of injury from fatal to permanently disabling.
It is further ORDERED that Citation No. 3691019 be MODIFIED
to delete the significant and substantial designation.
It is further ORDERED that J:he operator pay a penalty of
$937 within 30 days of the date of.this decision.

Paul Merlin
Chief Administrative Law Judge
Distribution:

(Certified Mail)

Nancy F. Koppleman, Esq., Office of the Solicitor, U. s. Department of Labor, 14480 Gateway Building, 3535 Market Street,
Philadelphia, PA 19104
Daniel E. Rogers, Esq., Consol Inc., Consol Plaza, 1800 Washington Roadu Pittsburgh, PA 15241

/gl

552

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

20006

Harch 26, 1993

CIVIL PENALTY PROCEEDING

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

Docket No. PENN 92-814
A. C. No. 36-04281-03790
Dilworth Mine

CONSOLIDATION COAL COMPANYv
Respondent
DECISION APPROVING SET~LEMENT
ORDER.TO PAY
ORDER OF DISMISSAL
Appearances~

Anita Eve Wright, Esq., Office of the Solicitor,
UoSo Department of Laboru Philade1phiau Pennsylvania,
~or the PetitionerJ
Daniel Eo Rogers, Esq~Q Consolidation Coal
companyu Pittsburgh, Pennsylvaniau for the
Respondent~

Before:;

Judge Merlin
matter ·~v-as ·the

ect of a calendar call on March 16"
this docket were

<:he ci

Settlements were reached
of the eleven violations in
this casec These settlements were approved on the record pursuant to the requirements of section 110 of the Act.
Four of the
~a
Nos. 3702400: 3690659, 3702375 and 3690660,
i0Jere previously contained in PENN 911462 and tJer·s
icated
case. A partial
sett.lement. dec
on February 11 8 1993p for Citation
NO. 37D2372o
remaining viola-tion which was not
settled;
702203? is being removed from this docketp
placed
created docket and assigned for hearing on the
meritso A separa'ce order to "cha·t effect is being issued.
Tn accordance with the conclusions reached on the record at
tne calendar call, it
ORDERED that total settlements be
APPROVED in the designated amount of $599.

553

It is further ORDERED that the operator PAY $599 within 30
days of the date of this decision.
It is further ORDERED that Citations Nos. 3702400, 3690659,
3702375 and 3690660 be DISMISSED.

----...--/

Law Judge
Distribution:
Anita Eve Wright, Esq., Office of the Solicitor, U. S. Department
of Labor, Room 14480-Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
Daniel Rogers, Esq., Consol Inc., 1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail)
Robert H. Stropp, Jr., Esq., UMWA, 900 15th Street, NW., Washington, DC
20005
(Certified Ma )

jgl

554

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

MAR 2 61993
GARY L. DAY,
Complainant

DISCRIMINATION PROCEEDING
Docket No. KENT 92-547-D
BARB CD 92-15

v.
ADENA FUELS, INCORPORATED,
Respondent

Diamond No. 1 Mine

ORDER OF DiSMISSAL
counsel for the parties have agreed to settle this matter,
and counsel have moved jointly to dismiss Complainant's
discrimination complaint on the' ·basis of the settlement
agreement. The record reveals no reason why their motion should
not be granted. ACCORDINGLY, this matter is DISMISSED. 1

J[2~cfi~~
David~~our

Administrative Law Judge
{703} 756-6200

Distribution~

Tony Oppegardu Esq.u Mine Safety Project of the Appalachian

Research and Defense Fund of Kentucky, Inc.,
Lexingtonu KY 40508 (Certified Mail)
Mr. Gary Lee Day, HC 65 0 Box 494, Similax, KY
Mail}

630

Maxwelton Court,

41764 (Certified

Jerry Wayne Sloneu Esq.u Weinberg & Campbell, Adena Fuels, Inc. 1
P.O. Box 727u Main Streetu Hindman, KY 41822
(Certified Mail)
\epy

The settlement agreement is confidential and the parties have
requested that it not be made part of the record of this proceeding.
Therefore, with the concurrence of counsel, the agreement has been placed
under seal in the official file.

555

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

NAR 2 91993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. KENT 92-897
A. C. No. 15-15684-03541 R

Vo

Docket No. KENT 92-898
A. C. No. 15-15684-03542 R

MOUNTAINTOP RESTORATION, INC.,
Respondent

Mountaintop Restoration
No. 2
DECISION APPROVING SETTLEMENT
Appearances:

Before:

Darren L. Courtney, Esq., Office of the Solicitor,
u. s. Department of Labor, Nashville, Tennessee,
for the Secretary;
Danny Patton, Safety Director, Mountaintop
Restoration, Inc., Paintsville, Kentucky, for
Respondent.

Judge Maurer

These cases are before me upon a petition for assessment of
l penalty under section 105(d) of the Federal Mine Safety and
Act of 1977 (the Act)o At the hearingv the parties
moved to settle these cases based primarily on the
plight of the respondent on the following basis:
PROPOSED
ASSESSMENT

CITATION NOo
3512086
3512087
3512088
3512089
3512090
3512091
3512092
3512093
3512095
3512096
3512097
3512098
3512341
3512342

$

556

371
434
434
434
434
241
434
241
371
371
434
241
371
241

PROPOSED
SETTLEMENT

$

371
434
434
150
434
20
434
20
100
371
434
20
371
20

3512351
3512352
3512353
3512354
3512355
3512356
3817171
3817172
3817179
3817181
3817182
3817184
3817186
3817187
3817196
3517775
9875791

TOTAL

371
434
371
434
371
294
227
147
147
241
276
119
147
119
227
1785
192

371
434
371
434
371
294
50
50

10954

7732

*1

241
276
50
50
50
227
750
50

I have considered the representations and documentation submitted
in these cases, and I conclude that the proffered settlement is
appropriate under the criteria set forth in section 110(i) of the
Act.

WHEREFORE, respondent shall pay a total penalty of
$7732 in 18 equal monthly installments of $429.56 each, beginning
within 30 days of this order, and continuing until paid in full.
Upon payment in fullv these cases are DISMISSEDo

Law Judge

1

citation No. 3817179 was actually issued to an
/
independent contractor, a trucking company, and clearly marked as
such. But somehow or other it was included with this group of
citations that was assessed against this respondent.
It simply
does not apply to this respondent and I have ignored it in
approving the settlement of these cases.

557

Distribution:
Darren L. Courtney, Esq., Office of the Solicitor,

u. s. Department of Labor, 2002 Richard Jones Road, suite B-201,
Nashville, TN 37215 (Certified Mail)

Mr. Danny Patton, Safety Director, Mountaintop Restoration, Inc.,
P. o. Box 940, Paintsville, KY 41240 (Certified Mail)
dcp

558

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

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

CIVIL PENALTY PROCEEDINGS
Docket No. WEVA 92-1008
A.C. No. 46-02208-03595
Docket No. WEVA 92-1096
A.C. No. 46-02208-03597 R

MARTIN SALES & PROCESSINGu
Respondent

Docket No. WEVA 92-1097
No. 46-02208-03598 R

:

A~C.

~

Docket No. WEVA 92-1108
A.C. No. 46-02208-03599 R
Mine No. 1

SUMMARY DEFAULT DECISION~
Before:

Judge Koutras
Statement of the Proceedings

These proceedings concern proposals for assessment of civil
filed
the petitioner against the respondent pursuant
110 a)
t:he
Mine Safety and Health Act of
1977 0 30 u.s.c.
820(a), seeking civil penalty assessments for
fifty-one (51) 9 alleged violations of certain mandatory safety
and health standards found
Parts 70 0 75 9 and 77 9 Title 30 1
Code of Federal Regulations. The respondentu through counselu
filed answers to the proposals and "'three of the cases were
consolidated for hearing in Charlestonv West Virginiau on
Wednesday 9 February 10 0 1993. The hearing was continued at the
request
the respondent, and after the addition of another
caseu a consolidated hearing was scheduled in Charleston, West
Virginia, on Friday 5 March 19, 1993o The hearing was
subsequently cancelled on February 24, 1993, and an Order to Show
Cause was issued by me after the petitioner filed a Motion for
Summary Order of Default because of the failure by the respondent
to respond to its pre-trial discovery requests.
The petitioner initiated timely discovery in these matters
pursuant to the Commission's applicable Rules found at Part 2700,
Title 29, Code of Federal Regulations, and served the respondent
with interrogatories, requests for admissions, and requests for
the production of documents. Of particular interest to the

559

petitioner was the apparent position taken by the respondent that
it is financially unable to pay any of the proposed civil penalty
assessments. This position was stated in a January 24, 1993,
letter from the respondent's counsel to the petitioner's counsel,
with two attachments itemizing the respondent's debts. The
letter states as follows:
Pursuant to our previous discussions, I have enclosed a
copy of financial information from my client's bank,
Bank of Mingo. Additionally, as you are aware, my
client is no longer operating the mine. As a result of
this idle status of the mine, my client has no income
to pay any debts at this time. If additional
information is required regarding the ability of my
client to pay, please contact me at your convenience.
on January 5, 1993, I issued an Order compelling the
respondent to answer the petitioner's discovery requests and I
took note of the fact that the petitioner's requests to the
respondent were timely filed, and the respondent had ample time
to respond and advanced no objections or excuses for failing to
fully respond. Thereafter, on January 11, 1993, I issued another
Order directing the respenr"ent to respond to the petitioner's
second request for production of documents.
The petitioner's counsel states that she has repeatly
attempted to contact the respondent's counsel regarding these
cases, and has sent counsel letter asking him to respond to her
discovery requests, all to no avail. The only response from the
respondent 1 s counsel appears to be the aforementioned letter
dated January 24r 1993" With regard to that letter, petitioner•s
counsel states that she received
letter on March 5, 1993, and
the attachments post-date the cover letter. Petitioner 1 s
counsel further states
the letter and attachments merely
show that the respondent has outstanding debts, do not answer the
bulk of her discovery requests, and do not establish that the
respondent does not have the means to pay the assessments.
In
of the respondent's failure
respond to its
discovery requests, the petitioner filed a motion for summary
order of default on February 25, 1993. That same day, I issued
an Order directing the responden·t to show cause as to why it
should not be held in default and immediately ordered to pay the
proposed civil penalty assessments because of its failure to
respond to the petitioner 9 s discovery requests and for its
failure to comply with my previously issued orders directing it
to reply to those requests. The respondent has not replied to my
Order.

560

Discussion
Commission Rule 63, 29 C.F.R. § 2700.63, provides for the
summary disposition of proceedings, and it states as follows:
(a) Generally. When a party fails to comply with an
order of a judge or these rules, an order to show cause
shall be directed to the party before the entry of any
order of default or dismissal.
(b) Penalty proceedings. When the Judge finds the
respondent in default in a civil penalty proceeding,
the Judge shall also enter a summary order assessing
the proposed penalties as final, and directing that
such penalties be paid.
The respondent has failed to respond to my Order to Show
Cause of February 25, 1993. It has also failed to adequately
respond to my previous orders compelling it to respond to the
discovery requests filed by the petitioner. Under all of these
circumstances, I conclude and find that the respondent is in
default and the petitioner's motion fr--: summary decision IS
GRANTED.
ORDER
Summary default judgment is entered in favor of the
petitioner, and the respondent IS ORDERED to immediately pay to
the petitioner (MSHA), the following proposed civil penalty
assessments as the final civil penalty assessments for the
contested violations in these proceedings:
Docket No. WEVA 92-1008
Order No.

Date

30 C.F.R.
Section

Assessment

3578142

2/10/92

75.1704

$3 1 500

Docket No. WEVA 92-1096
CitationL
Order No.

Date

30 C.F.R.
Section

2743723
2743724
2743725
2743726
2743727
2743728
2743729
2743731

5/2/91
5/2/91
5/2/91
5/2/91
5/2/91
5/2/91
5/2/91
5/2/91

75.1721(a)
75.321
75.1721(b) (6)
75.1721(b) (7)
75.1721(b) (8)
75.1721(c) (1)
75.1721(b) (9)
49.2(a)(1)

561

Assessment
$300
$600
$600
$600
$600
$800
$600
$600

citation/
Order No.
2743732
2743733
2743735
2743736
2743737
2743738
2743739
2743740
3757415
3757119
2723528
2723531

30 C.F.R.
Section
5/2/91
5/2/91
5/2/91
5/2/91
5/2/91
5/2/91
5/2/91
5/2/91
6/19/91
9/24/91
10/9/91
10/10/91

Assessment

75.1200
75.508
75.300
75.305
75.306
75.512
75.1704-2(c) {1)
77.800-1(a)
70.400
75.212(c)
75.900
75.901

$600
$600
$600
$800
$600
$600
$600
$600
$200
$ 90
$800
$800

Docket No. WEVA 92-1097
30 C.F.R.
Section

Citation/
Order No.
2723533
9921772
3742612
3742614
3753662
3753664
3753665
3753666
3742626
5751Ll,l
5751L17
5751.48
575149
3742640
3754206
3754207
2754208
3575152
3575153
3575154

10/92

75.503
70.207(a)
75.1725(a)
75.220(a) (1)
75.316
75.400
75.2030
75.204(f) (7)
75.1106-5(a)
75.523-2(a) (2)

0/92
92
10/92

75.516
75.1100-2(e) (2)
75.
22(a)

11/19/91
1/09/92
1/21/92
1/21/92
1/21/92
1/21/92
1/21/92
1/21/92
1/23/92

2/10/92

10/92
1

2

l

11/92
11/92
'l ~;g~
.....
.L
~

Assessment

75.900
75.316

$78
$119
$655
$1,000
$850
$1,071
$1,071
$714
$560
$445
$445
$112
$560
$445
$714
$714
$213
$655
$259
$655

30 C.F.R.
Section

Assessment

75.503
75.400
75.1722(b)
75.1722{b)
75.1100-2(a) (1}

Docket No. WEVA 92-1108
Citation/
Order No.
3575155
3754209
3754210
3754211
3754212

2/11/92
2/11/92
2/11/92
2/11/92
2/11/92

75.1403
75.515
75.1103-4(a) (3)
75.400
75.1722(a)

562

$445
$259
$572
$168
$714

CitationL
Order No.

Date

30 C.F.R.
Section

3575157
3575159
3575160
3754213
3754214

2/12/92
2/12/92
2/18/92
2/18/92
2/18/92

75.523-3(b) (2)
75.513-1(a) (1)
75.305
75.220(a) (1)
75.208

Assessment
$445
$168
$470
$1,357
$1,143

~~

Administrative Law Judge

Distribution:
Carol B. Feinberg, Esq., Office of the Solicitor, u.s. Department
of Labor, 4015 Wilson Blvd., Room 516, Arlington, VA 22203
(Certified Mail)

J. Thomas Hardin, Esq., Hardin Law Offices, Main Street, P.O.
Box 1416, Inez, KY 41224
(Certified Mail)
Winford Davis, President, Martin Sales & Processing, P.O.
Box 728, Kermit, WV
25674
(Certified Mail)
jml

563

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

MAR 2 91993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

. CIVIL PENALTY PROCEEDINGS
0
0
0

v.

CONSOLIDATION COAL COMPANYu
Respondent

Docket No~ WEVA 92-1016
A.C. No. 46-01453-04017
Docket No. WEVA 92-1017
A.C. No. 46-01453-04019

.
0

:

.

Docket No. WEVA 92-1065
A.C. No. 46-01453-04027

0

:
:

Docket No. WEVA 92-1095
A.C. No. 46-01453-04030

0
0
0

"

Humphrey No .. 7
Docket No. WEVA 92-1166
A.C. No. 46-01452-03883-R

. Arkwright No. 1
DECISION
Appearances~

Before~

Charles Jackson Esq. 0 U.So Department
Laboru
Office
Solicitoru Arlingtonu Virginia
for Petitioner;
Daniel Rogers, Esq. 8 Consolidation
Coal Companyv Pittsburgh Pennsylvania 9
for Respondent.

Judge Feldman

The above proceedings are before me as a result of petitions
for civil penalty filed by the Secretary of Labor pursuant to
Section 105(d) of the Federal Mine Safety and Health Act of 1977v
30 u.s.c. §801 et ~ 1 (The Act). These matters were scheduled
for hearing in Morgantown, West Virginia.
At the hearing, the parties moved to settle the citations
associated with Docket Nos. WEVA 92-1016, WEVA 92-1017, and WEVA
92-1065 in their entirety. With respect to Docket No. WEVA 921095, the Secretary presented his direct case for Order No.
3108895 and Citation No. 3108433. After the Secretary's
presentation I expressed my concern regardi~g certain factual
issues. I urged the parties to confer during a recess to discuss

564

settlemento The parties did ultimately reach an accord with
respect to this order and citation. The remaining citation in
Docket No~ WEVA 92-1095 was incorporated in the parties'
settlement motion presented at the hearing. Thusu Docket Nos.
WEVA 92-1016u WEVA 92-1017 0 WEVA 92-1065 and WEVA 92-1095 have
all been disposed of through the settlement process.
With regard to the remaining docketu the parties reached
settlement on 12 of the 13 citations contained in Docket No.
WEVA 92-1166. The settlement motion proffered by the parties
concerning all of these dockets was granted on the record and
will be incorporated as part of this decision. The motion was
supported by information that was provided that pertained to the
penalty assessment criteria set forth in Section llO(i) of the
Acto

The only matter heard was Citation No. 3313118 in Docket No.
Spencer A. Shriver testified on behalf of the
Secretary and William Lafferty and Robert Gross were called upon
to testify on behalf of the respondento The parties stipulated
to my jurisdicti_on in this matter. At the conclusion of the
hearing, the parties elected to make closing statements in lieu
of filing post-hearing briefs. This decision formalizes the
bench decision I rendered at the conclusion of the partiesv
closing presentations.

WEVA 92-1166.

The essential facts are not in dispute and can be briefly
stated. Spencer Ao Shriver has been a mine inspector for
15 years. He has a Masters Degree in electrical engineering and
he is a certified mine electrician and registered professional
engineer in West Virginia. (Tr.115-l16).
inspected the rescondent 5 s
accordance
- Section 103 · )
the Act
-~ comolaint. recedved concernina the opera•cing
respondentus jeeps and mantrips. Shriver was
by company representative Fred Morgan.
Upon
inspecting the No. 9 Jeepu Shriver noted ~ damaged fuse holder
~videnced by several wraps of
tape around the outer
10erimeter~ of t.he fuse holder
The fuse holder is
l
between
~ne eep motor and
conductor coming down from the trolley
v:::Yire through the trolley pol eo ~Tr 118 ~
The fuse holder
contains a fuse that
designed
stop the flow
current
~blow) in the event
conductor on the jeep became short
circuited to the frarneo The fuse holder is comprised of a
phenolic plastic material that is designed to withstand heat
resulting from arcing and ultimate fuse failure. (Tr.llS-212).
L

199lr

J. I'iine

o

o

Upon removing the tape, Shriver observed that the end cap of
the fuse holder had broken away. He proceeded to open the fuse
holder and noticed evidence of black soot which indicated the
presence of electrical arcing. He also observed a l/8 inch hole
that had burned through the metal end of the fuse which also
indicated that arcing had occurred. Based~~n the fact that the

565

No. 9 Jeep was on the track parked in the mantrip spur, from
which jeeps are routinely taken back into the mine at the
beginning of each shift, Shriver concluded that the jeep was in
service. (Tr.120). Consistent with this conclusion, Shriver
testified that he did not recall anyone alleging that the jeep
was out of service. (Tr.l2l).
Based upon these observations, Shriver issued Citation No.
3313118 citing a violation of the mandatory safety standard
specified in section 75.1725(a). 1 The citation stated:
On wells bottom, Noo 9 Jeep has fuse holder broken
on trolley poleo Fuse is taped into place but is not
making efficient electrical contact into end sockets.
A 1/8 inch hole has been burned in end of fuse from
arcing. A catastrophic failure of the fuse is
reasonably likely if the fuse remains in service.
Persons riding near the pole would be exposed to flash
burns and physical burns. Also 8 vehicle would be
disabled if fuse blew, and could result in wreck on

main lineG ·

The subject citation characterized the alleged violation as
significant
substantial. In support of his S&S designation,
Shriver testified that
believed that there were two hazards
associated with the defective fuse holder& The first hazard
concerned the possibility of injuries sustained to occupants of
the jeer in the event of a catastrophic failure of the fuse
holder.
In such event, passengers of the jeep could sustain
flash burns to the eyes, actual physical burns to the head and
bodyr and
ible shrapnel wounds. (Tr.l31 9 133~134)o The second
hazard 'tvas a. :.oss o:c
fuse failure which could result
l:Jrec]r;:
by
another "=.rack vehicle,
provided conflicting testimony regarding the
significant and substantial nature of these two hazards. For
example" Shriver testified that it was possible for the fuse to
j
causing an interruption of the flow
consequences. (Tr. 196-197)o
·~estified <that. he could not remember any signs
fuse holder.
o202)"
In addition, Shriver
f
w-ere vent. h.oles on each end of the fuse
holder
which the conductor passed through. Thus, Shriver

Section 75.1725(a) provides~
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.n
80

2 Shriver

equated a ncatastrophic failure" with an explosion
and disintegration of the fuse holder. (Tr. 133-134).

566

conceded that the fuse holder was not airtight further minimizing
the chances of catastrophic failure due to heat or pressure
buildup. (Tr.l90,194,226). Significantly, Shriver stated that,
with the exception of a fuse holder failure created by
overloading the fuse contained therein by two hundred to three
hundred percent in a laboratory setting, Shriver has never known
of a catastrophic failure of a jeep fuse holder. (Tr. 212,216).
In fact, Shriver admitted that this laboratory test was not
analogous to the routine current flowing through a jeep fuse.
(Tr.218)o Finally, Shriver testified that it was unlikely from a
"statistical standpoint" that a catastrophic failure would occur.
(Tr.l99-200).

William Lafferty and Robert Gross, employees of the
respondent, testified that in over 25 years of their combined
mine experience, they had never heard of a catastrophic failure
of a fuse holder. Gross also testified that he had contacted an
applications engineer of the fuse manufacturer who was also
unaware of any past catastroph~c fuse holder failure. (Tr.241).
As noted i~ my bench decision, I credit Shriver's testimony
that something udramatic" such as popping or sparking might have
occurred given the continued operation of the jeep (Tr.202).
However 0 the testimony, when considered in its entirety, does not
provide an adequate basis for concluding that catastrophic
failure of the fuse holder with resultant serious injury was
likely to occur.
Shriver's testimony regarding the likelihood of a wreck was
also contradictory. In this regard, he stated that, assuming the
jeep lost power and was stranded on the track, the engineer of a
locomotive if alertu could ~'probably see [the jeep] and probably
could stop cg
155}
Shriver also indicated that headlights on
locomotive
ect approximately 200 feeto (Tr.l56). While a
~t:.alled. 'c:racJc
contributes
a potential wrecku one must
assume that the operators of other vehicles are alert and in
control of such vehicles. Thus, I conclude that this hazard was
also not significant and substantial in nature.
0
o

o

o

As a result of the trial record 0 I issued the following
bench decision which is edited with non-substantive changes:
The first issue is the fact of occurrence. Section
75.1725(a) provides that mobile equipment shall be
maintained in safe operating condition or be removed
from service. There is no indication that this jeep
was removed from service at the time of the inspection.
There was no such allegation at the time of the
inspection by Mr. Morgan and Mr. Morgan isn't here to
testify. So I conclude that the jeep was in service.

567

The issue of the safe operation of the jeep is
dependent upon the condition of the fuse holder. I
believe that the testimony is unrebutted that the fuse
holder was damaged. It resulted in a loose connection
which caused arcing and would have ultimately resulted
in failure of the fuse.
Therefore, I believe it was a violation of the
regulation in that it was not safe to be in a vehicle
in which the fuse could fail at any moment. In such an
event, power could not be restored until the fuse was
replaced. Restoration of power could be further
delayed if replacement of the fuse holder was
necessary. This would expose the jeep to a possible
wreck and establishes that the jeep was not being
operated in a safe condition.
Having established the fact of occurrence, the second
issue is the significantand substantial question. I
find that a vehicle de-energized and exposed on a track
creates a hazard. However, it is a hazard that can be
mitigated by the person operating another vehicle on
the track. Thus, I presume the attentiveness of the
other operator and the ability of that operator to
control the vehicle and avoid an accident.
now turn to the second hazard concerning catastrophic
failure which was really the thrust of Mr. Shriver's
testimony. I acknowledge Mr. Shriver's expertise in
the area of electrical engineering. However, I am
called upon to concludeu if I were to accept the
Secretary's arguments 0 that there is a reasonable
likelihood that damage to the fuse holder would result
catastrophic failure. In analyzing this issue. I am
being called upon to conclude that something is
reasonably likely to happen that has never happened
before with the exception of a laboratory experiment
that tripled the normal current to determine how much
abuse a fuse holder could withstand. I do not equate
this laboratory experiment with routine operation of a
jeep
I

a

Moreoveru even if I were to conclude that such a
catastrophic failure could occur although it has not
been shown to have previously occurred in the course of
regular mining operations, I am asked to conclude that
it would occur at a time when passengers would be so
close to the fuse holder that they would sustain
serious injuries. I am unable to conclude that such an
event was likely to occur.

568

Therefore, I conclude that this was a violation of
75.1725(a). However, I am modifying the 104(a) citation to
reflect that this violation was not significant and
substantial in nature. 3 Consequently, I am assessing a
$105 penalty. (Tr.266-273).
In view of the above, I have removed the significant and
substantial designation from Citation No. 3313118. As a result,
I have reduced the proposed assessment from $157 to $105. The
penalty assessment for this citation and for the other citations
that have been settled in all of these docket proceedings is as
follows:
Docket No. WEVA 92-1166
Proposed
Penalty

Assessed
Penalty

3715568

$213

$128

3715569

$213

$213

3715570

$213

$128

*

3715571

$213

$128

*

3715572

$213

$128

*

3716074

$105

$105

3715580

$ 98

$ 98

Citation or
Order No ..

Modified from .
S&S to Non S&S

*

3

At trial, the Secretary cited Consolidation coal Company,
12 FMSHRC 2643 (December 1990} for the proposition that a
violation resulting in the loss of power
a trolley car
constitutes a significant and substantial violation" Although
Judge Weisberger did conclude in that contest proceeding that a
disabled trolley creates a hazardq he did not address the issue
of significant and substantialc Thereforeu the Consolidation
case is not disposit.i ve of this issue. It is however u
dispositive of the issue of fact of occurrence. In
Consolidation, in contesting an alleged violation of Section
75.511, the respondent argued that a stalled trolley car
constitutes a hazard justifying the replacement of a fuse by a
non-qualified electrician. Thus, I find that the respondent is
collaterally estopped from its attempt at trial to deny that loss
of power of a trolley creates a discrete safety hazard. (See Tr.
169-183).
Q

569

33131183

$157

$105

3715582

$213

$128

3716295

$213

$128

3716298

$213

$213

3715583

$213

$128

3715584

$213

$128

$267

$267

3108778

$30'9

$ 50

3108881

$ 50

$ 50

$206

$206

3108892

$267

$ so

3108895 4

$1,500

$267

3108433

$267

$267

*
*
*

*
*

Docket Noo WEVA 92-1016
3108483

Docket No. WEVA 92-1017

*

Docket No. WEVA 92-1065
3108775

pocket No. WEVA 92-1095

*

3

As reflected in this decision, the significant and
substantial designation has been deleted from this citation.
4 The parties• motion to modify this citation from a

l04(d) (2) order to 104(a) citation was granted on the record.
The significant and substantial designation for the underlying
violation remains in effect.

570

ORDER
ACCORDINGLY the citations as noted in the settlement motion
as well as Citation No. 3313118 addressed in this decision ARE
HEREBY AFFIRMED. Consequently, the respondent IS ORDERED TO PAY
•a total civil penalty in the amount of $2915 in satisfaction of
the violations in issue. Payment is to be made within (30) days
of the date of this decision, and upon receipt of payment of this
matter IS DISMISSED.

Jerold Feldman
Administrative Law Judge

Distribution~

Charles Jackson, Esq. 0 u.s. Department of Labor, Office of the
Solicitor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203
(Certified Mail)
Daniel E. Rogers, Esq., Consolidation Coal Company, 1800
Washington Road, Pittsburgh, PA 15241 (Certified Mail)

571

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

22041

MAR 2 91993
CIVIL PENALTY PROCEEDING

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

Docket No. WEVA 92-1025
A.C. No. 46-03374-03732

v.

Maple Meadow Mine

MAPLE MEADOW MINING COMPANYu
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Koutras
Statement of the Case

This is a civil penalty proceeding filed by the petitioner
against the respondent pursuant to section 110(a) of the Federal
Mine Safety and Health Act of 1977, 30 u.s.c. § 820(a), seeking a
civil penalty assessment of $4,200, for an alleged violation of
mandatory safety standard 30 C.F.R. § 75.400, as stated in a
section 104(a) significant and substantial (S&S) Citation No.
3731402 0 issued on April 14 7 1992.
The respondent filed a timely answer and contest, and the
case was scheduled for hearing in Charlestonu West Virginia~ on
March 17, 1993. However, the parties agreed to settle the
matter, and the petitioner has filed a motion pursuant to
Commission rule 30, 29 C.F.R. § 2700.30, seeking approval of the
proposed settlement. The respondent has agreed to pay a penalty
assessment of $2,000u
settlement of the violation.
In support of the proposed settlement, the petitioner has
submitted information pertaining to the six statutory civil
penalty assessment criteria found in section llO(i) of the Act, a
discussion of the violation in question, and a reasonable
justification for the reduction of the initial proposed penalty.
The petitioner states that the citation was issued because
of accumulations of loose coal and coal dust in various locations
inby the section dumping point and along the pillar lines in
crosscuts in the area. The inspector found a moderate degree of
negligence on the part of the respondent, and because of the
extent of the accumulations he dete1nined that it was highly
likely that a fatality would occur.
572

Although the respondent does not contest the fact of
violation, it disputes that the conditions were highly likely to
cause a fatality because there was no mining being conducted in
the area at the time, there was no measurable amount of methane
in the area that the time or for the preceding twenty-four hours,
there were no adverse roof conditions which could lead to
friction or cause an ignition, and the area had been rock dusted.
Under the circumstances, the petitioner believes that the
evidence at trial may not establish that the violation was highly
likely to cause a fatality, and it proposes to settle the
violation upon the entry of an order which modifies the gravity
finding of "highly likely'* to "reasonably likely". Petitioner
concludes that the payment of $2,000, to settle the violation
will serve to effect the intent and purpose of the Act.
Conclusion
After careful review and consideration of the pleadings,
arguments, and submissions in support of the motion to approve
the proposed settlement of this case, I conclude and find that
the proposed settlement disposition is reasonable and in the
public interest. Accordingly, pursuant to 29 C.F.R. § 2700.30,
the motion IS GRANTED, and the settlement IS APPROVED.
ORDER
IT IS ORDERED THAT:
1. The contested section 104(a) "S&S 11 Citation
No. 3731402 April 14 2 1992u citing a violation of
o C.F.R. § 75.400, is modified to reflect a gravity
finding of "Reasonably likely", and as modified, IT
IS AFFIRMED.

2. The respondent shall pay a civil penalty assessment
of $2,000, in satisfaction of the violation. Payment
is to be made t:o the petitioner (MSHA) within thirty
30) days of the date of this decision and order, and
upon receipt of payment, this matter is dismissed.

# . t:f:l~~

~~~. Kou{;-:;v~

Administrative Law Judge

573

Distribution:
Patrick L. DePace, Esq., Office of the Solicitor, u.s. Department
of Labor, 4015 Wilson Blvd., Room 516, Arlington, VA 22203
(Certified Mail)
David J. Hardy, Esq., Jackson & Kelly, P.O. Box 553, Charleston,
25322
(Certified Mail)

WV

/ml

574

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

MAR 3 0 1993
NOLICHUCKEY SAND COMPANY, INC.,
Contestant

CONTEST PROCEEDING

v.

Docket No. SE 92-361-RM
Citation/Order No. 4088642;
6/16/92

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

Tusculum Plant
Mine ID 40-03054

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

.

···-·

v.

CIVIL PENALTY PROCEEDING
Docket No. SE 92-397-M
A. C. No. 40-03054-05501
Tusculum Plant

NOLICHUCKEY SAND COMPANY, INC.,
Respondent
DECISION

Appearances:

Before~

Tom Bewley, President, Nolichuckey Sand Company,
Inc., Greeneville, Tennessee, for Contestant/
Respondent;
Wo Fo Taylorv Esqou Office of the Solicitor,
Uo So Department of Labor Nashville Tennessee,
for the Secretary of Labor.

Judge Maurer

At issue in this consolidated contest and civil penalty
proceeding are the validity of an order issued pursuant to
section 107(a} of the Federal Mine Safety and Health Act of 1977 1
(the uuAct") and a citation alleging a violation of 30 C.F,R.
§ 56.15020o
Pursuant to notice 1 a hearing was held in
Greeneville Tennessee on December lOv 1992o
Subsequent to the hearing, my office was notified by the
court reporter that all the hearing exhibits were "lost in the
mail. aB An effort has been made to reconstruct the record by
soliciting duplicate copies of the exhibits from the parties.
This, however, has not been entirely successful. We have managed
to obtain copies of all the government's trial exhibits, save
Government Exhibit No. 2. And another copy of the respondent's
only exhibit, a video tape, is likewise unavailable. This sorry
state of the record is unfortunate, but at this point, I intend
to proceed to judgment based on what I have before me.

575

section 107(a)/104(a) Order/Citation No. 4088642, issued on
June 16, 1992, by MSHA Inspector Dana Haynes, cites an al.leged
imminent danger as well as an alleged violation of the mandatory
safety standard found at 30 C.F.R. § 56.15020, 1 and the cited
condition or practice states as follows:
An employee had traversed the river from the
dredge to the shore without wearing an approved
personal floatation device (life jacket). The jon boat
used to access the dredge was moored at the dredge and
a hazard of falling into the water at that transition
point was apparent. Life jackets were available and
the employees had been instructed to wear them. The
lead man was not aware of the failure to wear the
jacket until this witnessing. The employee was
instructed not to return to the dredge until another
life jacket was found and worn.
In a nutshell, the inspector observed one of the operator's
employees, one Mr. Reed, get into a 14-foot long flat-bottom jon
boat that was tied up to a sand dredge out in the Nolichuckey
River and motor ashore. It is undisputed that this employee did
not have a life jacket or life belt on his person, nor were
either available to him in the boat at the time.
I agree with the Secretary that any time you are transiting
into or out of the boat to or from the dredge or when you are
underway in the boat on the river there is at least "some" danger
present both of falling into the water and from falling into the
watero
The preponderance of the evidence relating to the depth of
the river over the approximately 100-150 feet that the employee
traversed that day from the dredge to the riverbank is that it
was 3 feet deepQ and that is my finding on that point.
I also find and conclude that the evidence in the record is
sufficient to prove up a simple violation that the employee,
Mr. Reed 0 made the trip from the dredge to the shore without
benefit of a life jacket or life belt. Moreover, it is not hard
to imagine a possible scenari~~here the boat would rock, the
employee could fall out, hit his head, lose consciousness and
drown, even in 3 feet of water. I therefore find a violation of
the cited standard stands proven.
1

/
30 C.F.R. § 15020 provides: Life jackets or belts shall
be worn where there is danger from falling into water.

576

The tougher issues concerning "imminent dangern and
nsignificant and substantial!' findings are more prob;temat-ical for
the Secretary.
Section 3(j) of the Act defines an imminent danger as "the
existence of any condition or practice in a coal or other mine
which could reasonably be expected to cause death or serious
physical harm before such condition or practice can be abated."
30 u.s.c. § 802(j). In Rochester & Pittsburgh Coal Co.,
11 FMSHRC 2159, 2163 (November 1989), the Commission noted that
nthe 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." (citations omitted).
The Commission noted further 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. 11 Id., quoting Eastern Associated Coal Corp. v.
Interior Bd. of Mine Op. App., 491 F.2d 277, 278 (4th Cir. 1974).
The Commission also adopted the Seventh Circuit's holding that an
inspector 8 s finding of an imminent danger must be supported
01
unless there is evidence that he has abused his discretion or
authority.n 11 FMSHRC at 2164 quoting Old Ben Coal Corp. v.
Interior Bd. of Mine Op. App., 523 F.2d 25, 31 (7th Cir. 1975).
In Utah Power & Light Co., 13 FMSHRC 1617, 1627 (October
1991} u the Commission reaffirmed that an MSHA inspector has
considerable discretion in determining whether an imminent danger
HoweverJ the Commission held in this case that there
mus·i: be some degree
imminence to support an imminent danger
and noted t.ha'c the word go imminent" is defined as "ready to
take place[;] near at hand(;] impending ••• [;] hanging
t:hreat.eningly over one us head [;] menacingly near. n 13 FMSHRC
at 1621 (ci'cation omitted). The Commission determined that the
:Legisla·tive
of t:he imminent danger provision supported a
conclus
"chat ' 9 the hazard to be protected against by the
'Jdthdrawal order must be impending so as to require the immediate
lfJi t.hdrawal of miners. 0'
Id. Finally, the Commission held that an
inspector abuses his discretion, in the sense of making a
decision that is not in accordance with law, if he issues a
section 107(a) order without determining that the condition or
practice presents an impending hazard requiring the immediate
withdrawal of miners. 13 FMSHRC at 1622-23.
In the instant case, when the inspector issued the imminent
danger order, Mr. Reed was at that time standing on dry land.
The danger, to the extent it had previously existed, was past.
It was no longer imminent. It was not impending, and pursuant to

577

the rationale enunciated in Utah Power and Light, supra, cannot
justify the issuance of an imminent danger order. Accordingly,
the order portion of Order/Citation No. 4088642 will be vacated
herein.
Also without merit is the Secretary's position that the
subject violation is 91 significant and substantial."
A "significant and substantial" violation is described in
section 104(d) (1) of the Mine Act as a violation "of such nature
as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard.n
30 C.F.R. § 814(d) (1).
A violation is properly designated
significant and substantial "if based upon the particular facts
surrounding the violation the.re exists a reasonable likelihood
that the hazard contributed to will result in an injury o~
illness of a reasonably serious nature." Cement Division,
National Gypsum Co., 3 FMSHRC 825 (April 1981).
In Mathies Coal Co.v 6 FMSHRC 1v 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 isf a measure of danger to safety-contributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will result
in an injury; and (4) a reasonable likelihood that the
injury in question will be of a reasonably serious
nature"

In United States Steel Mining Company, Inc.v 7 FMSHRC 1125v
1129 (August 1985)v the Commission stated further as follows:
We have explained further that the third element of the
Mathies formula ij'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) (1), it is the contribution
of a violation to the cause and effect of a hazard that

578

must be significant and substantial. U. s. Steel
Mining Company. Inc., 6 FMSHRC 1866, 1868 (August
- 1984); U. S. Steel Mining Company, Inc., 6 FMSHRC 1573,
1574-75 (July 1984).
The first element of the Mathies test is satisfied. There
was a violation proven. The second element is likewise satisfied
in that should something untoward have happened to Mr. Reed to
cause him to become incapacitated, the absence of the required
life-saving equipment would have presented a discrete safety
hazard. The fourth element is also satisfied because the injury
if it occurred would be reasonably likely to be serious.
However, it is the third prong of the Mathies test, a reasonable
likelihood that the hazard contributed to will result in a
injury, where the Secretary fa~!sto meet his burden of proof.
Since the water was only 3 feet deep over the route traversed by
Reed that day, simply falling into the water would not be
sufficient to cause Reed any particular injury. A serious
injury, such as a drowning, as argued by the Secretary, would
require that Reed be incapacitated and unable to help himself,
and while I have earlier in this decision found that to be a
~ssibility, it would be quite a stretch of the record evidence
to raise that "possibility" to the level of a "reasonable
likelihood." That being the case, I cannot find that the
Secretary has proven that there was a reasonable likelihood that
the hazard would result in an injury. Accordingly, I am going to
delete the inspector's S&S finding.
account
of the civil penalty assessment
section llO(i} of the Actv I conclude and find
~na~ a penalty of $50 for the violation in question is reasonable
and appropriate and it will be so ordered.
ORDER
is ORDERED that the findings of ue imminent danger 11 and
"significant and substantial" for Order/Citation No. 4088642 be
I~c

'VACATED"

is further ORDERED that Order/Citation No. 4088642 be
MFFIRMED as a non S&S section 104(a) citation.

579

It is further ORDERED that Nolichuckey Sand Company, Inc.
pay a penalty of $50 within 30 days of this order.

Law Judge
Distribution:
Mr. Tom Bewley, President, Nolichuckey Sand Company, Inc.,
Route 9u Box 290, Greeneville, TN 37743 (Certified Mail)

w. F. Taylor, Esq., Office of the Solicitor, U. s. Department of

Labor, 2002 Richard Jones Road, suite B-201, Nashville, TN 37215
(Certified Mail}

dcp

580

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

1 199·3
HA·
r- ')
· . K.
v
-1.

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSP~)u
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. KENT 92-651
~

A.Co No. 15-08357-03702

Camp No. 11
PEABODY COAL COMPANY 0
Respondent
DECISION
Appearances~

William F. Taylor, Esq., u.s. Department of Labor,
Office of the Solicitoru Nashvilleu Tennessee,
the Petitioner;
David Ro Joest; Esq., Peabody Coal Company,
Henderson, Kentucky, for the Respondent.

Judge Feldman

Before~

The captioned proceeding is before me as a result of a
?etition for
v
penalty filed by the Secretary of Labor
of "che Federal I:<Iine Safety and Health
801
sea., (the Act)o This case was
Owensboro, Kentucky on March 3, 1993.
concerns & 104(g) (1) and a 107(a) order and four
10~1 a} cit.at.ions t:hat were issued as a result of an investigation
fatal accident that occurred in the respondent 1 s Camp 11
2 6 - :_ 9 9 L
The total assessed penalty proposed
commencemen"c of the hearing c the parties moved to
and citations
issue for a total penalty of
>#as supported bv t:he t.estimonv of Mine
Elnd Heal·ch J:~dmin.istration (MSHA) conference'· Officer Robert
and Sa.m Spears u an electrician employed by the
respondento These individuals described the accident and
provided information concerning the results of MSHA's subsequent
investigation? As noted belowp the partiesg settlement motion
was granted on the record.
A:;:: ·;:be

se~tle the orders
S28 ~SOD
The
0

581

BACKGROUND

This case involves fatal injuries sustained by Raymond Brown
during the course of his remote control operation of a SimmonsRand scoop. This scoop is used to remove loose coal that has
fallen between the ribs after continuous miner operations.
(Tr. 42). The scoop can be operated manually from the control
deck. In the alternative, the scoop can be operated remotely by
means of a hand held joystick. (Tr. 16,39). The advantage of
operating in the remote control mode is that it allows the scoop
to operate under unsupported roof before roof bolting occurs,
without exposing the scoop operator to danger. (Tr. 43-44).
Remote control of a scoop is a relatively new technological
development in the mining industry. (Tr~ 23).
The mechanical operation of the scoop~s braking system is
dependent upon whether it is being operated in the manual or
remote control mode. If the scoop is operated in the manual
mode, the operator controls'"the scoop from the operator 1 s deck.
To stop the scoop, the operator uses a foot pedal that is located
on the floor of the deck. Operation of the foot pedal applies
pressure to the service brakes. (Tr. 37-38).
Remote operation of the scoop is accomplished by the
operator holding a remote station joystick while positioned
behind the scoop. Movement of the scoop is achieved by holding
down the plunger on the joystick. To apply t.he service brakes in
the remote mode of operation, the operator must release the
joystick. This activates the hydraulic function of the service
brake system by sending oil through a flow control valve" The
then transported through a pressure intensifier which
creates the hydraul
pressure that activates the se~Jice brakes
and stops
scoop. (Tr. 7-39 .
On February 26v 1991, Raymond Brown 1 an individual with
approximately 15 years of mining experienceu was operating a
scoop by remote control in the crosscut between the No. 3 and
:No. 0 entries t:o orovide a clean Y.;JorJdnq area for <the :::::-oof
bolting machine operator. At approximatelyf 1~30 .ill. the
continuous miner had completed a 34 four foot cut
No. 3
entry and had moved to the Noo 2 entry. Roof bolting was
completed in the crosscut between the No. 3 and No, 4 entries.
Brown was in the process of cleaning the No. 3 l:'lOrking face by
remotely controlling the scoopo The roof bolter was parked in a
crosscut adjacent from the area where Brown was cleaning the
face. As the scoop retreated from the faceu the service brake
failed to engage pinning Brown between the rear of the scoop and
the front of the roof bolter. A roof bolter operator who
witnessed the accident de-energized the scoop with the panic bar
located in the deck of the scoop. Brown sustained fatal chest
injuries and expired shortly after being brought to the surface.

582

An MSHA investigation conducted at the scene cited an
inoperative service brake as a result of a closed hydraulic flow
valve as the proximate cause of this fatal accident.
However,
the investigation revealed that it was not until after the
accident that Simmons-Rand, the manufacturer of the scoop,
informed the respondent of the function of the flow valve and the
importance of it being kept in the open position. In this
regard, Sam sears, the chief electrician at the respondent's Camp
11 Mine, testified that the existence or maintenance of a flow
control valve is not noted in the Simmons-Rand scoop service
manual. (Tr. 40). As a result of this accident, MSHA Conference
Officer Robert Phillips testified that a nationwide alert was
issued to all mine operators warning of the potential flow valve
problem and requiring appropriate training for operators of such
scoops in the remote control mode. (Tr. 30-32, GOV. Ex.7).
As noted above, as a result of this accident and the
subsequent investigation, three c~-t:ations and an imminent danger
order were issued for alleged violations concerning the scoop's
braking system. In addition, the respondent received a 104(g)
order and a citation for allegedly failing to provide adequate
task training for remote scoop operators.
Citation No. 3550636 and imminent danger Order No. 3550634
were issued for violation of the mandatory safety standard
contained in section 75.1725(a) 1 as a result of the closed flow
control valve which disabled the remote operation of the service
brake system. 2 At the hearing, the parties moved to settle this
citation and order indicating that the respondent has agreed to
pay the $15,000 proposed assessed penalty.
Citation Nos" 3550635 and 3550637 were issued for defects in
scoop's emergency parking brake and for worn disc brake pads
on 'l:he scoop 0 s service brakes" The proposed assessment for each
of these citations was $9,000. At the hearing, the parties
agreed to settle each citation for $6,550. The reduction in the

This mandatory safety standard requires that mobile
equipment must be maintained in a safe operating condition or be
removed from service immediately.
2

The subject scoop was repaired on February 6 and again on
the day prior to the accident on February 25, 1991, for brake
problems associated with manual operation.
At those times, the
brakes were checked and determined to be operating properly in the
manual mode. The brakes were not checked in the remote ooerational
mode. The flow control valve is located under a panel and is not
easily accessible. The investigation failed to establish when or
why the control valve was closed. (Tr. 49-53). The flow control
valve was ultimately removed to prevent a reoccurrence of brake
failure. (Tr. 41).
"

583

proposed assessments was supported by the fact that the
investigation ultimately determined that the condition of the
scoop's parking brake and service brake did not contribute to Mr.
Brown's death. (Tr.66-67,69).
_ Citation No. 3550565 and Order No. 3550566 were issued as a
result of the respondent's failure to provide adequate task
training as required by Section 48.7(a) (3). The citation was
issued with respect to the training provided to Raymond Brown and
the 104(g) (1) order was issued in connection with the training
provided to Gary Woods. 3 The penalty initially proposed for
each of these alleged violations was $12,000. At trial, the
parties moved to reduce the proposed assessment to $200 for each
violation. This substantial reduction in penalties was supported
by the testimony of Mr. Phillips indicating that the operator had
no advance knowledge of the existence or significance of the flow
control valve. Therefore, Phillips opined that even extensive
training could not have prevented Mr. Brown's death. (Tr. 23-24).
Although the investigation.revealed that additional emphasis
should have been placed on remote control training, counsel for
the Secretary characterized the training provided as
"substantially adequate" quantifying the training as a 9 on a
scale of 1 to 10. (Tr. 16).
In view of the above, I accepted the parties' settlement
agreement as proffered on the record because it is consistent
with the criteria set forth in section llO(i) of the Act. By way
of summary 1 the respondent has agreed to pay an assessed penalty
of $15,000 for Citation No. 3550636 and Imminent Danger Order No.
3550634; $6,550 for Citation No. 3550635; $6,550 for Citation No.
3550637u $200 for Citation No. 3550565; and $200 for Order No.
3550566. The settlement incorporates the gravity and negligence
findings charged in these citations and orders.
ORDER
Accordinglyv the citations and orders noted above ARE HEREBY
Consequentlyv the respondent IS ORDERED TO PAY a total
civil penalty in the amount of $28v500 in satisfaction of the
violations in issue. Payment is to be made within 30 days of the
date of this decisionv andv upon receipt of paymentv this matter
~~ DISMISSED.
~FIRMED.

Ow ,:iQ,

~:rold
~eldman
Administrative Law Judge
703-756-5233
3

This order also cited Michael Grigg as not receiving
adequate training. However, reference to Grigg was deleted when it
was determined that Grigg was not a scoop operator. (Tr. 16).

584

ADMINISTRATIVE LAW JUDGE ORDERS

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

20006

March 11, 1993

CIVIL PENALTY PROCEEDING

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

Docket No. WEST 93-259-M
A. C. No. 24-01467-05565
Troy Unit

v.
INCORPORATEDu
Respondent

ORDER OF CONTINUANCE

The above-captioned case is a petition for assessment of a
civil penalty filed by the Secretary of Labor against Asarco Inc.
The operator has now filed its answer.
It has also filed a
motion to consolidate this case with the corresponding notice of
contest which is presently pending before the Commission in
Docket No. WEST 92-624-RM.
Since the penalty aspect of this matter has not been heard
or adjudicated at the trial level, consolidation with the contest
now on appeal would not be appropriate. The Commission has
consisently held that where, on appeal, it decides certain issues
but the amount of penalty remains to be determined; the matter
must be remanded to the administrative law judge for that purpose.
, 14 FMSHRC 1982, 1989-90 (Dec.
1992); Mar-Land Industrial Contractor, Inc., 14 FMSHRC 754, 760
(May 1992); Mettiki Coal Corp., 13 FMSHRC 760, 773 (May 1991);
Rochester & Pittsburgh Coalu 13 FMSHRC 189, 199 (Feb. 1991).
Alsou the Commission always has refused to consider on appeal
issues that have not been raised at the trial level. Shamrock
Coal Company, Inc., 14 FMSHRC 1300, 1302-1304 (August 1992)~
Shamrock Coal Company" Inc., 14 FMSHRC 1306, 1312-1314 (August
1992)c Beech Fork Processing Inc., 14 FMSHRC 1316, 1319-1321
(August 1992). Therefore, the operatoris motion to consolidate
here cannot be granted. The proper procedure is to put this case
on stay pending the Commission 1 s decision on the notice of
contest.

585

Accordingly, it is ORDERED that the operator's motion to
consolidate be DENIED, that this case be STAYED until issuance of
the Commission's decision in WEST 92-624-RM, and that· the parties
ADVISE the undersigned when the Commission's decision is issued.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Robert Murphy, Esq., Office of the Solicitor, U. S. Department of
Labor, 1585 Federal Office Building, 1961 Stout Street, Denver,
co 80294 (Certified Mail)
Tana M. Adde, Esq., Office of the Solicitor, U. s. Department of
Labor, 4015 Wilson Boulevard, Suite 400, Arlington, VA 22203
(Certified Mail)
Henry Chajet, Esq., Nancy Boudrot, Esq., Jackson & Kelly, Suite
400, 2401 Pennsylvania Avenue, NW., Washington, DC 20037
(Certified Mail)
Mr. Douglas Miller, Miner's Representative, Asarco Inc., Box 868,
Troy, MT 59935 (Certified Mail)
jgl
'~U.S. GOV!RNMENT PlUNT!NC OFFICE.: 1 9 9 3- 3 ~ 2

586

<~ 3 1 a 3 37 e