JULY 1991
COMMISSION DECISIONS
07-18-91

Mustang Fuels Corporation

KENT 91-100

Pg. 1061

CENT 91-13
KENT 90-428
PENN 90-49
WEVA 91-105
WEST 90-184-M
WEVA 91-49
KENT 91-101
WEST 90-215-M
YORK 89-42
CENT 89-162-DM

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PENN 91-39
SE
90-120
WEST 91-161-DM
LAKE 91-63-M
PENN 90-202-D

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WEST 91-406-R
WEVA 90-308-D
WEVA 91-92
WEVA 91-181
LAKE 90-87
LAKE 91-650-R
CENT 90-160-DM
WEST 91-83-R
WEVA 90-177
LAKE 91-59
LAKE 91-4Lf
PENN 91-40
WEST 90-273-M
KENT 90-340-R
KENT 90-338
WEVA 90-200

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ADMINISTRATIVE LAW JUDGE DECISIONS
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07-29-91
07-30-·91
07-31-91

OK and WV Coal Company
Ramblin Coal Company, Inc.
Hickory Coal Company
Consolidation Coal Company
Custon Crushing Inc.
Consolidation Coal Company
Peabody Coal Company
Red Arrow Gold Corporation
Mettiki Coal Compgny
Donald Northcutt, Gene Myers & Ted Eberle v.
Ideal Basic Industries, Inc.
United States Steel Mining Co.
Beechgrove Processing Company
Francis A. Marin v. ASARCO, Inc.
Don Fnaze employed by Liter's Quarry of Indiana
Thomas D. Shumaker, UMWA on behalf of Michael
Kelecic, etc. v. Consolidation Coal Co.
Energy West Mining Company
Ronnie E. Price v. Consolidation Coal Company
Consolidation Coal Company
Consolidation Coal Company
Anthony Mining Company
Southern Ohio Coal Company
Kelly L. Diede v. Summit Incorporated
Energy West Mining Company
Billy R. Sipple employed by Shillelagh Mining
Old Ben Coal Company
Old Ben Coal Company
Aloe Coal Company
Jet Concrete Incorporated
Pyro Mining Company
RB Coal Company, Inc.
James D. McMillen employed by Shellelagh Mining

ADMINISTRATIVE LAW JUDGE ORDER
05-20-91

ASARCO, Incorporated

SE

JULY 1991
Review was granted in the following case during the month of July:
Asarco, Inc., v. Secretary of Labor, MSHA, Docket Nos. SE 88-82-RM, etc.
(Judge Weisberger, Interlocutory Review of May 20, 1991 Order.)
[Published in this issue]
Review was denied in the following cases during the month of July:
Secretary of Labor, MSHA v. Midwest Minerals, Inc., and Richard R.
Atkinson, Docket No. CENT 90-60-M, CENT 91-51-M. (Judge Koutras, Interlocutory
Review of May 30, 1991 Order.)
Larry E. Burns v. Blattner & Sons, Inc., Docket No. WEST 90-166-DM.
Lasher, June 21, 1991.)

(Judge

Homestake Mining Company v. Secretary of Labor, MSHA, Docket No. CENT 90-108-RM.
(Judge Lasher~ June 21, 1991.)

COMMISSION DECISIONS

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

July 18, 1991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. KENT 91-100

v.

MUSTANG FUELS CORPORATION

BEFORE:

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

BY THE CO.MMISSION:
In this 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"),
Commission Chief Administrative Law Judge Paul Merlin issued an order of
default on June 17, 1991, finding Mustang Fuels Corporation ("Mustang") in
default for failure to respond to his April 23, 1991, order to show cause.
The judge assessed a civil penalty of $450.00. For the reasons that follow,
we vacate the default order and remand the case for further proceedings.
On June 25, 1991, the Commission received an undated letter from
Mustang that contains a statement of the reasons why
disagrees with
the civil penalty proposed by the Secretary of Labor in this case. The
judge 1 s jurisdiction over the case terminated when his decision was issued
on June 17, 1991. 29 C.F.R. § 2700.65(c). Under the circumstances
presented, we deem Mustang's letter to be a timely petition for
discretionary review of the judge's default order. ~. Middle States
10 FMSHRC 1130 (September 1988). The petition is granted.
The record discloses that on June 19, 1990, an inspector of the
Department of Labor's Mine Safety and Health Administration ("MSHA") issued
a citation pursuant to section 104(a) of the Mine Act, alleging a
violation of 30 C.F.R. § 77.807-1, and an imminent danger withdrawal order
to section 107(a) of the Mine Act, alleging that sufficient
clearance from a high-voltage cable was not provided in an area in which a
dozer was being operated. Mustang filed a "Blue Card" request for a
before this .Commission. When no answer to MSHA' s Proposal for Assessment of
Civil Penalty was filed, Judge Merlin issued an order directing Mustang to
file an answer within 30 days or show good cause for its failure to do so.
When no response was received, Judge Merlin issued an order finding Mustang
in default for failure to answer the Secretary's civil penalty proposal and
the show cause order, and assessing the $450 civil penalty proposed by the
Secretary.

1061

On June 25, 1991, the Commission received a letter from Donna Johnson,
the secretary and treasurer of Mustang, in which Ms. Johnson alleges that
John Kerr, the president of Delta Fuels Corporation ("Delta"), hired Mustang
as the "underground miner" for the mine, and hired another company as its
"surface mine contractor." Johnson explains that surface mining operations
were being conducted by the other contractor when the subject citation and
order were issued on June 19, 1990, but that Mustang "never ran any coal at
any time" out of the mine, and had no control over the surface mine
contractor. It appears that both the citation and the order of withdrawal
were issued for conditions present on the surface. She further states that
Mr. Kerr assured Mustang that the "citations would be taken care of," and
that, subsequently, Kerr left the country.
Ms. Johnson also attached to her letter a separate undated letter
addressed to MSHA from Mustang stating that the mine "has been and will be
permanently aban[doned]. This was effective on August 1, 1990." The
subject citation and order were issued at the mine on June 19, 1990, and
terminated on July 5, 1990.
Mustang appears to be a small company proceeding without benefit of
counsel. In conformance with the standards set forth in Fed. R. Civ. P.
60(b)(l), the Commission has previously afforded such a party relief from
default upon a colorable showing of inadvertence, mistake, or excusable
neglect. JL_g_,_, A.H. Stone Company, 11 FMSHRC 2146, 2147 (November 1989).
Here Mustang asserts that it failed to respond to the judge's order because
it relied upon Kerr's alleged representation that the citation "would be
taken care of," and that it believed that it was not the party responsible
for any violative conduct. On the basis of the present record, we are
unable to evaluate the merits of Mustang's assertions, but, in the interest
of justice, we will permit Mustang to present its position to the judge, who
shall determine whethe~ relief from the default order is warranted.
Accordingly, we grant Mustang's petition for discretionary review,
vacate the judge's default order, and remand this matter for proceedings
consistent ·with this order.

L. Clair Nelson, Commissioner

1062

ADMINISTRATIVE LAW JUDGE DECISIONS

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

22041

JUL 1 1991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. CENT 91-13
A. c. No. 34-01633-03520

v.

No. l Mine
OK & WV COAL COMPANY,
Respondent

..
DECISION

Appearances:

Robert A. Fitz, Esq., Office of the Solicitor,

u. s .. Department of Labor, Dallas, Texas, for the
Secretary of Labor (Secretary);
A. F. Robinson and R. v. Bell, Madison,

We?t Virginia, for OK & WV Coal Company (OK & WV).

Before:

Judge Broderick

STATEMENT OF THE CASE
In this proceeding, the Secretary seeks civil penalties for
two alleged.~vielations of mandatory health and safety standards
cited following an investigation of a fatal electrical accident
at the subject mine on January 12, 1990. Pursuant to notice, the
case was called for hearing in Tulsa, Oklahoma, on May 21, 1991.
Ronnie Wilburn, Paul Cash, James Vince Smedley and Harold Shaffer
testified on behalf of the Secretary. OK & WV did not call any
witnesses. At the close of the hearing, both parties waived
their right to file post hearing briefs, and each made a closing
argument on the record" I have considered the entire record and
the contentions of the parties, and make the following decision.
FINDINGS OF FACT

1. OK & WV was the operator of an underground coal mine in
Okmulgee County, Oklahoma, from August 1989 to August 1990, known
as the No. 1 Mine. The mine is currently operated by another
company.
2. The mine produced 31,834 tons of coal in 1989 and
32,098 tons in the first quarter of 1990. The operator decided
"it was impossible to make money there and we decided to sever
our contract and try to dissolve our business in Oklahoma"
(Tr. 103). I find that OK & WV was a small mine operator.

1063

3. From the time the mine opened and until January 12,
1990, OK & WV was cited for 36 violations, none of which involved
30 c.F.R. § 75.509 or § 75.511. In view of the fact that the
mine operated for such a short period of time, I find that this
history is not such that penalties otherwise appropriate should
be increased because of it.

4. Dover Varney was employed at the subject mine in January
1990, as an electrician. He was an experienced and certified
electrician, one of four employed at the mine. He had 13 years
mining experience, and had worked 4 months at the subject mine.
Mr. Ronnie Wilburn, the chief electrician and Mr. Varney's
supervisor, believed that Varney was the ablest electrician at
the mine including Wilburn.
5. The crew on the day shift at OK & WV on January 12,
1990, was having trouble with the continuous mining machine
beginning about 12:30 p.m. When they attempted to operate the
machine, the circuit breaker knocked out the power. The first
shift electrician Paul cash was working on it.
6.
The chief electrician Wilburn and second shift
electrician Dover Varney went.underground at about 2:00 p.m., on
January 12, prior to the beginning of the second shift. cash and
Varney deenergized the miner and took off the control panel.
They disconnected the pump motor and planned to tram the miner
from the area. However, when they energized the miner and
replaced the panel, they were unable to start the miner.

7. Leaving the miner energized, they again removed the
control panel. Varney looked in the compartment and saw that the
circuit brea:Jte:i'was "kicked." He checked the No. 1 circuit with
his voltmeter which showed no voltage. Wilburn, who stated that
he "wasn't that familiar with the machine," told Varney that he
thought there was stiLt power on the machine (Tr. 40). Cash, who
was crawling away toward his tool box, and whose cap lamp had
dimmed, said 91 Dover, one breaker doesnvt kill all the power in
that box~ (Tr. 50).
8. Varney replied, as he reached in the panel, "if it has
power on it~ it 1 s the first one I 1 ve ever . • • 11 At that moment
he received the electric shock from the 450 volt circuit. This
occurred about 5:00-p.m.
9.
The trailing cable was deenergized. CPR was
administered and Varney was taken to the surf ace and transported
to the hospital by ambulance. He was pronounced dead on arrival
at 5~22 p.m.

1064

10. Varney was not wearing gloves at the time of the fatal
accident. The electricity apparently entered his body through
his forearm just below the elbow. He was kneeling on the wet
floor at the time.
11. Chief electrician Wilburn was standing about 5 feet from
Varney when the accident occurred. He was facing Varney and
talking to him as found in 7. and 8. above. Cash, as I found
above, was crawling away from the machine.
12. The cover to the control panel on the miner contained a
printed instruction that the trailing cable must be deenergized
before working in the compartment. Wilburn, however, was not
~ware of this instruction prior to the fatal accident.
13. On January 15, 1990, Federal Coal Mine Inspector Harold
Shaffer investigated the accident. He issued a 103(k) Order, a
104(d) (2) Order charging a violation of 30 C.F.R. § 75.512, and a
104(a) citation charging a violation of 30 C.F.R. § 75.1720(c).
14. On January 16, 1990, Inspector Shaffer issued a
modification of the 104(d) (2}.0rder to show the correct section
of 30 C.F.R. as 75.511.
15. The order was terminated on January 16, 1990, after a
training course on locking out and tagging procedures was
presented to the mine's electricians by the mine manager and an
MSHA-qualified instructor.
16. When the case was called for hearing, the Secretary
moved to amend the Proposal for Penalties and the 104(d) (2) Order
to charge a -~iolation of 30 C.F.R. § 75.509 rather than 30 C.F.R.
§ 75.511.
OK & WV did not object and the motion was granted.
REGULATIONS

No electrical work shall be performed on low-,
medium-, or high-voltage distribution circuits or
equipmentv except by a qualified person or by a person
trained to perform electrical work and to maintain
electrical equipment under the direct supervision of a
qualified person. Disconnecting devices shall be
locked out and suitably tagged by the persons who
perform such work, except that in cases where locking
out is not possible, such devices shall be opened and
suitably tagged by such persons. Locks or tags shall
be removed only by the persons who installed them or,
if such persons are unavailable, by persons authorized
by the operator or his agent.

1065

30 C.F.R.

§

75.509 provides:

All power circuits and electric equipment
shall be deenergized before work is done or
such circuits and equipment, except when
necessary for trouble shooting or testing.
30 C.F.R.

§

75.1720 provides in part:

• • . each miner regularly employed in the
active workings of an underground coal mine
shall be required to wear the following
protective clothing and devices:

*

*

*

(c) Protective gloves when handling
materials or performing work which might
cause injury to the hands; however, gloves
shall not be worn where they would create a
greater hazard by becoming entangled in the
moving parts of equipment.
ISSUES

lo Whether the evidence establishes that OK & WV failed to
deenergize electric equipment before working on such equipment?

2. If so, was it necessary to have the equipment energized
for trouble shooting or testing?
3. Whether the requirement that protective gloves be worn
applies to the facts shown in this proceeding?
4o
If the two violations charged occurredv what are the
proper penalties therefor?

CONCLUSIONS OF LAW

lo OK & WV was subject to the provisions of the Mine Act in
the operation of the subject minev and I have jurisdiction over
the parties and subject matter of this proceeding.

2" On January 12, 1990, OK & WV in the person of
electrician Dover Varney performed work on electric equipment,
namely the electric panel of a continuous mining machine without
deenergizing the machine.
3. It was not necessary to have the machine energized while
performing the work for trouble shooting or testing.

1066

4. Therefore, a violation of 30 C.F.R. § 75.509 is
established by the evidence in this proceeding.
5. The protective clothing standard requires gloves to be
worn when performing work which might course injury to the hands.
The Secretary's Program Policy Manual July 1, 1988, interpreting
Section 75.1720(c) requires that "miners wear gloves whenever
they troubleshoot or test energized electric power circuits or
electric equipment." (Gx 11).
6. Therefore the failure of Varney to wear gloves when
testing the energized electric circuit of the continuous miner
was a violation of 30 C.F.R. § 75.1720(c).
7. The fatal electrical accident resulted from the
violation of 30 C.F.R. § 75.509 referred to in conclusion 4.
Therefore, the violation was extremely serious.
8. OK & WV in the person of its chief electrician was aware
of the violation and observed its occurrence. On the other hand,
the chief electrician warned the victim of the danger. Further,
the victim was a highly qual±f ied and certified electrician who
should have known not to reach in an energized circuit
compartment. These factor mitigate OK & WV's negligence.
9. Considering the facts established on this record in the
light of the criteria in Section llO(i) of the Act, I conclude
that a civil penalty of $2500 is appropriate for the violation of
75.509.
10. The evidence does not establish that the violation of
30 C.F.R. §""75'.1720(c) was related to the fatal accident. The
electric current entered the victim's body on his forearm below
the elbow which would not have been covered by a glove. He was
kneeling on the wet flooro OK & WV made gloves available, but
apparently did not require the miners to wear them. The
violation was of moderate gravity and resulted from ordinary
negligence.
11. Considering the facts established on this record in the
light of the criteria in Section llO(i) of the Act, I conclude
that a civil penalty of $100 is appropriate for the violation of
Section 75o1720(C)oORDER

Based on the above findings of fact and conclusions of law,
IT IS ORDERED:

1.

Order No. 2929848 issued January 15, 1990, as amended is

AFFIRMED.

1067

2.

Citation No. 2929857 issued January 16, 1990, is

AFF:IRMED.

3. OK & WV shall within 30 days of the date of this order
pay to the Secretary of Labor the following civil penalties:

CITATION/ORDER

30 C.F.R.

AMQUNT

2929848
2929857

75.509
75.l720(c)

$2500
TOTAL

$....lQ.Q

$2600

/f'tf~~ k1J~d+i6/t.

~ ~ames A.

v-

Broderick
.
Administr.ative Law Judge

Distribution:
Robert A. Fitz, Esq., Office ,<:?,f the Solicitor,. u. s. Department
of Labor, 525 Griffin-Street, suite 501, Dallas, TX 75202
(Certified Mail)
Mr. David R. Lange, OK & WV Coal Company, P.
Henryetta, OK 74437 (Certified Mail)
dcp

1068

o. Box 326,

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

JUL 1 l991

.
.

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

.
.
.
.•

v.
RAMBLIN COAL COMPANY, INC.,
Respondent

.

CIVIL PENALTY PROCEEDINGS
Docket No. KENT 90-428
A.C. No. 15-16104-03533
No. 5 Mine
Docket No. KENT 90-429
A.C. No. 15-16685-03510
Docket No. KENT 90-430
A.C. No. 15-16685-03511
No. 8 Mine

ORDER

These consolidated cases came on for hearing at
Prestonsburg, Kentucky, on June 18, 1991. Various motions were
made and ruled upon from the bench. This Order confirms the
bench rulings.
WHEREFORE IT IS ORDERED that:
1.
The motion for approval of settlement in Docket Noa
KENT 90-428 is GRANTED. Respondent shall pay the approved civil
penalty of $105 within 30 days of this Order and upon such
payment Docket No. KENT 90-428 is DISMISSED.
2"
In Docket No" KENT 90-430, the Secretary 9 s motion to
vacate citation No. 3367869 is GRANTED.
3.
In Docket No. KENT 90-429, the motion to approve
settlement of the following citations, in the civil penalty
amounts shown, is GRANTED.
Citation

Civil Penalty

3367128
3510164
3510419

$91
$20
$112

Respondent shall pay the approved civil penalties of $223
within 30 days of this Order.

1069

4.
STAY ORDER: as to all remaining citations in Docket No.
KENT 90-430 and as to Citation No. 3509948 in Docket No. KENT 90429, further proceedings are STAYED pending the Commission's
decision in Hobert Mining, Inc., Docket No. WEVA 91-65.
5.
A decision on the merits of the remaining citations in
Docket No. KENT 90-429 shall be rendered after consideration of
the parties' briefs.

-7'~
)·
lfA
~

12

W1A v V\_

Wil iam Fau er
Administrative Law Judge

Distribution:
Joseph B. Luckett, Esquire, Office of the Solicitor, U.S.
Department of Labor, 2002 Richard Jones Road, Suite B-201,
Nashville, TN 37215 (Certified Mail)
Billy Shelton, Esquire, Baird, Baird, Baird & Jones,
Box 351, Pikeville, KY 41502 (Certified Mail)
/fas

1070

PSC., P.

o.

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

JUL 2 1991
CIVIL PENALTY PROCEEDING

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

Docket No. PENN 90-49
A.C. No. 36-07783-03516

v.

Slope No. 1 Mine

HICKORY COAL COMPANY,
Respondent
DECISION

Appearances:

Before:

Anthony O'Malley, Jr., Esq., Office
of the Solicitor, U.S. Department
of Labor, Philadelphia, PA, for the
Secretary of Labor;
Mr. William Kutsey, Owner, Hickory
coal company, Pine Grove, PA, pro
se.

Judge Fauver

The Secretary of Labor seeks civil a penalty for an alleged
violation of the Federal Mine Safety and Health Act of 1977, 30
u.s.c. § 801 et seg.
Having considered the hearing evidence, oral arguments, and
the record as a whole, I find that a preponderance of the
substantial, reliable, and probative evidence establishes the
following Findings of Fact and further findings in the Discussion
below~

FINDINGS OF FACT

1.
At all relevant time, William Kutsey, doing business as
Hickory Coal Company, operated an underground coal mine known as
Slope No. 1 Mine in or near Ravine, Schuylkill County,
Pennsylvania, where he produced coal for sales in or affecting
interstate commerce.
2.
On September 19, 1989, Federal Mine Inspectors arrived
at Respondent's Slope No. 1 Mine for the purpose of providing
technical assistance and to conduct a § lOl(c) petition for
modification investigation. When Mr. Kutsey was informed that
the underground investigation would also include enforcement

1071

action (i.e. citations or orders issued under the Act) for any
outstanding or unabated violations, he shut down the hoist engine
and informed the inspectors that no further underground work
would occur that day, and that the inspectors would not have
access to the underground mine.
3.
The action taken by Respondent on September 19, 1989,
prevented the inspectors from performing their official
inspection and investigative duties under the Act. Because of
such action by Respondent, Inspector Charles c. Klinger issued
Citation No. 2676993, on September 19, 1989, charging a violation
of § 103(a) of the Act.
4.
On September 21, 1989, the inspectors returned to the
mine and Mr. Kutsey continued to deny the inspectors entry to the
mine. Because of this conduct, Inspector Klinger issued a
withdrawal order (No. 2676995), on September 21, 1989, forbidding
any persons to enter the mine until entry by inspectors was
permitted by Respondent.
5.
Because of Respondent's denial of entry to the mine,
inter alia, the Secretary brought a civil action in the United
States District Court for the Eastern District of Pennsylvania,
Secretary of Labor v. William Kutsey, t/a Hickory Coal Company
(Civil Action No. 89-7874). On February 1, 1990, after an
evidentiary hearing, the Court found that, on September 19, 1989,
and September 21, 1989, defendant had refused entry to the mine
and was continuing to operate a front-end loader in violation of
a prior withdrawal order. The Court issued a preliminary
injunction, enjoining defendant from denying authorized
representatives of the Secretary entry to the mine and from
interfering with, hindering, or delaying the Secretary of Labor
or her authorized representatives in carrying out the provisions
of the Act. The Court also enjoined defendant from permitting
any person, except persons referred to in § 104(c) of the Act,
from entering the mine until the Secretary terminated, modified
or withdrew Order Noo 26769950
6.
Respondent, acting through William Kutsey, had denied
Federal Mine Inspectors access to the subj~ct mine before
September 19, 1989, and had direct knowledge of the requirements
of § 103(a} of the Act before such date.
DISCUSSION WITH FURTHER FINDINGS

William Kutsey has had a longstanding dispute with MSHA over
the requirements for adequate roof-control at the subject mine.
He has not agreed to certain provisions that MSHA would require
for approval of a roof-control plan at his mine. Also, Mr.
Kutsey appears to have a personal conflict with one of the MSHA
inspectors. These conflicts apparently gave Mr. Kutsey the
misguided belief that he could obtain a resolution of his
differences with MSHA by denying the inspectors entry to the mine
until his disputes were settled. This, of course, is an

1072

inappropriate reaction and one that is unlawful under this
statute. Section 103(a) of the Act provides:
Authorized representatives of the Secretary
or the Secretary of Health, Education, and
Welfare shall make frequent inspections and
investigations in coal or other mines each
year for the purpose of (1) obtaining,
utilizing, and disseminating information
relating to health and safety conditions, the
causes of accidents, and the causes of
diseases and physical impairments originating
in such mines, (2) gathering information with
respect to mandatory health or safety
standards, (3) determining whether an
imminent danger exists, and (4) determining
whether there is compliance with the
mandatory health or safety standards or with
any citation, order, or decision issued under
this title or other requirements of this Act.
In carrying out the requirements of this
subsection, no advance notice of an
inspection shall be provided to any person,
except that in carrying out the requirements
of clauses (1) and (2) of this subsection,
the Secretary of Health, Education, and
Welfare may give advance notice of
inspections. In carrying out the
requirements of clauses (3) and (4) of this
subsection, the Secretary shall make
inspections of each underground coal or other
mine in its entirety at least four times a
year, and of each surface coal or other mine
in its entirety at least two times a year.
The Secretary shall develop guidelines for
additional inspections of mines based on
criteria including, but not limited to, the
hazards found in mines subject to the Act,
and his experience under this Act and other
health and safety laws. For the purpose of
making any inspection or investigation under
this Actu the Secretary, or the Secretary of
Health, Education, and Welfare, with respect
to fulfilling his responsibilities under this
Act, or any authorized representative of the
Secretary or the Secretary of Health,
Education, and Welfare, shall have a right of
entry to, upon, or through any coal or other
mine"
The allegations of citation No. 2676993 and Order No.
2676995 are sustained by a preponderance of the reliable
evidence.

1073

In arriving at a civil penalty, I will consider Respondent's
financial condition, the size of the operation, and the other
criteria for civil penalties in § llO(i) of the Act. I note that
Government Exhibit 4, the print-out of Respondent's prior
violation charges and civil penalties from March 1, 1986, to
November 26, 1990, shows total assessments of $7,842.00 in back
penalties with zero payment of penalties. The payment or nonpayment of final civil penalties (i.e •• those that are not
pending litigation) is part of the operator's history of
compliance in § llO(i) of the Act. In light of Respondent's
total delinquent history as to Government Exhibit 4, I will give
Respondent an opportunity to propose to the Secretary a
settlement and schedule of payments of the back penalties before
assessing a penalty for the violation found in this case. If a
suitable agreement is not reached by the parties for the payment
of back penalties, I will consider Respondent's delinquent status
as an adverse factor in assessing a penalty in this case.
CONCLUSrONS OF LAW

1.

The judge has jurisdiction in this proceeding.

2.
Respondent violated § 103(a) of the Act as alleged in
citation No. 2676993 and Order No. 2676995.
ORDER

WHEREFORE IT IS ORDERED that:
1.
Citation No. 2676993 and Order No. 2676995 are
AFFIRMED.
2.
Pending assessment of a civil penalty for the violation
found hereinu Respondent shall have 15 days from this Decision
and Order to propose a settlement and schedule of payments to the
Secretary of Labor, regarding the arrearage of $7,842.00 in back
penaltieso The parties shall file a report of the results of any
negotiations concerning such matter, not later than July 22,
1991.

~~~
William Fauver
Administrative Law Judge

1074

Distribution:
Anthony G. O'Malley, Jr., Esq., Office of the Solicitor, U.S.
Department of Labor, 3535 Market Street, Philadelphia, PA 19104
(Certified Mail)
Mr. William Kutsey, Hickory Coal Company, R.D. #1, Box 479, Pine
Grove, PA 17963 (Certified Mail)
fas

1075

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

July 2, 1991

CIVIL PENALTY PROCEEDING

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

Docket No. WEVA 91-105
A. C. No. 46-01438-03872
Ireland Mine

v.
CONSOLIDATION COAL COMPANY,
Respondent

DECISION

Before:

Judge Merlin
statement of the Case

This case is a petition for the assessment of a civil
penalty filed under sections 105(d) and llO(i) of the Federal
Mine Safety and Health Act, 30 u.s.c. § 815(d) and§ 820(i),
(hereafter referred to as the "Act"), by the Secretary of Labor
against Consolidation Coal Company for a violation of 30 C.F.R.
§ 70.lOO(a) which is a restatement of section 202(b) (2) of the
Act v 3 0 U oS . C o § 8 4 2 ( b) ( 2 ) o
30 CoFoRo § 70olOO(a) provides as followsg
(a) Each operator shall continuously maintain
the average concentration of respirable dust in
the mine atmosphere during each shift to which
each miner in the active workings of each mine is
exposed at or below 2.0 milligrams of respirable
dust per cubic meter of air as measured with an
approved sampling device and in terms of an equivalent concentration determined in accordance with
§ 70.206 (Approved sampling devices; equivalent
concentrations)o
Citation No. 3327204 dated October 29, 1990, charges a
violation of 30 C.F.R. § 70.lOO(a) for the following condition or
practice.
Computer message 0321-002, advisory No. 0203,
dated October 22, 1990, shows the average concentration of respirable dust in the working environment of the 044, longwall operator (tailgate
side), for MMU 005-0, was 2.1 milligrams which

1076

exceeds the applicable standard of 2.0 mgm/ 3
(sic). First the mine operator shall take corrective measures to lower the respirable dust, then
sample the 044 occupation the following production
shifts until five (5) valid samples are submitted
to MSHA, St. Clairville, Ohio 43950 (Mailing
Labels Included).
Stipulations

Each of the parties has submitted the case for decision on
the basis of stipulations which are in agreement except for a few
matters. The stipulations are adopted to the extent they are in
agreement as follows:
(1) The Chief Administrative Law Judge of the Federal Mine
Safety and Health Review Commission has jurisdiction to hear and
decide this civil penalty proceeding pursuant to Section 105 of
the Federal Mine Safety and Health Act of 1977:
(2) The operator has an average history of prior violations
for a mine operator o; its size. There were at least six (6)
violations of 30 C.F.R. § 70.lOO(a) at the Ireland Mine prior to
October 29, 1990:
(3) Citation No. 3327204, the current violation, was issued
on October 29, 1990, for a violation of 30 C.F.R. § 70.lOO(a).
The respirable dust average of 2.1 milligrams is correct and is
based on an average of five respirable dust test results of 1.1,
0.8, 3.1, 2.7, and 3.0;
(4) The only issue to be determined is whether the violation constituted a significant and substantial violation as
defined by the Act;
(5) Inspector Ted Zitko was acting in his duly authorized
and official capacity as a Mine Safety and Health Administration
Inspector when Citation No. 3327204 was issued on October 29,
1990;
(6) citation No. 3131217 was issued on March 13, 1990, for
a previous violation of 30 C.F.R. § 70.lOO(a) based on the
average of five (5) respirable dust tests that were performed in
February 1990;
(7) Citation No. 3131217 was issued for a violation that
occurred on the 044 longwall MMU-005-0 section, which is the same
section as the current alleged violation. The average respirable
dust level in Citation No. 31a1217 was 2.7 milligrams;

1077

(8) The information contained in Citation No. 3131217 that
was issued for the previous violation of March 13, 1990, is
accurate and is a final Commission decision. The Court may take
judicial notice of the contents of the file of that case which
were attached and ideptified by the secretary as Document A.
(9) The operator is considered a large mine operator for
purposes of 30 u.s.c. § 820(i);
(10) The operator has demonstrated good faith in achieving
compliance after notice of the violation in both Citation Nos.
3327204 and 3131217;
{11)
exposed;

If a hazard existed, at least two {2) miners were

(12) Ireland Mine had no fatal injuries in 1989 or in 1990.
As of January 1991, the disabling injury frequency rate for the
Ireland Mine is 3.45 and the disabling injury frequency rate for
the coal industry is 10.87;
(13) The maximum penalty which could be assessed for this
violation pursuant to 30 u.s.c. § 820(a) will not affect the
ability of the operator to remain in business.
statement of the rssue

As set forth in the stipulations, the violation is admitted.
The issue presented for determination is whether the violation
was "significant and substantial" within the purview of
Commission and judicial precedents.
Precedents

In Consolidation Coal Company, 8 FMSHRC 890 (June 1986)u the
Commission decided that a respirable dust concentration of 4ol
mg/m3 constituted a significant and substantial violation. In so
holding the Commission adopted principles which appropriately
serve as a guide for resolution of the present matter. Similarthe Court of Appeals which affirmed the Commission in Consolidation Coal Company Vo Federal Mine Safety and Health Review
Commission, 824 Fo2d 1071 (Do C. Ciro 1987), further elucidated
the precepts which govern this inquiry.
In Consolidation Coal Company, the Commission recognized the
unambiguous legislative purpose to prevent disability from
pneumoconiosis or any other occupation-related disease. The
Commission stated that Congress intended the 2.0 mg/m3 standard
to be the maximum permissible·. -,;xposure level in order to achieve
its goal of preventing disabling respiratory disease. 8 FMSHRC
at 897. The respirable dust violation was then analyzed to

1078

determine whether it was significant and substantial in accordance with the four step test enunciated by the Commission in
National Gypsum Co., 3 FMSHRC 822 (1981) and Mathies Coal
Company, 6 FMSHRC 1 (1984). The respirable dust violation was
admitted (first step) and the Commission held that any exposure
above the 2.0 mg/m3 level established a measure of danger to
health (second step). 8 FMSHRC at 898. In finding a reasonable
likelihood that the hazard would result in illness (third step),
the Commission stated that although a single incident of overexposure would not in and of itself establish a reasonable likelihood, the development of respiratory ~isease was due to cumulative overexposure with precise predict1ion of whether and when
respiratory disease would develop being impossible. 4 FMSHRC at
898. Accordingly, the Commission held that if the Secretary
proves an overexposure in violation of § 70.lOO(a) a presumption
arises that there has been established a reasonable likelihood
that the health hazard will result in illness. 8 FMSHRC at 899.
Finally, the commission found there was no serious dispute that
the illness in question would be of a reasonably serious nature
(fourth step). 8 FMSHRC at 899. Because the four elements of
the significant and substantiaLtestwould be satisfied in any
case where there was a violation of§ 70.lOO(a), the Commission
held that when the Secretary finds a violation of§ 70.lOO(a),
a presumption that the violation is significant and substantial
is appropriate. The presumption may be rebutted by proof of
non-exposure. 8 FMSHRC at 899.
Upon review, the court of Appeals affirmed the Commission
and upheld its adoption of the presumption that all respirable
dust violations of § 70.lOO(a) are significant and substantial.
The Court stated in pertinent part as follows:

* * * The determination of the likelihood
of harm from a violation of an exposure-based
health standard necessarily rests on generalized
medical evidence concerning the effects of exposure to the harmful substance, rather than on
evidence specific to a particular violation.

* * * Once the Commission had determined
on the basis of medical evidence that any violation of the respirable dust standard should be
considered significant and substantial, it would
be meaningless to require that the same findings
be made in each individual case in which a violation occurs. * * *

*

*

*

*

*

*

The Commission's adoption of the presumption
at issue here is consistent with congressional

1079

intent in enacting the Mine Act, and specifically
with Congress's use of the "significant and
substantial" language.
824 F.2d at 1084, 1085.
Analysis

I conclude that the foregoing decisions of the Commission
and the court of Appeals compel a finding that the violation in
this case is significant and substantial. Admittedly, the
average concentration in this case was 2.1 mg/m3 , whereas it was
4.1 mg/m3 in Consolidation coal Company. However, as set forth
above, the Commission in consolidation Coal Company adopted a
presumption that all exposures above the 2.0 mg/m3 limit specified in § 70.lOO(a) are significant and substantial. In this
case the operator has offered no evidence, such as non-exposure
through the wearing of protective equipment, to rebut the
presumption which is therefore, determinative.
In arguing that the violation here is not significant and
substantial the operator reries upon the Commission's reference
in Consolidation Coal Company to statements in the legislative
history of the 1969 Coal Act that in a dust environment below
2.2 mg/m3 there would be virtually no probability of contracting
pneumoconiosis even after 35 years of exposure at that level.
8 FMSHRC at 896-897. The operator's argument cannot be accepted.
Although the Commission referred to the cited legislative
history, it did not decide that overexposure violations of a
certain magnitude could be considered non significant and substantial. On the contrary, as explained above, the Commission's
analysis and holdings regarding the four elements necessary for
an overexposure violation to be considered significant and
substantial 0 are grounded solely upon the 2.0 mg/m3 ceiling of
§ 70.lOO(a)o
So too, the Commission 9 s creation of the presumption0 that any overexposure violation is significant and substantial 0 is specifically cast in terms of all violations of
§ 70.lOO(a), i.e. 2.0 mg/m3 as the maximum ceiling.
It is well
settled that absent a clearly expressed legislative intention to
the contrary, the language of the statute itself must be regarded
as conclusive. Burlington Northern Railroad Co. v. Oklahoma Tax
Commission, 481 U.S. 454, 461 (1987); Consumer Product Safety
Commission v. GTE Sylvania Inc., 447 U.S. 102, 108 (1980).
Moreover, the Court of Appeals in Consolidation Coal Company
specifically rejected the operator's suggestion that the standard
for designating an overexposure violation as significant and
substantial must be higher than 2.0 mg/m3 required for a violation. The Court said it could not say that Congress intended
that some concentration of re!:?>irable dust higher than 2.0 mg/m3
be found before the violation could be designated as significant
and substantial. 824 F.2d at 1084-1085. Rather it held that the
Commission's adoption of the presumption of significant and

1080

substantial was consistent with the Congressional intent in
enacting the Mine Act. 824 F.2d at 1085.
In addition, the Court decided that in the legislative
history the statements regarding non-probability of pneumoconiosis at a 2.2 mg/m3 level did not provide a basis to reject the
commission's adoption of the significant and substantial presumption. 824 F.2d at 1085-1086. The court held that the operator's
arguments failed to consider the cumulative effects of repeated
overexposure and that its position could not be reconciled with
the Congressional intent to prevent respirable disease. 824 F.2d
at 1086. Finally, the Court pointed out that Congress did not
merely require dust concentrations be maintained below 2.0 mg/m3
"over the long term" as the operator suggested, but mandated
instead that the concentration be "continuously" maintained below
the specified level "during each shift". 824 F.2d at 1086.
Therefore, the reference in the legislative history to a "dust
environment" of 2.2 mg/m3 or less, relied upon by the operator is
something quite different from the exacting requirements Congress
actually placed in the law.
The arguments the operator advances in this case are the
very ones it made in Consolidation Coal Company. And just as the
Commission and the Court of Appeals rejected them previously, so
they must be rejected here. The Commission's presumption that
any respirable dust violation is significant and substantial
applies here and determines the result. For me to carve out some
intermediate and indeterminate zone in which a non significant
and substantial violation exists would not only be contrary to
the terms of the Act and underlying Congressional purposes, but
also would be precluded by the decisions of the Commission and
the Court of Appeals.
It should be noted that the record in this case further
demonstrates that the instant violation was significant and
substantialo Although the subject citation was issued for an
average concentration of 2.1 mg/m3 , a citation issued seven
months previously was for an average dust level of 2.7 mg/m3
(Stipulation No. 7)o Accordingly, even if the language in the
legislative history regarding a dust environment below 2.2 mg/m3
could otherwise be of comfort to the operator, the record shows
that on the subject longwall section the dust environment was not
anywhere near, much less below the 2.2 mg/m3 level "continuously"
and 91 during each shift"o
In light of the foregoing, I find the cited violation was
significant and substantial.
The Solicitor 1 s Stipulat:.-Dn No. 4 proposes that an issue to
be determined is whether the violation was due to moderate

1081

negligence. The operator's proposed stipulations are silent.on
negligence. Because there is no evidence on the matter, I find
the operator was not negligent. Cf. 824 F.2d at 1076.
I conclude the violation was serious and accept the stipulations of the parties with respect to the other criteria of
section llO(i). Therefore, I conclude an appropriate penalty is
$300.

I take note of the decision in Cyprus Empire Corporation, 11
FMSHRC 1795 September (1989), but for the reasons set forth
herein, I decline to follow it.
The briefs of the parties have been reviewed. To the extent
they are inconsistent with this decision they are rejected.
ORDER
It is ORDERED that the finding of significant and
substantial in Citation No. 3327204 be AFFIRMED.
It is further ORDERED that the operator PAY $300 within
30 days of the date of this decision.

Paul Merlin
Chief Administrative Law Judge
Distribution~

Wanda Mo Johnson, Esqo, Office of the Solicitoru U. So Department
Laborv 4015 Wilson Boulevardu Room 516, Arlingtonu VA 22203
(Certified Mail)
Walter J. Scheller, Esq., Consolidation Coal Company, 1800
Washington Roadu Pittsburghu PA 15241 (Certified Mail)
Mr. Leo Conner, UMWA, RD lu Box 192A, Glen Easton, WV
Certified Mail)
/gl

1082

26039

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
THE FEDERAL BUILDING
ROOM 280, 1244 SPEER BOULEVARD
DENVER, CO 80204

JUL g \99\
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.
CUSTOM CRUSHING INC.,
Respondent

.
.
..
.
.

CIVIL PENALTY PROCEEDING
Docket No. WEST 90-184-M
A.C. No. 42-01816-0SSQJ
Custom Crushing # 1

:

DECISION
Appearances:

Susan J. Eckert1· Esq • ., Off ice of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner1
Steve Zabriskie, President, Custom Crushing Inc.,
Taylorsville, Utah,
pro ~

Before:

Judge Morris

The Secretary of Labor, on behalf of the Mine Safety and
Health Administration C"MSHA 11 ) charges Respondent custom Crushing,
Inc., with violating safety regulations promulgated under the
Federal Mine Safety and Health Act, 30 u.s.c. § 801, et ~ Cthe
uuAct")
A hearing on the merits was held in Salt Lake Cityu Utah, on
April 30u 19910 The parties waived the filing of post-trial
briefs.
STIPULATION
At the commencement of the hearing, the parties stipulated as

followsg

lo Custom Crushing, Inc., is engaged in the mining of sand
and gravel in the United States, and its mining operations affect
interstate commerce.
2. custom crushing, Inc., is the owner and operator of the
Custom Crushing #1 Portable Crusher, MSHA I.D. No. 42-01816-05507.

3. Custom Crushing, Inc., is subject to the jurisdiction of
the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801, et
~(the "Act").
-

1083

4.
matter.

The Administrative Law Judge has jurisdiction in this

5. The subject citations 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, and not for the truthfulness or relevance 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 proposed penalty will not affect Respondent's ability
to continue in business.
8. The Operator demonstrated good faith in abating the
violations.
9. Custom Crushing, Inc,., is a small operator of a sand and
gravel portable crush~r with 7,952 control hours worked in 1989.

10. 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 citations.

Citation No. 2652565
In this citation, MSHA charges respondent with violating 30
C.F.R. § 56.12002. 1
The evidence is uncontroverted: On March 6, 1990, MSHA
Inspector James Skinneru an electrical and hoisting specialist,
inspected Respondento

l

The cited regulation provides as followsg
§ 56.12002

Controls and switches.

Electric equipment and circuits shall be
provided with switches or other controls.
Such switches or controls shall be of approved
design and construction and shall be properly
installed.

1084

The Operator's electrical control panels were located in the
control trailer. The electrical panels, opened by the Inspector,
housed protective breakers for individual circuits of the electrical motors throughout the plant.
Each panel is six feet high and two to three feet wide.
CExs.
P-2 and P-3 are photographs of the outer doors of the panels.)
After opening the door, the Inspector observed two rows of
circuit breakers with holes where a circuit breaker had been removed and a hole had been cut (Tr. 17). After the panel doors to
the energized panels were closed, the Operator objected to their
being reopened. As a result, no inside measurements were made and
no photographs of the interior were taken.
Exhibit P-4 is an illustration of a circuit breaker panel
taken from the National Electrical Code book (NEC), 1990 Edition.
Due to the holes, Respondent's panel was unlike those illustrated in the NEC. (Tr. 19). The holes in the inner panel were
about 3 to 4 inches. _ As a riidlt of the described condition, a
worker could come into contact with a three-phase 480 volt current.
(Tr. 22). If a worker would touch one of the busses and be
grounded, he would receive a 277-volt shock. Voltage as low as 48
can be fatal.
(Tr. 23).
The design for electrical panels is approved by a national
organization, the National Electrical Manufacturers Association
CNEMA). The NEMA approves of bare busses but an inner covering
panel or "dead front" is required. Respondent's inner panel had
been altered.
(Tr. 28).
In the Inspectores opinionu the violation occurred because the
circuit breakers had been altered from the original designo The
change was where a circuit breaker had been removedu leaving a
holeu and at least one hole had been cut in the panel. (Tr. 33u
34)o The alteration of the dead front panel left holes in it.
(Tr. 35).
The violation was abated by posting signs on the outside panel
stating that the doors should not be opened unless the generator
was de-energizedo
(Tro 36)o
STEVE ZABRISKIEu President of Respondent 0 submitted
photographs of the electrical panelo However, the witness did not
rebut the testimony of Inspector Skinner concerning the holes in
the inner electrical panel. He further confirmed that a worker
could be shocked if he contacted the wires in the holes cut in the
panel. (Tr. 6 5) •

1085

DISCUSSION
It is uncontroverted that the electrical panel in Respondent's control trailer had been altered. The focus of MSHA's
regulation § 56.12002 is that the electrical controls were not of
"approved design and construction."
Inspector Skinner testified the design for such panels is
approved by NEMA. While Nema approves bare busses, they must be
covered. The "dead front" inner panel is a NEMA feature.
(Tr.
28).
The design of the internal cover of Respondent's panel board
had been altered. {Tr. 33). Figure 384-3 of Exhibit P-4 shows a
panelboard. The panelboard in the illustration is without openings such as those at Respondent's electrical panel.
Section 56.12002 must be construed in light of its underlying purpose--the protection of miners exposed to the equipment's
use. That purpose was plainJ.yset forth in the Secretary's statement of purpose and scope of the Part 56 standards, which provided:
"The purpose of these standards is the protection of life, the promotion of health and safety, and the prevention of accidents."
30 u.s.c. § 56.1. Any overly narrow or restrictive reading of the
scope of Section 56.12002 cannot be reconciled with that statement
of purpose or with the fundamental protective ends of the Mine Act
itself, as set forth in the Mine Act. See 30 u.s.c. § 80l(a), Cd),
and Ce>. Compare Ideal Cement Company,-U FMSHRC 2409 (1990). No
doubt, the purpose of an inner panel without holes is to protect a
miner from corning in contact with live busses and terminals.
On the record here, Citation Noe 2652565 should be affirmed.
Citation Noo 2652567
This citation alleges a violation of 30 C.F.R. § 56.15004. 2

The cited regulation providesg
§

56¢15004

Eye protection.

All persons shall wear safety glasses, goggles v or face shields or other suitable protective devices when in or around an area of
a mine or plant where a hazard exists which
could cause injury to unprotected eyes.

1086

The evidence is uncontroverted: On the following day, during the inspection, Mr. Skinner observed the crusher operator in
the wooden booth near the primary jaw-crusher. The Operator was
not wearing safety glasses nor did he have eye protection while
his head was outside of the window opening.
CTr. 40, 42). His
head was in this position for about five minutes. (Tr. 43). The
jaw-crusher, which can throw rock splinters, was three to four
feet below the employee. CTr. 44: Exs. R-1 and R-2 show the
booth and employee.) Upon being questioned, the employee said
he had eye glasses but he was unable to produce them.
The violation was abated when the employee was provided with
glasses. (Tr. 45).
Witness Zabriskie offered photographs CExs. R-1, R-2) and
basically confirmed Inspector Skinner's testimony. (Tr. 55-57).
DISCUSSION
The uncontroverted evidence establishes that the crusher
operator was leaning outside of the booth. In this position, he
was three to five fee_t above 'the jaw-crusher. The hazard of
flying rock splinters was apparent.
§

The factual situation establishes a violation of 30 C.F.R.
56.15005 and Citation No. 2652567 should be affirmed.
CIVIL PENALTIES

The statutory criteria to assess civil penalties is contained in Section llOCi) of the Act, 30 u.s.c. § 820(i).
The Operator's history is very favorable. In the two years
ending March Su 1990 0 the company received no citationso In the
iod before March 6u 1988 0 there were nine citationso
The parties have stipulated that Respondent is a small operator and the proposed penalties will not affect its ability to
continue in business.
The Operator was negligent as to both citations since it
should have known of the violations.
The gravity was moderate though remote.
could occur if the circumstances were ideal.

Severe injuries

Respondent promptly abated the violations.

1087

On balance, a civil penalty of $50 is appropriate for each
violation.
Accordingly, I enter the following:
ORDER
1. Citation No. 2652565 is AFFIRMED and a civil penalty
of $50 is ASSESSED.
2. Citation No. 2652567 is AFFIRMED and a civil penalty
of $50 is ~SSESSED.

Law Judge

Distribution~

Susan Jo Eckert 0 Esq.u Office of the Solicitor 0 U.S. Department of Labor 8 1585 Federal Office Building 0 1961 Stout Street 0
Denver 0 CO 80294
(Certified Mail)

Steve Zabriskie 0 Pres. 0 CUSTOM CRUSHING, INC., 5660 Cora Way,
Taylorsville 0 UT 84118 (Certified Mail)

ek

1088

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

JUL 8 i99\

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

CIVIL PENALTY PROCEEDINGS
Docket No. WEVA 91-49
A. c. No. 46-01867-03866

Vo

Docket No. WEVA 91-50
A. C. No~ 46-01867-03867

CONSOLIDATION COAL COMPANY,
Respondent

Docket No. WEVA 91-62
A. C. No. 46-01867-03869
Blacksville No. 1 Mine
:

Docket No. WEVA 91-3
A. C. No. 46-01968-03881
Docket No. WEVA 91-51
A. C. No. 46-01968-03885
Blacksville No. 2 Mine

DECISION
Appearances~

Page H. Jackson? Esq. 9 Office of the Solicitoru
s. Department of Labor, Arlington, Virginia,
for the.~Secretary of Labor, (Secretary);
Walter J. Scheller III, Esq., Pittsburgh,
Pennsylvania, for Consolidation Coal Company
(Consol).
Uo

Before~

Judge Broderick

STATEMENT OF THE CASE
Pursuant to notice, the above cases were called for hearing
in Morgantown, West Virginia, on April 17, 1991. Counsel for the
Secretary made an oral motion on the record to approve settlements of the violations charged in Docket Nos. PENN 91-3, 91-49,
91-51, and 91-62. He also moved to approve settlements in three
of the four citations included in Docket No. PENN 91-50. The
remaining 104(d) (2) Order in PENN 91-50 was heard on the merits.
Dale R. Dinning and Raymond L. Ash testified on behalf of the
Secretary. John M. Morrison and John M. Weber testified on
behalf of Consol. Both parties filed post hearing briefs with
respect to the contested order.

1089

PROPOSED SETTLEMENTS
Docket No. WEVA 91-3 includes two 104(a) citations, one
alleging a violation of 30 C.F.R. § 75.1725(a), the other a
violation of 30 C.F.R. § 75.303(a). They were assessed at $292
and $227 respectively, and Consol agrees to pay the assessed
amount.
I have considered the motion in light of the criteria in
Section llO(i) of the Act, and conclude that it should be
approved.
Docket No. WEVA 91-49 includes four citations, two of which
charge violations of 30 C.F.R. § 75.303(a). The Secretary moves
to vacate one of these, Citation No. 3314125 on the ground that
the area covered by the citation overlaps with that covered by
Citation No. 3314130. With respect to remaining three citations,
Consol agrees to pay the assessed amounts, $434 for Citation
No. 3314124, $434 for Citation No~ 3314129, and $276 for Citation
No. 3314130. I have considered the motion in the light of the
criteria in Section llO(i) of the Act, and conclude that it
should be approved.
Docket No. WEVA 91-50. With respect to three of the four
citations in the docket, the Secretary moves to approve settlements in which Consol will pay the assessed amounts, $355 for
Citation No. 3314121, $355 for Citation No. 3314122 and $276 for
Citation No. 3314123. I have considered the motion in light of
the criteria in Section llO{i) of the Act, and conclude that it
should be approved.
Docket No. WEVA 91-51. This docket contains a single
violation of 30 C.F.R. § 75.1003(c) charged in a 104(a) citation.
It was originally assessed at $292. The violation involved an
unguarded trolley wire at a mantrip station. The motion proposes
that the citation be modified to a nonsignificant and substantial
one and the penalty b.e reduced to $1760 The portal buses used at
~he mine have a covered top and are insulated with rubbero
The
practical way in and out of the mantrip is from the wide
side of the track away from the wire. I have considered that
motion in the light of the criteria in Section llO(i) of the Act,
and conclude that it should be approved.
WEVA 91-62. This docket contains a single violation of
30 C.FoRo § 75o303{a) alleged in a citation charging an inadequate preshift examination. The motion proposes that Consol will
pay the assessed amount of $276.
I have considered the motion in
the light of the criteria in Section llO(i) of the Act, and
conclude that it should be approved.

1090

FINDINGS OF FACT with respect to Order No. 2708208.
l~
Consol was at all pertinent times the owner and operator
of an underground coal mine in Monongalia County, West Virginia,
known as the Blacksville No. 1 Mine.

2. The imposition of civil penalties in this proceeding
would not affect Consol's ability to continue in business.
3.

Consol is a large operator.

4.
Between July 31, 1988 and July 30, 1990, there were
686 paid violations of mandatory standards at the subject mine
(this history, of course, extends beyond the date of the
violation involved in this proceeding).
Included in this number
are 32 violations of 30 C.F.R. § 75.202 prior to the violation
contested here.
This history is average for a mine of this size.
It is not such that a penalty should be increased because of it.

5. The violation invo],.yed in this proceeding was promptly
abated in good faith~
6.
The subject mine has a history of roof falls; it has the
worst roof conditions of any mine in the Morgantown,
West Virginia area.

7. The subject mine liberates approximately 3 million cubic
feet of methane in a 24 hour period.

8. A roof fall occurred in the 4 South Left Return entry
prior to March 1 1 1990. The roof was 12 feet to 14 feet high and
the fall cattsed a cavity 20 feet long, 14 feet wide, and about
6 feet higho
The area was 10 dangered off" with a rope and a
danger sign on both sides of the fall¢
·5~8

In early March l990v the 4 South belt regulator was
moved to the 4 South Left return aircourse. The air passed
through the regulator and crossed an overcast to the return
entryo
Consol explained that it moved the regulator because of
the large number of citations for float coal dust on the
regulator at its former locationo
9o

lOc
The air velocity in the area of the roof fall was
approximately 50;000 cubic feet per minute.

11. The entry was about 16 feet wide.
The distance between
the danger signs was between 70 and 80 feet.
12. There is no evidence that any miners travelled past the
danger sign on either side of the roof fall.
Consol's evidence
establishes that it is highly unlikely that a Consol miner would
travel into a dangered-off area.

1091

13. The mine weekly examination record indicates that an
examiner had been in the vicinity of the 4 South belt regulator
on April 25, 1990. There is no evidence that the examiner
traveled past the danger sign.
14. Methane is lighter than air and tends to migrate to the
higher places in a mine, and specifically to roof fall cavities.
15. MSHA Program Policy Manual relating to 30 C.F.R.
75.305, issued 7-1-88 (GX 3), requires weekly examinations of
air courses. It provides that modification of this requirement
where a roof fall has occurred, or where an area is unsafe for
travel can be achieved only by a petition for modification under
Section lOl(c) of the Act. It does not specifically require that
the air course be traveled in its entirety, contrary to MSHA's
argument in this case.
§

16. Federal Mine Inspector Dinning issued a l04(d) (2) Order
on April 30, 1990, charging a violation of 30 C.F.R. § 75.202(a).
The order found that additional roof support was needed at the
No. 16 crosscut where the 4 South belt regulator crosses over the
equalizing overcast to the 4 South Left return. The roof fall
exposed the roof bolts so that they were hanging 3 to 4 feet from
the roof. The order found that the area could not be traveled
safely.
17. The order originally found that the violation was
significant and substantial and was reasonably likely to cause an
injury. The MSHA conference officer modified the order deleting
the significant and substantial finding and indicating that an
injury was unlikely to result.
l8o
Because of the height of the roof fall cavity and its
distance from the danger signs it was not possible to adequately
examine the area in qµ~stion for the presence of methane on
April 25g 19900

l9o Because of the distance of the roof fall from the danger
signs, and the necessity of examining the edges of the roof fall
for further deterioration by a sound and vibration test, it was
not possible to adequately examine the roof conditions of the
area in question on April 25u 19900
DISCUSSION
My findings of fact 18 and 19 are based largely on the
testimony of Raymond Ash, supervisor coal mine health and safety
inspector. The contrary testimony of Consol Safety supervisor
John Morrison and John Weber, I find less persuasive. Morrison
admitted that he "could not see the entire top of this
cavity . . . 11 (Tr. 58). I do not accept Weber's conclusion that
a methane check of the cavity could be performed with a probe.

1092

Despite the presence of cribs, further deterioration of the roof
could occur and not be visible to an examiner standing at either
of the danger signs. Whether such further deterioration took
place could only be adequately determined by a sound and
vibration test.
20. Should a further roof fall occur, it could damage an
overcast and disrupt the mine ventilation.
21. The violation was abated and the order terminated on
April 3, 1990, on the grounds that the 4 South belt regulator was
removed from the No. 16 crosscut, and therefore the area of bad
roof would not have to be traveled through by a mine examiner.
'REGULATIONS
30 C.F.R.

§

75.202(a) provides:

(a} The roof, face and ribs of areas where
persons work or travel shall be supported or otherwise
controlled to protect persons from hazards related to
falls of the roof, face or ribs and coal or rock burst.
,

30 C.F.R.

§

75.305 provides:

In addition to the preshift and daily examinations
required by this Subpart D, examinations for hazardous
conditions, including tests for methane, and for
compliance with the mandatory health or safety
standards, shall be made at least once each week by a
certified person designated by the operator in the
return..o~:each split of air where it enters the main
return, on pillar falls, at seals, in the main return,
at least one entry of each intake and return aircourse
in its entirety, idle workings, and insofar as safety
considerations permitu abandoned areas. Such weekly
examinations need not be made during any week in which
the mine is idle for the entire week, except that such
examination shall be made before any other miner
returns to the mine. The person making such examinations and tests shall place his initials and the date
and time at the places examinedu and if any hazardous
condition is found, such condition shall be reported to
the operator promptly. Any hazardous condition shall
be corrected immediately. If such condition creates an
imminent dangeru the operator shall withdraw all
persons from the area affected by such condition to a
safe area, except those persons referred to in
section 104(d) of the Act, until such danger is abated.
A record of these examinations, tests, and actions
taken shall be recorded in ink or indelible pencil in a
book approved by the Secretary kept for such purpose in

1093

an area on the surf ace of the mine chosen by the mine
operator to minimize the danger of destruction by fire
or other hazard, and the record shall be open for
inspection by interested persons.
ISSUES
1.
travel?

Whether the area cited was one where persons work or

2. If a violation of 30 C.F.R. § 75.202 is established,
whether it resulted from Consol's unwarrantable failure to comply
with the standard?
3. If a violation of 30 C.F.R; § 75.202 is established,
what is the appropriate penalty therefor?
CONCLUSIONS OF LAW
1. Consol is subject to the provisions of the Mine Act in
the operation of the Blacksville No. 1 Mine, and I have jurisdiction over parties and subject matter of this proceeding.
2.
In the case of Cypress Empire, 12 FMSHRC 911 (1990), the
Commission implied that the phrase in 75.202(a), "where persons
work or travel" includes not only areas where persons actually
work or travel, but also areas where persons are required to
travelo
12 FMSHRC 917.
3. 30 C.F.R. § 75.305 provides that return aircourses must
be examined in their entirely at least once each week.
Findings
of Fact 18 and·: 19 establish that such examinations in the subject
maine would require the examiners to travel under unsupported
roof to adequately examine the area for hazardous conditions.
4o
Thereforev since persons are required to travel the
cited area; a violation of 30 C.FoRo § 75o202(a) is shownu even
though there
no evidence that in fact anyone did travel the
area after the danger signs were in place.

5o Because there is no evidence that persons did travel the
areap and because the evidence shows that it was highly unlikely
that anyone would travel the area, the violation (of 75.202(a);
the question whether 75.305 was violated is not before me) was
unlikely to result in injury to minerso
I conclude that it was
not a serious violationo
60
In Emery Mining Corp.i 9 FMSHRC 1997 (1987} the
Commission held that unwarrantable failure means "aggravated
conduct, constituting more than ordinary negligence in relation
to a violation of the Act. 11 I conclude that the evidence in this
record shows that Consol in good faith believed that dangering

1094

off the area of the roof fall constituted compliance with the
standard. This was erroneous, but was not aggravated conduct.
conclude that the violation did not result from unwarrantable
failure to comply with the standard.

I

7. Considering the evidence in the light of the criteria in
Section llO(i) of the Act, I conclude that a penalty of $200 is
appropriate for the violation.
ORDER
Based on the above findings of fact and conclusions of law,
IT IS ORDERED:

1. Citation Nos. 3314013 and 3314014 (Docket No. WEVA 91-3)
are AFFIRMED.
2.
Citation Nos. 3314124, 3314129, and 3314130 are
AFFIRMED. Citation No. 3314125 is VACATED (Docket No.
WEVA 91-49).
~

,

...

3. citation Nos. 3314121, 3314122, and 3314123 are
AFFIRMED. Order No. 2708208 is MODIFIED to a 104(a) Citation
and, as modified is AFFIRMED.
(Docket No. WEVA 91-50).

4. Citation No. 3314272 is MODIFIED to delete the
significant and substantial finding and, as modified is AFFIRMED.
(Docket No. WEVA 91-51).
5. Citation No. 3314138 is AFFIRMED.
WEVA 91-62) •

(Docket No.

..

6. Consol shall within 30 days of the date of this Decision
pay the following civil penalties~
CITATION/ORDER

30 C.F.R.

AMOUNT

3314013
3314014
3314124
3314129
3314130
3314121
3314122
2708208

75.1725(a)
75.303(a)
75.1403-S(a)
75.202(a)
75.303(a)
75.1704
75.1704
75.202(a)

$ 292

1095

227
434

434
276

355
355
200

3314123
3314272
3314138

75.305
75.1003
75.303(a)

276
176
276

TOTAL

$3301

jtlAAAJ!~ /J,ij:vckrtL!ri

James A. Broderick
Administrative Law Judge

Distribution:
Page H. Jackson, Esq., Office of the Solicitor, u. s. Department
of Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203
{Certified Mail)
Walter J. Scheller III, Esq., Consolidation coal company,
1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail)
dcp

1096

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

JUL 101991
CIVIL PENALTY PROCEEDINGS

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

Docket No. KENT 91-101
A. C. No. 15-14074-03573

v.

Martwick Underground

PEABODY COAL COMPANY,
Respondent

Docket No. KENT 91-131
A.•. c. No. 15-02705-03701
. Camp No. 2 Mine

DECISION APPROVING SET'l'LEMENT
Appearances:

w. F. ~aylor, Esq., Office of the Solicitor, u.s.

Department of Labor, Nashville, Tennessee, for the
Petitioner;
David R. Joest, Esq., Midwest Division Counsel,
Peabody Coal Company, Henderson, Kentucky, for the
Respondent.

Beforeg

Judge Melick

These cases are before me upon petitions for assessment of
civil penalty under section 105(d) of the Federal Mine Safety and
Health Act of 1977 (the Act). At hearings, Petitioner filed a
motion to approve a settlement agreement and to dismiss these
cases. A modification of Citation No. 3416556 to delete the
"significant and substantial" findings and a reduction in penalty
from $545 to $378 was proposed. 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 llO(i) of the Act.
WHEREFORE, the motion for approvat of settlement is GRANTED,
and it is ORDERED that Respondent pay
penalty of $378 within
30 days of this order.
.
\

\ ....

·'

Ir1~ ,
' rV---

. j' \

,\

·1

,\

\ rt~
.,,
'
Gary Mel!i2k
\
Adlninist\ative LaW udge
·."
.

1
\•,

I

1097

{,\

,

· ..

Distribution:

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)
David R. Joest, Esq., Midwest Division Counsel, Peabody Coal
Company, 1951 Barrett Court, P.O. Box 1981, Henderson, KY
42420-0800 (Certified Mail)
/fb

1098

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
THE FEDERAL BUILDING
ROOM 280, 1244 SPEER BOULEVARD
DENVER, CO 80204

ll H
,.JUL

4

.1

2 1l 991

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
Petitioner

CIVIL PENALTY PROCEEDING

v.

.

Docket No. WEST 90-215-M
A.C. No. 05-04228-05504

.
.

Red Arrow Mine

0

RED ARROW GOLD CORPORATION,
Respondent

DECISION APPROVING SETTLEMENT
Before:

Judge Cetti

This case is before me upon a petition for assessment of a
civil penalty under § 105(d) of the Federal Mine Safety and
Health Act of 1977, 30 u.s.c. § 801 et~ Petitioner has filed
a motion to approve a settlement agreement and to dismiss the
case.
Petitioner states that based upon documentation submitted to
Petitioner, Respondent's financial situation is such that the
operator's ability to remain in business would be affected by the
penalty amounts originally assessed by the Petitioner. I have
considered the representations and documentation submitted and I
conclude that the proffered settlement is consistent with the
c teria in § llO(i} of the Acto
ORDER
WHEREFORE IT IS ORDERED that the motion for approval of
settlement is GRANTED and Respondent shall pay to the Secretary
Labor 0 the approved penalty of $300 which will be payable
in three (3) installments of $100 each with the first installment
to be paid on or before August 12, 1991, the second on or before
September 12, 1991, and the last on or before October 12, 1991.

() ,J;~ {!Jr
~F.
Cetti
Administrative Law Judge

1099

Distribution:
Susan J. Eckert, Esq., Office of the Solicitor, U.S. Department
of Labor, 1585 Federal Office Building, 1961 Stout Street,
Denver, CO 80294 (Certified Mail)
Mr. Craig A. Liukko, President, RED ARROW GOLD CORPORATION, 141
S. Main, Post Office Box 531, Mancos, CO 81328 (Certified Mail)
Robert Korn, Esq., Box 185, Telluride, CO 81435 (Certified Mail)

sh

1100

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

JUL 121991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

.
.

v.

CIVIL PENALTY PROCEEDING
Docket No. YORK 89-42
A.C. No. 18-00671-03537
Mine:

METTIKI COAL COMPANY,
Respondent

..

Mettiki General
Prep Plant

SOL No. 9146176

DECISION APPROVING SETTLEMENT
Before:

Judge Fauver

This case is before me upon a petition for assessment of
civil penalties under § 105(d) of the Federal Mine Safety and
Health Act of 1977, 30 u.s.c. § 801 et seg. Petitioner has filed
a motion to approve a settlement agreement and to dismiss the
case. I have considered the representations and documentation
submitted and I conclude that the proffered settlement is
consistent with the criteria in § llO(i) of the Act.
WHEREFORE, IT IS ORDERED that the motion for approval of
settlement is GRANTED. Respondent shall pay the approved
penalties of $800 within 30 days of this decision. Upon such
payment this case is DISMISSED.

~~?-~Y4'f
William Fauver
Administrative Law Judge
Distribution~

Howard K. Agran, Esq., Office of the Solicitor, U.S. Department
of Labor, 1440 Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
Thomas C. Means, Esq., Crowell & Moring, 1001 Pennsylvania
Avenue, N.W., Washington, D.C. 20004-2505 (Certified Mail)
fas

1101

.

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
THE FEDERAL BUILDING
ROOM 280, 1244 SPEER BOULEVARD
DENVER, CO 80204

JUL 151991
DONALD NORTHCUTT, GENE MYERS,
AND TED EBERLE /
Complainants

DISCRIMINATION PROCEEDING
Docket No. CENT 89-162-DM
Ada Quarry & Plant

v.
IDEAL BASIC INDUSTRIES, INC.,
Respondent

ORDER OF DISMISSAL
Before:

Judge Morris

HAVING CONSIDERED the Joint Motion to Withdraw Complaint
and Dismiss Action with Prejuaice submitted by Complainants
Donald Northcutt, Gene Myers, and Ted Eberle, and
WHEREAS the Secretary of Labor,
in Docket No. CENT
1
88-142-D, withdrew from prosecut ion of these Complainants 1 claim
of discriminatory discharge, thereby allowing these Complainants
to pursue this claim individu~lly under 30 u.s.c. § 815(c), and
SEEING THAT, with respect to these three Complainants,
this matter has been settled by the parties,
IT IS HEREBY ORDERED that Complainants Donald Northcuttt,
Gene Myers, and Ted Eberle may withdraw their Complaint and their
action is hereby DISMISSED WITH PREJUDICE, each party to bear
his own attorneys'
es and costso

~
rris
~hnJo
[/id.minis ative Law Judge
Distributiong
Ben Ao Goffu Esqov GOFF & MEADOR, 6301 Gaston Avenue, Suite 725,
Dallasu TX 75214-6206 (Certified Mail)
Michael Towers, Esq., FISHER & PHILLIPS, 1500 Resurgens Plaza,
945 East Paces Ferry Road, Atlanta, GA 30326 (Certified Mail)

J. Warren Jackman, Esq., PRAY, WALKER, JACKSON, WILLIAMSON &
MALLAR, Ninth Floor, Oneok Plaza, Tulsa, OK 74103 (Certified
Mail)
ek

1102

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

JUL 151991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
UNITED STATES STEEL MINING
COMPANY, INCORPORATED,
Respondent

CIVIL PENALTY PROCEEDING

.
:

Docket No. PENN 91-39
A. c. No. 36-05018-03821
Cumberland Mine

...
DECISION

Appearances:

H. P. Baker, Esq., Office of the Solicitor,

u. s. Department of Labor, Philadelphia,
Pennsylvania, for the Secretary;
Billy M. Tennant, Esq., Pittsburgh,
Pennsylvania, for the Respondent.

Before:

Judge Maurer

This case is before me upon the petition for civil penalty
filed by the Secretary of Labor (Secretary) pursuant to the
Federal Mine Safety and Health Act of 1977 1 30 U.S.C. § 801
et seqo; the 00 Act 1 °0 for an admitted violation of a mandatory
standardo The remaining issues before me in this case are
whether this violatiqn. was a "significant and substantial" one,
the "negligence" to be attributed to the operator, and the
assessment of an appropriate civil penalty in accordance with
S~ction llO(i) of the Act.
The case was heard in Morgantown, West Virginia, on
The parties have both filed proposed findings
and conclusions which I have duly considered in making the
following decision.

April 18, 1991.

STIPULATIONS

The parties stipulated to the following, which I accepted
(Tr. 6-9):
1. United States Steel Mining Company, Inc.,
hereinafter called Respondent, is a wholly owned
subsidiary of USX Corporation.

1103

2. Respondent is subject to the jurisdiction of
the Federal Mine Safety and Health Act of 1977.
3. The Administrative Law Judge has jurisdiction
over these proceedings.
4. The subject citation was properly served by a
duly authorized representative of the Secretary,
William E. Wilson, upon an agent of the Respondent at
the date, time, and place stated therein.

5. The Respondent demonstrated good faith in the
abatement of the citation.
6. Payment of the proposed Civil Penalty of $445
will not affect Respondent's ability to continue in
business.
7. The appropriateness of the Penalty, if any is
affirmed, to the size of the coal operator's business,
should be based on the fact that, (a) the Respondent
company's annual_productlon tonnage is 10,349,448 and,
(b) the u. s. Steel Mining Company, Inc.•s, Cumberland
Mine had an annual production tonnage of 2,530,694.
8. Respondent was assessed 796 violations over
879 inspection days during the 24 months preceding the
issuance of the subject citation.
9. The parties stipulate to the authenticity of
each other's exhibits, but not necessarily to the
relevagce·or the matters asserted therein.
lOo Citation No. 3089547 was issued at
Respondent 1 s Cumberland Mine on September 19, 1990p by
Inspector William Ee Wilsono

11.

The citation alleges a violation of 30 C.F.R.
The citation is based on a valid safeguard,
that is Safeguard Number 234407 issued April 27, 1978.
§

75.1403.

120 Respondent did violate 30 C.F.R. § 75.1403 as
alleged in the citation. Respondent does dispute,
however, the gravity and negligence finding set forth
in Section 2, paragraphs 10 and 11 of the citation.
Respondent specifically disputes the characterization
of the violation as significant and substantial.

1104

DISCUSSION AND FINDINGS

Citation No. 3089547 alleges a "significant and substantial"
violation of the regulatory standard at 30 C.F.R. § 75.1403 and
charges as follows:
The 5 ton Greensburg personnel carrier being used
to transport the 27 Butt crew to No 3 air shaft portal
bottom was not provided with a lifting bar for the
track jack. Mantrip 110. ML-116, Sr 3324."
Safeguard No. 234407 mandates that a lifting jack and bar be
kept on all self-propelled personnel carriers. A lifting bar is
used with a lifting jack to rerail a mantrip if there is a
·derailment.
·
The inspector found that the lifting bar in this case was
missing from a mantrip that had just arrived at the bottom,
transporting a crew from a section. The operator admits this
fact and thus the violation of 30 C.F.R. § 75.1403.
The Secretary maintains that in the absence of the actual
bar during a derailmerit/rerailment scenario, a miner would be
sorely tempted to use a substitute bar. I concur with the
inspector that using a substitute coul~ be unsafe and increases
the likelihood of injury because the substitute would not provide
a good fit between itself and the jack. It is certainly a
credible claim that the use of many imaginable substitute devices
could result in serious injuries to a miner.
However, in our case there was no derailment. The missing
lifting barr in and of itself, does not create any safety hazard.
Something more is required. That "something more" is that the
miner in charge of the derailed mantrip will act improperly to
rerail it. The inspector had to assume that the hypothetical
miner involved would elect to use some improper substitute device
because the required bar was not immediately available to him. I
do not believe that assumption will carry the Secretary's burden
of proof on the issue. One could perhaps make an equally likely
assumption that the miner would obtain the correct bar before
proceeding with the rerailmento
A violation is properly designated as significant and
substantial 11 if, based on the particular facts surrounding that
violation, there exists a reasonable likelihood that the hazard
contributed to will result in an injury or illness of a
reasonably serious nature." Cement Division, National Gypsum
Co., 3 FMSHRC 822, 825 (April 1981). In Mathies Coal Co.,
6 FMSHRC 1, 3-4 (January 1984), the Commission explained:

1105

In order to establish that a violation of a
mandatory standard is significant and substantial under
National Gypsum the Secretary must prove: (1) the
underlying violation of a mandatory safety standard;
(2) a discrete safety hazard -- that is, a measure of
danger to safety -- contributed to by the violation;
(3) a reasonable likelihood that the hazard contributed
to will result in an injury; and (4) a reasonable
likelihood that the injury in question will be of a
reasonably serious nature.
The third element of the Mathies formula "requires that the
Secretary establish a reasonable likelihood that the hazard
contributed to will result in an event in which there is an
·injury" (U. s. Steel Mining Co., 6 FMSHRC 1834, 1836 (August
1984)), and also that the likelihood of injury be evaluated in
terms of continued normal mining operations (U. S. Steel Mining
Co., Inc., 6 FMSHRC 1573, 1574 (July 1984); see also Halfway,
Inc., 8 FMSHRC 8, 12 (January 1986).
With respect to the first Mathies element, a violation of
30 C.F.R. § 75.1403 has been established by stipulation, which I
have previously accepted.
With respect to the second element, a discrete safety hazard
contributed to by the violation, I find none. The violation here
is simply the missing bar, and the missing bar, standing alone,
does not create a safety hazard. There must additionally be a
derailment, which is not unknown in this mine, but was not a part
of this particular incident. Thirdly, even if there.was a
derailment or there might be one tomorrow, a safety hazard would
be created 9l!lY, if the miner on the scene at the time acted
improperly and attempted to rerail the mantrip by some unsafe
methodologyo There is no evidence in the record that this
heretofore and still unknown miner would do so. And I don 1 t
believe you can assume all these necessary facts that are
otherwise not in evidence.
Accordingly, finding that the Secretary has failed to prove
that there was a discrete safety hazard contributed to by the
violation, I find that the violation was not 11 significant and
substantial iq
0

Moderate negligence may reasonably be inf erred from the
circumstances. These mantrips are frequently inspected and
management knew or at least should have known of the missing
equipment before the mantrip was operated.
Considering the statutory criteria contained in
Section 110(i) of the Act, I find that a civil penalty of $50 is
warranted and appropriate for these circumstances.

1106

ORDER

Citation No. 3089547 is AFFIRMED as a non-"significant and
substantial" violation of 30 C.F.R. § 75.1403, and respondent is
hereby ORDERED to pay a civil penalty of $50 within 30 days of
the date of this Decision.

Law Judge
Distribution:
H. P. Baker, Esq., Office of the Solicitor, U. s. Department of
Labor, Room 14480-Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
Billy M. Tennant, Esq., United States Steel Company,
Incorporated, 600 Grant Street, Pittsburgh, PA 15219-4776
(Certified Mail)
dcp

1107

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

JUL 15 \99\
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

..

CIVIL PENALTY PROCEEDING
Docket No. SE 90-120
A.C. No. 40-02368-03527
Beechgrove Prep. Plant

v.
BEECHGROVE PROCESSING CO.,
Respondent

..
DECISION

Appearances:

Joseph B. Luckett, Esq., Office of
the Solicitor, U.S. Department of
Labor, Nashville, TN, for the
Petitioner;
Martin J. Cunningham, III, Esq.,
London, Kentucky, for the
Respondent.

Before:

Judge Fauver

The Secretary of Labor seeks civil penalties for alleged
violations of safety standards, under the Federal Mine Safety and
Health Act of 1977g 30 u.s.c. § 801 et §.filL.
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
and further findings in the Discussion below~
FINDINGS OF FACT

1.
Respondent operates a coal preparation plant, known as
Beechgrove Preparation Plant, where it processes coal for sale or
use in interstate commerce. It employs about 17 employees and
processes about 2,000 tons of coal per day.
Citation 3174032
2.
On April 26, 1990, Federal Mine Inspector Don McDaniel,
an electrical inspector, inspected the plant and observed
accumulations of float coal dust in a two-storey building into
which coal is dumped before it is conveyed to the cleaning plant.
He observed float coal dust in the air, on electrical boxes, on

1108

belt frames, and on the walls.
a quarter-inch thick.

The accumulations were as much as

Citation 3174033
3.
On April 26, 1990, Inspector McDaniel inspected a
building used to store materials and to grease equipment. He
observed 50 to 75 bales of hay, an air compressor which operated
a grease gun, and about 20 gallons of grease spillage on the
floor and walls.
He also observed an accumulation of about one
gallon of grease on the air compressor equipment. He observed
that, although the floor was wet, the float coal dust was dry.
Citation 317034
4.
On April 26, 1990, Inspector McDaniel observed a fuel
storage tank near the preparation plant.
It held 150 to 200
gallons of kerosene, and was about half full.
A fire
extinguisher near the fuel tank had the safety pin pulled out and
the discharge lever pushed in,c indicating that the fire
extinguisher had been ,discharged. · ·
citation 3174035
5.
on April 26, 1990, Inspector McDaniel observed that the
V-belt and pulleys on the No. 1 raw coal belt were not properly
guarded. The guard provided was secure at the top, but two bolts
were missing from the bottom, and the bottom of the guard had
swung out three inches, exposing the moving parts.

DISCUSSION WITH FURTHER FINDINGS
citation 3174032
The float coal dust accumulations found by the inspector
were in a building in which there were various possible ignition
sources, e.g., rollers on belt conveyors, bearings, electrical
boxes, and energized electrical wires.
Float coal dust presents
a serious hazard of an explosion or propagation of fire. The
cited condition presented a reasonable likelihood of resulting in
serious injuryv and therefore was a significant and substantial
violation of 30 C.F.R. § 77.202. 1 See my decision in
Consolidation Coal Company, 4 FMSHRC 748-752 (1991).

30 C.F.R& § 77.202 provides:
"Dust Accumulations in surface installation.
Coal dust
in the air of, or in, or on the surfaces of,
structures, enclosures, or other facilities shall not
be allowed to exist or accumulate in dangerous
amounts."

1109

The fact that the floor was wet did not remove the danger,
because float coal dust will float on a wet or damp surf ace and
still remain capable of propagating an explosion or fire. The
condition was obvious and should have been detected and corrected
before the inspection. The facts thus show moderate negligence.
Citation 3174033
The accumulations of grease presented a serious fire hazard.
The flammability level of the grease was not high. Respondent
states that it was not higher than hay, paper or wood. But it
could propagate a fire and, with the presence of 50 to 75 bales
of hay in the same enclosed area, could contribute to a major
• The condition presented a reasonable likelihood of injury
and was therefore a significant and substantial violation of 30
C.F.R. § 77.1104. 2 The condition was obvious and should have
been detected and corrected before the inspection. The facts
thus show moderate negligence.
Citation 3174034
The fire extinguisher near the kerosene fuel tank showed
clear physical evidence of being discharged. The safety pin had
been pulled and the discharge lever had been pushed in. This
condition warranted a finding by the inspector that the fire
extinguisher had been discharged.
If the operator wanted to
dispute this finding at the time the inspector issued the
citation, it had the opportunity to demonstrate to the, inspector
that the fire extinguisher was operative. Failing such a
demonstration by the operator, the facts sustain the inspector's
finding that the extinguisher was in violation of 30 C.F.R.
§ 77.lllOp which requires that
"Firefighting equipment shall be
maintained in a usable and operative
Alsov maintaining a fire extinguisher in a
ical condition that indicates that it has been discharged
would not comply with the standard. Such a condition could
easily mislead a firefighter into going to a more distant fire
extinguisher to fight a fire. Reasonable and substantial
compliance with the safety standard requires that fire
extinguishers be maintained in proper condition with the safety
place and the discharge lever in the non-discharged
cited condition presented a reasonable likelihood of
contributing to a serious injury, and therefore constituted a
2

30 c.F.R. § 77.1104 provides:
"Accumulation of combustible materials. Combustible
materials, grease, lubricants, paints, or flammable
liquids shall not be allowed to accumulate where they
can create a fire hazard."

1110

significant and substantial violation.
The condition was obvious and· should have been detected and
corrected before the inspection. The facts thus show moderate
negligence.
Citation 3174035
The guard for the V-belt and pulley on the belt head drive
was missing bolts on the bottom and had swung out about three
inches. The guard was about four feet from the walking surface,
and on a walkway. This condition presented a serious hazard of
someone coming into contact with moving machinery parts and
sustaining a serious injury. If someone fell near the guard
opening, he or she could accidently move a hand through the
opening while trying to break the fall. The facts showed a
significant and substantial violation of 30 C.F.R.
§ 77.400(a)o 3
The condition was obvious and should have been detected and
corrected before the inspection. The facts show moderate
negligence.
Considering all the criteria for civil penalties in § llO(i}
of the Act, I find that the following civil penalties are
appropriate:
Citation

Civil Penalty

3174032
3174033
3174034
3174035

$63
$63
$63
$63

CONCLUSIONS OF LAW
lo

The judge has jurisdiction in this proceeding.

2.
Respondent violated 30 C.F.R.
Citation 3174032.

§

77.202 as alleged in

3
Respondent violated 30 C.F.R.
citation 3174033.

§

77.1104 as alleged in

0

3

30 C.F.R. § 77.400(a) provides:
Mechanical equipment guards.
(a) Gears; sprockets;
chains; drive, head, tail, and takeup pulleys;
flywheels; couplings; shafts; sawblades; fan inlets;
and similar exposed moving machine parts which may be
contacted by persons, and which may cause injury to
persons shall be guarded. 11
1

u

1111

4.
Respondent violated 30 C.F.R.
Citation 3174034.

§ 77.1110

5.
Respondent violated 30 C.F.R.
Citation 3174035.

§ 77.400

as alleged in
as alleged in

ORDER

WHEREFORE IT IS ORDERED
1.

that:

The above citations are AFFIRMED.

2.
Respondent shall pay the above-assessed civil penalties
of $252 within 30 days of the date of this decision.

tJ!.J.dtlm 7-Q.A,c

VeA..-

William Fauver
Administrative Law Judge

Distribution:
Joseph B. Luckett, Esq., U.S. Department of Labor, Office of the
Solicitor, 2002 Richard Jones Road, $uite B-201, Nashville, TN
37215 (Certified Mail)
Martin Cunningham, Esq., 400 South Main Street, P.
5087, London, KY 40740 (Certified Mail)
/fas

1112

o. Drawer

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
THE FEDERAL BUILDING
ROOM 280, 1244 SPEER BOULEVARD
DENVER, CO 80204

JUL 151991
FRANCIS A. MARIN,
Complainant

v.
ASARCO, INCORPORATED,
Respondent

..

DISCRIMINATION PROCEEDING
Docket No. WEST 91-161-DM
WE MW 90-14
Ray Unit

ORDER OF DISMISSAL
Before:

Judge Morris

This case is a discrimination. complaint arising under Section lOS(c) of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 801, et ~
On June 3, 1991, Complainant moved to withdraw her complaint
pursuant to Commission Rule 11, 29 C.F.R. § 2700.11.
In support of her motion, Complainant states that, while
appearing pro se, she filed a complaint with FMSHRC. The gravamen of her complaint was that she had been terminated by Respondent because of her seniority, sex, and national origin. At that
time, she also filed charges with the Equal Employment Opportunity Commission (EEOC) and the State of Arizona Civil Rights
~ivision CACRD} intending to pursue her remedies under State and
Federal anti-discrimination lawso
Complainant further states her deposition was scheduled for
May 29, 1991. On that date, she appeared and the motion was made
to withdraw her complaint.
Complainant now believes that her complaint arising out of
sexual harassment can be properly addressed under the State and
Federal anti-discrimination laws. Accordingly, she desires to
withdraw her complaint now pending herein.
Respondent opposes Complaina~t's motion and moves to impose
sanctions and seeks an order dismissing the complaint herein with
prejudice ..
In support of its motion, Respondent states that on May 14,
1990, Complainant, appearing pro se, filed a discrimination re-

port, which was followed by a discrimination complaint filed on
May 3 0, 1990.

1113

Complainant later withdrew her complaint for lack of a protected activity.
On September 4, 1990, Complainant filed an additional discrimination complaint stating she believed that her termination
was for refusal to perform work which she deemed to be unsafe.
After conducting an investigation, MSHA concluded the facts
disclosed during the investigation did not constitute a violation
of Section l05Cc) of the Mine Act.
On January 7, 1991, Complainant requested a hearing under
the Mine Act.
On January 7, 1991, Chief Administrative Law Judge Paul
Merlin ordered Complainant to forward her complaint to
Respondent.
The complaint, when filed, was 10 days overdue.
On March 13, 1991, Respgndent filed a motion to dismiss for
failure to timely file her complaint.
On April 26, 1991, Mary Judge Ryan notified FMSHRC that she
had been retained to represent Complainant.
Respondent's motion to dismiss was denied by the Presiding
Judge on May 14, 1991.
Respondent's Counsel asserts he first became aware that Complainant was represented by Mary Judge Ryan through a distribution notation contained in a notice dated May 14, 1991.
A deposition was scheduled in Tucsonff Arizona, for May 29q
Counsel for both parties appeared butq on the instruction
of her counselu Complainant refused to be deposed on the grounds
that Complainant would be moving to withdraw the Complaint before
FMSHRC.

19910

On May 3lu 199lu Complainant formally moved to withdraw her
complaint hereina
Respondent asserts Complainant's counsel has abused the discovery process and filed frivolous claims and documents which
have amounted to harassment and needless increase in the cost of
litigation&

1114

Finally, Respondent asserts Complainant and Complainant's
counsel are in violation of Rules 11 and 37(b)(2) of the Federal
Rules of Civil Procedure and merit sanctions, pursuant to Commission Rules 80(a) and l(b), 29 C.F.R. § 2700.BO(a), l(b).
Accordingly, Respondent seeks an order dismissing the complaint wth prejudice and granting sanctions, including costs and
attorneys' fees.
DISCUSSION
The Commission has previously ruled that it lacks jurisdiction to impose sanctions. Rushton Mining Company, 11 FMSHRC 759
{1989). See also Beaver Creek Coal Company, 10 FMSHRC 758 (1988)
(Morris, J) and Rushton Mining Company, 9 FMSHRC 392 (1987)
(Broderick, J) •
.Based on the rationale of the above cases, I enter the
following:
ORDER
1.

Respondent's motion to impose sanctions is DENIED.

7o
Complainant's motion to dismiss this case is GRANTED
and the case is DISMISSED WITHOUT PREJUDICE.

Law Judge
stributiong
Mary Judge Ryan, Esq., STOMPOLY & STROUD, P.C., 1600 Citibank
Tower, One South Church Avenue, Tucson, AZ 86702-3017 (Certified
Mail)
Henry Chajetu Esqou and Laura E. Beverage, Esq.u JACKSON & KELLY,
(Certified Mail)

PoOo Box 553u Charlestonu WV 25433

ek

1115

_\

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

JUL 171991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. LAKE 91~63-M
A.C. No. 12-00004-05530-A
Atkins Plant

DON FRAZE, Employed by
LITER'S QUARRY OF INDIANA,
INCORPORATED,
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.

CIVIL PENALTY PROCEEDING
Docket No. LAKE 91-73-M
A.C. No. 12-00004-05529-A
Atkins Plant

RANDEE LANHAM, Employed by
LITER'S QUARRY OF INDIANA
INCORPORATED,
Respondent
DECISION
Appearances:

Robert Cohen, Esq., Office of the Solicitor, u.s.
Department of Labor, Arlington, Virginia, for the
Petitioner;
Robert Liter, Liter 1 s Quarry, Inc., Louisville,
Kentucky, on behalf of the Respondentso

Before~

Judge Melick

These consolidated cases are before me upon the petitions
for civil penalties filed by the Secretary, pursuant to section
llO(c) of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 801 et seq., the "Act, 11 charging Don Fraze and Randee
Lanham, as agents of a corporate mine operator, Liter's Quarry of
Indiana, Inc., (Liter's Quarry) with knowingly authorizing,
ordering, or carrying out a violation of the mandatory safety

1116

standard at 30 C.F.R. § 56.11001 by the named mine operator. 1
A motion for settlement filed in these proceedings on June 5,
1991, was denied by order issued the same date and the cases
proceeded to trial as scheduled on June 12, 1991.
At hearing, Robert Liter, the Respondents representative
acknowledged that the alleged violative condition existed as
charged. Moreover, it has never been denied that both
Respondents were agents of the named mine operator, knew of the
existence of the cited condition and knowingly authorized and
ordered that condition. Liter argued only that the corporate
operator had already paid a penalty of $800 for the violation and
that it was an improper interference into the operator's
management function to also subject its former employees to
additional civil penalties. In essence, this argument is against
the enacted statutory provisions of section llO(c) and, as such,
can be redressed only through the legislative process.
Regardless of the merits, vel non, of the argument, I am bound in
this proceeding to follow the statutory provisions of section
llO(c).
The violative condition ~s described in the underlying
citation as follows: A safe means of access was not provided for travel
around the primary crusher or travel to its booth. The
floor covering for the V-belt drive & counter balance
of the jaw crusher was not in place with the crusher in
operation. Two employees were observed traveling from
the crusher booth back to their pit haul units without
the flooring in place. On the way back to the trucks
they passed within about 2-1/2 foot of this opening on
the counter balance side. Reportedly the crusher had
been used two shifts without the flooring in place.
The drop off by the crusher was about 12 ft. deep.
Also the two steps leading from the outside to the
booth area sloped toward these openings and were
covered with spilled rock & dust.
1

Section llO(c) of the Act reads as follows~
Whenever a corporate operator violates a mandatory health
or safety standard or knowingly violates or fails or refuses to
comply with any order issued under this Act or any order
incorporated in a final decision issued under this Act, except an
order incorporated in a decision issued under section (a) or
section 105(c), any director, officer, or agent of such corporate
who knowingly authorized, ordered, or carried out such violation,
failure, or refusal shall be subject to the same civil penalties,
fines, and imprisonment that may be imposed upon a person under
subsection (a) and (d)."
11

1117

According to the undisputed testimony of MSHA Inspector
Jerry Spruce, the absence of floor boards and guard rails along
the walkway over an opening in the crusher, created an "imminent
danger" of fatal injuries to miners. In addition, it is
undisputed that both Respondents had authorized and ordered that
the cited floorboards and railings remain removed while miners
proceeded along a narrow passageway adjacent to an opening into
the crusher below ostensibly for easier observation and
adjustment of newly replaced bearings in the crusher unit. No
evidence has been presented that either Respondent has any
history of violations under the Act or regarding their ability to
pay civil penalties. Under the circumstances, and considering
the seriousness of the violation and the egregious negligence
involved, I find the Secretary's proposed penalties to be
appropriate. The penalty against Lanham is greater inasmuch as
he had supervisory authority, as general manager, over Fraze and
directed Fraze to continue operations without the floorboards and
guardrails.
ORDER

I find that Don Fraze and Randee Lanham acting as agents of
the corporate mine operator, Liter's Quarry of Indiana,
Incorporated, knowingly authorized, ordered, or carried out a
violation of the mandatory safety standard at 30 C.F.R.
§ 56.11001 on March 26, 1990, and they are directed to pay civil
penalties of $500 and $600, respectively, for he aforesaid
violations within 30 days of the date of this

Law Judge
Distribution~

Robert Cohen, Esq.p Office of the Solicitor, U.S. Department of
Laborp 4015 Wilson Boulevard, 4th Floor, Arlington, VA 22203
Certified Mail)
Mro Robert Liter, Liter's Quarry, Inc., 6610 Haunz Lane,
Louisville, KY 40241 (Certified Mail)
/fb

1118

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

JUL 171991
THOMAS D. SHUMAKER,
DISTRICT NO. 4, UNITED
MINE WORKERS OF AMERICA
on behalf of
MICHAEL KELECIC
EDWARD YANIGA
DONALD STEVENSON,
Complainants

DISCRIMINATION PROCEEDING
Docket No. PENN 90-202-D
MSHA Case No. PITT CD 90-20
MSHA Case No. PITT CD 90-21
MSHA Case No. PITT CD 90-22
Dilworth Mine

v.

CONSOLIDATION COAL COMPANY,
Respondent
ORDER LIFTING STAY AND DISMISSING PROCEEDING
Before:

Judge Melick

Complainants request approval to withdraw t eir complaints
in the captioned case. Under the circumstances erein, the
request is granted. 29 C.F.R. § 27 0.11. The s ay Order
previously issued is according~y
lifted and his case is
therefore dismissed.
II
~
"'.I
I

I

~

1.1

'\

\

\

'1

Gary M
/ Admin·
u
Distribution~

Thomas D. Shumaker, District No. 4, UMWA, 32 South Main Street,
Masontown, PA 15461 (Certified Mail)
Walter J. Scheller III, Esq., Consolidation Coal Company, Consol
Plaza, 1800 Washington Road, Pittsburgh, PA 15241
(Certified Mail)
Larry E. Swift, Chairman, UMWA, Local Union 1980, District No. 4,
Health & Safety Committee, 206 s. Walnut Street, Masontown, PA
15461 (Certified Mail)
/fb
1119

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
THE FEDERAL BUILDING
ROOM 280, 1244 SPEER BOULEVARD
DENVER, CO 80204

JUL 171991
ENERGY WEST MINING COMPANY,
Contestant

CONTEST PROCEEDING
Docket No. WEST 91-406-R
Order No. 3582410; 5/1/91

v.

Deer Creek Mine

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

Mine I.D. 42-00121

and
UNITED MINE WORKERS OF AMERICA
(UMWA)
Intervenor
DECISION AFTER EXPEDITED HEARING
ORDER MODIFYING CITATION
ORDER DISMISSING CONTEST PROCEEDING
Appearances:

Thomas c. Means, Esq., Crowell & Moring,
Washington, DC,
for Contestants;
Robert J. Murphy, Esq., Office of the Solicitor,
UoS. Department of Labor, Denver, Cclorado,
for Petitioner/Respondentu
Robert Lo JenningsQ Representative of United Mine
Workers of AmericaQ PriceQ Utaho

Before Judge Cettig
Pursuant to the request of Respondentff this matter came on
for an expedited hearing before me at Grand Junctionp Coloradop
on May 23q 19910 Documents and testimony from numerous witnesses
were introduced and the matter fully litigated by the parties.
At the conclusion of the hearing, there was a ruling from the
bench on some issueso
The proceeding was initiated by Contestant's filing a Notice
of Contest pursuant to section 105(d) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 815(d) challenging the captioned citation issued by MSHA.
After the hearing and receipt of the transcript, the parties
filed and requested approval of a proposed settlement agreement.
The proposed agreement provides that the 104(d)(l) order be redesignated a section 104(a) citation, that it retain its

1120

characterization of "significant and substantial" and that the
negligence factor be characterized as "moderate" rather than
"high". Contestant agrees to withdraw its contest to the enforcement document as amended, with the withdrawal to be effective upon approval of the settlement.
After due consideration of the evidence and arguments presented in support of the proposed settlement of the contest proceeding, I conclude and find that the settlement is reasonable
and in the public interest. The motion is GRANTED, and the
settlement is APPROVED.
ORDER
Order No. 3582410 is modified to a 104(a) citation with a
significant and substantial designation and the characterization
of its negligence factor is modified to "moderate". Contestant
having agreed to withdraw its contest to the enforcement document
as modified by this Order, this proceeding is DISMISSED.

Au ust F. Cetti
Administrative Law Judge

Distribution~

Thomas Co Meansv Esgau CROWELL & MORINGv 1001 Pennsylvania Avenue
NoWou Washingtonv DC 20004-2505
(Certified Mail)
Robert Jo Murphy, Esq., Office of the Solicitor, U.S. Department
of Laboru 1585 Federal Office Building, 1961 Stout Street,
Denveru CO 80294 (Certified Mail)
Robert Lo Jenningsu UMWA Representativeu Post Off ice Box 783,
Priceu UT 84501 (Certified Mail)

sh

1121

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

JUL 171991
DISCRIMINATION PROCEEDING

RONNIE E. PRICE,
Complainant

v.

Docket No. WEVA 90-308-D

.

CONSOLIDATION COAL COMPANY,
Respondent

MORG CD 90-10
Blacksville No. 1 Mine

DECISION
Appearances:

James B. Zimarowski, Esq., Morgantown,
West Virginia, for the complainant;
Walter J. Scheller III, Esq., Consolidation
Coal Company, Pittsburgh, Pennsylvania, for the
Respondent.

Before:

Judge Weisberger

Statement of the Case
This CC!!'69"'
before me based upon a complaint of
discrimination filed by Ronnie Eo Price (Complainant) on
August 10, 1990 0 alleging that Consolidation Coal Company
(Respondent) discrimi~ted against him in violation of
section 105(c) of the Act. 1/
Pursuant to notice, the case was
scheduled for hearing on January 15, 1991. Subsequently, in a
telephone conference call between Counsel for both Partiesv
Counsel for Complainant indicated that Complainant saw him for
the first time on January 11, 1991v and accordingly requested an
adjournment to prepare for the hearing. The request was not
opposed and was granted. The case was rescheduled for March 5 1
1991. On February 25, 1991 1 in a telephone conference call with
Counsel for both Parties 1 Counsel for Complainant requested a
further adjournment in order to effectively prepare for hearing.
This request was not objected to and the case was adjourned and
rescheduled for April 30 and May 1, 1991. The case was heard at

1
/

Pursuant to the agreement of the parties at the hearing,
the Complaint which was submitted at the hearing, shall be deemed
to have been filed on August 10, 1990.

1122

that time in Morgantown, West Virginia. At the hearing, Ronnie
Price, John Mason, Terry G. Collins, and Charles Edward Haun
testified for Complainant. Francis Pethtel, Peter Yost Turner,
Ronald Darrah, Paul J. Borchick, Jr., and J. Robert Levo
testified for Respondent. Complainant filed proposed Findings of
Fact and Conclusions of Law on June 17, 1991. Respondent filed a
Posthearing Brief on July 1, 1991.
Findings of Fact and Discussion
Ronnie Price is a roof bolter employed by Respondent, and
during the relevant times at issue, worked in the P-9 Section on
the midnight shift. In the middle of March 1990, a new foreman
Donald Darrah was assigned to the section. The first day that
Darrah was on the section, Price, along with John Mason, Terry G.
Collins, and Doug Harper, brought a complaint to Darrah that he
did not sign the date board. Also on another occasion, Price
informed Darrah and Paul J. Borchick, Jr., the shift foreman,
that the former had not properly ventilated the belt area when it
was moved. On another occasion, Price told Borchick that Darrah
had wanted to tram a miner in order to get rid of gas. According
to Price, at the end- of the shift on April 17, he obtained a
methane reading of one percent, whereas Darrah had reported a
reading of .02 percent across the face.
Price informed MSHA
Inspector Dale Dinning of this problem. Price was asked on
cross-examination if he told Darrah about it, and he said "yes,
he was told about it" (Tr. 66). Darrah denied that Price made
this complaint to him. However, Borchick indicated that Price
informed him that Darrah had called the section safe in spite of
the fact that one percent of methane was found at the heading.
I
conclude that Price, in voicing safety concerns to either Darrah
or Borchick,.was engaged in protected activities.
Essentiallyv in order to establish that he has been
discriminated against~n violation of Section 105(c) of the Actv
Complainant herein ha~~the burden of establishing a prima facie
case by proving that he engaged in protected activities and that
adverse action taken against him was motivated in any part by the
protected activity.
(Fasula, 2 FMSHRC at 2797-2800; Secretary on
behalf of Robinette Vo United Castle Coal Company, 3 FMSHRC 803,
817-81 (April 198l)o The prima facie case may be rebutted by the
Operator by showing either that no protected activity occurred,
or that the adverse action was not motivated in any part by the
protected activity (See Robinette, supra, at 818 n.20; see also
Baich Vo FMSHRCv 719 F.2d 194, 195-96 (6th Cir. 1983)).
Essentially, it is Complainant's position that adverse
action in the form of harassment was taken against him which was
wotivated in any part by his protected activities.
From the middle of March when Darrah became the foreman of
the section, through April 18, Price had made various safety

1123

complaints directly to Borchick, and to Darrah directly or
indirectly through Borchick. According to Barchick and Darrah,
the day after Price made a complaint about the methane gas
readings, Darrah changed his location from bolting on the right
to bolting on the left side. 2/
According to Price, when
Darrah made this switch he (Darrah) "had a very bad attitude"
(Tr. 44). He was asked to describe this attitude and answered as
follows:
A. Well, just, you know, you're going to do it that
way, you know. You're going to do as I said, I'm the
foreman here which Mr. Levo told me the same thing.
Darrah is the foreman on that section.
Q. Okay. Did Mr. Darrah use the words that he's the
foreman and you're going to do it his way?

A.

Well, yeah and a few others that I don't use.

Q. All right. Now, is that just his way of conversing
with his crew or does he single out you in particular
to talk to you that way?'-

A. Well, yeah, pretty well just not me, but me and two
or three other ones. You know, some of the others he
don't get along with (sic).
Q. Which two or three others did he kind of act very
combative to?

A. Well, John Mason, Terry and his very best friend
John Keener. I mean they don't even get along now.
And these individuals have also raised safety
issues - - .~

Qo

Darrah testified essentially that bolting from either the
right or the left side requires the use of identical controls
although their order is reversed" He indicated further that
although the section 1 s two bolters usually work out between
themselves the side they work on, he decided to switch Price in
order to remove him from working close to the miner operator,

2/

I find the testimony of Borchick and Darrah with regard
to the specific dates involved more reliable as it was consistent
with their contemporaneous notes.

1124

located on the right side~ inasmuch as Price is a "talker."
(Tr.
228). According to Darrah he thought such a move would increase
production.
Although the performance of the task of bolting appears to
be the same whether performed from the right or left side, the
bolter working on the left side in the P-9 Section would also
have to tug and pull the ventilation tube located on that side.
According to Price, bolters are usually rotated between the right
and left sides, and he would not be able to work on the left side
and pull and tug the tube all the time. Darrah indicated that
although he had an extra man placed on the left side who does all
the tugging and lugging, he agreed that a bolter working on the
left side would be required to do a 11 little" more physical labor
(Tr. 256). Accordingly, I find that, to some degree, the
switching by Darrah of Price to the left side of the bolter
constituted an adverse action. Further, inasmuch as this action
was taken the day following Price's complaints about methane
readings, and following Price's other complaints made within the
preceding approximately 30 days, I conclude that this adverse
action was motivated in part...by Pr.ice's complaints.
Essentially, according to Complainant, Darrah not only took
adverse action against him for voicing complaints, but also
manifested animus towards Collins and Mason, who also had made
safety complaints. Mason had complained to Darrah about the
latter having required him to continue to load coal behind the
miner to such an extent, that he (Mason) was concerned that there
would be inadequate space for sufficient air to provide adequate
ventilation. He also was concerned that there would be
inadequate room for miners to escape in the event of an
emergency. ~he following day, on April 18, Mason was transferred
from the section to a position as a bolter. However, he received
the same wages and did not suffer any loss of pay as a
consequence of the trapsfero
Barchick said he removed Mason from
the section because be~felt that Mason had difficultly operating
the satellite minerv and that another person was available who
had more experience operating such a miner. According to
Borchick, the switch was made to increase production.
Collins also had complained to Darrah about his methane
checkso He also had raised concerns about the safety of certain
cablesr and the need for bolting. Collins was transferred off
the section to another section, but was given the same job at the
same rate of payo Thus, the evidence is inadequate to establish
that in general Respondent has responded to protected activities
by taking adverse action.
When Darrah decided to shift Price to the left side to
prevent him from talking to the miner operator, the latter had
been in that position for only 1 day, and had replaced Mason a
close friend of Price. According to Price, he had told Darrah at

1125

the end of the prior shift that his (Price's} methane reading was
two percent (Tr. 66, 68). However, neither Collins nor Mason who
were with Price when he obtained the 2 percent methane reading,
corroborated the testimony of Price that he directly informed
Darrah of the reading. On cross-examination Collins indicated
that when the methane was found, Darrah was at the belt heading,
and that when the crew picked Darrah up at the mouth of the
section, no one told him of the methane readings (Tr. 132}.
Based on my observation of his demeanor, I find the testimony of
Darrah reliable, that he first found out about Price's methane
reading when informed by Barchick at the end of the shift at
approximately 8:30 a.m. According to Darrah it bothered him that
the problem with the methane was not brought to his attention by
Price, but was instead told to him by his supervisor. In this
connection, I note that Darrah had been promoted from an hourly
worker to a foreman only a few weeks before, and was younger and
far less experienced in the mines than Price, Mason, and Collins.
Accordingly, and taking into account the slight degree of adverse
action in switching Price to the left side, I conclude that the
action would have been taken in any event, based on Price's
unprotected activities alone, i.e., having made the complaint to
Darrah's supervisor rather than.Darrah.
According to Price, he is required to take medication twice
a day, 12 hours apart, a half hour before a meal, as "its the
only way it would work in my system" (Tr. 30) • He also testified
that "it would make me sick if I take it and then didn't eat"
(Tr. 41). Essentially it was Price's testimony that aside from
Darrah, "all" of his foremen brought him his medication at three
o'clock (Tr. 28}. He also said that "most foremen would come up
and say, hey, we're going to move this and we're going to do that
and we'll do.this. We'll have it done by such and such a time.
You go take your medicine and be ready to eat at that time."
(Tro 55)o This was confirmed by Collins who indicated that if a
belt was downv the foreman would inform Price that they would be
eating early and would bring him his medication. Otherwise, if
the belt was not downv the crew would eat at 4~00 o 9 clocko Price
also said that there were times when he had to work through
lunch. He said he did not do so "willingly" and that "most"
foremen advised him in advance that he would be working through
lunch and eating later, so he was able to take his medication and
then grab a sandwich or cup of coffee.
(Tr" 55)o He said that
if a breakdown occurred at 3 o'clock and the crew was sent to
eat, he did not take his medication, and did not eato He said
that he was able to take his medication when he was told that
01
we 1 re going to be down for a half hour" (Tr. 57)"
Francis Pethtel who, was Price's foreman from October 1989
through March 15, 1990, indicated that normally the crew would
eat at 4:00 o'clock, but that there was no set time, and "quite
often," the crew would not eat at 4:00 o'clock.
(Tr. 187). He
indicated that he did not inform Price daily that he would be

1126

eating in a half hour. However, on cross-examination he
indicated that if he knew in advance that the crew would not be
eating at 4:00 o'clock, he would inform Price of this fact. He
indicated that if the belt was down at 3:00 o'clock, Price then
went to the dinner hole, took his medicine, and then ate on the
way back to the working area. Price did not rebut this
statement.
Price indicated that the first week that Darrah took over as
foreman, the crew ate at 4:00 o'clock, unless there was a
breakdown. If this occurred, he went to take his medicine at
3:30. Darrah essentially indicated that prior to April 18, the
lunch time varied, but that if he did not specify the time, the
crew ate at 4:00 o'clock, and he indicated that three out of five
times the crew ate at 4:00 o'clock.
According to Price, on April 16 or 17, a miner had to be
moved, and as a consequence he worked through lunch. He
indicated that he spoke to Darrah, and told him that he would
like to know what time he would eat so he could take his
medicine. He indicated that all he needed was to be notified a
half hour before lunch regardless of the time of lunch.
According to Price, Darrah asked for a slip from his doctor, but
subsequently did not want to accept the slip. Price indicated
that he did not tell Darrah that he needed a designated time to
eat lunch. He said that Darrah told him that lunch time is
between 3 and 5, and that he is to eat when he is told to. He
indicated that Darrah did not make any effort to communicate to
him and inform him a half hour before eating time.
Subsequently, according to Price, he spoke with Jay Robert
Levo the superintendent of the mine, and did not ask for a
designated time to eat, but he repeated his request to be
notified a half hour before lunch time. According to Price, Levo
informed him that he will have 30 minutes before lunch to take
his medicinev and that he did not need a medical slip. Price
said that Levo told him that he could either continue with his
past practice or he could submit the medical slip. Price said
that Levo told him that if the company accepts the slip, he is no
longer needed, as it is company policy not to have someone work
with limitationso Charles Edward Haun, a miner who is a member
of the Union Safety Committee, was with Price when he spoke with
Levo, and confirmed Price 1 s version of the conversation with
Levo.
Collins testified that Price asked Darrah to inform him a
half hour before the time to eat, and that this conversation
occurred at the beginning of the shift, before any mining had
taken place. He said that Price did not ask for a designated
time, and th~t Darrah "snapped" at him and asked him to obtain a
doctor's slip.
(Tr. 122). According to Collins, the following
day Price asked Darrah if he would let him know a half hour

1127

before lunch time and Darrah indicated that he would eat between
3 and 5, and he said it "just like being a smart aleck" (Tr.
127).
Price indicated that he filed a grievance on April 26, and
that subsequently the lunch time was changed, but that Darrah did
not let him take his medicine and told him he could not take his
medicine. He said at times he worked through lunch and
accordingly, did not eat.
According to Darrah, on April 19, 1990, when he first came
on the section, he informed Price that he was transferring him to
the left side of the bolter. He then firebossed for 15 minutes
and upon completion of that task, Pr.ice requested of him a "set,"
"designated" time for dinner (Tr. 218). According to Darrah,
Price told him he wanted to eat at the same time every day.
Darrah stated that Price did not request a half hour notice prior
to eating and that nothing preceded the request by Price. He
indicated that the tenor of the discussion with Price was
"conversational," rather than "confrontational" (Tr. 271), and
that he (Darrah) said that the only way he could accommodate
Price was if the latter would'-bring a doctor's note indicating
that he was required to eat at a set time daily.
According to Borchick, on April 19, 1990, Price asked for a
"designated" eating time.
(Tr. 30, 51). Barchick stated that
Price used that term "numerous times."
(Tr. 51). Barchick
stated that when Price told him that Darrah indicated that he
could not give him a designated eating time with out a doctor's
slip, he told him that such a slip is not necessary, but that he
would check with Levo. Levo and Barchick both testified, in
essence, tha1:. Levo told Price that a note is not necessary. Levo
further told Price that if he submits a note that indicates that
a set time for lunch is needed, the note may be considered
documentation of rest~~cted duty which is not allowed by the
companyc
Despite the conflict in the testimony between the witnesses
for Complainant and Respondent as to what was requested by Price,
it is clear that there is no evidence that Respondent treated
Price differently than other miners. There is no evidence that
any miner had a set time to eat lunch. Nor is there any evidence
that any other miners were given advance notice by their foreman
of the time that a lunch break would be given.
In essence, both
Collins and Price indicated that prior to Pricevs request of
Darrah, the crew had lunch at 4:00 oiclock, unless work had
stopped before that time due to a breakdown of equipment.
According to Price, after he brought in a note from his doctor,
the time for lunch was changed, Darrah told him he could not take
his medicine; and Darrah did not let him take the medicine.
I do
not place much weight on this testimony. Price did not provide
any specifics regarding any details as to exactly what occurred

1128

when Darrah did not let him take his medicine. He did not
provide any specifics regarding the circumstances of this action,
nor did he indicate when it occurred. Neither did he describe
the context and content of any specific statement Darrah made in
telling him that he could not take his medicine. Also, having
observed the demeanor of Darrah, I find his testimony credible
that, prior to April 19, there was no set time for lunch, and
that although three out of five times, lunch was at 4:00 o'clock,
the time did vary. This is consistent with the testimony of his
predecessor Pethtel, whose testimony I found credible. In this
connection, Collins indicated that the day after Price made his
initial request, he again asked Darrah if he would let him know
what time he would eat. According to Collins, Darrah told him
"you eat between 3 and 5. 11 (Tr. 125}. Collins was asked to
describe the manner in which Darrah responded, and he indicated
that he was "just like being a smart aleck. 11 (Tr. 127).
However, on cross-examination, he indicated that Darrah did not
change the routine as to lunch.
According to Price, Darrah requested him to bring in a note
from his doctor. Even if this request is interpreted as an act
of harassment, the evidence 'fails to establish a causal nexus
between it and Price's safety complaints. I accept the testimony
of Darrah, as it was corroborated by Collins, that the
conversation regarding a medical slip occurred at the beginning
of the shift. Although the evidence is in conflict with regard
to the exact request made by Price of Darrah, the testimony is
consistent in establishing that Darrah's remarks about the need
for a medical note came after and in response to Price's request.
I find that it was Price, not Darrah, who initiated any change in
status quo with regard to lunch time. Darrah's comments with
regard to the submission of documentation from Price's doctor
were made the day following Price's complaints about methane
readingso Howeveru since these comments were made solely in
response to a request .. ittade by Priceu I conclude that there is no
nexus between these comments and Price's complaints the previous
eveningo
Taking all the above into account, I conclude that the
evidence establishes that any adverse action taken by Respondent
against Price would have been taken in either event, based on
unprotected activities aloneo Henceu Complainant has failed to
establish that he was discriminated against in violation of
Section 105(c) of the Act. 3/
3;

In his Brief, Complainant alleges that "as a direct and
proximate result" of Darrah's discriminatory and retaliatory
action against him, Complainant "lost three (3) days work." The
only testimony on this point is Price's statement that he was off
from April 20 to April 23 "with my heart due to harassment" (Tr.
37) (sic). Complainant also offered as evidence a note from his

1129

ORDER

It is ORDERED that the Complaint herein be DISMISSED.

g~

Administrative Law Judge

Distribution:
James B. Zimarowski, Esq., 204 High Street, Suite 203,
Morgantown, WV 26505 (Certified Mail)
Walter J. Scheller, III, Esq., Consolidation Coal Company,
1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail)
dcp/fb

footnote 3 (continued)
physician, John Manchin II, D.O. which states that he was absent
from work on these dates 10
due to anxiety and nervousness
caused by a situation at work in which he was not permitted to
take his medication. 00 I find this evidence insufficient to
establish a good faith reasonable belief that continued work
involves a hazardous condition. Further, there is no evidence of
any communication made by Price to management concerning any
refusal to work on the dates in question. As such, it has not
been established that Price had a right not to work on the dates
in question, and that Respondent is responsible for his wages on
those dates (See, Secretary on behalf of Keene v. s & M Coal
Company, Inc., 10 FMSHRC 1145, 1150 (1988)).
o

1130

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

JUL 171991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. WEVA 91-92
A.C. No. 46-01433-03953

v.

Loveridge No. 22 Mine

CONSOLIDATION COAL COMPANY,
Respondent

Docket No. WEVA 91-102
A.C. No. 46-01318-03975
Robinson Run No. 95 Mine

DECISION APPROVING SETI'LEMENT

Appearances:

Charles Jackson, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia, for
the Petitioner;
Walter J. Scheller III, Esq., Consolidation Coal
Company, Pittsburgh, Pennsylvania, for the
Respondent.

Before~

Judge Melick

These cases are before me upon petitions for assessment of
civil penalty under section 105(d) of the Federal Mine Safety and
Health Act of 1977 (the Act)o At hearings, petitioner filed a
motion to approve a settlement agreement which was supplemented
post-hearing. A modification of Citation Nos. 3308698 and
3309261 to delete the "significant and substantial" findings and
a reduction in penalties from $1,722 to $1,400 has been proposed.
I have considered the representations and documentation submitted
in this case, and I conclude that the proffered settlement is
appropriate under the criteria set forth in section llO(i) of the
AcL

WHEREFORE, the motion for approval f settleme~t is GRANTED,
and it is ORDERED that Respondent pay a/ enalty of ~1,400 wfthin
30 days of this order.

L·/

!' "

I\
\./ v
Gary Mell k
Administration Law
i

1131

\ (i
\ /I

'
I
L,
fr 1 7\_-"\

L/

e

\J~w'

~-

Distribution:
Charles Jackson, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203
(Certified Mail)
Walter J. Scheller III, Esq., Consolidation Coal Company, Legal
Department 1800 Washington Road, Pittsburgh, PA 15241 (Certified
Mail)
/fb

1132

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

JUL 17199\
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

.

CIVIL PENALTY PROCEEDING
Docket No. WEVA 91-181
A. C. No. 46-01452-03770

v.

Arkwright No. 1 Mine
CONSOLIDATION COAL COMPANY,
Respondent
DECISION APPRdVINGSETTLEMENT

Appearances:

Before:

Charles M. Jackson, Esq., U. s. Department of
Labor, Office of the Solicitor, Arlington,
Virginia, for the Petitioner;
Walter J. Scheller III, Esq., Pittsburgh,
Pennsylvania, for the Respondent.

Judge Maurer

This case is before me upon a petition for assessment of
civil penalty under Section 105(d) of the Federal Mine Safety and
Health Act of 1977 (the Act). At the hearing, the parties
jointly moved to settle this case. A reduction in penalty from
$953 to $783 was proposed. I have considered the representations
and documentation submitted in this case, and I conclude that the
proffered settlement is appropriate under the criteria set forth
in Section llO(i) of the Act.
WHEREFORE, the motion for approval of settlement is GRANTED,
and it is ORDERED that respondent pay a penalty of $783 within
30 days of this order. Upon payment in full, this case is
DISMISSED.

urer
ative Law Judge

1133

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

JUL 191991
CIVIL PENALTY PROCEEDING

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

Docket No. LAKE 90-87
A.C. No. 33-01314-03519

v.

Island Creek # 43 strip Mine

ANTHONY MINING COMPANY,
Respondent
DECISION

Appearances:

Kenneth Walton, Esq., Office of the Solicitor,
U.S. Department of Labor, Cleveland, Ohio, for the
Petitioner;
Gerald P. Duff, Esq., HANLON DUFF & PALEUDIS CO.,
LPA, St. Clairsville, Ohio, for the Respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns proposals for assessment of civil
penalties filed by the petitioner against the respondent pursuant
to section llO(a) of the Federal Mine Safety and Health Act of
1977, 30 u.s.c. § 820(a), seeking civil penalty assessments for
three alleged violations of certain mandatory safety standards
found in Part 77v Title 30; Code of Federal Regulations. The
respondent filed an answer contesting the alleged violations,
and a hearing was held in Steubenville, Ohio. The parties did
not file posthearing briefs, but I have considered their oral
arguments in the course of my adjudication of this matter.
Issues
The issues presented in this proceeding are (1) whether the
respondent has violated the standards as alleged in the proposal
for assessment of civil penalties, (2) whether the violations
were "significant and substantial," and (3) the appropriate civil
penalties that should be assessed based on the civil penalty
criteria found in section llO(i) of the Act. Additional issues
raised by the parties are identified and disposed of in the
course of this decision.

1134

Applicable Statutory and Regulatory Provisions
1.

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

2.

Section 110(i) of the 1977 Act, 30 u.s.c.

3.

30 C.F.R. § 77.1605(b) and§ 77.1606(c).

4.

Commission Rules, 20 C.F.R. § 2700.1 et seq.

§

820(i).

Stipulations
The parties stipulated to the following (Exhibit AIJ-1):
1.

The Federal Mine Safety and Health Review Commission
has jurisdiction over this proceeding.

2.

The Anthony Mining Company is an "operator" as defined
in § 3(d) of the Federal Mine Safety and Health Act of
1977 (the "Mine Act'.'), 3.0 u.s.c. § 802(d).

3.

The Anthony Mining Company is a small operator.

4.

The Island Creek #43 Strip Mine of the Anthony Mining
Company is a mine as defined in § 3{h) of the Mine Act,
30 u.s.c. § 802(h).
Discussion

The alleged violations in this case all concern one piece of
equipment; a Willys jeep with a water pump mounted on the cargo
bed behind the driver's cab. Two of the three section 104(a)
vns&s 11 citations issued on February 15, 1990, were issued for
violations of mandatory safety standard § 77ol605(b), because the
service brakes and parking brake were not maintained in good
operating condition in that the service brakes would not stop the
jeep and the parking brake could not be applied. The third
citation was issued for a violation of mandatory safety standard
§ 77ol606(c)
because the windshield wiper arms and blades were
missing and the wiper motors were inoperative. The inspector
noted that it was raining at the time the violative conditions
were observed and cited.
Petitioner's Testimony and Evidence
MSHA Inspector B. Ray Marker testified that he inspected the
jeep in question on February 15, 1990, in the course of his
inspection of the respondent's strip mine. He stated that the
jeep was located in the pit area where coal was being loaded. A
water pump used to pump water from the pit was mounted on the
jeep, and he was informed that the pump had a defective seal

1135

(Tr. 9-13). He observed an employee walking towards the jeep,
and when he asked him what he was going to do, the employee
advised him that he was going to move it out of the way because
another pump was being brought to the pit. Mr. Marker then
decided to inspect the jeep, and when he asked the employee to
try the brakes, "the brake pedal went to the floor and there was
no indication of any service brake whatsoever" (Tr. 14). He then
asked the employee to apply the parking or emergency brake and
"for some reason the park brake could not be applied".
Mr. Marker then looked at the windshield and observed that the
wiper blades and arms were missing from the motor and that the
wiper motors would not work. He then issued a section 107(a)
closure order to prevent anyone from moving the vehicle (Tr. 14,
Exhibit P-1).
Mr. Marker stated that the jeep key was in the ignition and
that the jeep could be driven and it was available for use. He
spoke with pit foreman John Sperlaza who acknowledged that he was
aware of the brake problems. Mr. Marker confirmed that another
pump was brought to the pit, and the cited jeep was towed away
(Tr. 14-15). Mr. Marker confirmed that he issued the citations
in question because o,f the conditions which he observed (Tr. 16,
20, 23; Exhibits P-2 through P-4).
On cross-examination. Mr. Marker stated that he has never
observed the jeep in operation anywhere at the mine site, and he
confirmed that the pump was attached to the jeep and that "the
purpose of the piece of equipment was for the water pump"
(Tr. 26). He identified the employee that he spoke with as
Denver Ray, and he confirmed that Mr. Ray did not start the
vehicle until he (Marker) approached it. He stated that he has
no evidence to contradict the fact that the jeep may have been
towed to the pit, rather than being driven, and he confirmed that
he never observed the jeep in any accident at the mine (Tr. 28).

Mr. Marker stated that the violations in question would be
significant and substantial 11 only if the jeep were operated out
of the pit area and on the haul road leading in and out of the
pit. There was no probability of any accident occurring in the
pit area where the pump would normally be located (Tr. 28). He
stated that the jeep had three forward and one reverse gears,
that it would not be driven at much of a speed, and if driven in
low gear it would be operated in a relatively slow powered gear.
Under normal conditions, the jeep could be reasonably driven
slowly by using the clutch and low gear (Tr. 29). Mr. Marker had
no reason to believe that the jeep was driven on the day of his
inspection (Tr. 30). Mr. Ray and one other individual were the
only people in the pit. There would be no need for windshield
wipers if the vehicle was not going to be operated, and he did
not personally test the brakes, and simply visually observed them
(Tr. 31) • ·
u1

1136

In response to further questions, Mr. Marker stated that he
assumed that the jeep would be driven out of the pit because the
key was in the ignition and Mr. Ray started it as he (Marker)
walked toward the jeep. Mr. Ray told him that the pump was going
to be moved out of the pit, but he did not say that the jeep was
going to be driven out (Tr. 32-33). Mr. Marker stated that the
pump occupied most of the jeep cargo space, and with the
exception of some additional water hose, he did not believe that
the jeep could be used for hauling supplies. He confirmed that
the jeep would be a "fixed object" in the pit while the pump was
being operated and until it was relocated to another area. He
did not know how long the brake conditions had existed and he
checked no records or inspection reports (Tr. 35-37).
Mr. Marker believed that Mr. Ray moved the jeep forward a
few feet when he asked him to test the brakes, and 11 it came to a
coasting stop on its own". Mr. Marker also stated that "the
brake went clear to the floor and that was enough for me"
(Tr. 38). He confirmed that other than moving the jeep from one
pit area to another over the haul road, the jeep would not
normally be operated on the haul road (Tr. 39). If the jeep were
parked with a workable pump, 'he would have only inspected the
pump engine guarding.- However, since the pump could not be used,
he was concerned that the jeep would be used for transporting
that pump (Tr. 40).
Mr. Marker confirmed that the jeep had a tow bar attached to
the front bumper, and he indicated that Mr. Ray and another
individual (Brown) told him that they did drive the jeep. He
(Marker)
also confirmed that the pit terrain was reasonably
level with a grade 300 to 400 feet long coming out of the pit.
The only occasion for using the parking brake would be for an
emergency, and the jeep was towed from the premises and
dismantled (Tr. 42,44). Mr. Marker also confirmed that he had no
reason to believe that the jeep was used routinely for anything
other than pumping water (Tro 43). When he initially spoke with
Mro Ray, he saw no other vehicle present which would have been
used to tow the jeep, but after speaking with Mr. Sperlaza a
vehicle was brought in to tow the jeep (Tr.46).
Respondent 1 s Testimony and Evidence
Pit foreman and heavy equipment operator Denver o. Ray, Jr.,
testified that his job on February 15, 1990, was to take care of
the water pump mounted on the jeep and to insure that it was
pumping water o He stated that the jeep was initial.ly towed to
the pit area by mine foreman J. C. Schiappa with his pickup and
parked at the location where it was observed by the inspector.
He confirmed that the jeep was equipped with a tow bar, and he
denied that he ever drove or intended to drive the jeep that day.
He explained that prior to the inspector's arrival, the back hoe
operator informed him that the pump seal was defective and that

1137

the pump was not operating. He then made preparations to bring
in another pump and arranged for Mr. Schiappa to bring in his
pickup so that the jeep could be towed out of the pit and the
pump taken to the machine shop to be repaired (Tr. 52-54).
Mr. Ray denied that he intended to drive the jeep out of the
pit, and he stated that he told Inspector Marker that the jeep
was going to be towed out. He further stated that he started the
jeep after the inspector told him to start it, and that he did so
because he believed the inspector wanted to inspect it (Tr. 55).
He stated that the jeep was not used to transport men or material
that day and that it was towed out with a tow bar with
Mr. Schiappa's pickup. The jeep had been parked in the pit for a
week or two pumping water so that the main coal seam could be
tapped and loaded out (Tr. 56).
·
On cross-examination, Mr. Ray admitted that he had
previously driven the jeep approximately two weeks prior to the
inspection by Mr. Marker. He stated that he had brakes when he
drove it and that the brake pedal went about "halfway down". He
was the only person to drive the jeep and he has never hit
anything while driving it. He stated that the jeep ·only served
as a stand for the pump because the jeep wouldn't start and
Mr. Schiappa had to push it into position with his truck
(Tr. 59). He asserted that he only started it after the
inspector told him to get in and start it (Tr. 59). He confirmed
that the brake pedal "went to the floor" and the parking brake
and windshield wipers did not work (Tr. 60).
In response to further questions, Mr. Ray stated that he
usually drove the jeep in first gear no more than five miles an
hour and that he drove it from where it is usually parked "at the
top of the hill" to the pit. The jeep was only used in the pit
area to pump water and it was never used to transport men or
materialso The jeep is usually blocked by placing rocks under
the wheels when it is parked (Tro 61-63)0
Foreman John c. Schiappa testified that he was informed
sometime between 9:00 a.m., and 9:30 a.m., on February 15, 1990,
that the pump in question had quit pumping. He issued
instructions to have another pump taken to the pit, and he
assigned employee Bill Weaver to drive his pickup truck to the
pit to tow out the jeep with the defective pump. The pump had
been pumping water for 10 to 12 days before the inspection and it
had not been moved from its location in the pit. The jeep was
equipped with a tow bar and it was customarily towed in and out
of the pit at times (Tr. 65-67).
On cross-examination, Mr. Schiappa stated that the jeep was
originally driven to the pit, and that "at times" the jeep was
driven and towed to the pit area. He stated that in the winter
season the jeep wouldn't start, and that when it was driven to

1138

the pit prior to the inspection, "the brakes were in good shape",
and there were "no problems as far as stopping". However, he
acknowledged that he did not know how far the brake pedal went
down because he did not drive the jeep, and he had no personal
knowledge of the condition of the brakes. He confirmed that
there were no windshield wipers on the jeep (Tr. 68-69).
In response to further questions, Mr. Schiappa stated that
when the jeep was driven it was only driven for a distance of
one-tenth to two-tenths of a mile, and then towed into the pit.
The pump would only leave the pit area when it was in need of
repair and it was always towed to the repair shop. He considered
the jeep to be a stand for the pump rather than a piece of mobile
equipment. The pump was bolted to the bed of the jeep and it
could be unbolted and removed from the jeep. If this were done,
the jeep would be used as a standby for another pump (Tro 70-73}.
Findings and Conclusions
Fact of Violation - citation Nos. 3130674 and 3130675
The respondent is charged with·two violations of mandatory
safety standard 30 C.F.R. § 77.1605(b), because of its failure to
maintain the jeep service brakes and parking brake in good
operating condition. Section 77.1605(b), provides as follows:
Mobile equipment shall be equipped with adequate
brakes, and all trucks and front-end loaders shall also
be equipped with parking brakes.
During the course of the hearing, respondent's counsel
advanced an argument that the cited jeep was not a vehicle which
was normally operated in the pit, that it was not being used as a
mobile piece of equipment 1 and that it simply served as a stand
for the water pump (Tr. 50-51). Notwithstanding his statement
that "obviously a Willys jeep is mobile", counsel argued that
0
section 77 1605 (b)
italks basically about trucks, front-end
loaders, and rock trucks out on the haulageway 1u (Tr. 80). Since
the jeep traveled at most a tenth of a mile to two-tenths of a
mile, and was generally towed into and out of the pit 1 counsel
characterized the j
as na glorified platform stand
the
pump 0", and he concluded that within the express language of
regulation, or the spirit of the regulation, the jeep was not
used as a piece of mobile equipment (Tro 80)c
o

The term "'mobile equipment 11 is not defined in Part 77 of the
regulationso However, it is defined in the Dictionary of Mining,
Mineral, and Related Terms, U.S. Department of the Interior,
1968, at page 719, as follows:
Applied to all equipment which is self-propelled or
which can be towed on its own wheels, tracks, or skids.

1139

The respondent's suggestion that the cited jeep was not a
piece of mobile equipment subject to the requirements of
section 77.1605(b) is rejected. Apart from the modification made
to the jeep to accommodate the water pump in the cargo area
behind the driver, there is no evidence that the jeep was other
than a self propelled vehicle which was sometimes driven and
sometimes towed to and from the pit area. Although it may have
been driven a relatively short distance from the area where it
was normally parked to the pit area, it did travel over the
regular haulage road used by other vehicles. Further, although
the jeep may have been parked at the pit site for as much as ten
days while the pump was pumping water, there is no evidence that
the jeep was a permanent fixture at any one location in the pit.
Indeed, the evidence shows that the jeep was moved in and around
the pit area as needed so that the pump could pump water, and
when it was moved from place to place it usually traveled over
portions of the haul road.
Contrary to the respondent's assertion in its answer of
July 3, 1990, that the jeep was never driven, both Mr. Ray and
Mr. Schiappa admitted that the jeep was sometimes driven, and
sometimes towed, to and from the pit area. Further, if the pump
were unbolted and removed from the rear of the jeep, the jeep
could be used as a "standby" vehicle for another pump, and I find
nothing to suggest that it could not be used for other purposes.
Under all of these circumstances, I conclude and find that the
cited jeep was a piece of "mobile equipment" within the scope and
intent of section 77.1605(b), and that the brake requirements
found in this regulation applied to the jeep.
The uncontroverted and credible testimony of Inspector
Marker establishes that at the time of his inspection of the
jeep, and after requesting Mr. Ray to depress the service brake,
the brake pedal went all the way to the floor and the inspector
found no indication that the brakes were operational. The
inspector's belief that Mr. Ray may have moved the jeep forward
a few feet while testing the service brake and that the jeep
11
came to a coasting stop on its own" is unrebutted.
In fact,
Mr. Ray testified that "after he made me start it up and take off
with it, the pedal went to the floor 11 (Tr. 60). This corroborates the inspector 1 s testimony that after Mr. Ray started the
jeep, he moved and depressed the brake pedal, and that the pedal
went to the floor and the jeep coasted to a stop.
Although Mr. Ray testified that the jeep "had brakes" when
he drove it approximately two weeks prior to the inspection, and
that the brake pedal went "halfway down", the fact remains that
at the time the inspector observed the brakes with Mr. Ray behind
the wheel, the brake pedal went to the floor and would not stop
the vehicle when Mr. Ray moved it forward.
Further, although
Mr. Schiappa testified that the jeep brakes were in "good shape"
and that there were "no problems as far as stopping" when the

1140

jeep was originally driven to the pit prior to the inspection, he
conceded that he did not drive the jeep, did not know how far the
pedal went to the floor, and that he had no personal knowledge of
the condition of the brakes.
The evidence in this case establishes that the jeep was
equipped with a parking brake, but for some unexplained reason
the brake could not be activated. Although section 77.1605(b),
only requires mobile equipment to be equipped with a parking
brake, and has no specific requirement that the brake be adequate
or serviceable, I conclude and find that the intent of the
standard is to insure the margin of safety intended by the
installation of the parking brake on the equipment, and that any
reasonable application of the standard requires that a parking
brake be maintained in serviceable ahd functional condition.
See: Thompson Coal & Construction, 8 FMSHRC 1748 (November 1986);
Turner Brothers, Inc •. 6 FMSHRC 1219, 1253
(May 1984). Further,
in Wilmot Mining company, 9 FMSHRC 684 (April 1987), in affirming
a judge's finding of a violation of section 77.1605(b), the
Commission stated as follows at 9 FMSHRC 688:
To prove a violation of this standard, however, the
Secretary is not'required to elaborate a complete
mechanical explanation of the inadequacy of the
brakes. A demonstrated inadeguacy itself may be
sufficient. * * * Whatever the precise cause of the
braking defect, the evidence amply supports the judge's
finding that the Terex was not "equipped with adequate
brakes, " in violation of the cited standard (emphasis
added).
In view of the foregoing, and based on a preponderance of
all of the testimony and evidence adduced in this case, I
conclude and find that the petitioner has established that the
cited jeep service brakes and parking brake conditions
constituted violations of the cited mandatory safety
section 77.1605(b)o Accordinglyp the citations issued by
Inspector Marker ARE AFFIRMED.
Fact of Violation - Citation No. 3130676
The respondent here is charged with a violation of mandatory
safety standard 30 C.F.R. § 77.1606(c), because of the missing
jeep windshield wipers and inoperative wiper motors.
Section 77.1606(c), states that "Equipment defects affecting
safety shall be corrected before the equipment is used 11
o

The respondent has not rebutted the uncontroverted evidence
that the jeep windshield wiper arms and blades were missing and
that the wiper motors were inoperative. However, during the
course of the hearing the respondent's counsel argued that there
is no evidence that the jeep was going to be driven in the rain

1141

on the day of the inspection (Tr. 79).
Petitioner's counsel
argued that the jeep was available for use because the keys were
in the ignition and that it was in fact started. Counsel further
asserted that it was obvious that Mr. Ray was going to move the
jeep because he was inside it for the purpose of moving it in
order to make room for another pump. Under these circumstances,
counsel concluded that that there is an inference that the jeep
was driven (Tr. 78-79; 81).
Although the jeep was "used" in the sense that it was parked
and blocked at the location where the pump was pumping water
until it stopped pumping and Mr. Ray and Mr. Schiappa were
preparing to tow it away, there is no evidence that the jeep was
ever driven with the missing windshield wipers and inoperative
wiper motors.
I conclude and find that the missing windshield
wipers and inoperative motor "defects" would only "affect
safety 11 while the jeep was being driven with reduced visibility
in inclement weather or during a rain, rather than while it was
parked and blocked for any length of time while the pump was
operating.
I further conclude and find that in order to
establish a violation there ,,must be some credible evidence to
establish; or at least to support a reasonable inference, that
the jeep was driven with defective equipment which affected
safety; and that the respondent failed to correct the defective
conditions before allowing the jeep to be driven. On the facts
and evidence presented in this case, I conclude and find that
there is insufficient evidence to establish that this was the
case.
There is no evidence as to how long the windshield wiper
condition had existed prior to the inspection, and Mr. Marker
confirmed that he did not check any maintenance or other records,
and he apparently did not pursue this issue further.
He stated
eep were not driven there would be no need for
;
w
·Iii.Ir Marker confirmed that Mr. Sperlaza
:::~~~J~now~cedged th.at he was aware of the brake problem,
but there
~~
to indicate that Mr. Sperlaza was aware of the
windshield condition.
o

Although the evidence establishes that the jeep was driven
two weeks days prior to the inspection, there
no
that the windshield wipers were defective when it was
c:r3_ven. The inspector's assumption that the jeep was going to be
jriven out of the pit was based on the fact that the keys were in
However, the respondent 1 s witnesses testified
that the jeep was going to be towed and not driven out
of :che pit area. The inspector conceded that Mr. Ray never told
him that he was going to drive the jeep out, and he also
confirmed that the jeep had a tow bar attached to the front
bumper and that it was in fact towed away.

1142

The petitioner's conclusion that Mr. Ray was going to move
the jeep to make room for another pump is based on counsel's
assertion that Mr. Ray was inside the jeep. Counsel's
conclusion that this supports an inference that the jeep was
driven is also based on this asserted fact (Tr. 78-79; 81).
However, after reviewing the testimony in this case, I cannot
conclude that it clearly establishes that Mr. Ray was inside the
jeep preparing to drive it out of the pit area at the time the
inspector first observed the vehicle.
Inspector Marker testified that he was sitting in his car
watching the mining operation when he first observed Mr. Ray
walking towards the jeep, and that when he (Ray) "went to get
in 11 , Mr. Marker asked him what he was going to do, and Mr. Ray
told him that he was going to move the jeep out of the way
because another pump was being brought to the pit (Tr. 13). At
that point, Mr. Marker advised Mr. Ray that he wanted to inspect
the jeep, and Mr. Marker conducted his inspection of the brakes
while "the employee was in the jeep" (Tr. 13). Mr. Marker later
testified that the jeep was not started until he approached it
(Tr. 27; 31) . Viewed in this, :Light, I cannot conclude that
Mr. Marker's testimony establishes that Mr. Ray in fact drove
the jeep, or that it supports any reasonable inference that the
jeep was driven. Even if one could conclude that Mr. Ray
intended to drive the jeep, there is absolutely no credible
evidence that he did, and the inspector conceded this fact.
In view of the foregoing findings and conclusions, I cannot
conclude that the petitioner has established a violation of
section 77. l606(c). Accordingly, the citation issued by
Inspector Marker IS VACATED.
Size of Business and Effect of Civil Penalty Assessments on the
Respondent 1 s Ability to Continue in Business
The parties stipulated that the respondent is a small mine
operator and I find nothing to suggest that the payment of the
civil penalty assessments for the violations which have been
affirmed will adversely affect the respondent's ability to
continue in business.
History of Prior Violations
The petitioner submitted a computer summary of assessed and
paid violations for the period February 15, 1988, through
February 14u 1990, and prior to February 15, 1988. The
information reflects that the respondent paid civil penalty
assessments in the amount of $1,634, for 24 violations issued
during the 2-year period in question, and that prior to
February 15, i988, the respondent paid $989 for 20 violations.
There is no evidence that the respondent has been cited for prior
violations of the same standards cited in this case. Based on

1143

the information provided, I cannot conclude that the respondent's
compliance history is such as to warrant any additional increases
in the civil penalties which I have assessed for the violations
which have been affirmed.
Good Faith Compliance
The evidence establishes that the cited jeep was immediately
removed from the mine site and scrapped.
I conclude and find
that the respondent rapidly abated the violations in good faith.
Negligence
Citation No. 3130674 (service brakes)
Inspector Marker confirmed that he based his "high
negligence" finding on the fact that pit foreman Sperlaza
admitted that he was aware of the brake problem (Tr. 20).
I take
note of the fact that in its answer of July 3, 1990, the
respondent admitted that the pit foreman was aware of the brake
problem, but took the position.that the vehicle was always towed
to the pit and never-driven. However, the evidence shows that
the jeep was at times driven as well as towed, and Mr. Schiappa
admitted that it was driven to the pit before the inspection.
Under the circumstances, I agree with the inspector's high
negligence finding, and it IS AFFIRMED.
Citation No. 3130675 (parking brake)
Inspector Marker testified that he based his "moderate
negligence" finding on the fact that pit foreman Sperlaza had no
knowledge that the jeep parking brake could not be engaged.
However, he believed that the respondent, as the mine operator,
was responsible for having the equipment checked by a competent
personv and that all defects found are required to be reported so
that they may be corrected (Tr. 22)
I conclude and find that
the violation resulted from the respondent 1 s failure to exercise
reasonable care.
I agree with the inspector's negligence
finding, and IT IS AFFIRMED.
o

Significant and Substantial Violations
A 91 significant and substantial 11 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 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).

1144

In order to establish that a violation is significant and
substantial, the petitioner must prove the following:
(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. Mathies Coal Co •. 6 FMSHRC 1, 3-4
(January 1984}; United States Steel Mining Company, 7 FMSHRC
1125, 1129 (August 1985), and the cases cited therein. The
operative time frame for determining whether a reasonable
likelihood of injury existed "must take into account not only the
pendency of the violative condition prior to the citation, but
also continued normal mining operations". Halfway. Incorporated,
8 FMSHRC 8, 12 (January 1986).
The respondent's counsel argued that the brake violations
were not significant and substantial because there was a minimal
mobile use of the jeep, it was unlikely that the parking brake
condition would result in an accident, the jeep was driven no
more than five miles an hour, at most for a distance of tenth of
a mile, and only two people were working in the pit area.
Counsel further pointed out that the evidence establishes that
the jeep was not going to be driven, that it was towed, and that
the chances of anything happening "were certainly more than
remote" (Tr. 81). The petitioner's counsel took.the position
that the inspector's 11 S&S" findings were appropriate (Tr. 82).
citation No. 3130674 (service brakes)
Inspector Marker believed that a "permanently disabling"
injury was "highly likely" because he observed several large "off
road" haulage and dump trucks in operation at the time of his
inspection and if the jeep were taken out of the pit "with all of
this activity going on" it was highly likely that there would be
an accident due to the defective brake problems and lack of
control in stopping the jeep (Tr. 18). The defective brake
condition would contribute to "the severity of the event" because
the vehicle could not be stopped, and if an accident were to
occur, it was reasonably likely that it would result in a
permanent disabling injury. For these reasons, he believed that
the violation was 11 significant and substantial" (Tr. 19).
Citation No. 3130675 (parking brake)
Inspector Marker believed that the inability to activate the
parking brake would "reasonably likely" result in an accident and
injury because of the inability to control or stop the vehicle.
However, he believed that the lack of a parking brake would only
involve the cited jeep rather than other vehicles because the
jeep could be stopped by running it into a berm provided on the
haul road or in the spoil area (Tr. 21). He did not believe that

1145

this violation was as serious as the service brake violation
because the vehicle backing into a berm or spoil pile without a
parking brake would probably or possibly only result in a "lost
work day or restricted duty" injury (Tr. 22). He believed the
violation was "significant and substantial" because "we have a
control problem which increases the possibility of something
happening" (Tr. 22).
The credible testimony of the respondent's witnesses
establishes that the jeep in question was used to transport the
water pump to and from the pit, and that while the jeep was
parked the wheels were blocked with rocks. Although the jeep
could have been used to transport men and materials, I find that
this could only happen if the pump were unbolted and removed from
the cargo area. However, there is no evidence that the jeep was
ever used for anything other than transporting the pump, and the
inspector had never observed the jeep being driven, and he had no
reason to believe that the jeep was used routinely for anything
other than pumping water.
The inspector confirmed that there was no probability of any
accident occurring in the pit area where the jeep and pump would
normally be located. He believed that the violations would be
significant and substantial only if the jeep were operated out of
the pit area and driven over the haul road. He confirmed that
the jeep would not normally be operated on the haul road, and it
would only be on the haul road when it was moved from one pit
area to another. However, the evidence establishes that the jeep
was equipped with a tow bar on the front bumper, and I am
persuaded that the evidence supports a reasonable conclusion that
although the jeep was driven to the pit area approximately two
weeks before the inspection, it was not routinely or regularly
driven on the haul road.
The respondent 0 s credible and unrebutted testimony, which is
supported in part by the inspector, establishes that if the truck
were driven, it was only driven a very short distance and at a
very slow rate of speed utilizi~g the low gear and clutch.
Further, when the jeep was parked, it was blocked with rocks, and
Mr" Schiappa's testimony that the jeep was always towed from the
pit to the shop if the pump were in need of repairs is
unrebutted" Mr" Ray's testimony that he had brakes when he last
drove the jeep two weeks before the inspection is also
unrebutted.
Although the inspector observed other vehicular traffic on
the haul road at the time of the inspection, he had no reason to
believe that the jeep was driven on the haul road that day, and
there is no evidence that the jeep was exposed to any traffic
hazards that day.
Based on the evidence presented, I can only
conclude that when the jeep was last driven, it was driven no
more than a tenth of mile at a speed of approximately five miles

1146

an hour. There is no evidence as to what the road or traffic
conditions may have been at that time, and given the fact that
water must obviously be pumped from the pit before the coal can
be extracted and hauled away, I believe one can reasonably
conclude that if the jeep is driven to the pit area this is done
early in the morning before full mining operations begin, and
before there is any other traffic on the road.
I also believe
that it is reasonable to conclude that once the jeep reaches the
pit area, it remains in place for a relatively long period of
time while the pump is pumping water.
In view of the foregoing, and after careful review and
consideration of all of evidence and testimony adduced in this
case, I cannot conclude that the petitioner has established by a
preponderance of the evidence that ih the normal course of mining
operations it was reasonably likely that the cited brake
conditions would reasonably likely result in an accident or
injury of a reasonably serious nature. Under the circumstances,
the inspector 11 s "S&S" findings with respect to these violations
ARE VACATED.
Gravity
Although I have concluded that the violations were not
significant and substantial, since the jeep was a piece of mobile
equipment which was sometimes driven, and readily available to be
driven, I believe that the respondent had an obligation to
maintain the service brakes in an operable condition to preclude
any potential accident in the event the jeep were driven. Under
the circumstances, I conclude and find that the service brake
violation was serious.
With respect to the parking brake violation, the inspector
conceded that the parking brake condition was not as serious as
the service brakes problem and he indicated that the terrain in
the pit area was levelo I find no evidence that the jeep was
ever parked on an incline or that an emergency could develop over
the short distance that the jeep may have on occasion been
driven.
Further, the evidence establishes that the jeep wheels
were blocked with rocks when it was parked" Under all of these
circumstances! I conclude and find that the parking brake
violation was non-seriouso
Civil Penalty Assessments
The petitioner 9 s 11 specia1ga civil penalty assessments are
based on certain "narrative findings 11 made by MSHA's assessments
office, including findings which stated that the cited jeep was a
"water truck being used along the haul roads of the pit area" and
"around the strip area"; that the violations 11 contributed to an
imminent danger of a serious haulage-equipment accident" because
"the truck was being used during rainy weather"; and that the

1147

defective parking brake "increases the likelihood of a runaway of
mobile-equipment accident". However, it is clear that I am not
bound by MSHA's proposed assessments, nor am I persuaded by
proposed assessment "findings" which have no evidentiary support.
on the basis of the evidence adduced at the hearing in this
case, my findings and conclusions based on that evidence, and
taking into account the six satutory civil penalty assessment
criteria found in section llO(i) of the Act, I conclude and find
that the following civil penalty assessments are reasonable and
appropriate for the violations which have been affirmed:
Citation No.

30 C.F.R. Section

Assessment

3130674

2/15/90

77.1605(b)

$150

3130675

2/15/90

77.1605(b)

$75

ORDER
1.

Citation No. 313067"~' February 15, 1990,
citing an alleged violation of 30 C.F.R.
§ 77.1606(c) IS VACATED.

2.

The respondent IS ORDERED to pay civil
penalty assessments in the amounts shown
above for the two citations which have been
affirmed. Payment is to be made to MSHA
within thirty (30) days of the date of this
decison and order, and upon receipt of
payment, this matter is dismissed.

J.lk~dt~as
/,,~
/JI
d:i/t;JtA.
Administrative Law Judge
Distribution:
Kenneth Walton, Esq., Office of the Solicitor, U.S. Department of
Labor, 881 Federal Office Building, 1240 East Ninth street,
Cleveland, OH 44199
(Certified Mail)
Gerald P. Duff, Esq., HANLON DUFF & PALEUDIS CO., LPA, 46457
National Road West, St. Clairsville, OH 43950 (Certified Mail)
/ml

1148

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

JUL 191991
SOUTHERN OHIO COAL COMPANY,
contestant

.

v.

CONTEST PROCEEDINGS
Docket No. LAKE 91-650-R
Citation No. 3329922;
6/11/91

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

Docket No. LAKE 91-664-R
Citation No. 3329504;
7/16/91

.

Meigs No. 2
Mine ID 33-01173

DECISION

Appearances:

Before~

David M. Cohen, Esq., Electric Power Service
Corporation, Lancaster, Ohio for Contestant;
Maureen M. Cafferkey, Esq., U.S. Department of
of Labor, Office of the Solicitor, Cleveland,
Ohio for Respondent.

Judge Weisberger

STATEMENT OF THE CASE
on July 3, 1991;~· the Operator (Contestant), filed a Notice
of Contest contesting the issuance of Citation No. 3329922 which
alleges a violation of 30 C.F.R. § 75.1704-2(a). Also on
July 3v 1991v Contestant filed a Motion to Expedite.
On July 3u 199lp in a telephone conference call initiated by
the undersigned with counsel with both parties, it was agreed
that a hearing in this matter shall be held on July 11, 1991, in
Columbus, Ohio.
At the hearing on July 11, 1991, Charles Jones and Edwin P.
Brady testified for Respondent, and Nelson Kidder testified for
Contestant. Both parties waived their right to submit a post
hearing brief, but in lieu thereof each presented a closing
argument.
On July 11, 1991, at the hearing, Contestant filed an
Application for Temporary Relief, and the Secretary (Respondent)
reserved its right to file a reply to this application. The

1149

Secretary's Reply was filed July 16, 1991. On July 16, 1991,
Contestant filed a Reply to Secretary's Response. Both parties
waived their right to an additional hearing on the issues raised
by the Application for Temporary Relief.
FINDINGS OF FACT AND DISCUSSION
In Contestant's Meigs No. 2 Mine, prior to April 25, 1991,
the primary designated escapeway from the 3 South Longwall
Section, ran a distance of 16,200 feet to the No. 1 intake air
shaft, (air shaft No. 1) from which point miners exited
underground and went to the surface. In May 1990, Contestant
decided to install a new intake air shaft (air shaft No. 2), in
order to better ventilate the working sections in the southwest
area, and to ventilate the gob situated north of the southwest
working sections. Air Shaft No. 2 was placed on a ventilation
map in July of 1990, and was placed in operation on February 23.
1991. An escape capsule (hoist) was approved by MSHA on April
25, 1991. Hence on April 25, 1991, air shaft No. 2, became a
mine opening suitable for the safe evacuation of miners.
Upon the approval of the' ·escape capsule, Contestant
designated a new primary escapeway to air shaft No. 2 to replace
the 16,200 foot escapeway to air shaft No. 1. The new designated
escapeway, on June 11, 1991, ran straight north from the face
approximately 2,500 feet to the mouth (neck). From that point it
ran approximately 2,000 feet east parallel and two entries south
of the entry containing the trolley and belt lines. It then
travelled 4 Entries North, and then turned west at the 4th entry
and travelled approximately 2,000 feet to air shaft No. 2. The
total distance the escapeway travelled from the mouth to the Air
Shaft No. 2~was 4,800 feet. The total distance of the escapeway
from the longwall face on June 11, 1991 to air shaft No. 2 was
7r700 feeto
On June 11, 1991~ Charles Jones an MSHA Inspector walked the
escapeway from the mouth of the 3-South longwall section to air
shaft No" 2o He said that the escapeway was in good condition
except for its distance. He estimated that
took 25 minutes to
walk from the mouth to air shaft No. 2.
The mouth is approximately 200 to 300 feet south of air
shaft No. 2. It is physically possible to traverse this distance
from the mouth by taking a route which runs one crosscut through
a track-doorp then goes diagonally to the north east one
crosscut, and continues west one crosscut through a man-door,
then goes west one crosscut to air shaft No. 2 (See joint Exhibit
1). Another path from the mouth to air shaft No. 2 covering
approximately the same distance and located in approximately the
same area is illustrated in Joint Exhibit No. 2. These paths are
in intake air. However, the air in these paths mixes with air
from the belt entry that also contains trolley wires.

1150

Jones issued Citation No. 3329922 alleging a violation of
section 75.1704-2(a) supra. This Citation as pertinent, provides
as follows:
The most direct practical route to the nearest
mine opening was not provided from the 3rd South
Longwall section in that miners were required to travel
an additional 4,800 feet by traveling outby from the
mouth of the section for 2,300 feet and traveling inby
for about 2,500 feet. The emergency escape shaft is
located at the mouth of the 3 south Longwall section
(across the track and belt entry).
Section 75.1704-2(a) supra, provides as follows:
In mines in working sections opened on and after
January 1, 1974, all travelable passageways designated
as escapeways in accordance with section 75.1704 shall
be located to follow, as determined by an authorized
representative of the Secretary, the safest direct
practical route to the nearest mine opening suitable
for safe evacuation of miners. Escapeways from working
sections may be located through existing entries,
rooms, or crosscuts (.emphasis added) .
Section 1704-2(a) supra, thus provides that a designated
escapeway shall be located to follow the route determined by the
Secretary's representative to be the "safest direct practical
route". Hence, section 1704-2(a) is violated where the
operator's designated escapeway is located along a route that has
not been determined by the Secretary representative to be the
safest direot practical route.
The cited escapeway, designated by Contestant in accordance
with 30 CoFoRo § 1704~_was determined by Jones 1 the Secretary 1 s
authorized representative to not have been the safest direct
practical routeo Henceu the utilization by Contestant of its
designated escapeway
a violation of Section 75.1704, supra, if
it is established that Jones' determination was proper i.e., that
the designated route was not the safest direct practical route.
Inasmuch as the escapeway in question turns east for 31
crosscuts 1 then makes a 90 degree turn to go north for 4
crosscutsv then makes another 90 degree turn and goes east for 23
crosscutsv then makes another 90 degree turn to go south for 1
crosscut, then makes another 90 degree turn for 9 crosscut
through air shaft No. 2, it clearly cannot be found to be a
11
direct 11 routeo As was stated in Rusthon Mining Co. 10 FMSHRC
713, 716 (aff 'd on other grounds) 11 FMSHRC 1432 (1989) "To find
otherwise would violate the clear meaning of the word "direct" as
defined in Webster New Collegiate Dictionary, {1979 Edition), as:
la: proceeding from one point to another in time or space

1151

without deviation or interruption: straight b: proceeding by
the shortest way .•. " Hence, the record establishes that Jones
properly determined that the designated escapeway was not
"direct".
Essentially, according to Jones he "suggested" to Respondent
that an overcast be constructed in the "area" of the mouth, to
allow miners to continue the escape from that point directly to
the air shaft No. 2, utilizing a path that would be in intake air
separated from the belt and track haulage entries. It appears to
be Contestant's position that section 75.1704-2(a) supra, does
not require an operator to engage in any construction in order to
have an escapeway in conformity with its provisions. Contestant
also argues that it is not "practical" for the overcast to be
constructed, as miners engaged in the construction would be
exposed to the hazards inherent in the construction and its
attendant clean up. In addition, construction of the overcast
requires excavation of a supported roof which could weaken the
roof in other areas. Contestant also asserts that construction
of the overcast requires interruption of cable, telephone, belt
and trolley service inby. Contestant argues that, accordingly,
construction of an ov~rcast would· curtail production at Meigs No.
2 Mine to a significant degree, as 50 percent of its production
occurs in the southwest portion inby the overcast. All of these
allegations of Respondent are borne out in the testimony of its
witness Nelson Kidder an engineering superintendent for the Meigs
division. However, the ultimate issue before me is not the
property of a "suggested" abatement, but rather whether the
record supports a determination that the cited escapeway was not
the safest direct route. 1 I find that the record establishes
that the escapeway was not "direct". Accordingly Jones'
determinatiQil. is supported by the record. since Contestant
designated an escapeway which was determined by Jones to not be
direct, I conclude that Contestant herein did violate Section
75ol704-2(a)
In ligl),.t of this conclusion Contestant 1 s
a

·, ""~

1

According to Jones' uncontradicted testimony, in discussing
abatement he 11 suggested 11 that an overcast to constructed in the
area between the mouth and air shaft No. 2. Neither Jones nor
any other representative of the Secretary mandated a specific
route that shall be designated on escapeway, in order to abate
the violation cited herein. Nor has the Secretary expressly
designated any route as the safest direct practical route from
the mouth to air shaft No. 2. Accordingly, it is beyond the
scope of these proceedings to resolve the issues raised by
Contestant i.e., whether an escapeway route requiring the
construction of an overcast is "practical".

1152

Application for Temporary Relief must be denied. 2
According to Jones and Edwin P. Brady an MSHA Chief of the
Off ice of the Engineering Service, the violation herein is
significant and substantial. According to Jones fire is always
possible in a coal mine, and, given the added distance of the
cited escapeway, and the fact that it parallels and surrounds a
belt entry which also contains trolley wires, smoke could get
into the escapeway. However, he agreed on cross examination
that, essentially, there were no particular conditions in the
area in question that would make it reasonably likely for the
hazard of smoke to exist, but that there was a "general concern"
about airtightness of stoppings.
In Rusthon Mining Co., 11 FMSHRC 1432 (1989), the Commission
held that the length of a mine escapeway in and of itself is not
dispositive of the existence of a discrete safety hazard."
(Rusthon supra. at 1436). Here, as in Rusthon, I conclude that
Contestant has failed to show that the length of the cited
escapeway and its non direct route per se posed a threat
involving a reasonable likelihood of a reasonably seriously
injury in the event of a fire.
Nor has the Respondent shown that
the occurrence of a fire and smoke was reasonably likely to have
occurred, as its witnesses have not indicated the existence of
any specific conditions that would have been likely to have
caused a fire, or leakage of smoke into the escapeway. For all
these reasons I conclude that the violation herein has not been
established to be significant and substantial.
(See Mathies coal
Co., 6 FMSHRC 1 (1984).
ORDER
It is ORDERED that Docket No. LAKE 91-664-R be consolidated
with Docket No. LAKE 91-650-Ro
20n

July 16 1 1991, the Operator filed a Notice of Contest
and Application of Temporary Relief seeking the vacation and
dismissal of a Section 104(b) order issued on July 16, 1991,
which alleges that since the last extension "little effort" has
been made to abate Citation Noo 3329922v which is the subject of
the Contest Proceeding which was heard on July 11, 1991.
(Docket
Noo LAKE 91-664-R) It is ordered that Docket No. LAKE 91-664-R be
consolidated with Docket No. LAKE 91-650-Ro
It appears that Contestant 1 s basis for the Notice of Contest
and the Application for Temporary Relief is its position, in
essence, that the cited escapeway was not violative of Section
75.1704-2(a) supra.
Inasmuch as it has been found infra that
Citation No. 3329922 was properly issued, the Notice of Contest
and Application for Temporary Relief filed ·July 16, 1991 are
denied and ordered dismissed.

53

It is ORDERED that the Notice of Contests filed July 3 and
July 16, be DISMISSED, and the Applications for Temporary Relief
filed July 11 and July 16 be DENIED.
It is further ORDERED the Citation No. 3329922 be Amended to
reflect the fact that the violation cited therein is not
significant and substantial.
~
~

~eisberger

Administrative Law Judge

David M. Cohen, Esq., Electric Power Service Corporation, Fuel
Supply Department, P.O. Box 700, Lancaster, OH 43130-0700
(Certified Mail)
Maureen M. Cafferkey, Esq., Office of the Solicitor, U.S.
Department of Labor, 881 Federal Office Building, 1240 East Ninth
Street, Cleveland, OH 44199 (Certified Mail)
nb

1154

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
THE FEDERAL BUILDING
ROOM 280, 1244 SPEER BOULEVARD
DENVER, CO 80204

JUL 22 1991
KELLY L. DIEDE,
Complainant

DISCRIMINATION PROCEEDING
Docket No. CENT 90-160-DM

v.
SUMMIT INCORPORATED,
Respondent

.

RM MD-90-09
Anne Creek Mine

DECISION
Appearances:

Kelly L. Diede, Pro Se
for Complainant;
Ronald W. Banks, Esq., Banks, Johnson, Johnson,
Colbath & Huffman, P.C.
for Respondent.

Before:

Judge Cetti

This case is before me upon the Complaint by Kelly L. Diede
under section 105(c)(3) of the Federal Mine Safety and Health Act
of 1977, 30 u.s.c. § 801 et~ (the "Act"), alleging discrimiinatory discharge on June 9, 1990, by Surrunit Incorporated
("Summit") in violation of Section 105(c)(l) of the Act. 1

l

Section 105(c)(l) of the Act provides as

follows~

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

1155

I

Mr. Diede was hired by Summit on June 2, 1990, and was
discharged eight days later, on June 9, 1990. At the time Summit
was doing a small project for Wharf Resources at their Annie
Creek Mine.
Mr. Diede, in pertinent part in his complaint, alleges as
follows:
I went to work for Summit Construction. I
worked a week and one day.
I had been putting
down on my time card that the emergency brakes on
my loader didn't work.
I told Loyd they didn't
work. He did nothing about it. They had to shut
the loader down to fix the boom cylinder because
it was leaking. I told Loyd I would like to get
the brakes fix at that time. They did not get
fixed. On my last sift (sic) Loyd told me that
he would not be needing me on Monday.
I asked
why, he did not say anything, but that I was laid
off
I called later in Rapid City I asked him where
he needed me Monday. He said he did not need me
at all. I asked why he said there were problems
with my work.
I asked what was wrong he said he
couldn't say just that he didn't need me. So I
started looking for another job right away. So
the Tuesday after my laioff (sic) I went to
Summit Construction to find out a little more
about what was going on. Tom Lester said he
didn't have to give a reason for firing me, at
that time a (sic) said I have a right to now

because such representative of miners or applicant for employment has instituted or caused to
be instituted any proceedings under or related
to this Act or has testified or is about to testify in any such proceeding, or because of the
exercise by such miner v representative of miners
or applicant for employment on behalf of himself
or others of any statutory right afforded by this
Act.

1156

(sic) why I was let go. He said it was because
was unsafe in the loader.
I said if I was so
unsafe then why was the company running that
loader without brakes. He asked me if I put
that on my time card.
I said Yes.
I also told
the sift (sic) boss nothing was done about the
brakes.

I

At the hearing Mr. Diede admitted that he was told at the
outset when he was interviewed for the job at Summit, that his
"hire was going to be temporary." On the last day he worked for
Summit, the Mine Superintendent, Mr. Nordstrom told him that the
other loader operator was coming back to work and that they
didn't need him (Diede) anymore. After telling him that he was
11
laid off, 11 the Superintendent suggested he call the main office
and see whether or not they could use him at "another place. 11
(Tr. 13)
Mr. Diede testified that when he operated the loader for
Summit he "noticed that the brakes weren't all that good." He
started putting down on his ,time c.ard that "the brakes needed to
be looked at." After he was laid off, Mr. Diede called MSHA regarding the brakes on the loader.
After Mr. Diede's phone call (made after his discharge),
MSHA in response to the call sent a Federal mine inspector to
inspect the loader and specifically its brakes. The inspector
found that no work had been done on the brakes but nevertheless
found that the brakes of the loader were not in violation of any
safety standard. The inspector filed a Notice of Negative Findings {Ex. R-1) which stated in relevant part:
"Application of
braking power was demonstrated to be sufficient .••• " The
11
alleged hazard did not exist."

Mro Diede stated that he asked Tom Lester (Summit 1 s present
Superintendent) why he nwas let goon Diede testified that
sically he (Lester} really couldn't tell me."
(Tr. 13)..
Mr. Diede testified as follows (Tr. 14):
He (Lester) had told me at one time after I
kind of pinned him down he says, well, you were
unsafe in the loader and we don't think that
you've got any experience. At that time I
asked him if he had called any of the people
on the application and he said no, that it's
not a practice at Summit Construction to do
that.

1157

11

ba-

Mr. Diede continued as follows (Tr. 15):
I had asked Tom Lester why they took the man
that was running the loader out of the loader
and put me in it. Tom Lester said that he
wasn't running the loader to production standards. At that time I asked him, I says, well,
why didn't you let him go? Well, at that time
he said well, we had another job for him and
they put him in the roller. And I thought,
well, that's fine and dandy. And then I asked
him why I wasn't given the jobs that the other
two guys that had just been hired, why I wasn't
let to at least try those jobs. And at that time
he told me that I was too inexperienced to do
those jobs. Well, one the jobs is shoveling and
stemming. Now I don't know how many people are
dumb enough not to know how to run a shovel, but
apparently I am. And one of the other people
that was hired was put on the loading crew for
loading the rounds. I asked him at that time
why I wasn't at least given the chance to do that.
He also saia I was inexperienced. At that time
I asked him if he did any follow-up on it, on
my application, and he said no. And that's when
I explained to him that I'd been mining for
eight and a half years.

* * *
I asked Tom Lester. I believe the safety man
was in the off ice and so was Chuck Rounds at
the time when I was talking to all of them.
At that time I had given them basically a way
out of thisu and that was to put me back on in
one of those jobs or that we were going to go
to court because they tried to tell me that I
was unsafe in the loader. Well, I don 1 t doubt
that. Anybody would have been unsafe in a
loader without any brakes on it. After I was
let gou I called MSHAo
On cross-examination, Mr. Diede again admitted that when he
was hiredv he was told that his "hire was going to be temporary'1l and admitted that he anticipated that he 11 wouldn 't be there
longo'1l But that after he found out Summit had hired two other
people after they terminated his employment "he kind of wondered
what the reason was." He stated "most companies would hire back

1158

whoever they had laid off before they are going to hire anybody
else." Asked if that would be true "if they were not satisfied
with your work performance,'' Diede replied "I guess the only
question that I had on that was that I was wondering why they
weren't satisfied." (Tr. 27).
Mr. Diede also stated "when I worked for Homestake there was
a production standard, but it was never shoved down your throat
like supposedly these people tried to do to me, saying that that
was the reason I was let go was because I couldn't meet production standards."
II

Mr. Thomas Lester, General Superintendent for Summit, testified he observed Mr. Diede operating the loader in a jerky erratic manner.
He had heard reports of Mr. Diede' s "bumping the
trucks, dumping in a jerking motion into the trucks, which is
hard on equipment, and hard on truck drivers also, and trucks. 11
11

11

Mr. Lester, who was pr~~ent during Mr. Diede's exit interview, testified as to what occurred at the interview as follows
(Tr. 72-73):
A.

It got quite heated about mid-point. Kelly was using quite extreme language and our secretary was
seated in the next room and taking all of this in.
And John Ross told him several times to hold it
down, knock off the profanities, and John even got
up once and closed the window between the off ices.
And Kelly promptly rose and opened it back up in a
forceful manner and continued his spiel of profanities, and said I'm going to sue you for everything
you got!

Qo

Did he say what he would use as a basis for the suit?

A.

Discrimination, which I found to be unbelievable.

Q.

Did he ever define what discrimination was?
have any definition in mind?

Ao

Yeah. I guess the way Kelly thinks he was discriminated against because he was not given a job that
someone else--some other new hire had.

Qo

Did he explain to you that it was the law that you
had to take him back rather than to hire new hire?

1159

Did he

A.

Well, yes, but we don't interpret the law that way.

Q.

But did he tell you that?

A.

Yes.

Mr. Diede in cross-examining Mr. Lester asked him "Was there
a reason given to me why I was discharged?" Mr. Lester replied, "I told you that we didn't find your performance adequate
for our company. 11 Mr. Diede then asked Mr. Lester why he was not
11
£ ired sooner" if management was "fearful that I was going to
hurt myself or somebody else if I was supposedly a safety
hazard?"
Mr. Lester replied as follows (Tr. 74):
A.

I suppose at that time I was looking at things from
a production standpoint. we were short on help,
which is the reason that you were hired in the
first place, the reason for several hires right
then. Don't get me wrong, right then, in the first
place, I knew that our loader operator would be back
Monday. We figured that if you were watched close
enough and talked to enough, we were hopeful that
there wouldn't be an accident between Wednesday and
Friday, Saturday.

Lloyd Nordstrom called by Summit stated he was Summit's
Superintendent in charge of construction at the time Diede was
employed by Summit. On the day he hired Diede, his main loader
operator just left for a vacation. He put Diede on the loader
more or less on a trial basis to see how he worked out. He
observed that Diede had trouble keeping his loading area (pad)
level enough so he could speed up his production. Diede started
improving u nbut he was awful wild with the loader he was caress o
He would jerk and jam and then when he'd dump his bucket
heud always try to catch the load instead of letting it try to
drop into the truck. He would always stop the bucket. And I was
on him, I think I told him about that every day, sometimes three
times a day that that was hard on those load cylinders,, 11
Q

Mr. Nordstrom explained that when the operator stops the
bucket abruptly from tilting, it builds up tremendous pressure in
the hydraulic cylinder which causes the weakest point, the sealsf
to go outo The cylinders went out twice the week Diede operated
the loadero Respondent had repacked one cylinder once and replaced that same cylinder later on in that week.

1160

Mr. Nordstrom testified that he heard complaints from truck
drivers that Diede in loading a truck was "awful rough on the
truck."
(Tr. 98)
It got to the point that the three truck operators that hauled for Respondent didn't want to continue hauling
because of the way Diede operated the loader while loading the
trucks.
On cross-examination by Mr. Diede, Mr. Nordstrom stated:
"I
really wasn't happy with your performance. And talking it over
with Tom, we decided to let you finish out the week, hoping that
your performance would get better, which it didn't, and your
attitude seemed to be getting worse."
(Tr. 99)
Mr. Nordstrom concluded from what he considered Mr. Diede's
inadequate performance in operating the loader that Mr. Diede had
falsified his experience on his job application and for this reason alone he would not want to keep Mr. Diede on the job. He
admitted, however, he had no proof of such falsification other
than his observation of Mr. Diede's inadequate performance in
operating the loader.
Two truck drivers, Charles White and Bill Shepperson, testified on behalf of Summit. Mr. White testified he observed
Mr. Diede continue to load wet material even though he had been
specifically instructed by Mr. Nordstrom not to do so.
Bill Shepperson testified that he observed Mr. Diede load
his truck many times each day. Mr. Diede's operation of the
loader was 11 jerky," he didn't keep his pad level and he ran into
his truck frequently.
On cross-examination by Mr. Diede, Mr. Shepperson testified
as follows (Tr. 136-137):
Shepperson~

The pad wasn 1 t levelu you ran into my truck
frequentlyu not with the loaderv with the bucket, not only hooking the tooth on the tire but
then when you'd pull into the truck you'd hit
the truck. And you'd hit the truck with the
bucket on the loader I would say at least once
in the five dumps that was thereu on the averageo
I don 1 t mean just touch the trucku I
mean hit the truck enough so it jarred it and
shook the truck arounde

1161

Diede:

Shepperson:
Diede:
Shepperson:

As far as bumping into a piece of equipment down
there when you had been operating that truck before, was there ever a time that the loader
operator ever even came close to your truck at
all?
It happens occasionally.
So it can happen.
Not everybody is perfect is
what I'm trying to get at, right?
In the ordinary course of a week of work maybe a
loader operator will bump the bucket against the
truck box once.
And that's somewhere around 200
load.
(Tr. 136-137)
FINDINGS AND CONCLUSION

It is undisputed that Mr. Diede was told at the time he was
hired that he was a "temporary hire;" that the job would be a
temporary one.
It is also undisputed that Mr. Diede was laid off
at the end of the eighth day 'fie worked for Summit.
The crucial
question is whether Mr. Diede was let go on the eighth day he
worked in retaliation for having engaged in protected activity or
because Summit management believed that he lacked the skills and/
or attitude needed to perform the work in a competent manner.
There is no question that a miner's safety complaints, such as a
reasonable good faith safety complaint of inadequate brakes on a
loader, are a protected activity. The fact that there may have
been no objective underlying safety problem would not invalidate
a miner's good faith reasonable safety complaint.
If Mr. Diede had proved his employment was terminated in
some part because he engaged in protected activityv a prima facie
case for unlawful discharge in violation of 105Cc) of the Act
would have been establishedo
If on the other handu Surnmi t
discharged Mro Diede because of management's belief that he
lacked the skills needed to competently perform the work in a
satisfactory manner, his discharge would not constitute a violation of 105(c) of the Acto

Mro Diede has the burden of proofo Upon careful evaluation
of all the evidenceu I find that he failed to establish the necessary causal connection between his discharge and his safety
complaintso
I find no persuasive evidentiary support for
Mro Diedeus contention that his termination was motivated in any
part by the operators intention to retaliate against him for any
safety complaints.
I credit the testimony of Respondent's wit-

1162

nesses and find that Mr. Diede was 11 let go" solely because management believed he did not have the skill to competently perform the job. I do not find that Mr. Diede was or was not a competent miner. That is not the question before me. Neither is
the question of whether Summit was fair or accurate in its evaluation or its perception of Mr. Diede's skill or competence in
performing the work. I find only on the basis of the evidence
presented that it was management's honest belief that he did not
have the ability to perform the work that was available in a competent manner and for this reason alone terminated his employment.
In sum, Mr. Diede failed to carry his burden of proof that
his discharge was motivated in any part by his protected
activity.
ORDER
Based on the foregoing findings and conclusions, and on the
preponderance of the evidence adduced in this case, I conclude
and find that the Complainant has failed to establish a violation
of section 105(c) of ,the Act:~ He has not proven a discriminatory
discharge within the meaning of section 105(c) of the Act.
Accordingly, the complaint is DISMISSED.

August F. Cetti
Administrative Law Judge

Distributiong
Mro Kelly Lee Diedeq 268 No Mears, Shadron, NE 69337
(Certified Mail)
Mro Chuck Rounds, Vice Presidentu SUMMIT 0 INC. 0 Box 1716u Deadwood Avenueu Rapid City, SD 57709 (Certified Mail)
Ronald Wo Banks, Esqou BANKS 1 JOHNSONu COLBATH & HUFFMAN, PoCou
3202 West Main Streetu Rapid Cityu SD 57702-2398
(Certified Mail)
sh

1163

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
THE FEDERAL BUILDING
ROOM 280, 1244 SPEER BOULEVARD
DENVER, CO 80204

JUL 22 199'!
CONTEST PROCEEDING

ENERGY WEST MINING COMPANY,
Contestant

Docket No. WEST 91-83-R
Citation No. 3413924; 11/1/90

v.

Deer Creek Mine

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

Mine I.D. 42-00121
DECISION

Before:

Judge Lasher

This matter arose upon the filing of a Notice of Contest on
November 13, 1990, pursuant to Section 105Cd) of the Federal Mine
Safety and Health Act of 1977 (the "Act") wherein Contestant
seeks review of Citation Noo 3413924 charging a violation of 30
C.F.R. § 50.20 which was issued by MSHA Inspector Robert L. Huggins at Contestant's Deer Creek Mine on November 1, 1990, and
which in pertinent part alleges as follows:
A [sic] accident occurred to Donald Hammond on
10-3-90 and a 7000-1 report form was not submitted to the MSHA Health and Safety Analysis Center in Denveru Coloradoo Mro Hammond was involved
in an automobile accident that occurred on mine
property and Mro Hammond f
led to report to his
next shift of work$
Mr. Hammond returned to work
on 10-8-900
By agreementg the parties have submitted this matter for
decision on the basis
a stipulation of fact (with exhibits
attached) and bri s.
Stipulated Facts

la The Deer Creek Mine is owned by Contestant Energy West
Mining Company ("Energy West").
2.
The Deer Creek Mine is subject to the jurisdiction of
the Federal Mine Safety and Health Act of 1977.
3. The presiding Administrative Law Judge has jurisdiction
over this proceeding pursuant to § 105 of the Act.

1164

4. Citation No. 3413924 (Joint Ex. 1) was issued on November 1, 1990, by Inspector Robert L. Huggins, alleging that Energy
West violated 30 C.F.R. § 50.20 by failing to report an injury
sustained by employee Donald Hammond in an automobile accident on
mine property on Wednesday, October 3, 1990.
5. The subject Citation and termination were properly
served by a duly authorized representative of the Secretary of
Labor upon an agent of Energy West on the date, time, and place
stated therein, and may be admitted into evidence for purposes of
establishing their issuance without admitting the truthfulness or
relevance of any statement therein.
6. At the time of the accident, Mr. Hammond was driving his
own personal car on his way to work. He was injured when, after
passing through the gate onto company property and driving uphill
towards the parking lot, the engine of his car stalled and his
brakes failed.
The car rolled backwards down the road approximately 150 feet (see Joint Exs. 3, 4) and turned on its side into
a drainage ditch on the side of the road(~ Joint Exs. 5, 6).
7. The accident occurred at 7:30 a.m. as Mr. Hammond was on
his way to report for his 8 a.m. shift at the time. Mr. Hammond
sustained a strained neck.
8. After the accident, Mr. Hammond did not report to the 8
a.m. shift on Wednesday, October 3, 1990. He returned to work on
Monday, October 8, 1990.
9. At the time of the accident and at all times relevant to
the subject Citation, the road was paved, in good repair with
guard rails on one side and a hillside on the other, and in substantially the same condition as the publicly maintained road
leading to the entrance of the company propertyo
lOo The accident occurred in daylight during good weather
conditions and clear visibility.
llo
The condition of the road was not the cause of the
accidento
120 Inspector Huggins was present at the Deer Creek Mine on
the day of the accident and visited the accident site. He asked
Deer Creek Safety Engineer Kevin Tuttle whether Energy West
planned to report the injury to the Mine Safety and Health Administrationo
In response, Mr. Tuttle stated his belief that the
injury was not reportable, because it occurred while Mr. Hammond was on his way to work, not while he was on the job, and

1165

involved Mr. Hammond's personally owned vehicle.
Inspector
Huggins informed Mr. Tuttle that he would check to see whether
MSHA thought the injury was reportable.
13. Shortly thereafter, Inspector Huggins informed Mr. Tuttle that the injury was reportable. On November 1, 1990, Inspector Huggins issued the subject Citation when no accident report
was forthcoming.
To abate the alleged violation, Mr. Tuttle then
completed MSHA Form 7000-1 (Joint Ex. 2) on November 1, 1990, and
mailed it to the MSHA Health and Safety Analysis Center, and
Inspector Huggins terminated the Citation.
Exhibits
As part of their stipulation, the parties submitted the following exhibits:
Exhibit

Description

l

ReproducE:d copy of Citation No. 3413924,
f ssued 11-1-90

2

MSHA Form 7000-1, filed 11-1-90, completed
by Kevin Tuttle, Chief Safety Engineer

3

Enlargement of Polaroid photograph (taken
April 1991) looking downhill from approximate
point at which car stalled and brakes failed:
car rolled downhill and to the left around
curve at conveyor facility shown in center of
picture.
Enlargement of Poloraid photograph (taken
April 1991) looking downhill and showing road
further downhill and around curve from Joint
Ex. 3~ conveyor belt in center of Jt. Ex. 3
feeds into yellow loadout shown in Jt. Ex. 4.

5

Enlargement of Polaroid photograph (taken on
day of accident, Oct. 3, 1990) looking uphill
and showing where car came to rest below
loa~out pictured in Jt. Ex. 4.
Enlargement of Polaroid photograph (taken on
day of accident, Oct. 3, 1990) looking across
the road and showing car at rest behind berm.

1166

Contentions of the Parties
Contestant contends that:
1. This case involves an operator's obligation to report
"occupational" injuries pursuant to Section 103 of the Mine Act
and Section 50.20-l of the Secretary's regulations.

1

30 C.F.R. § 50.20 pertaining to "Preparation and Submission
of MSHA Report Form 7000-1--Mine Accident, Injury, and Illness Report," appears in Subpart C under the heading "Reporting of Accidents, Injuries, and Illnesses" and provides
as follows:
(a) Each operator shall maintain at the mine
office a supply of ,MSHA Mine Accident, Injury,
and Illness-Report Form 7000-1. These may be obtained from MSHA Metal and Nonmetallic Mine
Health and Safety Subdistrict Offices and from
MSHA Coal Mine Health and Safety Subdistrict
Off ices. Each operator shall report each accident, occupational injury, or occupational illness at the mine. The principal officer in
charge of health and safety at the mine or the
supervisor of the mine area in which an accident or occupational injury occurs, or an occupational illness may have originated, shall
complete or review the form in accordance with
the instructions and criteria in §§ 50.20-1
through 50020-70 If an occupational illness is
diagnosed as being one of those listed in
§ 50.20-6Cb}(7) u the operator must report it
under this part. The operator shall mail completed forms to MSHA within ten working days
after an accident or occupational injury occurs or an occupational illness is diagnosed.
When an accident specified in § 50.10 occurs,
which does not involve an occupational injury,
sections A, B, and items 5 through 11 of section c of Form 7000-1 shall be completed and
mailed to MSHA in accordance with the instructions in § 50.20-1 and criteria contained in
§§ 50.20-4 through 50.20-6.

1167

2. Inspector Huggins "issued the instant citation •••
charging Energy West with violating 30 C.F.R. § 50.20 by failing
to report an "occupational injury."
3. The "sole issue in this proceeding is whether Section
50.20 requires Energy West to report a nonwork injury such as
Mr. Hammond's, which occurred prior to the injured employee's
shift and involved only the failure of the brakes on the employee's own. private car as he drove to work."
Respondent MSHA contends that the injury to miner Hammond on
mine property was required to be reported pursuant to 30 C.F.R.
§ 50.20 since it was an "occupational injury" within the meaning
of the standard.
Discussion, Findings, and Conclusions
Preliminarily, it is useful to determine whether the Hammond
injury is reportable as an "accident," whether or not such injury
be considered as "occupational."
30 c.F.R. § 50.20 expressly requires a mine operator to
report three categories of events:
(1) accidents, (2) occupational injuries, and (3) occupational illnesses. It is significant that the word "occupational" does not precede or modify the
word "accident" in view of the way "accident" ·is defined in the
preceding regulation [Section 50.2l(h)] which governs its usage
in Section 50.20, to wit:

contud fno l

(b) Each operator shall report each occupational injury or occupational illness on one
set of forms. If more than one miner is injured in the same accident or is affected simultaneously with the same occupational illnessu an operator shall complete a separate
set of forms for each miner affected. To the
extent that the form is not self-explanatory, an
operator shall compl.ete the form in accordance
with the instructions in § 50.20-1 and criteria
contained in§§ 50.20-2 through 50.20-7.

1168

Ch> "Accident" means,
Cl)

A death of an individual at a mine;

(2) An injury to an individual at a mine which
has a reasonable potential to cause death;
(3) An entrapment of an individual for more
than thirty minutes;
(4) An unplanned inundation of a mine by a
liquid or gas;
(5) An unplanned ignition or explosion of
gas or dust;
(6) An unplanned mine fire not extinguished
within 30 minutes of discovery;

C7l An unplanned ignition or explosion of a
blasting agent or a11 ... explosive:
(8) An unplanned roof fall at or above the
anchorage zone in active workings where roof
bolts are in use; or, an unplanned roof or rib
fall in active workings that impairs ventilation
or impedes passage;
(9) A coal or rock outburst that causes withdrawal of miners or which disrupts regµlar mining
activity for more than one hour.
ClO) An unstable condition at an impoundment,
refuse pilev or culm bank which requires emergency action in order to prevent failure, or
which causes individuals to evacuate an area;
oru failure of an impoundment, refuse pile, or
culm bank;
(11) Damage to hoisting equipment in a shaft
or slope which endangers an individual or which
interferes with use of the equipment for more
than thirty minutes; and
(12) An event at a mine which causes death
or bodily injury to an individual not at the
mine at the time the event occurs.

1169

An accident is thus reportable, whether or not it can be
said to be "occupational," if it is, in the language of
§ 50.2(h)(2), 2 (a) an injury to an individual Cb) at a mine
which (3) has a reasonable potential to cause death. 3 Here, the
accident caused an injury to an individual at the mine and did
cause a minor injury. But did it have "a reasonable potential to
cause death?" I conclude that it did not. The accident occurred
when the miner, Hammond, while driving to work on mine property,
had the unusual event of his engine stalling and his brakes failing while he was traveling uphill. 4 His personal vehicle then
rolled backwards downhill approximately 150 feet and turned on
its side into a drainage ditch on the side of the road. Scrutiny
of the primary piece of evidence bearing on the potential severity of any injury--the photograph of the overturned vehicle
(Joint Ex. 5)--reveals that the vehicle was not demolished or, in
the vernacular of the auto insurance industry, "totaled out." In
other words, the damage to the vehicle does not warrant an inference that there was a reasonable potential to cause death. While
the degree of the grade of the road was not stipulated, the vehicle rolled only 150 feet before coming to rest and from this I
infer that the speed at which. it was traveling when it impacted
the ditch was not such to have severely damaged either the vehicle or its occupant. 5 Finally, the minor injury actually
sustained by Hammond is some evidence of the magnitude of bodily
harm one might reasonably expect of the accident. The injury in
and of itself has no reasonable potential to ultimately result in
death.

2

The other 11 categories of "accident" are not applicable
here.
Review
the other 11 categories of "accident" reveals that
any such event covered by the definition carries with it the
potential for severe injuries or fatalities. The focus of
the specific categories appears to be on the high degree of
seriousness of potential injuries to individuals endangered
by the event at the mine rather than whether the event occurred in the context of a work-related activity by the endangered individualo
No other causal factors, including weather 6 road condition 6
or negligence on the part of the driver or the mine operator u were involved.

5

The test here, of course,· is "reasonable potential to cause
death, 11 .not "reasonable likelihood 11 to cause serious injury.

1170

It is therefore concluded, that the event, as an "accident,"
was not required to be reported by the standard.
The question remains whether Hammond's neck strain (Stipulation; Joint Ex. 2) was reportable as an "occupational injury."
Hammond was off work two workdays because of the injury.
(Joint
Ex. 2) •
"Occupational injury" is defined in the pertinent regulation
[30 C.F.R. § 50.2Ce)] as follows:
Ce) "Occupation! injury" means any injury to
a miner which occurs at a mine for which medical
treatment is administered, or which results in
death or loss of consciousness, inability to
perform all job duties on any day after an injury, temporary assignment to other duties, or
transfer to another job.
The circumstances of Hammond's neck strain meet the definition of "occupational injury" set forth in 30 C.F.R. § 50.2Ce).
Each element thereof ,is established in this matter:
"Any injury":
Hammond suffered a strained neck as a result
of the accident. Part 50 explicitly includes sprains and strains
as a type of injury which my be reportable.
(See 30 C.F.R.
§ 50.20-3, which distinguishes first aid and medical treatment of
various injuries.}
"To a miner": Hammond was a roof bolter at Energy West's
Deer Creek mine. Since he works in a coal mine, his position
clearly qualifies him as a "miner" under the definitions set out
under the Act (30 u.s.c. § 802(g) (1988) and Part 50 (30 C.F.R.
§ 50o2(d) (1988)0
Q'For which medical treatment is administered, or which
results in o o o inability to perform all job duties on any day
after an injury o••" Hammond's accident occurred on October 3,
1990, and he didn't return to work until October 8. 6 The MSHA
form (Jt. Ex. 2) shows that he missed two days of work, not
counting inability to return to full duty right away"

6

See also Respondent's Brief, fn.l, pg. 2.

1171

Contestant argues, however, that the Secretary's (MSHA's)
interpretation of these reporting requirements for an injury not
having a causal nexus to actual mining work at a mine is wrong
since such is contrary to the Mine Act itself, the legislative
history and "immediate predecessors" to the current reporting
regulations. Contestant also maintains that requiring reporting
for non-work related injuries would be burdensome. 7 Finally,
Contestant does concede that there is Commission precedent
(Freeman, infra) to the contrary of its position. 8
The Commission has indeed resolved the issue in this matter
previously in Secretary of Labor v. Freeman United Coal Mining
Company, 6 FMSHRC 1577 (July 1984). That precedent governs.
In Freeman, a plant cleaner who was putting on his boots in
the mine's wash house an hour before his shift commenced experienced back pain. At the hospital he was diagnosed as having back
strain and he subsequently missed 13 days' work. The administrative law judge found a "failure to report" violation under Section 50.2(e) because Cl) there was an injury to a miner1 (2) it
occurred at a mine; and (3) ~medical treatment was required and it
caused disability. On appeal to the Commission, Freeman argued
that Section 50.2Ce) contemplated a "causal nexus" between the
miner's work and the injury. The Commission rejected this contention, stating:
••• sections 50.2Ce) and 50.20(a), when read
together, require the reporting of an injury if
the injury--a hurt or damage to a miner--occurs
at a mine and if it results in any of the specified serious consequences to the miner. These
regulations do not require a showing of a causal
nexuso

7

However, if there were so many accidents or injuries at a
mine as to then the need of the regulating agency to have
them reported - to enable investigation and exercise of
judgment - would necessarily outweigh the mine operatorijs
attendant paperwork problem. Further, as forms go, MSHA
Form 7000-1 (Gov 1 t Ex. 2) consists of one page and is not
particularly elaborate whether completed for statistical
purposes or for starting the process of notification, inspectionu and enforcement action if called for.

8

Contestant's Brief, p. 16. Contestant's Reply Brief makes
no further mention of the Freeman precedent.

1172

The Commission also determined (1) that the regulatory history of the occupational injury - reporting requirement does not
show any intent to require such a specific causal connection and
(2) that Section 50.20(a) is consistent with and reasonably related to the statutory provisions (Mine Act) under which it was
promulgated.
Accordingly, despite the quality and thoroughness of Contestant's arguments, it is concluded that the position of Respondent MSHA (which is incorporated herein by reference) is
meritorious and that the neck injury to Hammond was an occupational injury for reporting purposes in mine safety enforcement
and was required to be reported pursuant to 30 C.F.R. § 50.20.
Since it wasn't, the violation charged in Citation No. 3413924
is found to have occurred. 9
ORDER
Contestant's Notice of Contest is DENIED; Citation No.
3413924 is AFFIRMED; this proceeding is DISMISSED.

;Jµ
. e a ~~~ ;t Michael A. Lasher, Jr.
Administrative Law Judge
Distribution:
Thomas C. Means, Esq., J. Michael Klise, Esq., CROWELL & MORING,
Energy West Mining Company, 1001 Pennsylvania Avenue, N.W.,
Washington, DC 20004-2505 (Certified Mail)
Tina Gorman 8 Esg. 9 Office of the Solicitor, U.S. Department of
Labor" 4015 Wilson Boulevard 0 Room 400u Arlington VA 22203
(Certified Mail)
Representative of Miners, ENERGY WEST MINING COMPANY, Deer Creek
Mine, P.O. ·Box 310, Huntington, UT 84528 {Certified Mail)

ek

9

I am unaware of any related penalty case and none has been
mentioned by the parties in their stipulation or otherwise.
(See Contestant's "Filing of Subsequent Modification and
Motion for Leave to File Same Out of Time" dated June 21,
]991, ! 5, pg. 2).

1173

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

JUL 23 1991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEVA 90-177
A.c. No. 46-03875-03547-A

v.
N·o. 5 Mine
BILLY R. SIPPLE, Employed by
SHILLELAGH MINING COMPANY,
Respol'}dent
DECISION
Appearances:

Edward H. Fitch, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for the Petitioner;
Billy R. Sipple, Logan, West Virginia, pro se,
for the Respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns proposals for assessment of civil
penalties filed by the petitioner against the respondent pursuant
to section llO(c) of the Federal Mine Safety and Health Act of
1977, seeking civil penalty assessments in the amount of $4,800,
for eight (8) alleged violations of certain mandatory safety
standards found in Part 75, Title 30, Code of Federal
Regulationso The respondent is charged with "knowingly
authorizing, ordering, or carrying out" the alleged violations.
The respondent filed an answer contesting the alleged
violations and a hearing was convened in Charleston, West
Virginia on June 5, 1991. The parties appeared and presented
testimony and evidence in support of their respective positions.
In the course of the hearing, the petitioner withdrew its
proposals for assessment of civil penalties for two of the
alleged violations (Citation/Order Nos. 2745972 and 2745973) and
these alleged violations were dismissed from the bench.
Subsequently, on June 19, 1991, petitioner's counsel advised me
that the parties reached a settlement of the case, and the
petitioner has now filed a motion pursuant to Commission Rule 30,
29 C.F.R. § 2700.30, seeking approval of the proposed settlement.

1174

The alleged violations, initial assessments, and the proposed
settlement amounts are as follows:
Order No.

Date

30 C.F.R.
Section

2745972
2745973
2745974
3235730
3235731
3235732
3235733
3235737

5/30/89
6/1/89
6/1/89
6/1/89
6/1/89
6/1/89
6/1/89
6/1/89

75.1317(a)
75.13ll(a) (1)
75.13ll(b) (3)
75.202(b)
75.213 (d) (1)
75.202(b)
75.202(b)
75.220

Assessment

Settlement

$ 400
$ 400
$ 400
$1,200
$1,200
$ 400
$ 400
$ 400
$4,800

Withdrawn
Withdrawn
$ 200
$ 850
$ 850
Withdrawn
Withdrawn
$ 100
$2,000

The petitioner has withdrawn two additional alleged
violations (Order Nos. 3235732 and 3235733) on the ground that
insufficient evidence exists to establish that the respondent
knowingly allowed the alleged violative conditions to exist.
With regard to the four remaining alleged violations, the
petitioner has submitted information pertaining to the civil
penalty criteria found in section llO(i) of the Act and states
that the reduced settlement amounts are based on the respondent's
financial hardship as testified to at the hearing.
The parties have agreed that the settlement payment of
$2,000, will be paid by the respondent in monthly installment due
on the 10th of the month and in accordance with the following
installment schedule:
$150 per month from July through December 1991
$300 per month for January, February, and March 1992
$200 final payment due April 1992
The parties also agreed that the payment checks or money
orde.rs shall be made payable to the "Mine Safety and Health
Administrationn 1 shall include Docket No. WEVA 90-177 and
Assessment No. 46-03875-03547-A, and shall be mailed to MSHA at
PoOo Box 360250M, Pittsburgh, Pennsylvania
15251.
Conclusion
After careful review and consideration of the pleadings,
arguments 1 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 filed by the petitioner IS GRANTED, and the settlement
IS APPROVED.

1175

ORDER
The respondent IS ORDERED to pay the agreed-upon civil
penalty assessments in the aforementioned amounts and in
accordance with the aforementioned payment schedule agreed to by
the parties. This decision will not become final until such time
as full payment is made by the respondent to the petitioner, and
I retain jurisdiction in this matter until payment of all
installments are remitted and received by the petitioner.
In the event the respondent fails to make full payment, or
otherwise fails to comply with the terms of the settlement,
petitioner is free to file a motion seeking appropriate sanctions
or further action against the respondent, including a reopening
of the case.

'"

4-~~

Administrative Law Judge

Distribution:
Edward H. Fitch, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203
(Certified Mail) .
Mr. Billy R. Sipple, 49 Godby Street, Logan, WV 25601
(Certified Mail)
/ml

1176

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

July 25, 1991

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

. CIVIL PENALTY PROCEEDING
Docket No. LAKE 91-59
A.C. No. 11-00590-03815
Mine 26

OLD BEN COAL COMPANY,
Respondent
ORDER APPROVI~G PARTIAL SETTLEMENT
Before:

Judge Weisberger

This case is before me upon a petition for assessment of
civil penalty under section 105(d) of the Federal Mine Safety and
Health Act of 1977 (the Act). Petitioner has filed a motion to
approve a partial settlement agreement. A reduction in penalty
from $440 to $180 is proposed. On June 25, 1991, a hearing was
held on this Motion.
I have considered the representatives and documentation
submitted in this case, and I conclude that the proffered
settlement is appropriate under the criteria set forth in
Section llO(i) of the Act.
WHEREFORE, the motion for approval of partial settlement is
GRANTED, and it is ORDERED that Respondent pay a penalty of $180
within 30 days of this order.

JZWe~

Administrative Law Judge

Distribution~

Rafael Alvarez, Esq., Office of the Solicitor, U.S. Department of
Labor, 230 South Dearborn Street, Bth Floor, Chicago, IL 60604
{Certified Mail)
Gregory s. Keltner, Esq., Old Ben Coal Company, 50 Jerome Lane,
Fairview Heights, IL 62208 (Certified Mail)
ml

1177

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

July 25, 1991

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

CIVIL PENALTY PROCEEDINGS
Docket No. LAKE 91-44
A.C. No. 11-00590-03766

v.

:
OLD BEN COAL COMPANY,
Respondent

Docket No. LAKE 91-45
A.C. No. 11-00590-03767
Docket No. LAKE 91-69
A.C. No. 11-00589-03770
Docket No. LAKE 91-113
A.C. No. 11-00589-03774
Docket No. LAKE 91-121
A.C. No. 11-00589-03778

:

Docket No. LAKE 91-442
A.C. No. 11-00589-03782
Docket No. LAKE 91-486
A.C. No. 11-00589-03783
Noo 24 Mine
Docket No. LAKE 91-27
A.C. No. 11-02392-03818
Docket Noo LAKE 91-131
AoCo NO. 11-02392-03829
No. 25 Mine
Docket No. LAKE 91-24
A.C. No. 11-00590-03805
Docket No. LAKE 91-28
A.C. No. 11-00590-03806
Docket No. LAKE 91-46
A.C. No. 11-00590-03810
Docket No. LAKE 91-47
A.C. No. 11-00590-03812

1178

:

Docket No. LAKE 91-68
A.C. No. 11-00590-03813
Docket No. LAKE 91-71
A.C. No. 11-00590-03817

.
:

Docket No. LAKE 91-78
A.C. No. 11-00590-03818
Docket No. LAKE 91-79
A.C. No. 11-00590-03819
Docket No. LAKE 91-100
A.C. No. 11-00590-03820
Docket No. LAKE 91-108
A.C. No. 11-00590-03821

.

..

Docket No. LAKE 91-110
A.C. No. 11-00590-03823
Docket No. LAKE 91-114
A.C. No. 11-00590-03824
Docket No. LAKE 91-115
A.C. No. 11-00590-03825
Docket No. LAKE 91-116
A.C. No. 11-00590-03826
Docket No. LAKE 91-122.
A.C. No. 11-00590-03827
Docket Nao LAKE 91-128
AoCo No. 11-00590-03829
Docket No. LAKE 91-129
A.C. No. 11-00590-03830
Docket No. LAKE 91-417
A.c. No. 11-00590-03832
Docket No. LAKE 91-427
A.C. No. 11-00590-03833
No. 26 Mine

1179

DECISION APPROVING SETTLEMENT
Appearances:

Before:

Rafael Alvarez, Esq., U. s. Department of Labor,
Office of the Solicitor, Chicago, Illinois, for
the Secretary;
Gregory s. Keltner, Esq., Fairview Heights,
Illinois, for the Respondent.

Judge Weisberger

These cases were consolidated and set for hearing on
June 25, 1991, in St. Louis, Missouri. At that time, Petitioner
made a series of Motions to approve settlements that had been
entered into between the Parties in these cases. Petitioner, had
initially sought penalties totaling $11,656, and the Parties have
proposed in their settlements, that the total penalties should be
reduced to $6,079.
At the hearing, the Parties made extensive and thorough
representations and proffered documentary evidence with regard to
the facts relating to each of the Citations and Orders at issue
in these cases, and the fact6is set forth in Section llO(i) of
the Federal Mine Safety and Health Act of 1977 (the Act).
I have
considered these representatives as well as the factors set forth
in Section llO(i) of the Act, and I find that the settlements and
the proposed penalties are appropriate, and I approve the
settlements presented at the hearing.
It is ORDERED that the above docket numbers be severed from
the docket numbers they were consolidated within an Order issued
June 25, 1991, (Docket No. LAKE 91-15 et al).
It is further ORDERED that, within 30 days of this Decision,
Respondent shall pay penalties totali
$6,079.

L--

Avram ei berger
Administrative Law Judge
Distribution~

Rafael Alvarez, Esq., Office of the Solicitor, U. s. Department
of Labor, 230 South Dearborn Street, 8th Floor, Chicago, Il 60604
(Certified Mail)
Gregory s. Keltner, Esq., Old Ben Coal Company, 50 Jerome Lane,
Fairview Heights, IL 62208 (Certified Mail)
nb

1180

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

JUL 2 5 1991
CIVIL PENALTY PROCEEDINGS

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

Docket No. PENN 91-40
A. C. No. 36-00799-03533
Docket No. PENN 91-41
A. C. No. 36-00799-03534

ALOE COAL COMPANY,
Respondent

Aloe Strip Mine
DECISION
Before:

Judge Maurer

These consolidated proceedings concern five citations issued
by an MSHA Inspector pursuant to Section 104(a) of the Federal
Mine Safety and Health Act of 1977, 30 u.s.c. § 820(a), charging
the respondent, Aloe Coal Company, with various violations of the
mandatory standards found in 30 C.F.R., Part 77.
The parties have agreed to submit the matter to me for summary disposition based on a stipulation of facts and supporting
memoranda. •!"'agree that the material facts necessary to decide
these cases are not in dispute and have been stipulated by the
parties to my satisfaction. Thus, the matter is a proper one for
summary decision pur~pant to 29 C.F.R. § 2700.64.
STIPULATION OF FACTS
Aloe Coal Company (Aloe) and the Secretary of Labor
(Secretary) stipulated to the following facts with regard to the
above-captioned matter~
1.

These cases involve five citations issued against Aloe.

2. Aloe operates a bituminous coal strip mine in Allegheny
and Washington Counties, Pennsylvania.
3. On July 10, 1989, Aloe's employees, who were represented
by the United Mine Workers of America and its District 5 (UMWA)
for purposes of collective bargaining, commenced a strike which
is still in progress. Shortly after the strike began, Aloe
resumed mining operations with 13 replacement workers and
6 striking employees who had crossed the picket line and returned
to work.

1181

4. On August 17, 1990, two of the UMWA strikers designated
the UMWA as their miner's representative.
5. The citations in these cases resulted directly from an
inspection conducted on August 21, 23, 24, 27, 31, 1990, and
September 4 and 6, 1990, pursuant to Section l03(g) of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 113(g).
6.
When the inspector first appeared to conduct the
Section 103(g) inspection, a dispute arose concerning the UMWA
strikers' right to designate a walkaround representative.

7. In Aloe Coal Company v. Secretary of Labor and United
Mine Workers of America, 12 FMSHRC 2113 (1990) (AIJ), the
Honorable Avram Weisberger ruled that the UMWA strikers at the
Aloe Mine were not miners as defined in the Act and had no right
to designate a walkaround representative.
8.
During the course of the hearing before Judge
Weisberger, on September 28, 1990, Aloe learned that UMWA
Representative Ken Horcicak was the individual who had requested
the Section 103(g) inspection,

9. The conditions identified in the five subject citations
in fact existed and the amounts of the proposed penalties set
forth in the Secretary's petitions are reasonable.
DISCUSSION
Aloe's Arguments
The inQpector who issued the citations at bar did so pursuant to a Section 103(g) complaint filed by an individual who it
turns out was not a miner's representative, and therefore, had no
right to request an ipspection under Section 103(g) of the Act.
The line of argument then goes on that if Mr. Horcicak (the UMWA
representative who requested the inspection) had no right to
request a Section 103(g) inspection, then the inspector had no
right under Section l03(g) to conduct it. And since the inspection was not authorized by Section 103(g), it was an unreasonable
one in violation of Aloe 0 s Fourth Amendment rights and the evidence obtained during the inspection must be excluded as "fruit
of the poisonous treeo" Ultimately then the upshot of the whole
evolution
that the citations are null and void and cannot form
the basis for the assessment of a civil penalty.
FINDINGS
I agree with the Secretary that the Fourth Amendment's
exclusionary rule does not extend to these civil proceedings.
Along that same line, I also concur that mining is a type of

1182

business that historically has been subject to extensive
government regulation, and therefore, such a business has no
reasonable expectation of privacy~
But the rationale for my decision to uphold the citations in
these cases is simply the broad power granted by the Act generally to MSHA inspectors to inspect and/or investigate, and to
issue citations and orders relating to violative conditions they
should find existent at a mine.
Section 103(a) of the Act provides in pertinent part that:
"Authorized representatives of the Secretary • • • shall make
frequent inspections and investigations in • • • mines each year
for the purpose of • • • (4) determining whether there is
compliance with the mandatory health or safety standards • • . "
Section 104{a) authorizes the Secretary, upon either
inspection or investigation, to issue a citation if he believes
the operator has violated a mandatory standard.
Section 103(g) (1) appears to me to be but a subset of the
broader substantive provisionof Section 103(a) that merely
provides a procedure'for the representative of miners to obtain
an "immediate inspection" by giving notice to the Secretary of
the occurrence of a violation or imminent danger. This section
does not in any way limit the MSHA inspector's broader authority,
granted under Section 103(a), to conduct an inspection or issue
citations should any violative conditions be found, whether or
not the technical requirements of Section 103(g) are met.
In the cases at bar, the operator concedes the violations
found at it• mine did in fact exist, and I find that the technical defect cited by the operator concerning the Section 103(g)
complaint did not hinder Aloe's ability to defend itself in these
proceedingso
I therefore conclude that given an MSHA inspectoris broad
authority to inspect mines and issue citations for violative
conditions, when he observes a violation at a mine, regardless of
the manner in which he was made aware of the same, the resulting
citation he issues is valid.
Accordingly 1 the five citations at bar will be affirmed and
the Secretary 1 s proposed civil penalties assessed by me herein.

1183

ORDER
Citation Nos. 3092488, 3092401, 3092493, 3099500, and
3092491 are AFFIRMED, and Aloe Coal Company is DIRECTED TO PAY a
civil penalty of $625 within 30 days of the date of this
Decision.

Law Judge
Distribution:
Anthony G. O'Malley, Jr., Esq., Office of the Solicitor, U. s.
Department of Labor, Room 14480-Gateway Building, 3535 Market
Street, Philadelphia, PA 19104 (Certified Mail)
David J. Laurent, Esq., Polito & Smock, P.C., Four Gateway
Center, Suite 400, Pittsburgh, PA 15222-1207 {Certified Mail)
dcp

1184

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
THE FEDERAL BUILDING
ROOM 280, 1244 SPEER BOULEVARD
DENVER, CO 80204

JUL 2 5 1991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
·
Petitioner

v.
JET CONCRETE INCORPORATED,
Respondent

.
.
.
.
.
:
:

CIVIL PENALTY PROCEEDING
Docket No. WEST 90-273-M
A.C. No. 26-02153-05501
Docket No. WEST 90-274-M
A.C. No. 26-02153-05502
Docket No. WEST 90-347-M
A.C. No. 26-02153-05503
Docket No. WEST 91-6-M
A.C. No. 26-02153-05504
Jet Concrete Inc.

DECISION APPROVING SETTLEMENT
Before:

Judge Morris

These cases are civil penalty proceedings initiated by Petitioner against Respondent in accordance with the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. § 801, et ~ The
civil penalties sought here are for the violation of mandatory
standards promulgated pursuant to the Act.
The parties reached an amicable settlement prior to a
hearingo
In WEST 90-273-Mu the parties seek to settle 20 citations
with assessments of $1024 for the sum of $802.
In WEST 90-274-Mv the parties seek to settle 7 citations for
the assessments totaling $2480
In WEST 90-347-MQ the parties seek to settle 10 citations
with assessments of $3000 for the sum of $17400
In WEST 91-6-Mu the parties seek to settle 1 citation with
an assessment of $400 for the sum of $247.
In connection with the motion, the parties have further
submitted information relating to the statutory criteria for
assessing civil penalties as contained in 30 U.S.C. § 820(i).
I have reviewed the proposed settlement and I find it is
reasonable and in the public interest. It should be approved.
Accordingly, I enter the following:

1185

ORDER

1.

The settlement agreement is APPROVED.

2.
The citations and penalties, as provided in the
settlement agreement, are AFFIRMED.

3. Respondent is ORDERED TO PAY to the Secretary of
Labor the sum of $3037 within 30 days of the date of this
decision.

Law Judge

Distribution~

Catherine Ro Lazuran, Esqov Office of the Solicitoru U.So Department of Labor, 71 Stevenson Street, Suite 1110, San Francisco, CA
94105-2999 (Certified Mail)
Mro Duane So Frehner 9 JET CONCRETE INCop 112 West Brook, North
Las Vegas, NV 89030 (Certifed Mail)

ek

1186

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES

2 SKYLINE. loth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

22041

JUL 2 9 1991
CONTEST PROCEEDINGS

PYRO MINING COMPANY,
Contestant

v.

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

.
!.

Docket No. KENT 90-340-R
Order No. 3421655; 6/9/90
Docket No. KENT 90-341-R
Order No. 3421656; 6/9/90
Docket No. KENT 90-343-R
Citation No. 3419883;
6/12/90
Pyre No. ·9 Slope, Wheatcroft
Mine
Mine ID 15-13920
CIVIL PENALTY PROCEEDING

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

Docket No. KENT 91-66
A. C. No. 15-13~20-03684

v.
Pyro No. 9 Wheatcroft
PYRO MINING COMPANY 7
Respondent
DECISION APPROVING SETTLEMENT
Appearances:

Before~

W. F. Taylor, Esq., u. s. Department of Labor,
Office of the Solicitor, Nashville, Tennessee,
for the Secretary;
Robert I. Cusick, Esq., Louisville, Kentucky,
for the Company.

Judge Maurer

At the hearing, in Owensboro, Kentucky, on July 9, 1991, the
parties jointly moved to settle these cases. They proposed to
leave Order No. 3421655 (Docket No. KENT 90-340-R) as it is, and
increase the assessed civil penalty from $2000 to $2500. The
Secretary also moved, unopposed, to vacate Order No. 3421656 and
Citation No. 3419883. I have considered the representations and

1187

documentation submitted in these cases, and I conclude that the
proffered settlement, including the proposed vacation of the
aforementioned order and citation is appropriate under the
criteria set forth in Section llO(i) of the Act.
WHEREFORE, the motion for approval of their settlement is
GRANTED, and it is ORDERED that the Pyro Mining Company pay a

penalty of $2500 within 30 days of this Decision. Order
No. 3421656 and citation No. 3419883 are hereby VACATED. The
above captioned contest proceedings have accordingly been
rendered moot and are therefore DISMISSED. Upon payment of the
civil penalty in full, the above captioned civil penalty
proceeding is likewise DISMISSED.

~
Roy

4if1t(,VvvvJ
';JM~urer

Administrative Law Judge
Distribution:

Robert I. Cusick, Esq;, Wyatt, Tarrant & Combs, Citizens Plaza,
Louisville, KY 40202 (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

118B

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

JUL 3 0 1991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.

CIVIL PENALTY PROCEEDING
Docket No. KENT 90-338
A. C. No. 15-13362-03571
Mine No. 3

RB COAL COMPANY, INC.,
Respondent
DECISION

Appearances:

Mary Sue Taylor, Esq. , Office of the
Solicitor,
u. s. Department of
Labor,
Nashville,
TN,
for
the
Petitioner;
Susan C. Lawson, Esq., Harlan, KY,
for the Respondent.

Before:

Judge Fauver

The Secretary of Labor seeks a civil penalty for an alleged
violation of a safety and health standard, under the Federal Mine
Safety and Health Act of 1977, 30 Uo So C. § 801 et~
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
and further findings in the Discussion below:
FINDINGS OF FACT
1.
Respondent operates R B Coal Company No. 3 Mine, an
underground coal mine, in Harlan County, Kentucky, where it
produces coal for sale or use in or affecting interstate commerce.
2.
On February 23, 1990, Federal Mine Inspector Robert Rhea
issued § 104(d) (1) Citation No. 3392184 at the No. 3 Mine for a
violation of 30 C.F.R. § 75.517, because the trailing cable for the
Gallis roof bolting machine contained four temporary splices that
were worn through and exposed live wires.
These four worn and
exposed places, located in well traveled areas, presented a serious
danger, particularly to the roof bolter helper who regularly
handled the cable. The inspector found that the cable's condition
had existed for at least one to two weeks. Section Foreman Earl

1189

Hensley told Inspector Rhea that Respondent had not repaired the
cable because it was behind in roof-bolting.
3.
Inspector Rhea found that this was an unwarrantable
violation because Section Foreman Hensley and Mine Superintendent
Phillips knew or should have known of the condition, the damage was
located in a highly visible area, and the cable had been in a
damaged condition for a substantial period.
4.
The roof bolter helper, who frequently handled the cable,
depended on a sound outer jacket of the cable for protection from
electrical shock. Because of the frequency and manner in which the
cable was moved by the roof bolter helper, Inspector Rhea found
that the violation was reasonably likely to result in a fatal
accident involving the helper. He found that the violation was
significant and substantial. The operator abated the violation
within 45 minutes.
5.
No clean inspection of the mine was conducted between
February 23, 1990, and March 20, 1990. 1
6.
Ventilation,, methane and dust control plans
for
underground coal mines are required to provide for water
application at the face, in order to control coal dust, float coal
dust and respirable dust.
The heal th risk in overexposure to
respirable dust is the development of pneumoconiosis or black lung
disease. There are also important safety reasons for using water
to control dust, to dilute the dust at the face, and to prevent
float coal dust from accumulating in the return airways and belt
entry airways. Float coal dust creates a serious hazard of a mine
explosion or fire. Coal dust is a serious fire hazard.
7o
Water sprays on Respondent's continuous miners are on a
spray bar or a spray block with as many as six to eight sprays on
the block or baro Water is conveyed to the spray block through a
plumbing system
pipes and hoses.
80
On January 14, 1990, Inspector Calvin Riddle issued §
104{d) (1) Citation No. 2996545 to Tommy Phillips at No. 3 Mine for
a violation of 30 C.F.R. § 75.316, for having only 20 water sprays
on the continuous miner, and § 104(d) (1) Citation No. 2996546, for
having zero psi water pressure on the miner.
Respondent 1 s
ventilation, methane and dust control plan required that 75 psi of
water be maintained on the sprayer system for the continuous miner
when the machine was running, and that the continuous miner have
31 operational water sprays.

A clean inspection is one in which the entire mine or the
sum of its parts has been inspected without a finding of an
unwarrantable violation.

1190

9.
Inspector Riddle returned to the mine on February 2 and
7, 1990, to check on the abatement of citations issued in January.
On February 2, the water pressure was
80 psi: the operator
achieved this figure by increasing the pressure from the sump pump.
Inspector Riddle noticed some leaks in the hoses when the operator
increased the pressure. He did not stay to see how long the
operator could maintain the increased water pressure.
10. On February 7 and 8, while conducting a respi+able dust
survey, Inspector Riddle again tested the continuous miner to see
if the operator had sufficient water pressure. He found that the
operator could not maintain any water pressure.
The operator
worked on the pumps and was not able to maintain water pressure
sufficiently to make production, so Inspector Riddle discontinued
the dust survey and left the mine.
·
11. Inspector Riddle returned to the mine on March 19, 1990,
for a follow-up inspection prompted by citations issued for
excessive dust violations.
After laboratory analysis, Inspector
Riddle's dust survey had shown that there was excessive respirable
dust in the mine. The March 19 inspection was to check on controls
the operator had installed to correct the excessive dust levels.
12. Mine No. 3 was operating on an adjusted (higher)
respirable dust standard because of the quartz level in the coal.
If airborne dust contains more than five per cent quartz, the
regulations require that there be less respirable dust present in
the mine environment to compensate for the presence of the quartz.
Excessive quartz in the dust increases the danger of contracting
pneumoconiosis.
13. Inspector Riddle arrived at the mine on March 19 at about
10:00 or 11:00 a.m. When he arrived on the surface, he sat in his
vehicle for about 15 - 20 minutes and observed coal flowing from
the mine on the surface belt, indicating that the continuous miner
was producing coalo
Mine management indicated to the inspector
that they were having problems with the jeep used to transport
miners underground and that they did not know if they would be able
to transport the inspector underground that day. Inspector Riddle
accepted this explanation and, since he had other appointments,
left the mine at 12:30 p.mo that dayo He observed a regular flow
of coal on the surface belt while he was there.
14 o On March 2 o 1 Inspector Riddle returned and saw coal
coming out of the mine for a sufficient time to indicate that coal
was being produced at that time. The operator stopped production
between the time the Inspector left the off ice to go underground
and the time he arrived at the face. When he arrived at the face,
the continuous miner had been pulled back from the face waiting for
him to make a water pressure check. Inspector Riddle found that
the operator was producing coal on March 20 based on the continuous
flow of coal on the surface beltline, the appearance of the coal,

1191

and the time he observed the loaded belt running.
15. Inspector Riddle went underground with Tommy Phillips on
March 20. When they arrived at the section, the continuous miner
was 50 to 100 feet outby the face, which was the normal position to
check the water pressure considering mine conditions. The miners
were preparing the miner for the inspector to check the water
pressure. He saw no indication that the men were working on repairs
(of the water system or anything else). The inspector used a water
gauge to check the water pressure. He found 50 psi when he took
the first reading, but the continuous miner could not sustain this
level for more than 15 minutes. Each time the operator attempted
to raise the water pressure, the continuous miner's water supply
system would blow a hose outby after 5-15 minutes.
The hose was
worn and had the appearance of being old.
It appeared
to the
inspector that the hose had been in a deteriorated condition for
more than a week and possibly more than a month.
Based on his
observations, the inspector believed that even if the satellite
pump had been 100% operational, the hose would not have been able
to maintain 75 psi. The hose had been stretched and pulled along
the ribs and was worn showing a lot of age and wear and tear.
During the inspector's test of the.water pressure, the operator's
representatives tried to maintain water pressure but would lose it.
They checked both inby and outby the continuous miner motor. When
the pressure got to 50 psi the system would blow a hose and they
could not maintain water pressure even at 50 psi. The dust control
plan required 75 psi of water pressure.
16.
On March 20, 1990, Inspector Riddle issued § 104(d) (2)
Order No. 2996559 for the failure to follow its ventilation,
methane and dust control plan, which required 75 psi of water
pressure when the continuous miner was running. He had been at the
continuous miner for two hours before writing the order, and the
operator could not maintain the system at or above 50 psi the
entire time he was thereo It was evident that the hose could not
withstand a pressure of 75 psi"
This condition had existed for
some timeu at least a week 1 and the general condition of the
continuous miner was poor.
On March 21, 1990, Inspector Riddle
modified the order to be a § 104(d) (1) order, and to allege high
negligence instead of moderate negligence.
17
To abate the condition cited, the operator replaced the
hose to the miner and ran an independent water system to the block
of water sprays and replaced 250 feet of main supply hose.
The
abatement involved the modification of the water line on the
continuous miner. At the place where water came to the miner, the
operator installed a "T" joint, which bypassed a major part of the
system including a choke point where only a certain amount of water
would pass through the orifice and go into the motor. The operator
also adjusted the main pump down the line to increase the water
pressure on the booster pump {piston pump) on the continuous miner.

1192

18. At all relevant times, Tommy Phillips and Carson Shepherd
were supervisors at Respondent's No. 3 Mine, Lick Branch No. 1 Mine
and Lick Branch No. 2 Mine.
Each man simultaneously held a
supervisory position in each mine.
19. Before
March
20,
1990,
Respondent,
through
its
supervisors, had direct and thorough knowledge of a number of
violations of operating a continuous miner without adequate water
pressure.
Citations for this kind of violation were served on
Tommy Phillips on March 28, 1989 (only 10 psi), January 24, 1990
(only 20 water sprays when 31 sprays were required), January 24,
1990 (zero psi);
on Robert Stanley on October 11, 1988 (only 20
psi); and on Carson Shepherd on February 6, 1990 (zero psi).
DISCUSSION WITH FURTHER FINDINGS

As amended, § 104(d) (1) Order No. 2996559 charges a violation
of Respondent's ventilation, methane and dust control plan, for
inadequate water pressure on the continuous miner as follows:
The operator was not following his approved
ventilation,
methane and respirable dust
control plan in that, the water pressure was
measured at 50 psi at the sprays.
The plan
requires 75 psi.
Respondent contends that the order is invalid because it does
not allege that the continuous miner was running or producing coal
when the water pressure was only 50 psi.
However, by charging a
violation of Respondent's ventilation, methane, and dust control
plan, the order implies, and reasonably puts Respondent on notice,
that the continuous miner was running without required water
pressure.
The order charges a violation of 30 C.F.R. § 75.316, which
provides that a ventilation, methane, and dust control plan
approved by the secretary shall be adopted by the operator. The
evidence establishes that on March 20, 1990, the continuous miner
did not have 75 psi and in fact had much less than 50 psi on a
sustained basis. The operator contends that the miner was not in
operation on March 20 and that the order must therefore fail. The
Secretary contends that coal was produced on March 19 and 20.
I
find that the reliable evidence shows that coal was being produced
by the continuous miner when the inspector observed coal flowing
out of the mine for more than 15 minutes on March 19 and 20, 1990.
In addition, the reliable evidence demonstrates that the water
system for the continuous miner was mechanically unable to sustain
75 psi for at least one week prior to March 19, and the evidence
shows coal production during that week.
An inspector may use his judgment to find a violation based on
circumstantial evidence. It is not necessary that the inspector be

1193

present when the violation occurs to issue a citation or order
under§ 104(d). Florence Mining Co .. 11 FMSHRC 747, 751 (1989);
Emerald Mines Corp .. 9 FMSHRC 1590 (1987), aff'd sub D.QilL:.. Emerald
Mines Corporation v. FMSHRC, 863 F.2d 51 (D.C. Cir. 1988). A mine
inspector may make unwarrantable failure findings under§ 104(d) of
the Mine Act for violations that have been abated before the
inspector arrives at the mine. Emerald, supra, 863 F.2d at 59.
Unwarrantable Failure to Comply
Section 104(d) (1) of the Act provides that:
If, upon inspection of a coal or other mine,
an authorized representative of the Secretary
finds that there has been a violation of any
mandatory health or safety standard, and if he
also finds that, while the conditions created
by such violation do not cause imminent
danger, such violation is of such nature as
could
significantly
and
substantially
contribute to the cause and effect of a coal
or other mine safety or health hazard, and if
he finds such violation to be caused by an
unwarrantable failure of such operator to
comply with such mandatory health or safety
standards, he shall include such finding in
any citation given to the operator under this
Act.
If, during the same inspection or any
subsequent inspection of such mine within 90
days after the issuance of such citation, an
authorized representative of the Secretary
finds another violation of any mandatory
health or safety standard and finds such
violation
to
be
also
caused
by
an
unwarrantable failure of such operator to so
comply, he shall forthwith issue an order
requiring the operator to cause all persons in
the area affected by such violation, except
those persons referred to in subsection (c) to
be withdrawn from, and to be prohibited from
entering,
such area until an authorized
representative of the Secretary determines
that such violation has been abated.
The Commission has held that an "unwarrantable" failure to
comply means 11 aggravated conduct constituting more than ordinary
negligence."
Emery Mining Corp., 9 FMSHRC 1997, 2004 (1987);
Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2010 (1987).
As
defined in the legislative history, an "unwarrantable" failure is
"the failure of an operator to abate a violation he knew or should
have known existed, or the failure to abate a violation because of
a lack of due diligence, or because of indifference or lack of

1194

reasonable care on the operator's part. " Senate committee on Labor
and Public Welfare, 94th Con., 1st Sess., Part I Legislative
History of the Federal coal Mine Health and Safety Act of 1969, at
1512 (1975); see also id, at 1602; and see: Senate Subcommittee on
Labor, Committee on Human Resources, 95th Cong., 2nd Sess.,
Legislative History of the Federal Mine Safety and Health Act of
1977, at 620 (1978). A continuing safety or health problem places
on the mine operator the need for heightened scrutiny to assure
compliance with the Act. Eastern Associated Coal Corp., 13 FMSHRC
178,187 (1991).
Prior to March 20, 1990, Respondent had continuing problems
and violations concerning its water supply system to the continuous
miner. supervisors Shepherd and Phillips were served citations (to
Respondent) for the same or similar violations at this mine and at
other mines operated by the company in the year prior to this
citation. The operator did not take adequate action to remedy the
problem at Mine No. 3 when it received the citations, but took
only such minimal action as was needed to abate the citations
temporarily.
It did not address the overall water system at the
mine which demanded greater ,~epair and attention.
Respondent's conduct in mining coal without regard for the
deteriorated condition of its water system, despite numerous prior
violations involving lack of water pressure, extensive respirable
dust, and excessive float coal dust, shows a disregard for the
requirements of the dust control plan and high negligence in
operating the miner without the required water pressure.
The
violation found on March 20, 1990, was due to high negligence and
an unwarrantable failure to comply with its methane, ventilation,
and dust control plan.
A Significant and Substantial Violation
The Commission has held that a violation is nsignif icant and
substantial nu
there is 19 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,
(1985);
Cement Division, National Gypsum Co., 3 FMSHRC 822, 825
1981}; Mathies Coal Co., 6 FMSHRC 1, 3-4 (1984). This evaluation
made in terms of vvcontinued normal mining operations. uu U. s.
Steel Mining Co., Inc. 6 FMSHRC 1573, 1574 (1984).
Analysis of the statutory language and the Commission 1 s
decisions indicates that the test of an S&S violation is a
practical and realistic question whether, assuming continued mining
operations, the violation presents a substantial possibility of
resulting in injury or disease, not a requirement that the
Secretary of Labor prove that it is more probable than not that
injury or disease will result.
See my decision in Consolidation
Coal Company, 4 FMSHRC 748-752 (1991). The statute, which does not
use the phrase "reasonably· likely to occur" or "reasonable

1195

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,
under the statute, (1) an
"imminent danger" is defined as "any condition or practice •••
which could reasonably be expected to cause death or serious
physical harm before [it] can be abated " 2 and (2) an S&S
violation, is less than an imminent danger.3 It follows that the
Commission vs 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
is more probable than not.
Black lung disease is one of the most crippling occupational
health hazards facing a coal miner.
Health violations exposing
miners to respirable dust, even though black lung may take years to
develop, are significant and substantial violations of the Act.
Consolidation Coal Co., .§. FMSHRC 890 (1986), aff 'd sub nom.
Consolidation Coal Co., v. FMSHRC 824 (F.2d) 1071 (D. C. Cir.
1987) .
In affirming the c·ommission' s presumption that such
violations are S&S, the Court stated:
The legislative history of the [Act] suggests
that Congress intended all except "technical
violations" of mandatory standards to be
considered
significant
and
substantial.
***.[824 at 1085.]
The Court also recognized that "the determination of the likelihood
of harm from a violation of an exposure-based heal th standard
necessarily rests on generalized medical evidence concerning the
effects of exposure to the harmful substance r rather than on
evidence specific to a particular violation" 00 ~ at 1084"
additionr the dust in Respondent 1 s
mine contains an
excessive amount of quartz, which is more 1 ikely to lead to
development of the disease. Respondent's violation also involved
a clear safety hazard from float coal dust accumulations in active
workings"
The mine has a history of excessive dust violations,
including violations for excessive float coal dust. The presence
of excessive dust presents a serious danger of a mine explosion or
fire.
In

2

Section 3(j) of the 1969 Mine Act, unchanged by the Federal
Mine Safety and Health Act of 1977; emphasis added.
3

Section 104(d) (1) limits S&S violations to conditions that
"do not cause imminent danger •o••"

119 6

The evidence demonstrates that, assuming continued mining
operations, the cited violation presented a substantial possibility
of resulting in black lung disease as well as a mine explosion or
fire.
The inspector• s finding
violation is sustained.

of

a

significant

and

substantial

Considering all the criteria for a civil penalty in § llO(i)
of the Act, I find that a civil penalty of $1,000 is appropriate
for this violation.
CONCLUSIONS OF LAW

1.

The judge has jurisdiction in this proceeding.

2.
Respondent violated 30 C.F.R.
Order No. 2996559.

§

75.316 as alleged in

ORDER
-,. ·~"·

Respondent shall pay the above civil penalty of $1,000 within
30 days of the date of this decision.

w~~ ~~V-0-

William Fauver
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
Certi
Mail
Susan Co Lawson, Esq", Forester, Buttermore, Turner & Lawson, PSC,
Forester Building-First Street, P. o. Box 935, Harlan, KY 408310935 (Certified Mail)
fas

1197

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

July 31, ·1991

CIVIL PENALTY PROCEEDING

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

Docket No. WEVA 90-200
A. C. No. 46-03875-03546 A

v.

No. 5 Mine

JAMES D. MCMILLEN, EMPLOYED
BY SHILLELAGH MINING
COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
ORDER TO PAY
Before:

Judge Merlin

The parties now advise that they have agreed to settle this
matter for $3,000. Upon review of the matter I determine that
the settlement is entitled to approval under the provisions of
the Act.
Accordingly, it is ORDERED that the settlement be APPROVED.
It is further ORDERED that the operator, if it has not already
done so, pay $3,000 within 30 days from the date of this decision
and order.
~~--- ......

~~

Paul Merlin
Chief Administrative Law Judge

Distribution~

J. Philip Smith, Esq., Office of the Solicitor, U. s. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified

Mail)
J. Randolph Query, Esq., 5130 MacCorkle Avenue, S.E., Charleston,
WV

25304

(Certified Mail)

Mr. James D. McMillen, P. o. Box 2852, Chapmanville, WV
(Certified Mail)
/gl

1198

25501

ADMINISTRATIVE LAW JUDGE ORDERS

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

MAY 201991
CONTEST PROCEEDINGS

ASARCO, INCORPORATED,
contestant

v.

Docket No. SE 88-82-RM
Citation No. 3252969;
7/16/88

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

Docket No. SE 88-83-RM
Citation No. 3252970;
7/16/88
Immel Mine
Mine ID 40-00170
CIVIL PENALTY PROCEEDING

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

Docket No. SE 89-67-M
A. C. No. 40-00170-05520

v.

Immel Mine

ASARCO, INCORPORATED,
Respondent
ORDER ON REMAND
Before~

Judge Weisberger

On December 26, 1990, the Commission vacated an Order I had
issued dated September 22, 1989, in which it was held that
various excised portions of six documents were not protected by a
privilege as alleged by the Secretary of Labor (Secretary), but
should be produced as requested in Discovery Motions filed by
Asarco, Inc. (Asarco). (Secretary v. Asarco, Inc., 12 FMSHRC
2548 (Dec 1990)). In essence, the Commission remanded for
further consideration, the issues of the applicability of
informant's attorney-client, and work product privileges.
In a telephone conference call with Attorneys for both
Parties, Counsel indicated that they would not seek an
evidentiary hearing pursuant to the Commission's remand, but,
instead, sought to file B'riefs. Asarco filed its Brief on Remand
on March 14, 1991. The.Secretary had requested an extension of

1199

time to file its~ief and the request, not opposed by Asarco,
was granted. T~e Secretary filed a Reply Brief on Remand on
April 24, 1991. I
II.
Disposition of Issues
a. Informer's Privilege
1.

Exhibit B

Exhibit B attributes a statement to an individual
identified by his job category and the fact that he was not
present at the time of the accident. In the Secretary on Behalf
'of George Roy Logan v. Bright Coal Company, Incorporated and Jack
Collins, 6 FMSHRC 2520, at 2523 (1984), the Commission indicated
as follows: "The burden of proving facts necessary to support
the existence of the informers' privilege rests with the
Secretary. Secretary of Labor v. Stephenson Enterprises,
Incorporated, 2 BNA OSHC 1080,, 1082n (1974), 1973-74 CCH OSHD
par. 180277 at 22, 401, aff'd, 578 F.2d 1021 (5th Cir. 1978)."
In meeting this burden the Secretary has not proffered any
evidence, but has merely asserted, in its Brief before the
Commission, that the identity of an informer can be provided by
the content and context of the statement, and that this is
especially so in the instant case "· • . where the universe of
persons with knowledge about relevant events is relatively
small."
The statement does not indicate whether the person who made
it is a present or former employee of Respondent, or whether the
individual rs ·an independent contractor. Petitioner has not
alleged; nor does the record contain any indication of the number
persons in the job category of the person who made the
statement at issue. Nor is there any indication of the number of
persons who performed the same task. Hence, I conclude that it
has not been established that the informer's identity would be
revealed by allowing discovery of the statement at issue. Hence,
the Secretary shall divulge paragraph 1 on page 2 of Exhibit B.

1 /Petitioner also filed a Motion to Strike Proffered
Evidence to strike the affidavits marked Exhibits 1 and 2
attached to its Brief, and "other matters cited or referenced in
the Brief which are not part of this remand." None of this
material was relied on by me in making any of my rulings, infra,
and did not form the basis for any of my rulings. Accordingly,
the Motion is DENIED.

1200

2.

Exhibit I

With respect to Exhibit I, on its face, an informer is
clearly identified by name. The Commission, in its Decision,
supra, at 2555, referred to Bright, supra, at 2526, wherein the
Commission stated that "· . . important factors to be considered
when evaluating whether the documents sought are essential
include, whether the Secretary is in sole control of the
requested material or whether the material which Respondent seeks
is already within their control, and whether Respondents other
avenues available from which to obtain the substantial equivalent
of the requested material." (emphasis added). Expanding on this
direction, the commission in remanding this issue for further
consideration, stated as follows: "One of the factors that the
judge should consider in balancing the interests of the Parties,
should be whether Asarco could obtain substantially similar
information from other sources. The judge should determine
whether the information excised by the Secretary is essential to
a fair determination of the issues and he should clearly
articulate the basis for his conclusion." (Asarco, 12 FMSHRC
supra, at 2556).
In reconsidering Exhibit I, based upon the above directive
from the Commission, I find that the excised statements describe
the event, which apparently gave rise to the Citations at issue.
As such, these statements are essential to a fair determination
of the issues.
Respondent does not argue either that the Secretary is in
sole control of the requested material, or that it does not have
any other avenue available to obtain the requested material.
Indeed, although it is reasonably likely that the informer could
give relevant~testimony, it would appear that there are no facts
alleged to indicate that the class of persons having personal
knowledge of the event that gave rise to the Citations at issuep
is so large and unidentifiable as to preclude Respondent from
taking statements from its own employees who witnessed the event
at issue" Accordingly, inasmuch as there are no facts alleged to
establish a hardship on Asarco's part in taking statements from
those of its employees who had personal knowledge of the events
at issuep in this context it is clear that the Secretary's
interest in maintaining the secrecy of the informer outweighs
Asarco's need to obtain this information from the Secretary.
Accordinglyu Respondent does not have a right to discover the
fourth page of Exhibit Io
3.

Exhibits E, F, and G

Exhibits E, F, and G contain detailed, extensive
statements provided to MSHA personnel by miners employed by
Respondent who are identified by name. As such, the statements
are to be considered given by informers and as such, subject to a

1201

qualified privilege. The Conunission, in its Decision, Asarco,
12 FMSHRC supra, at 2556-2557, stated that on remand I
" . • • should consider whether Asarco could obtain substantially
similar information from other sources, and whether these
documents are essential to a fair determination of the issues."
The Conunission, in Bright, supra, elaborated on these
factors as follows: "Some of the factors bearing upon the issue
of need include whether the Secretary is in sole control of the
requested material or whether the material which Respondents seek
is already within their control, and whether the Respondents had
other avenues available from which to obtain the substantial
equivalent of the requested material." (Bright, supra, at 2526).
(Emphasis added). Although the individuals whose statements are
·the subject of Exhibits E, F, and G, are employees of Asarco, and
presumably under its control, and hence subject to questioning
and the taking of depositions, the material consisting of a
transcription of their detailed extensive statements, is unique,
closely related in time to the instance at issue, and within the
sole control of the Secretary. Although Asarco might, by way of
a deposition, have access to ,!nformation within the knowledge of
these persons, it does not have another avenue available to
obtain the transcripts of the detailed statements which is the
material that is the subject matter of Exhibits E, F, and G.
Hence, access to the transcription of these statements would
enable Asarco to use the material to refresh the recollection of
a witness or to attempt to impeach the credibility of a witness
by way of a prior inconsistent statement.
In further evaluating whether these documents a~e essential
to a fair determination of the issues, as required by the
Conunission'a Remand, I considered the circumstances involved
herein as well as the violation charged and possible defenses
(Seer Bright 1 supra, at 2526, quoted by the Conunission in
Asarco, 12 FMSHRC supra at 2553)0 One of the Citations in issue
herein? Citation 3252969p alleges a violation of 30 C.F.R.
§ 57.12017.
Section 57.12017, supra, in essence, provides that
power circuits shall be deenergized before work is done on such
circuits. It also requires that switches shall be locked out, or
other measures taken to prevent power circuits from being
energized without the knowledge of the individuals working on
them. SpecificallYu the issued Citation alleges that an employee
was electrocuted while cleaning insulators on a disconnect, and
that the top terminals on the disconnect were not deenergized.
In the narrative findings for a special assessment, appended to
the petition for assessment of the civil penalty, it is alleged
that the violation resulted from Asarco's negligence, in that the
foreman had discussed the job with the victim before he started
to work, and gave no safety instructions. It further is alleged

1202

that "Evidence gathered during the investigation of the fatal
accident indicated that similar work on energized equipment was
the common practice at this mine."
Petitioner also issued a citation alleging a violation of
30 C.F.R. § 57.12019, which requires that suitable clearance is
to be provided at stationary electrical equipment or switch gear.
Specifically, the issued citation alleges that suitable clearance
was not provided at the rear of the mine feeder transfer switch
cabinet where the decedent had been working " . . . in that the
bottom off the access panel was setting against the bottom of the
transfer cabinet with the top leaning against the rib." (Sic.)
The narrative findings allege that " • . • the safety director was
present and saw the violation, but took no action." In its
Answer, Asarco asserts that it provided suitable clearance and
followed proper procedures, and "did not know and had no reason
to believe that a trained and experience election, fully aware of
the circumstances and hazards, would work on or contact the
energized components of the equipment involved." Asarco also
argues that any violation did not result from negligence on the
part of Asarco.
Exhibit E contains statements with regard to instructions,
if any, given the decedent. In addition, the statement discusses
past work practices. As such, it has a significant bearing on
the issues raised by the pleading. In the same fashion,
Exhibit F contains statements as to what was stated on the
morning of the accident by a supervisor, as well as statements
made by the miner who had been electrocuted with regard to his
knowledge of hot contacts. This exhibit also contains statements
relating to the removal of the panel in question. similarly,
Exhibit G c2n~ains statements with regard to location of the
panel and whether it should have been completely removed. Also,
Exhibit G contains the opinion of the informerv as to how the job
should be done safely and to the degree of supervision provided
workers in similar situations.
Hence, Exhibits E, F, and G contain statements that have a
crucial bearing on issues raised by the citations at issue and
possible defenses. As suchv it is concluded that Asarco has a
high degree of need to discover these exhibitso
Thus, considering all of the above, I conclude that Asarco's
need for Exhibits E, F, and Gout weighs the Secretary's need to
maintain the informer's privilege.
4o

Exhibit K

The second and third paragraphs on page 4 of Exhibit K
contain statements attributed to two persons, one of whom is
identified by name, and the other by a description that could
easily lead to his identification. The statements themselves

1203

were not deleted from the documents served on Asarco by the
Secretary. Considering the factors set forth in Bright, supra, I
note that Asarco, in its Brief, does not allege that it has any
need for the name of the declarant in each incident to prepare a
possible defense, nor does it argue that the release to it of the
declarant's name is essential to a fair determination of the
issues. Accordingly, Asarco is not entitled to discovery of the
excised names on pages 4 and 5 of Exhibit K.
The deleted material on page 8 of Exhibit K, subsequent to
the words "1556 hrs telephoned" contains a discussion that the
interviewer had with a miner, but the essence of the conversation
did not involve discussion of any issues relating to the alleged
violations herein or the negligence, if any, of Asarco in
connection with these violations. Accordingly, applying the
balancing test set forth in Bright, supra, I conclude that these
statement do not relate to any possible defense, and as such
Asarco need to obtain such information is outweighed by the
informer's privilege, and hence Asarco does not have any right to
discover this material.
Page 9 of Exhibij: K contains· information relating to
attempts by a special investigator to contact various
individuals. Asarco, in its Brief, has not alleged any need to
obtain this information, or specifically how it would relate to
the preparation of any possible defense. Thus, considering the
factors set forth in Bright, supra, and applying the balancing
test described therein, it is concluded that the release of these
deletions is not required.
The first three lines in the second paragraph, page 9,
following the words "at motel. Spoke," do set forth any
statement m~de by either the interviewer or the two miners named
therein, but indicate where they will be the following nighto
Such information would not appear to be helpful in any possible
defense and would not be of assistance in resolving the issues
hereino As such, applying the balancing in the test set forth in
Bright, supra, it is concluded that these lines were properly
deleted.
The first word on the next line is to be deleted, as it
identifies an informero However, the balance of that line and
the next three lines contain a statement with regard to the
reaction of miners to statements of MSHA officials, and there is
no indication that this information is available to Asarco by
other sources. Hence discovery is allowed.
Deleted material under the heading "10/26/88" on pages 9,
10, and 11 contain names of informers, as well as the
arrangements the interviewer made to interview them and the
interview procedure. This information alone is not necessary for
possible defense, nor is it essential for a fair determination of

1204

the issues. Accordingly, applying the principles annunciated
Bright, supra, the Secretary's need to insure the informer's.
privilege outweighs Asarco's need for this information, and hence
discovery is not allowed.
The deleted material under the heading 10/27/88 on page 10,
is a notation of a contact the interviewer had with an
individual, and that the interviewer decided not to met with this
individual. Inasmuch as no information was solicited from this
individual, it can not be seen how the deleted material would be
of assistance to Asarco in any possible defense regarding the
issues framed by the pleadings. Accordingly, utilizing the
balancing test set forth in Bright, supra, discovery of this
material is denied.
The first four lines that are deleted on page 12, refers to
an inquiry by Mr. Chajet, as to whether the interviewer wanted
talk to "X", and the interviewer's response. This excised
statement lists the name of a possible informer, but does not
indicate the substance of any conversation. As such, the only
purpose of disclosure would J>e to compel the Secretary to reveal
the name of a possiDle witness or informer. It has not been
established that Asarco's need for this information outweighs the
Secretary's interest in maintaining the privilege. Hence, this
material was properly deleted.
On page 12, the deleted material after the words "2025 hrs
telephoned," contains the name of an informer, but does not
contain any information relevant to the issues framed by the
pleadings. However, the first six words of the seventh line of
that paragraph, as well as the quoted phrase at the end of this
paragraph contain information that might lead to a possible
defense, without identifying the source of this information. It
difficult to see how Asarco could obtain this information
without discoveryo Hence, applying the factors enunciated in
Bright; supra; discovery of this deleted material, is to be
allowed to the extent set forth above.
Material excised from the middle of page 23 contains a list
of questions prepared for an informer. These relate to the event
gave rise to the issuance of one of the citations in issue.
The deleted statements on page 24 and the first two lines on
page 25 contain the informer's responses. In order for Asarco to
be able to discover these specific statements, it would need not
only the identity of the informer, but also the specific
questions asked. Hence, the responses to these specific
questions are only be in the custody of the Secretary, and not
obtainable by Asarco without discovery. Further, inasmuch as the
information relates to the circumstances surrounding the
violative condition alleged in Citation 3252970, the information

1205

would be relevant in resolving the issues and might lead to a
possible defense. Accordingly, applying the criteria set forth
in Bright, supra, this information is subject to discovery.
The deleted material on page 23, after the words "1915 hrs
telephoned," and the last three lines of this page contain the
name of an informer whom the interviewer attempted to contact.
There was no contact made at the time and hence, this information
is not relevant to any possible defense, and is not essential to
any determination of the issues, and hence under the criteria set
forth in Bright, supra, is not subject to discovery.
The deleted material at the bottom of pages 25, 26, and 27
identifies individuals who were interviewed by an investigator,
but does not give any facts concerning either questions to them
or their responses. Asarco has not alleged that it has any need
for the names of the Secretary's informers. Divulging this
material would only provide their names, and no other information
which would be helpful in preparing a possible defense or in
determining the issues presented herein. Accordingly, this
material was properly deleted.
b.

Work Product Rule

The deleted material on pages 3 and 4 of Exhibit K are notes
that MSHA Special Inspector Robert Evert made while interviewing
MSHA Supervisory Inspector Craig concerning the Asarco latter's
conversations about this case with one of the Secretary's
attorneys. The Commission, in its Decision, 12 FMSHRC supra,
applied Fed. R. Civ. P. 26(b)(3), and held that the material in
question is a document which was prepared by a Party or its
representat.ive, i.e., Evert. It further found as follows: "The
record appears to us to reveal that the disputed portions of the
special investigator 1 s notes were prepared in anticipation of
litigation.'q Asarcov 12 FMSHRC supra, at 2559. The Commission
indicated that it would thus appear that the excised portions of
Craig's statements met the immunity tests set forth in Rule 26,
supra. In vacating the portion of my Order of September 22,
1989, that held that the excised portions were not within the
scope of the work product rule, the Commission stated as follow:
"However? the judge may have considered relevant factors or the
nuances not fully reflected in his prior order. 1' (Asarco,
12 FMSHRC supra, at 2559). The Commission remanded the issue for
"further consideration consistent with this Decision."
(12 FMSHRC, supra, at 2559.)
Upon further consideration, I concur in the findings of the
Commission that the immunity tests set forth in Rule 26, supra,
have been met. Any relevant factors or nuances that I considered
in my original Order are, upon reconsideration, of a lesser
significant than the Commission's rationale for its holding that
the various criteria set forth in Rule 26(b)(3) have been met.

1206

Accordingly, it is concluded that the excised portions in
Exhibit K are within the work product rule, and not subject to
discovery.
c.

Attorney - Client Privilege

On remand of this issue and upon further consideration, I
note that the solicitor related to Craig what another individual
had told him, and the Solicitor also asked a question of Craig.
Neither of these communications are mental impressions,
conclusions, opinions, or legal theories. As such these
communications are in confidence and protected. (See, Hickman v.
Taylor 329 U.S. 495 (1947).
Inasmuch as the material excised from pages 3 and 4 consist
of statements covered by the attorney-client privilege and
passages protected by the work product rule, they were properly
excised and not subject to discovery.
ORDER
""··~

It is ORDERED that, within 10 days of this Order, the
Secretary shall serve the Operator with the following:
(a) Paragraph 1 on page 2 of Exhibit B; (b) ·Exhibits E, F, and G;
(c) the last four lines of the second paragraph of page 9,
Exhibit K, with the exception of the first word in the fourth
line of this paragraph which is to be deleted; (c) the list of
questions deleted from page 23, the responses on page 24, and the
first two lines on page 25; (d) the first six words of the
seventh line of the third paragraph of page 12 Exhibit K and the
phrase quoted at the end of that paragraph; and (e) the list of
questions deleted from page 23, and the responses on page 24, and
the first two lines on page 25.

I} ~

~eisberger
Administrative Law Judge
(703) 756-6210
FAX (703) 756-6201
Distribution~

Thomas A. Grooms, Esq., Office of the Solicitor, u. s. Department
of labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215 (Certified Mail)
Henry Chajet, Esq., Jackson & Kelly, 1701 Pennsylvania Avenue,
NW, Suite 650, Washington, DC 20006 (Certified Mail)
dcp

1207

1208