JANUARY 1994

COMMISSION DECISIONS AND ORDERS
10-25-93
01-03-94
01-04-94
01-07-94
01-10-94
01-10-94
01-26-94
01-28-94

Mid-Continent Resources
(previously unpbulished)
Energy West Mining Company
Keystone Coal Mining Corporation
Jim Walter Resources v. Sec. Labor
on behalf of James Johnson & UMWA
Wyoming Fuel Company
Sec. Labor on behalf of Perry Poddey
v. Tanglewood Energy, Inc.
Southmountain Coals & William Elkins
Air Products and Chemicals, Inc.

WEST 92-717

Pg.

1

WEST 91-251
PENN 91-1480-R

Pg.
Pg.

4
6

SE
93-127-D
WEST 91-598-R

Pg.
Pg.

17
19

WEVA 93-339-D
VA
93-165
PENN 91-1488-R

Pg.
Pg.
Pg.

26
28
28

WEST 93-194-DM
KENT 92-776
KENT 93-318-R
KENT 93-114
WEVA 93-5
93-254-M
SE
WEST 93-239
LAKE 93-241
KENT 93-244
WEST 92-634-M
WEVA 93-11
KENT 92-1079
KENT 92-1034
KENT 93-160

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

31
40
42
50
54
107
124
133
142
148
161
163
166
170

ADMINISTRATIVE LAW JUDGE DECISIONS
01-03-94
01-05-94
01-05-94
01-05-94
01-05-94
01-07-94
01-07-94
01-10-94
01-11-94
01-19-94
01-19-94
01-24-94
01-25-94
01-25-94
01-25-94
01-25-94
01-26-94
01-31-94

Sec. Labor on behalf of James Hyles
and others v. All American Asphalt
Lynx Coal Company, Inc.
Peabody Coal Company
Peabody Coal Company
Consolidation Coal Company
Texasgulf Incorporated
FMC Wyoming Corporation
Buck Creek Coal Company, Inc.
R B Coal Company, Inc.
Cortez Gold Mines
U.S. Steel Mining Company, Inc.
Peabody Coal Company
Island Creek Coal Company
Mayo Resources, Incorporated
Sec. Labor on behalf of James Johnson
& UMWA v. Jim Walter Resources
Sec. Labor on behalf of Perry Poddey
v. Tanglewood Energy, Inc.
Sec. Labor on behalf of James
Weatherington v. Thomasville Stone
and Lime Company
Tanoma Mining Company, Inc.

ii

93-127-D

Pg. 174

WEVA 93-339-D

Pg. 176

PENN 93-433-DM
PENN 93-111

Pg. 178
Pg. 180

SE

JANUARY 1994

Review was granted in the following cases during the month of Janua:r:y:
Secreta:r:y of Labor, MSHA v. Energy West Mining Company, Docket No.
WEST 91-251. (Judge Lasher, November 23, 1993).
Secreta:r:y of Labor, MSHA v. Peabody Coal Company, Docket No. KENT 93-369.
(Judge Amchan, December 30, 1993).
Review was denied in the following cases during the month of Janua:r:y:
Secreta:r:y of Labor, MSHA v. Materials Delive:r:y, Docket No. VA 93-69-M.
(Judge Amchan, December 7, 1993).
Slade Vanover v. Shamrock Coal Company, Docket No. KENT 93-359-D.
Koutras, December 16, 1993) .

(Judge

Secreta:r:y of Labor, MSHA v. Soutbmountain Coal, Inc., and William R. Elkins,
Docket No. VA 93-165, 166. (Judge Melick, Interlocuto:r:y Review of December 6,
1993 Order) .

i

COMMISSION DECISIONS AND ORDERS

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

20006

October 25, 1993

SECRETARY OF IABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 92-717

v.

MID-CONTINENT RESOURCES, INC.

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

ORDER
BY THE COMMISSION:
In this civil penalty proceeding, arising under Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"),
the Secretary has proposed penalties for 20 citations and orders issued to
Mid-Continent Resources, Inc. ("Mid-Continent"). The proposed penalties were
reassessed by the Secretary as a result of the Commission's decision in
Drummond Co .. Inc., 14 FMSHRC 661(May1992). On January 19, 1993, the
Secretary and Mid-Continent filed with Administrative Law Judge August F.
Cetti a Joint Motion to Approve Settlement ("Joint Motion"). The parties
agreed to reduce the proposed penalty for each citation and order by 40%.
Included in the Joint Motion was Order of Withdrawal No. 3412700, issued under
section 104(d)(2) of the Mine Act, which charged Mid-Continent with a
violation of 30 C.F.R. § 75.400. Judge Cetti approved the settlement on
February 8, 1993.
On September 7, 1993, the Secretary filed with the Commission's Docket
Office a "Corrected Joint Motion to Approve Settlement" ("Corrected Motion").
The Corrected Motion states that "[b]y error, Order No. 3412700 issued May 1,
1990, for an alleged violation of 30 C.F.R. § 75.400, which is the subject
matter of a discretionary review now pending and at issue before the Federal
Mine Safety and Health Review Commission ... was included in this reassessment
case." The parties further state that "this agreement does not include Order
No. 3412700 issued May 1, 1990, which is pending" review.
The judge's jurisdiction over these cases terminated when his Decision
Approving Settlement was issued on February 8, 1993. Commission Procedural
Rule 69(b), 58 Fed. Reg. 12158, 12171 (March 3, 1993), to be codified at 29
C.F.R. § 2700.69(b) (1993). Under the Mine Act and the Commission's
procedural rules, relief from a judge's decision may be sought by filing a

l

petition for discretionary review with the Commission within 30 days of its
issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.70(a). Neither party
filed a petition for discretionary review within the 30-day period and the
Commission did not sua sponte direct this case for review. Thus, the judge's
order became a final decision of the Commission 40 days after its issuance.
30 U.S.C. § 823(d)(l). Under these circumstances, we deem the Corrected
Motion to be a request for relief from a final Commission decision
incorporating a late-filed petition for discretionary review. See, ~.
Island Creek Coal Co., 15 FMSHRC 962, 963 (June 1993).
Guided by Fed. R. Civ. P. 60(b)(l) & (6), the Commission has afforded
relief from final judgments on the basis of inadvertence, mistake, and other
reasons justifying relief. See,~. Klamath Pacific Corp., 14 FMSHRC 535,
536 (April 1992). The Corrected Motion states that the parties settled Order
No. 3412700 in error. Accordingly, we conclude that the parties should be
granted relief from Judge Cetti's Decision Approving Settlement.
For the reasons set forth above, we reopen this proceeding, grant ·the
Corrected Motion and vacate that part of the Judge's decision that approved
settlement of Order No. 3412700.

Arlene Holen: Chairman

~(L.~L

Jo7eA~Commissioner /

.'-f (Y

L7 /

cf.bl:-~ 7LLt_~,
L. Clair Nelson, Commissioner

2

Distribution
Administrative Law Judge August Cetti
Federal Mine Safety & Health Review Commission
1244 Speer Boulevard, Suite 280
Denver, Colorado 80204
Margaret A. Miller, Esq.
Off ice of the Solicitor
U.S. Department of Labor
1585 Federal Bldg.
1961 Stout St.
Denver, CO 80294
Edward Mulhall, Jr., Esq.
Delaney & Balcomb, P.C.
P.O. Drawer 790
Glenwood Springs, CO 81602

3

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

20006

January 3, 1994

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
Docket No. WEST 91-251

v.

ENERGY WEST MINING COMPANY,
Respondent

DIRECTION FOR REVIEW AND ORDER APPROVING PENALTY

The joint petition for discretionary review filed by the Secretary of
Labor and Energy West Mining Company ("Energy West") is granted.
This case had been remanded to the administrative law judge for
reanalysis of whether Energy West's violation was significant and substantial
("S&S") according to the criteria set forth in Mathies Coal Co., 6 FMSHRC 1
(January 1984). The judge determined that the violation was not S&S but he
failed to reassess the civil penalty. In their petition, the parties request
that the Commission assess a penalty and have stipulated that $100 would be an
appropriate penalty according to the six criteria set forth in section llO(i)
of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §820(i)(l988).
In the circumstances of this case and in the interest of judicial
economy, it is appropriate for the Commission to assess the penalty. See,
~. Birchfield Minin~ Co., 11 FMSHRC 1428, 1429-30 (August 1989); Southern
Ohio Coal Co., 4 FMSHRC 1459, 1465 (August 1982). Accordingly, upon review of
the record and consideration of the six criteria, we approve the stipulated
penalty of $100.

4

Energy West is ordered to pay a civil penalty of $100 to the Secretary
of Labor within 30 days of the date of this decision. Upon receipt of
payment, this proceeding is dismissed.

' .·

\.

L. Clair Nelson, Commissioner

Distribution

Tana M. Adde, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., #400
Arlington, VA 22203
Thomas C. Means, Esq.
Crowell & Moring
1001 Pennsylvania Ave., N.W.
Washington, D.C.
20004
Administrative Law Judge Michael Lasher, Jr.
Federal Mine Safety & Health Review Commission
1244 Speer Boulevard, Suite 280
Denver, Colorado 80204

5

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

20006

January 4, 1994

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

Docket Nos. PENN 91-1480-R
PENN 91-1454-R
PENN 92-54-R

KEYSTONE COAL MINING CORPORATION

BEFORE:

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

BY THE COMMISSION:
These contest proceedings arise under the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"). The issue
is whether three citations alleging violations of the respirable dust
standard, 30 C.F.R. § 70.lOO(a), issued to Keystone Coal Mining Corporation
("Keystone") pursuant to a "spot inspection program" instituted by the
Department of Labor's Mine Safety and Health Administration ("MSHA"), were
invalid because MSHA failed to adopt the program through notice-and-comment
rulemaking. 1 Following an evidentiary hearing, Administrative Law Judge
1
Section 70.lOO(a) sets forth the following statutory language of
section 202(b)(2) of the Mine Act, 30 U.S.C. § 842(b)(2):

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 ... is exposed at or below 2.0
milligrams of respirable dust per cubic meter of
air ....
(emphasis added).

Section 202(f) of the Mine Act provides:

For the purpose of this [title], the term
"average concentration" means a determination which
accurately represents the atmospheric conditions with
regard to respirable dust to which each miner in the
(continued ... )

6

Avram Weisberger sustained the contests and vacated the citations, concluding
that the spot inspection program, upon which the citations were based, was
procedurally invalid. 14 FMSHRC 2017 (December 1992)(ALJ). The Commission
granted the Secretary of Labor's petition for discretionary review, permitted
the American Mining Congress ("AMC") to participate as amicus curiae and heard
oral argument. For the reasons that follow, we affirm the judge's decision.
I.

Background
A.

Factual and Procedural Background

On July 17, 1971, the Secretary of the Interior and the Secretary of
Health, Education, and Welfare published in the Federal Register, pursuant to
section 202(f) of the Coal Act, a finding that the sampling of mine atmosphere
during a single shift would not accurately measure the average concentration
of respirable dust (the "1971 finding"). This notice states in part:
Notice is hereby given that, in accordance with
section 101 of the Act, and based on the data
summarized ... , the Secretary of the Interior and the
Secretary of Health, Education, and Welfare find that
single shift measurement of respirable dust will not,
after applying valid statistical techniques to such
measurement, accurately represent the atmospheric
conditions to which the miner is continuously exposed.
In April 1971, a statistical analysis was
conducted by the Bureau of Mines, using as a basis the
current basic samples for the 2,179 working sections
in compliance with the dust standard on the date of
the analysis .... [R]esults of the comparisons ...
[show] that a single shift measurement would not,
1 ( . . . continued)

active workings of a mine is exposed (1) as measured,
during the 18 month period following December 30,
1969, over a number of continuous production shifts to
be determined by the Secretary and the Secretary of
Health and Human Services, and (2) as measured
thereafter, over a single shift only, unless the
Secretary and the Secretary of Health and Human
Services find, in accordance with the provisions of
section [101 of this Act], that such single shift
measurement will not, after applying valid statistical
techniques to such measurement, accurately represent
such atmospheric conditions during such shift.
30 U.S.C. § 842(f). Section 202(f) of the Mine Act was carried over without
significant change from section 202(f) of the Federal Coal Mine Health and
Safety Act of 1969, 30 U.S.C. § 801 et seq. (1976)(amended 1977)("Coal Act").

7

after applying valid statistical techniques,
accurately represent the atmospheric conditions to
which the miner is continuously exposed.
36 Fed. Reg. 13286 (July 17, 1971).
Keystone operates the Margaret No. 11 and Emilie No. 1 underground coal
mines in Pennsylvania. On August 14, August 21, and September 20, 1991, MSHA
Inspector Brady Cousins issued citations to Keystone alleging violations of 30
C.F.R. § 70.lOO(a)(n.l supra), because respirable dust concentrations of 4.4
milligrams per cubic meter of air ( "mg/m3 ") , 2. 8 mg/m3 , and 4. 7 mg/m 3 had been
found. 14 FMSHRC at 2024. Each citation was based upon a respirable dust
sample taken by MSHA during a single shift on the previous day. G. Exs. 1, 3,
5. The citations were terminated after Keystone submitted three sets of five
samples, each with an average dust concentration below 2.0 mg/m3 • Keystone
contested the citations and the matter proceeded to hearing before Judge
Weisberger.
Judge Weisberger concluded that the spot inspection program was invalid
because it had not been promulgated through notice-and-comment rulemaking. 14
FMSHRC at 2024. He determined that the 1971 finding precluded the Secretary
from making compliance determinations based on single-shift samples. Id. at
2024-25. The judge also determined that, when promulgating final respirable
dust regulations in 1980, the Secretary had not superseded the 1971 finding.
Id. at 2025-26. The judge concluded that, because the 1971 finding had been
made in accordance with the notice-and-comment rulemaking provisions of
section 101 of the Coal Act, it could be rescinded only through the
corresponding rulemaking provisions of section 101 of the Mine Act, 30 U.S.C.
§ 811.
Id. at 2027. Applying principles articulated in Drummond Co., 14
FMSHRC 661 (May 1992), the judge also determined that the spot inspection
program had been implemented in contravention of rulemaking provisions of the
Administrative Procedure Act, 5 U.S.C. § 551 et seq. (1988)("APA"). Id. at
2027-29. Accordingly, ·the judge vacated the citations. Id. at 2029-30.
B.

Enforcement of Respirable Dust Standards

In order to determine compliance with the Mine Act's respirable dust
standards, MSHA and mine operators collect samples of the atmosphere in
underground coal mines.
1.

MSHA's sampling program
a.

Multiple-shift sampling

In enforcing the respirable dust standards under the Coal Act and Mine
Act, MSHA and its predecessor agency in the Department of the Interior have,
for more than 20 years, based determinations of non-compliance on multipleshift respirable dust samples. Tr. I 92; Tr. II 31; G. Ex. 17, p. 24 (1992
MSHA Task Group Report); K. Ex. 18, pp. 1.11-1.13. (1989 MSHA Handbook for
inspectors). The operator is cited if the average dust concentration of five

8

samples, 2 i.e. taken over five shifts, exceeds the applicable dust standard. 3
K. Ex. 18, pp. 1.11-1.13; Tr. I 120-25. Noncompliance specifically cannot be
determined on the basis of a single-shift sample. K. Ex. 18, p. 1.12; Tr. I
120. Samples are voided for various reasons, including the presence of
oversized particles, larger than 10 microns. G. Ex. 17, p. 19; K. Ex. 18, pp.
1.9-1.10. If a filter shows a weight gain of 1.8 mg. or greater over its presample weight, an inspector examines it for oversized particles. Tr. I 97,
126; K. Ex. 19, p. IV-11 (MSHA Guidance Document).
b.

Single-shift sampling: the spot inspection program

Since July 15, 1991, MSHA has conducted spot inspections at selected
mines. Tr. II 61, G. Ex. 12. Respirable dust has been sampled for five
occupations in each mechanized mining unit, during one full eight-hour
shift. 4 G. Exs. 12, 14. MSHA developed a table for inspectors, setting
forth the level of a single-shift dust sample that would require an inspector
to issue a citation. G. Ex. 12, pp. 2-3. Inspectors were instructed not to
examine samples for oversized particles and not to void samples except for
pump malfunctions. Tr. I 162-63; Tr. II 29, 33-36; Tr. III 16; G. Ex. 14, p.
2. These spot inspection procedures were not published in the Federal
Register, Code of Federal Regulations, in MSHA's Program Policy Manual, or in
any other public document. 5

2
Two to four samples can give rise to a citation if the average
concentration is such that additional samples could not bring a five-shift
average within the standard. K. Ex. 18, p. 1.12; Tr. I 120-125.
3

If a mine has significant quartz in the atmosphere, its applicable
dust standard may be lower than 2.0 mg/m3 • 30 C.F.R. § 70.101.
4

Following MSHA's issuance of numerous citations for alleged tampering
with respirable dust samples, the Secretary of Labor, in April 1991, directed
MSHA to review the respirable dust program and to make recommendations for
improving it. G. Ex. 17, p. 5. The Assistant Secretary for Mine Safety and
Health formed the Coal Mine Respirable Dust Task Group, which developed the
spot inspection program. G. Ex. 17, pp. 5-6. Part I of the program
established the spot inspection system, which included collection of dust
samples on a single-shift basis, review of dust control plans and sampling
parameters, and interviews of mine personnel; Part II established monitoring
of operators' sampling activities. G. Exs. 12, 13.
5

MSHA issued an information bulletin announcing that nearly 600 mines
had been targeted for spot inspections to provide the Task Group with data for
improving the sampling program. G. Ex. 18, pp. 1-2. This bulletin also
stated; "Although the primary purpose of the spot inspection program is to
evaluate current mining procedures in order to improve the overall dust
sampling program, ... MSHA inspectors will write citations on safety or health
violations they may find." G. Ex. 18, p. 2.

9

2.

Operator sampling program: multiple shift sampling

Pursuant to 30 C.F.R. Part 70, operators are required to collect,
bimonthly, designated occupation dust samples over five full shifts for each
mechanized mining unit. 6 30 C.F.R. §§ 70.201, 70.207. The five samples must
be collected on consecutive normal production shifts or normal production
shifts on consecutive days. Section 70.207. The samples are submitted to
MSHA for analysis and compliance determinations. 30 C.F.R. § 70.209; G. Ex.
17, p. 16. Multiple-shift sampling by operators was not affected by MSHA's
spot inspection program.
II.
Disposition
A.

Whether the Spot Inspection Program Required Rulemaking under
Section 202(f)

The Secretary argues that the judge erred in finding that rulemaking was
required under section 202(f) of the Mine Act for implementation of the spot
inspection program. He contends that the spot inspection program did not
rescind the 1971 finding and, alternatively, that rulemaking was not required
under the Mine Act because section 202(f) requires rulemaking only if the
Secretary finds that single-shift sampling will not accurately measure
respirable dust exposure. Keystone and AMC respond, in essence, that the spot
inspection program was an attempt to circumvent the 1971 finding, and that the
1971 finding constitutes a legislative-type rule that may be amended only
through notice-and-comment rulemaking.
1.

The spot inspection program attempted to rescind the 1971
finding

The Secretary contends that the 1971 finding pertained to operator
sampling and that the spot inspection program involves only MSHA sampling and,
therefore, the 1971 finding and the spot inspection program are not
contradictory. 7 The 1971 finding was issued pursuant to section 202(f) of
6
A designated occupation is the work position determined to have the
greatest respirable dust concentration. 30 C.F.R. § 70.2(f).

7 Citing the review restrictions in section 113(d)(2)(A)(iii) of the
Act, 30 U.S.C. § 823(d)(2)(A)(iii), Keystone argues that the Secretary has
improperly raised this argument for the first time on review and that the
Commission may not consider it. Although the Secretary did not present this
specific argument before the judge, the Secretary had argued that the spot
inspection program and the 1971 finding differed. S. Post-Hearing Br. at 2325. On review, the Secretary has essentially enlarged that contention by
presenting another reason to show that they differ. The arguments raised by
the Secretary on review are sufficiently related to those presented to the
judge that, in effect, they were passed on by the judge. See Dewey v. Des
Moines, 173 U.S. 193, 197-98 (1899); United States v. Speers, 382 U.S. 266,
(continued ... )

10

the Coal Act, which defined the phrase "average concentration" of respirable
dust for purposes of Title II. This title was carried over to Title II of the
Mine Act, which includes the mandatory standards for respirable dust in
underground coal mines. Title II applies to both operator sampling and to
MSHA actions to ensure compliance, including sampling by MSHA. Section 202(g)
specifically provides for MSHA spot inspections. 8 Nothing in section 202(f)
or section 202(g) suggests that section 202(f) applies differently to MSHA
sampling. Thus, the 1971 finding, issued for purposes of Title II, applies
broadly to both MSHA and operator sampling of mine atmosphere.
A consistent regulatory history over 20 years also belies MSHA's current
assertion that the 1971 finding applied only to operator sampling. MSHA
manuals indicate that, apart from the spot inspections begun in 1991, MSHA has
never based determinations of non-compliance on single-shift samples. See K.
Ex. 18, pp. 1.11-1.13 (1989 MSHA Handbook for inspectors); K. Ex. 21, pp. II47 through II-54 (1978 MSHA Underground Manual for inspectors).
We reject the Secretary's additional contention that the spot inspection
program did not supersede the 1971 finding because the finding pertained to
compliance determinations while the program pertained to a broad perspective
on dust exposure in mining. It is clear that the spot inspection program also
resulted in compliance determinations and the issuance of citations -- as the
present case illustrates.
Finally, we reject the Secretary's argument that the spot inspection
program did not rescind the 1971 finding because the finding had already been
superseded by the preamble to the Secretary's final respirable dust rules
issued in 1980. 9 The 1980 preamble contains no indication that a new finding
7 ( ••• continued)

277 n.22 (1965); Beech Fork Processing. Inc., 14 FMSHRC 1316, 1320-21 (August
1992)(citations omitted). Therefore, we consider the argument.
8
Section 202(g) of the Mine Act, 30 U.S.C. § 842(g), was carried over
without significant change from the Coal Act.
9

In pertinent part, the preamble states:
The Secretary of the Interior and Secretary of
Health, Education, and Welfare conducted continuous
multi-shift sampling and single-shift sampling and,
after applying valid statistical techniques,
determined that a single-shift respirable dust sample
should not be relied upon for compliance determinations when the respirable dust concentration being
measured was near 2.0 mg/m3 • Accordingly, the
Secretary of the Interior and the Secretary of Health,
Education, and Welfare prescribed consecutive multishift samples to enforce the respirable dust standard.

45 Fed. Reg. 23990, 23997 (April 8, 1980).

11

on single-shift sampling was being made under section 202(f) of the Mine Act.
Indeed, the preamble as a whole is replete with language indicating that the
final respirable dust standards contemplate multiple-shift samples. See,
~. 45 Fed. Reg. at 23997.
(Multiple samples "upon which compliance
determinations are made will more accurately represent dust in the mine
atmosphere than would the results of only a single sample .... ") The 1980
preamble and regulations reaffirmed the 1971 finding that multiple-shift
samples were more reliable than single-shift samples for determining
compliance with applicable dust standards. 10 Moreover, MSHA's subsequent
enforcement actions continued to be based exclusively on multiple-shift
sampling until July 1991.
We conclude that the spot inspection program, in basing compliance
determinations on single-shift samples, attempted to rescind the 1971 finding
in an improper manner. Moreover, as discussed below, we agree with the judge
that the attempted rescission was invalid because it was not effected through
formal rulemaking.
2.

Notice-and-comment rulemaking is required for rescission of
the 1971 finding

The Secretary argues, in the alternative, that section 202(f) of the
Mine Act requires rulemaking in accordance with section 101 of the Act only
when a determination is made that single-shift sampling is not a reliable
means of testing atmospheric conditions. S. Br. at 15-16. Invoking Chevron
U.S.A .. Inc. v. Natural Resources Defense Council. Inc., 467 U.S. 837, 842
(1984), the Secretary contends that this is the clear and unambiguous meaning
of section 202(f), and that the Commission must give effect to it. S. Br. at
16-17.
Generally, the first inquiry in statutory construction is "whether
Congress has directly spoken to the precise question at issue." Chevron, 467
U.S. at 842. If a statute is clear and unambiguous, effect must be given to
its language. Id. at 842-43. Deference to an agency's interpretation of a
statute may not be applied "to alter the clearly expressed intent of
Congress." K Mart Corp. v. Cartier. Inc., 486 U.S. 281, 291 (1988)(citations
omitted). Traditional tools of construction, including examination of a
statute's text and legislative history, may be employed to determine whether
"Congress had an intention on the precise question at issue," which must be
10

AMC challenged the 1980 respirable dust regulations on the basis of
inherent sampling variability. The Tenth Circuit Court of Appeals upheld the
regulations, stating:
The Secretary did take steps to reduce the potential
for variability. The rule provides for multiple shift
sampling.... All compliance determinations are based
on the average dust concentration of five samples.
American Mining Congress v. Marshall, 671 F.2d 1251, 1259 (10th Cir.
1982)(citations omitted).

12

given effect. Coal Employment Project v. Dole, 889 F.2d 1127, 1131 (D.C. Cir.
1989)(citations omitted). The examination to determine whether there is such
a clear Congressional intent is commonly referred to as a "Chevron I"
analysis. Id. at 1131. If, however, a statute is ambiguous or silent on a
point in question, a second inquiry, a "Chevron II" analysis, is required to
determine whether an agency interpretation of the statute is a reasonable one.
Id.
Section 202(f) expressly requires notice-and-comment rulemaking with
regard to a finding that would reject single-shift sampling. Congress's
evident intent, that such a finding be made in accordance with notice-andcomment rulemaking, bespeaks an equal intent that, once such a finding is
made, it may be rescinded only through the same formal process. See
Homemakers North Shore. Inc. v. Bowen, 832 F.2d 408, 413 (7th Cir. 1987). The
Secretary's argument fails to take into account the fact that the 1971 finding
was made.
In the alternative, if section 202(f) is not plain, a Chevron II
analysis reveals that the Secretary's interpretation of it as asserted in this
litigation is not a reasonable one. Section 202(f) addresses the accurate
measurement of respirable dust in a mine's atmosphere and the requirement for
notice-and-comment rulemaking if single-shift measurement will not provide
such accurate measurement. The Secretary's interpretation here rests on his
inference that sampling over a single shift will accurately measure dust
exposure. But under the earlier, identical language of the Coal Act, the
Secretaries, in the 1971 finding, unequivocally rejected single-shift sampling
on the grounds that it does not "accurately represent the atmospheric
conditions to which the miner is continuously exposed." 36 Fed. Reg. at
13286. Further, as discussed above, the preamble to the Secretary's final
respirable dust rules reaffirmed that multiple-shift samples were more
reliable than single-shift samples. Except for inspections conducted under
the spot inspection program, the Secretary continues, in both the operator
sampling program and the MSHA sampling program, to base compliance
determinations on multiple-shift sampling. 11 The Secretary's litigation
position here is inconsistent with his other formal statements issued in
accordance with notice-and-comment procedures and with his other enforcement
actions.
We agree with the judge that the 1971 finding may be rescinded only
according to notice-and-comment rulemaking requirements.
B.

Whether the Spot Inspection Program is Exempt from APA Rulemaking
Requirements

The Secretary argues that the judge erred in concluding that rulemaking
was required under the APA because the spot inspection program is exempt as a
rule of agency practice or procedure or, alternatively, as an interpretative

11

30 C.F.R. §§ 70.201, 70.207; K. Ex. 18, pp. 1.11-1.13; G. Exs. 12,

13.

13

rule. 12 S. Br. at 18-29. Keystone and AMC respond that the program is not
procedural because it has a substantial impact on operators and that it is not
interpretive because it seeks to change the definition of "average
concentration" rather than merely to explain or clarify existing law. K. Br.
at 21-23; AMC Br. at 16-17.
Section 553 of the APA requires agencies to provide notice of proposed
rulemaking and an opportunity for public comment prior to a rule's
promulgation, modification, amendment, or repeal. 5 U.S.C. § 553. Under the
APA, a "rule" is defined as "an agency statement of general or particular
applicability and future effect designed to implement, interpret, or prescribe
law or policy or describing the organization, procedure, or practice
requirements of an agency .... " 5 U.S. C. § 551(4). The APA provides, however,
that the notice-and-comment process does not apply to "interpretive rules,
general statements of policy, or rules of agency organization, procedure, or
practice." 5 U.S.C. § 553(b)(3)(A).
1.

Spot inspection program is not a procedural rule

In Drummond, the Commission explained the procedural rule exemption to
APA requirements: "it covers agency actions that do not themselves alter the
rights or interests of parties, although [they] may alter the manner in which
parties present themselves or their viewpoints to the agency." 14 FMSHRC at
688, quoting Batterton v. Marshall, 648 F.2d 694, 707 (D.C. Cir. 1980). The
exception does not apply where agency action encroaches on substantial private
rights and interests. 14 FMSHRC at 688 (citation omitted).
The spot inspection program does not merely alter the manner in which
parties present themselves or their viewpoints, nor does it merely set
enforcement strategy or targets. Rather, it changes the standard of review
for determining compliance with respirable dust requirements, resulting in a
substantial impact on the rights and interests of operators. See Brown
Express. Inc. v. United States, 607 F.2d 695, 702 (5th Cir. 1979); National
Ass'n of Home Health Agencies v. Schweiker, 690 F.2d 932, 949 (D.C. Cir.
1982), cert. denied, 459 U.S. 1205 (1983). Under the spot inspection program,
an operator can be cited in circumstances under which it otherwise could not
be cited.
Contrary to the Secretary's argument (S. Br. at 21), the APA's
procedural rule exemption does not apply to the spot inspection program under
American Hosp. Ass'n v. Bowen, 834 F.2d 1037 (D.C. Cir. 1987). The directives
at issue in American Hosp. Ass'n improved the chances of detecting noncompliance with federal reimbursement standards by increasing the "frequency

12

Keystone argues that the Secretary makes this argument for the first
time on review. APA exemptions were explicitly raised before the judge by
Keystone and were implicitly raised by the Secretary. K. Post-Hearing Br. at
18-21 & n.11; S. Reply Br. to ALJ at 8. The argument made by the Secretary on
review is substantially related to issues that were before the judge. See n.7
supra. Accordingly, we consider the Secretary's argument.

14

and focus of . . . review. 1113 Id. at 1050. The court based its determination
that the procedural rule exemption applied on the fact that this was "not a
case in which HHS has urged its reviewing agents to utilize a different
standard of review in specified medical areas .... " Id. at 1051. It noted
further that "[w]ere HHS to have inserted a new standard of review governing
... scrutiny of a given procedure ... , its measures would surely require
notice and comment .... " Id. In this case, the Secretary has sought to
establish a new standard of review in determining compliance with the
respirable dust requirements based on single-shift samples and on altered
criteria for determining valid samples, a standard that may not accurately
determine the quantity of respirable dust in the atmosphere. 14
2.

Spot inspection program is not an interpretive rule

In Drummond, the Commission stated that an interpretive rule is an
agency statement "as to what [the agency] thinks the statute or regulation
means," which "seeks merely to clarify or explain existing law." 14 FMSHRC at
684-85 (citations omitted). In American Mining Congress v. MSHA, 995 F.2d
1106, 1112 (D.C. Cir. 1993), the U.S. Court of Appeals for the D.C. Circuit
stated, in relevant part, that a purported interpretive rule has legal effect
and is, therefore, substantive if it effectively amends a prior legislative
rule.
The spot inspection program does not, as argued by the Secretary, merely
interpret section 202(f). S. Br. at 26. Rather, as we have shown, the
program attempts to rescind the 1971 finding that single-shift samples are not
accurate in determining the "average concentration" of respirable dust in a
mine. The 1971 finding was issued as a legislative rule as required under
section 202(f), and the spot inspection program attempted substantively to
rescind the finding. Accordingly, we reject the Secretary's contention that
the spot inspection program is exempt from APA rulemaking requirements as an
interpretive rule.

13

The operator in this case has not challenged the selection of mines
for spot inspection. Thus, the Secretary's reliance on United States Dep't of
Labor v. Kast Metals Corp., 744 F.2d 1145 (5th Cir. 1984), which addresses
targeting of employers for inspection under the Occupational Safety and Health
Act, is also misplaced.
14

The 1971 finding unequivocally rejected single-shift sampling on the
grounds that such sampling was inaccurate, and the preamble to the Secretary's
final respirable dust rules reaffirmed that multiple-shift samples were more
reliable than single-shift samples. Also, as noted earlier, under the spot
inspection program inspectors were instructed not to examine samples for
oversized particles and not to void samples except for pump malfunctions. Tr.
I 162-63; Tr. II 29, 33-36; Tr. III 16; G. Ex. 14, p. 2.

15

III.
Conclusion
The spot inspection program constitutes a legislative-type rule.

The

1971 finding, which it seeks to contravene, was issued in accordance with the
Mine Act's notice-and-comment rulemaking procedures and may be rescinded only
in the same manner. We agree with the judge's determination that, because the
Secretary failed to implement the spot inspection program in accordance with
section 202(f) of the Mine Act and the rulemaking provisions of the APA,
compliance determinations under the program are invalid.
For the foregoing
reasons, we affirm the judge's vacation of the three citations issued under
the Secretary's spot inspection program.

Arlene Holen, Chairman

d-c_~-:,~-:!4,£_y
Richard V. Backley, Commissioner

~d,~
o;ce:DOYle,
ComrniSSiOTl;r

L. Clair Nelson, Commissioner
Distribution

Susan Long, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203

R. Henry Moore, Esq.
Buchanan Ingersoll

600 Grant St., USX Tower
57th Floor
Pittsburgh, PA

15219

Kevin Burns, Esq.
Edward M. Green, Esq.
American Mining Congress
1920 N Street, N.W.
Washington, D.C.
20036
Administrative Law Judge Avram Weisberger
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

16

FEDERAL .DINE SAFETY AND HEALTH REVIEW C01UllSSION
1730 K Street NW, 6th Floor
Washington, D.C.
20006
January 7, 1994

JIM WALTER RESOURCES, INC.
v.

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of JAMES JOHNSON

Docket No. SE 93-127-D

and
UNITED MINE WORKERS OF AMERICA

ORDER
On December 16, 1993, Jim Walter Resources, Inc. ("Jim Walter"), filed a
petition with the Federal Mine Safety and Health Review Commission under
Section 113(d)(2) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 823(d)(2)(1988).
The Administrative Law Judge presiding in this
discrimination proceeding has not yet issued his final order on damages.
The
Commission has dismissed as premature petitions seeking review of a judge's
decision finding liability in discrimination cases before the decision on
damages is issued.
See Kenneth A. Wiggins v. Eastern Associated Coal Co.,
5 FMSHRC 1668 (October 1983). Jim Walter's petition is premature and is
dismissed without prejudice. Jim Walter may file a petition for discretionary
review after issuance of the judge's decision on damages.

~~man
L. Clair Nelson, Commissioner

17

Distribution

David M. Smith, Esq.
J.A. Truitt, Esq.
Maynard, Cooper & Gale, P.C.
1901 Sixth Avenue North
2400 AmSouth/Harbert Plaza
Birmingham, AL 35203
Stanley Morrow, Esq.
Jim Walter Resources. Inc.
P. 0. Box 13 3
Brookwood, AL 35444
William Lawson, Esq.
Office of tile Solicitor
U.S. Department of Labor
150 Chambers Bl<lg.
ilighpoint Office Center
100 Centerview Drive
BirEJ.ingharn AL 35216
Robert Strapp, Esq.
UMvJA
900 15th St., N.W.
Washington, D.C. 20005
Administrative Law Judge William Fauver
Federal Mine Safety and Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

18

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

January 10, 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket Nos. WEST 91-598-R
WEST 92-335

v.
WYOMING FUEL COMPANY
BEFORE:

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

DECISION

BY THE COMMISSION:
This consolidated contest and civil penalty proceeding arises under the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)
("Mine Act" or "Act"). Following an evidentiary hearing, Administrative Law
Judge John J. Morris found that Wyoming Fuel Company ("Wyoming Fuel") violated
its ventilation plan and that the violation was significant and substantial in
nature ( "S&S") . 1 14 FMSHRC 1758 (October 1992) (ALJ). The Commission granted
Wyoming Fuel's petition for discretionary review, which challenges these
findings, and heard oral argument. For the reasons that follow, we affirm the
judge's decision.
I.

Factual and Procedural Background
Wyoming Fuel owns and operates the Golden Eagle Mine, an underground
coal mine, near Trinidad, Colorado. On July 28, 1991, Inspector Melvin
Shiveley of the Department of Labor's Mine Safety and Health Administration
("MSHA"), accompanied by Wyoming Fuel fireboss 2 Gene Castillo, inspected the
northwest longwall of the mine.

1

The S&S terminology is taken from section 104(d)(l) of the Act, 30
U.S.C. § 814(d)(l), which distinguishes as more serious in nature any
violation that "could significantly and substantially contribute to the cause
and effect of a ... mine safety or health hazard .... "
2

A fireboss is "[a] person designated to examine the mine for gas and
other dangers." Bureau of Mines, U.S. Dept. of Interior, Dictionary of
Mining. Mineral and Related Terms at 429 (1968).

19

Inspector Shiveley observed water on the headgate side of the longwall
between crosscuts 70 and 75 in the No. 3 entry, between crosscuts 73 and 74 in
the No. 2 entry, and in various places in the No. 1 and No. 2 bleeder rooms.
On the tailgate side, he found water "basically everywhere" in the No. 1 and
No. 2 bleeder rooms. Tr. 21.
Shiveley determined that the water was
generally between 4 and 28 inches in depth.
Castillo, wearing waders, walked
in waist-deep water in the No. 2 bleeder room between crosscuts 68 and 69. On
the basis of these observations, Shiveley concluded that Wyoming Fuel violated
its approved ventilation plan, which requires that pumps be installed to
remove water accumulations presenting a hazard. The inspector issued an order
pursuant to section 104(d)(2), 30 U.S.C. § 814(d)(2), alleging a violation of
30 C.F.R. § 75.316, which requires the adoption of ventilation plans. 3 The
order stated that water conditions would prevent the fireboss from safely
examining and evaluating the performance of the bleeder system.
Shiveley
designated the violation S&S and determined that it was the result of Wyoming
Fuel's unwarrantable failure to comply with the cited ventilation plan
provision.
The judge found that the water accumulations were hazardous and credited
the testimony of Shiveley and other MSHA witnesses as to the nature of the
hazards presented.
14 FMSHRC at 1761-63. The judge determined that the
testimony of Wyoming Fuel's witnesses regarding the "water accumulations and
related hazards" was "not persuasive." 14 FMSHRC at 1762.
In addition, the
judge noted that Wyoming Fuel's preshift examiners' reports listed the water
in the bleeders as a "hazardous condition." Id. The judge also determined
that the violation was S&S, but that it was not the result of Wyoming Fuel's
unwarrantable failure.
14 FMSHRC at 1764-65.

3

Section 75.316 states:
A ventilation system and methane and dust
control plan and revisions thereof suitable to the
conditions and the mining system of the coal mine and
approved by the Secretary shall be adopted by the
operator and set out in printed form. . . . The plan
shall show the type and location of mechanical
ventilation equipment installed and operated in the
mine, such additional or improved equipment as the
Secretary may require, the quantity and velocity of
air reaching each working face, and such other
information as the Secretary may require.
Such plan
shall be reviewed by the operator and the Secretary at
least every 6 months.

The coal mine ventilation standards were significantly revised, effective
August 16, 1992.
See 57 Fed. Reg. 20868 (May 15, 1992). References in this
decision are to the Secretary's former ventilation standards, found at 30
C.F.R. Part 75.300 et seq. (1991), which were in effect at the time of the
alleged violation.

20

II.

Disposition of Issues
A.

Whether Wyoming Fuel violated the ventilation plan provision

Wyoming Fuel submits that it did not violate its ventilation plan
because: (1) pumps had been installed and operated; (2) the weekly examiner
did not need to travel in areas of significant accumulations of water to check
the integrity of the bleeder system; 4 and (3) the water did not present a
hazard in any event. The Secretary argues that the judge correctly determined
that Wyoming Fuel violated its ventilation plan by permitting water to
accumulate in sufficient quantity and depth to present a hazard.
Wyoming Fuel's ventilation plan requires that "[p]umps will be installed
to remove water that accumulates in sufficient quantity or depth to present a
hazard." Ex. S-2. It is undisputed that Wyoming Fuel had installed pumps and
that they had been operating. It appears, however, that the pumps were
inoperativ~ at the time of Shiveley's inspection because of a problem with the
compressor. Tr. 35-36, 49, 66. It is also undisputed that the presence of
water in the bleeders does not, by itself, violate the plan. The plan is
violated, however, when water accumulations that present a hazard are not
removed. We reject Wyoming Fuel's argument that it complied with the plan by
operating pumps in an attempt to remove water from the area. The Mine Act is
a strict liability statute and an operator may be held liable for violations
without regard to fault. Asarco. Inc. - Northwestern Mining Dep't, 8 FMSHRC
1632, 1634 (November 1986), aff'd, 868 F.2d 1195 (10th Cir. 1989). 5
Wyoming Fuel also argues that the plan provision is satisfied because
the weekly examiner was able to examine the bleeder system to ensure that it
was functioning properly without walking through hazardous accumulations of
water. Wyoming Fuel's interpretation of the provision limits its
applicability to the weekly examiner. The provision, however, does not
contain language limiting its application to certain miners. Ex. S-2. We
agree with the Secretary that the plan is violated if water is allowed to
accumulate in sufficient quantity or depth to present a hazard to those
entering the bleeders. We conclude that the plan provision applied to

4 Wyoming Fuel was required to have the bleeder system examined at least
once each week by a certified person. See 30 C.F.R. § 75.316-2(f)(2). The
latest weekly examination took place on July 26, 1991, two days before
Shiveley's inspection.
5

Wyoming Fuel's efforts to remove the water are relevant, however, to
the degree of negligence that should be attributed to a violation. We note
that, while Inspector Shiveley had designated the degree of negligence as
high, the judge found Wyoming Fuel's negligence to be moderate. 14 FMSHRC at
1766.

21

Castillo, whose assigned duties required him to travel through significant
water accumulations. 6
Finally, we conclude that substantial evidence 7 supports the judge's
finding that water accumulations in the bleeder system on July 28 presented a
hazard.
14 FMSHRC at 1761-63. As the judge noted, Castillo's use of waders
in traversing the bleeder system is indicative that the excessive water
presented a hazard, since waders are not standard issue clothing in a coal
mine.
14 FMSHRC at 1761.
The judge's finding was also based on his explicit credibility
determinations 8 in favor of MSHA's witnesses, especially Inspector Shiveley.
14 FMSHRC at 1761-62. Shiveley testified that the mine floor was uneven and
that pieces of loose coal and cribbing were submerged below the water on the
mine floor.
Tr. 38-39.
See also Tr. 99 (MSHA Inspector Ned Zamarripa).
These conditions presented a stumbling hazard. Tr. 39. He also testified
that a miner attempting to walk the rib line to avoid water accumulations
could pull down the rib if he were forced to grab it.
Tr. 30-32, 37, 41.
See
also Tr. 104 (Zamarripa).
Shiveley further testified that the coal in the
mine is soft and tends to "sluff." Tr. 30, 41.
In addition, water
accumulations in bleeder systems can impede ventilation and increase the
danger of hazardous methane accumulation.
Tr. 37, 46, 98-99, 103, 213.

6

Castillo was in the bleeder system to inspect the pumps and perform
preshift examinations. W.F. Br. at 7, 10; Ex. W.F.-2. Castillo described his
duties as a fireboss as follows:
Checking the pumps, make sure the water is being
pumped out of the mine, checking the lift stations,
the bleeders, make sure those pumps are running,
checking the -- checking the bleeders to make sure
they're doing what they're suppose to do.
Tr. 193-94.
7

The Commission is bound by the terms of the Mine Act to apply the
substantial evidence test when reviewing an administrative law judge's
decision.
30 U.S.C. § 823(d)(2)(A)(ii)(I). The term "substantial evidence"
means "such relevant evidence as a reasonable mind might accept as adequate to
support [the judge's] conclusion." Rochester & Pittsburgh Coal Co., 11 FMSHRC
2159, 2163 (November 1989), quoting Consolidated Edison Co. v. NLRB, 305 U.S.
197, 229 (1938).
8

The Commission has recognized that a "judge's credibility findings and
resolutions of disputed testimony should not be overturned lightly."
Robinette v. United Castle Coal Co., 3 FMSHRC 803, 813 (April 1981); Quinland
Coals. Inc., 9 FMSHRC 1614, 1618 (September 1987).

22

B.

Whether the violation was S&S.

A violation is properly designated as being S&S "if, based on the
particular facts surrounding that violation, there exists a reasonable
likelihood that the hazard contributed to will result in an injury or an
illness of a reasonably serious nature." Cement Division. National Gypsum
Co., 3 FMSHRC 822, 825 (April 1981). In Mathies Coal Co., 6 FMSHRC 1 (January
1984), the Commission explained:
In order to establish that a violation of a mandatory
safety standard is significant and substantial under
National Gypsum, the Secretary of Labor must prove:
(1) the underlying violation of a mandatory safety
standard; (2) a discrete safety hazard -- that is, a
measure of danger to safety -- contributed to by the
violation; (3) a reasonable likelihood that the hazard
contributed to will result in an inJury; and (4) a
reasonable likelihood that the injury in question will
be of a reasonably serious nature.
6 FMSHRC at 3-4 (footnote omitted). See also Austin Power Co. v. Secretary,
861 F.2d 99, 103-04 (5th Cir. 1988), aff'g 9 FMSHRC 2015, 2021 (December
1987)(approving Mathies formula criteria). The Commission has held that the
third element of the Mathies formula "requires that the Secretary establish a
reasonable likelihood that the hazard contributed to will result in an event
in which there is an injury." U.S. Steel Mining Co., 6 FMSHRC 1834, 1836
(August 1984)(emphasis in original).
Wyoming Fuel argues that the S&S finding is erroneous because the third
Mathies element was not established and that the judge erred in relying on the
Commission's decision in Eagle Nest. Inc., 14 FMSHRC 1119 (July 1992).
Wyoming Fuel emphasizes that the maximum water depth in the mine, 28 inches,
was limited to one discrete area and that the water was clear. The Secretary
contends that the judge's S&S finding is supported by substantial evidence.
We agree with the Secretary that substantial evidence supports the
judge's S&S finding. In finding the third Mathies element satisfied, the
judge credited Shiveley's testimony. 14 FMSHRC at 1764, citing Tr. 40, 43.
Shiveley testified that it was reasonably likely that an injury of a
reasonably serious nature would result from the violation. Tr. 40-41. He
testified that people have drowned by falling in water while walking in
waders. Tr. 39-40. The inspector also indicated that a miner could stumble
and hit his head or twist an ankle, or that a loose rib could strike someone,
·possibly causing drowning. Tr. 41. The judge also found that waders by
themselves can cause the wearer to slip, particularly where the mine floor is
not easily seen. 14 FMSHRC at 1764. Finally, Shiveley's testimony
contradicts Wyoming Fuel's contention that the water was clear. Tr. 38-39.
In any event, the Commission's decision in Eagle Nest did not suggest that
accumulations less murky, deep or extensive than the accumulations in that

23

case might not be S&S. 9 We reject Wyoming Fuel's argument to that effect.
Determination of whether a violation is S&S must be based on the particular
facts surrounding the violation. Texasgulf. Inc., 10 FMSHRC 498, 501 (April
1988).
III.

Conclusion
For the foregoing reasons, we affirm the judge's decision that Wyoming
Fuel violated its ventilation plan and that the violation was S&S.

Arlene Holen, Chairman

ci:.A~i'f~:V
Richard V. Backley, Commission;r

L. Clair Nelson, Commissioner

9

In Eagle Nest, water accumulations were murky, up to four feet deep,
extensive, and had to be traversed to permit an examination. 14 FMSHRC at
1120-21. The judge, on remand, found the violation to be S&S. 14 FMSHRC 1800
(November 1992)(ALJ).

24

Distribution

Charles W. Newcom, Esq.
Sherman & Howard
3000 First Interstate Tower North
633 Seventeenth Street
Denver, Colorado 80202
Colleen A. Geraghty, Esq.
Off ice of the Solicitor
U S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Adiilinistrative Law Judge John J. Horris
Federal Mine Safety & Health Review Commission
1244 Speer Boulevard, Suite 280
Denver, Colorado 80204

25

FEDERAL :GINE SAFETY AND BEAT.TH REVIEW CO:mlISSION

1730 K Street NW, 6th Floor
Washington, D.C.
20006
January 10, 1994

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of PERRY PODDEY
Docket No. WEVA 93-339-D

v.

TANGLEWOOD ENERGY, INC.,

On December 29, 1993, the Secretary of Labor ("Secretary"), filed a
petition with the Federal Mine Safety and Health Review Commission under
Section 113(d)(2) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 823(d)(2)(1988).
The Administrative Law Judge presiding in this
discrimination proceeding has not yet issued his final order on damages.
The
Commission has dismissed as premature petitions seeking review of a judge's
decision finding liability in discrimination cases before the decision on
damages is issued.
See Kenneth A. Wiggins v. Eastern Associated Coal Co.,
5 FMSHRC 1668 (October 1983). The Secretary's petition is premature and is
dismissed without prejudice. The Secretary may file a petition for
discretionary review after issuance of the judge's decision on damages.

~
~~e, tlissib:;4

· Richard v. Backley,

commISSiOOer\..--- .

~~

L. Clair Nelson, Commissioner

26

Distribution

Susan E. Long, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Paul 0. Clay, Esq.
Conrad & Clay
P.O. Drawer 958
Fayetteville, WV 25840
Administrative Law Judge Arthur Ali1clun
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22841

27

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K Street, N. w., Sixth Floor
Washington, D. c. 20006
January 26, 1994

SECRETARY OF LABOR, MINE SAFETY
AND HEALTH ADMINISTRATION (MSHA)
Docket Nos. VA 93-165
VA 93-166

v.

SOUTHMOUNTAIN COAL, INC.
AND
WILLIAM RIDLEY ELKINS

Southmountain Coal Company, Inc., (#Southmountain#) has filed a petition
seeking review by the Commission of the December 6, 1993, order of
Administrative Law Judge Gary Melick in which he denied Southmountain's motion
for certification for interlocutory review. Southmountain's motion requested
that the judge certify to the Commission his ruling that the Secretary had
established #adequate cause# to excuse a four-day delay in assessing a
proposed penalty under Commission Rule 28(a), 58 Fed. Reg. 12158, 12167 (March
3, 1993), to be codified at 29 C.F.R. §2700 (1993). Southmountain styled and
referenced its petition to the Commission #pursuant to Commission Rule 70#,
although it apparently is seeking interlocutory review under Commission Rule
76, 58 F.R. at 12172.
Upon consideration of Southmountain's petition and the Secretary's
response, we conclude that Southmountain has failed to establish a basis for
granting interlocutory review and, therefore, we deny the petition.

Arlene Holen, Chairman

__ ..,.._.,.,..,...

. ,/

/

'-<_--r___ --.-:_.--L---1 ___,-

/
.. ·· , /
,~-. _.·/ (--::i"L-r'

.;1

Richard V. Hackley, Commissioner

~~o!y[.,~/f&::;'--L-

28

,,/

:<L-_,.....,
j/

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

20006

January 28, 1994
AIR PRODUCTS AND CHEMICALS, INC.
Docket No. PENN 91-1488-R

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

BEFORE:

Holen, Chairman; Backley and Doyle, Commissioners

ORDER
BY THE COMMISSION:
On January 12, 1994, Air Products and Chemicals, Inc. ("Air Products")
filed with the Commission a Motion for Stay Pending Appeal of the Commission's
December 9, 1993, decision in this matter. 15 FMSHRC 2428 (December 1993).*
The Secretary fi\ed opposition to the motion on January 21, 1994.
Air Products filed its motion pursuant to Rule 18 of the Federal Rules
of Appellate Procedure, which provides that "[a]pplication for a stay of a
decision or order of an agency pending direct review in the court of appeals
shall ordinarily be made in the first instance to the agency." Section
106(a)(l) of the Mine Act, 30 U.S.C. § 816(a)(l), provides that, upon appeal
of a final decision of the Commission, the court of appeals shall have
exclusive jurisdiction in the proceeding at such time as the record before the
Commission is filed with the court. Because the record has not yet been
filed, the Commission has jurisdiction to consider Air Products' motion.
See
Helen Mining Co., 14 FMSHRC 1993, 1994 (December 1992).
Upon consideration of Air Products' motion and the Secretary's
opposition, we conclude that Air Products has failed to establish that a stay
should be granted. See Virginia Petroleum Jobbers Ass'n v. FPC, 259 F.2d 921,
925 (D.C. Cir. 1958); Jim Walter Resources, 9 FMSHRC 1312 (August 1987). In
view of this conclusion, we need not discuss the Secretary's arguments

* Air Products filed its notice of appeal with the United States Court
of Appeals for the Third Circuit on December 22, 1993 (No. 93-3646).

29

concerning "temporary relief" under sections 105 and 106 of the Mine Act, 30
U.S.C. §§ 815 & 816. Accordingly, Air Products' motion is denied.

Richard V. Backley, Commissioner

•

Distribution:

R. Henry Moore, Esq.
Buchanan Ingersoll
USX Tower, 57th Floor
600 Grant Street
Pittsburgh, PA 15219

Elizabeth Hopkins, Esq.
U.S. Department of Labor
Office of the Solicitor
200 Constitution Ave., N.W.
Room N-2700
Washington, DC 20210

30

ADMINISTRATIVE LAW JUDGE DECISIONS

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

January 3, 1994
TEMPORARY REINSTATEMENT
PROCEEDING

SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of
JAMES HYLES,
DOUGLAS MEARS,
DERRICK SOTO,
GREGORY DENNIS,
Complainants

Docket Nos. WEST
WEST
WEST
WEST

93-194-DM
93-195-DM
93-196-DM
93-197-DM

v.
All American Aggregates

ALL AMERICAN ASPHALT,
Respondent

ORDER OF TEMPORARY REINSTATEMENT
Appearances:

Gretchen M. Lucken, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for Complainants;
Naomi Young, Esq., Los Angeles, California,
for Respondents.

Before:

Judge Cetti

These consolidated temporary reinstatement proceedings arise
under the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§ 801 et seq. {1988} {"Mine Act").
Section 105(c} of the Mine
Act, 30 u.s.c. § 815(c} (1988}, prohibits operators of mines from
discharging or otherwise discriminating against a miner who has
filed a complaint alleging safety or health violations at a mine
or engaged in other protected activity.
If a miner believes that
he has been laid off or otherwise discriminated against by any
adverse action in violation of this section, he may file a complaint with the Secretary of Labor ("Secretary") who is required
to initiate a prompt investigation of the alleged violation.
If
the Secretary finds that the miner's complaint was "not frivolously brought." he must apply to the Federal Mine Safety and
Health Review Commission {"Commission") for an order temporarily
reinstating the miner to his job, pending a final order on the
complaint. The Commission is required to grant such an order if
it finds that the statutory standard (not frivolously brought}
has been met.

31

Although the Act does not require a hearing on the Secretary's application for temporary reinstatement, the Commission's
regulations Procedural Rule 45(c) provide an opportunity for a
hearing upon request of a mine operator, prior to the entry of a
reinstatement order. The scope of such a hearing is limited to a
determination by the Administrative Law Judge "as to whether the
miner's complaint is frivolously brought," with the Secretary
bearing the burden of proof on this standard.
Jim Walter
Resources v. Federal Mine Safety and Health Review Commission,
920 F.2d 738 (11th Cir. 1990).
I

Procedural History
In January 1993 the Secretary of Labor (Secretary) filed an
application for an order temporarily reinstating the Complainants
James Hyles, Douglas Mears, Derrick Soto and Gregory Dennis to
the positions they had, heavy equipment operators, with Respondent All American Asphalt.
The Secretary's application for the reinstatement order
stated the Complainants had been discharged in retaliation for
engaging in protected safety activity and that the facts and
circumstances of the case support a finding that the complaints
of discrimination are non-frivolous under Section 105(c) of the
Act.
The Secretary attached to his application the affidavit of
James E. Belcher, the Chief of the Division of Technical Compliance and Investigation, Metal and Nonmetal Safety and Health.
The affidavit states in part that investigation discloses the
following facts:
a. At all relevant times, Respondent All American Asphalt
engaged in the production of aggregate, and is therefore an
operator within the meaning of Section 3{d) of the Mine Act;
b. At all relevant times, Applicants James Hyles, Douglas
Mears, Derrick Soto and Gregory Dennis were employed by
Respondent as miners within the meaning and scope of Section 3(g)
of the Mine Act;
c. All American Aggregates Mine, located near Corona,
Riverside County, California, is a mine as defined by section
3{h) of the Mine Act, the products of which affect interstate
commerce;
d. The alleged act of discrimination occurred on or after
July 7, 1992, when Applicants Hyles, Mears, Soto and Dennis were
effectively discharged by Respondent's Vice-President Michael
Ryan;

32

e. Applicant James Hyles engaged in protected activity by
filing a hazardous condition complaint with MSHA in April 1991
which resulted in 29 citations and orders and closure of the
plant and by giving a statement to the MSHA special investigator
in the subsequent Section 110(c) investigation in May 1991;
f. Applicants Douglas Mears, Derrick Soto and Gregory
Dennis engaged in protected activity by giving statements to the
special investigator in the Section 110(c) investigation in May
1991;
g. All four Applicants worked during the weekend in April
1991 when the hazard complaint was filed;
h. Respondents Ryan and Sisemore had knowledge of the
Applicants' protected safety activity;
i. Respondents made statements to Applicants and other
employees indicating that the person who filed the hazard complaint would be fired or forced to quit, demonstrating open
hostility toward Applicants' protected safety activity;
j. Applicant Soto was threatened with lay-off shortly after
the Section 110(c) special investigation was completed in May
1991;
k.
In October 1991, Applicant Hyles was demoted from
leadman on the second shift to loader operator on the first shift
and his working conditions deteriorated;
1. Respondents' articulated basis for the demotion is
pretextual;
m. On July 7, 1992, Applicants Hyles, Mears, Soto and
Dennis were laid off along with 12 other miners, allegedly due to
a drop in production;
n. By August 31, 1992, every other laid-off miner was
recalled for work except Applicants Hyles, Mears, Soto and
Dennis;
o. Other less senior miners were recalled to perform jobs
which Applicants were entitled to pursuant to the union contract;
p. Applicants were subject to disparate treatment with
respect to the operator's lay-off/recall policy;
q. On July 24, 1992, Respondents received MSHA's Notice of
Proposed civil penalties for the 29 orders and citations issued
as a result of the hazard complaint against All American Asphalt
($45,000.00) and against Respondent Ryan as a corporate agent
($9,500.00);

33

r. Respondents' articulated basis for laying-off and
refusing to recall Applicants is pretextual.
In view of the foregoing facts, I have determined that
Applicants Hyles, Mears, Soto, and Dennis were effectively
discharged in retaliation for engaging in protected safety
activity and the complaints filed by them are not frivolous.
s
James E. Belcher
On January 19, 1993, All American Asphalt filed a timely
request for a hearing on the application for temporary reinstatement of the complainants. A hearing on the application was set
by agreement of the parties on February 10, 1993, in Riverside,
California. At the joint request of the parties this hearing was
canceled on February 9, 1993. The parties stated that they had
agreed on a voluntary reinstatement of the Complainants at the
same wage and to the same or similar positions Complainants held
at the time of their July 1992 layoff.
It was also agreed that
there would be compliance with the collective bargain agreement
(Operating Engineers Local 12) with respect to any possible
future layoff. The cases were not dismissed pending the filing
of a written settlement with specific terms that both parties
were willing to sign off on, particularly with respect to
seniority.
On March 29, 1993, the Secretary filed a motion to Renew the
Application for Temporary Reinstatement. The motion states in
part the following:
Respondent has not complied in good faith with the terms of
the settlement agreement, effectively voiding the agreement and
necessitating a Temporary Reinstatement hearing and Order of
Reinstatement by the Commission in order to enforce the Applicants' right to temporary reinstatement under the Mine Act.
From the date of voluntary temporary reinstatement,
Respondent refused to assign Applicant Douglas Mears to his
former position as a plant operator, assigning him to shovel
manually instead of operating crushing equipment.
On March 24, 1993, Respondent laid-off all four Applicants
under circumstances demonstrating that Respondent deliberately
planned the layoff and manipulated the collective bargaining
agreement in order to achieve the layoff of the four Applicants.
By_its actions, Respondent continues to deny the four Applicants
the bona fide temporary reinstatement to which they are entitled.
On April 9, 1993, Respondent filed a timely request for a
hearing on the Secretary's motion to renew application for tempo-

34

rary reinstatement. The matter was therefor set for hearing on
the date agreed by the parties April 29 and 30, 1993, in Riverside, California.
This hearing was canceled when on April 23, 1993, the
Secretary filed a motion to stay the application for temporary
reinstatement, stating that on "April 22, 1993 counsel for All
American notified counsel for the Secretary that All American
plans to recall the four applicants to return to work on Monday,
April 26, 1993."
on April 27, 1993, the Secretary filed a revised Motion to
stay Temporary Reinstatement Proceedings with a cover letter
stating "the parties agree that the hearing scheduled for April
29 and 30, 1993, will not be necessary and requesting that the
temporary reinstatement proceeding be stayed. Respondents
opposed the motion to stay on the grounds that their proposed
voluntary reinstatement should be approved.
Pursuant to the request of the parties the April 29-30
hearing was canceled and the parties were ordered to jointly file
a written Temporary Reinstatement Agreement.
The parties discussed such an agreement but were never able
to reach agreement on some of the necessary terms.
In any event
a joint written reinstatement settlement agreement was never
filed.
Reinstatement was apparently continued on a voluntary
basis but not without controversy.
On October 5, 1993, the Secretary filed a motion entitled
"Secretary of Labor's Motion for Order Requiring Bona Fide
Temporary Reinstatement."
In the motion the Secretary alleges in part that Respondents
have refused to employ the Complainants on a regular, full-time
basis, have limited the regular hours worked and by refusing to
recognize the original seniority dates of the four complainants
as agreed by the parties.
On receipt of the Secretary's October 5, 1993, motion these
reinstatement proceedings were set for hearing along with the
hearing on the discrimination complaints WEST 93-336-DM through
WEST 93-339-DM and WEST 93-436-DM through WEST 93-439-DM which
were set by agreement of the parties on November 16 through
November 19, 1993, and when time ran out on Friday November 19th
the proceeding was continued for further hearing on December 13
through December 17, 1993.

35

II

At the conclusion of the hearing on December 17, 1993, the
presiding undersigned Judge from the bench made an oral decision
finding that the discrimination complaints were not frivolously
brought and issuing an Order of Temporary Reinstatement.
I
ordered Respondent to immediately reinstate Complainants to the
same position from which they were laid off at the same rate of
pay and with the same or equivalent duties assigned to them prior
to their layoff.
I hereby affirm in writing my bench decision and Order.
III

At the hearing on the Application for an Order of Temporary
Reinstatement evidence was presented that the Complainants were
employed by All American Asphalt primarily as heavy equipment
operators, members of the Operating Engineers Union Local 12. In
April 1991 All American Asphalt was in process of having work
completed on the construction of its new finishing plant, a new
addition to its rock crushing operation. The new finishing plant
was run during the start-up weekend April 19-21, 1991, before
many of the basic safety items were installed. Complainant James
Hyles was employed as leadman at the time.
Evidence was presented that he complained to Respondent's vice president and plant
supervisor that the plant was not safe to run in its unfinished
condition due to the fact that guarding on moving equipment,
handrails, stop cords and catwalks were not completed.
Each of
the Complainants also complained to their leadman about running
the plant in its unsafe condition.
The leadman, Complainant Hyles, videotaped the unsafe
conditions during the start-up weekend and reported the unsafe
conditions to the MSHA San Bernardino field office on Monday
morning, April 22, 1991. The other Complainants encouraged him
to do this. That same day MSHA responded by conducting a hazard
complaint investigation which resulted in a closure order and the
issuance of approximately 29 unwarrantable failure citations and
orders for lack of guarding, handrails, and other safety equipment. MSHA subsequently conducted a Section llO(c) investigation
of Vice-President Michael Ryan for authorizing the activity that
resulted in the unwarrantable violations cited during the hazard
complaint investigation.
In June 1991 each of the four Complainants were interviewed
and gave a statement to MSHA Special Investigator Ronald Mesa
during the Section llO(c) investigation.
The interviews were conducted in Mr. Mesa's vehicle which
was parked in front of the main office at the plant.

36

Evidence was presented that after the hazard complaint
investigation which resulted in closure of the mine, Complainants
experienced adverse changes in working conditions.
Complainant
Soto was threatened with layoff and Complainant Hyles was demoted
from his leadman position.
Evidence was also presented that in July 1992 All American
Asphalt laid-off the four Complainants along with most of the
work force.
complainants were initially told that the layoff
would be for approximately one week while the crusher was moved
and that only a few employees were needed to move the equipment.
When the complainants called in to inquire when they could return
to work, Respondent informed them that no work was available
because of a slowdown in production. Respondent had in fact
recalled almost the entire work force and worked some employees
overtime during July and August 1992 when the Complainants were
told no work was available. Complainants assert that the only
employees not recalled were the four Complainants and loader
operator Martin Hodgeman.
Complainants presented evidence that in late August 1992,
two of the complainants went to the mine and observed that lesssenior employees were working at the mine and that employees were
working overtime, contrary to repeated statements of Respondent
that no work was available.
In July 1992, MSHA issued the Notices of Proposed Civil
Penalties totaling $45,000.00 against All American Asphalt for
the violations cited during the hazard complaint investigation.
On March 3, 1993, Respondent implemented a third shift for
production, assigning four senior plant repairmen to perform
production jobs during the third shift. Respondent presented
evidence that the third shift was implemented on a temporary
basis in order to run wet ~aterial through the plant.
After assigning the plant repairmen to perform the production jobs for three weeks, on March 24, 1993, Respondent announced a layoff which resulted in only the four complainants
being laid off.
With respect to the March 1993 layoff, it is the Secretary's
position that Respondent deliberately manipulated the assignment
of employees to different shifts and working hours in order to
terminate the four complainants. The Complainants had returned
to work pursuant to a voluntary temporary reinstatement agreement
on February 11, 1993. Respondent changed the production shift to
the day shift and changed the maintenance shift to the second
shift. The four Complainants were assigned to production jobs on
the day shift.

37

The Secretary asserts that rather than simply discontinuing
the temporary third shift and reassigning the four senior plant
repairmen to their regular positions on the maintenance shift,
Respondent required all of the third shift employees participate
in a formal layoff and bid on jobs held by less senior employees.
Each of the four Complainants was "bumped" (replaced} by a senior
plant repairman, even though plant repair positions were available on the seniority list.
It is the Secretary's position that the facts support a
strong inference that Respondents coerced the senior plant
repairmen into bidding on the four Complainant's production jobs,
in order to ensure the Complainants would be laid off.
The record contains a great deal more relevant evidence.
There were eight days of testimony of 20 witnesses and over 100
exhibits. There is more than 2,000 pages of testimony which as
yet has not been transcribed. There is a considerable amount of
the evidence that tends to rebut or refute portions of the
Secretary's evidence. I have not attempted to recite or discuss
all the relevant evidence. The only issue to be decided in this
reinstatement proceeding is whether the complaints of discrimination are frivolously brought. My ruling in this matter is limited to that single issue, keeping in mind that the Secretary has
the burden of proof on that issue.
I make no attempt to weigh
the evidence or make any findings on the ultimate issues. Upon
the basis of the record as a whole I find that the complaints of
each of the four miners, James Hyles, Douglas Mears, Derrick Soto
and Gregory Dennis, is not frivolous and is not frivolously
brought.
ORDER

Respondent, All American Asphalt, is hereby ORDERED to
reinstate James Hyles, Douglas Mears, Derrick Soto and Gregory
Dennis to the positions from which they were discharged or laid
off or to an equivalent position, at the same rate of pay and
with equivalent duties.

F. Cetti
istrative Law Judge

38

Distribution:
Gretchen M. Lucken, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Facsimile)
J. Mark Ogden, Esq. Office of the Solicitor, U.S. Department of
Labor, 3247 Federal Building, 300 North Los Angeles Street, Los
Angeles, CA 90012
(Facsimile)
Naomi Young, Esq., GARTNER & YOUNG, P.C., 1925 Century Park East
#2050, Los Angeles, CA 90067-2709
(Facsimile)
Eve Chesbro, Esq., Ontario Airport Center, 337 North Vineyard
Avenue #400, Ontario, CA 91764-4453
Mr. James Hyles, 15986 Nancotta Road, Apple Valley, CA 92307
Mr. Douglas Mears, 18212 Brightman Avenue, Lake Elsinore, CA
92503
Mr. Derrick Soto, 15394 Dakota Road, Apple Valley, CA 92307
Mr. Gregory Dennis, 1128 Amarillo Street, Alta Coma, CA 91701

sh

39

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

JAN 5 1994
CIVIL PENALTY PROCEEDING

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

Docket No. KENT 92-776
A.C. No. 15-16728-03511
No. 2 Mine

v.
LYNX COAL COMPANY,
INCORPORATED,
Respondent

DECISION APPROVING SETTLEMENT
Before:

Judge Barbour
Statement of the Proceeding

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), seekin~civil penalty assessments for two
alleged violations of certain mandatory safety standards found in
Part 75, Title 30, Code of Federal Regulations.
The Respondent
filed a timely answer denying the alleged violations and the case
was docketed for hearing on the merits in Prestonsburg, Kentucky.
The parties now have decided to settle the matter,
and they have filed a motion pursuant to Commission Rule 31,
29 C.F.R. § 2700.31, seeking approval of the proposed settlement.
The citations, initial assessments, and the proposed settlement
amounts are as follows:
Citation/Order No.
3818391
3813892

Date
1/21/91
1/21/91

30 C.F.R.

§

75.1722(b)
75.1728(c)

Assessment
$2500.00
$3000.00

.settlement
$2000.00
$2500.00

In support of the proposed settlement disposition of this
case, the parties have submitted information pertaining to the six
statutory c.ivil penalty criteria found in Section llO(i) of the
Act, included information regarding Respondent's size, ability to
continue in business and history of previous violations.
In particular, with regard to Citation No. 3818391, which was
issued for the failure of Lynx Coal Company to provide guards to
prevent persons from coming in contact with the tail roller system
serving a low conveyor belt, the parties state that although the
violation resulted in the section foreman being severely injured,
there was a guard in place at the time of the accident that

40

partially restricted access to the pinch point between the belt and
pulleys and that the operator's negligence was tempered by the fact
the foreman acted outside the scope of his duties in placing
himself in the situation in which he suffered injury.
With regard to Order No. 3818392, which was issued because
coal spilled beneath a conveyor belt was removed while the belt was
operating and which contributed to the severe injury of the section
foreman, the parties state that the operator's negligence was
tempered by the fact the foremen had been instructed in the proper
procedures for removing such coal and nonetheless was acting
outside his training and instructions.
CONCLUSION
After review and consideration of the pleadings, arguments,
and submissions in support of the motion to approve the proposed
settlement of this case, I find that approval of the suggested
reduction in the penalties assessed for the subject violations is
warranted and that the proposed settlement disposition is
reasonable and in the public interest. Pursuant to 30 C.F.R.
§ 2700.31, the motion IS GRANTED, and the settlement is APPROVED.
ORDER
Respondent has paid civil penalties in the settlement amounts
shown above in satisfaction of the violations in question.
This
proceeding is DISMISSED.

(_eJvv/d/(_~~
David F. Barbour
Administrative Law Judge
(703)756-5232

Distribution:
Mary Sue Taylor, Esq., Office of the Solicitor,
U.S. Department of Labor, 2002 Richard Jones Road, Suite B-201,
Nashville, TN 37215
(Certified Mail)

Mr. Link Chapman, Safety Director, Lynx Coal Company, Incorporated,
Box 301, Warfield, KY 41267
(Certified Mail)
\epy

41

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

JAN

5 1994

PEABODY COAL COMPANY,
Contestant

CONTEST PROCEEDING
Docket No. KENT 93-318-R
Citation 3551261; 1/6/93
Docket No. KENT 93-319-R
Order 3551262; 1/6/93

v.

Docket No. KENT 93-320-R
Order No. 3551263; 1/20/93
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Camp No. 1 Mine
Mine ID 15-02709

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

CIVIL PENALTY PROCEEDING

v.
PEABODY COAL COMPANY,
Respondent

Docket No. KENT 93-437
A. C. No. 15-02709-03840
Camp No. 1 Mine
Mine ID 15-02709
DECISION

Appearances:

Before:

Anne T. Knauff, Esq., Office of the Solicitor,
u. s. Department of Labor, Nashville, Tennessee,
for the Secretary of Labor;
David R. Joest, Esq., for Peabody Coal Company.

Judge Amchan
statement of the Case

On January 6, 1993, MSHA inspector Arthur Ridley went to the
office of Respondent's Camp 1 mine and reviewed the results of
Respondent's bimonthly sampling for respirable dust for the
period November - December 1992 (Tr. 16 - 18). Respondent's

42

records indicated that for the 5 samples taken during this
period, the average exposure of the continuous miner operator on
mechanized mining unit 044 (MMU) was 2.4 mg/m3 (Jt. Exh. 4).
Upon review of these samples, Ridley issued citation 3551261
alleging a violation of 30 C.F.R. § 70.lOO(a), which requires
that:
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 ...
This citation was issued pursuant to section 104(d) (1) of
the Act in that it alleged that the violation was "significant
and substantial" and due to the unwarrantable failure of
Respondent to comply with the standard. A $4,000 civil penalty
was proposed for this alleged violation.
On January 6, 1993, Inspector Ridley also reviewed the
results of Respondent's sampling of the continuous miner operator
on mechanized mining unit 056 for the bimonthly sampling period
of November - December 1992 (Tr. 58, 63). These 5 samples also
averaged 2.4 mg/m3 (Tr. 63, Jt. Exh. 5). Ridley issued
Respondent order number 3551262 pursuant to section 104(d) (1) of
the Act. A $6,000 penalty was proposed for the alleged violation
on MMU 056.
On January 20, 1993, Ridley returned to Camp 1 and reviewed
the respirable dust samples taken between January 4, and January
6, for the January - February 1993 bimonthly sampling period on
mechanized mining unit 047 (Tr. 77 - 78, Jt. Exh. 6). These
samples averaged 2.2 mg/m3. The inspector then issued order
3551263 pursuant to section 104(d) (2) of the Act. The Secretary
subsequently proposed another $6,000 penalty for the excessive
respirable dust exposure on MMU 047.
Respondent in this case concedes that the violations
occurred as alleged and that the violations were "significant and
substantial" pursuant to presumptions enunciated in Consolidation
Coal Co. v. FMSHRC, 824 F.2d 1071, 1084 (D. C. Cir. 1987). The
issues in this case are whether the violations are due to
Respondent's unwarrantable failure to comply with the standard,
whether the violations were due to a high degree of negligence on
the part of Respondent, and what are the appropriate penalties to
be assessed for the violations. The Secretary's allegations of
unwarrantable failure and high negligence are predicated on the
number of citations issued within the prior 2 years for violation
of the respirable dust standard with regard to each of the
mechanized mining units cited in January, 1993 (Tr. 34 - 39, 65,

43

74 - 75, 83 - 85, 100 - 102). 1 The Secretary did not consider
Respondent's compliance record with regard to respirable dust as
a whole in determining whether the January 1993 citation and
orders should be deemed to have resulted from high negligence and
"unwarrantable failure (Tr. 74 - 75, 100 - 102) ."
In the two years prior to January 1993, Unit 044 had been
sampled in 10 of the 12 bimonthly sampling periods. Respondent
had been out of compliance with regard to the MMU 044 on 4 of
those occasions. On February 8, 1991, Respondent received a
citation because the samples on unit 044 averaged 3.3 mg/m3 for
the January - February 1991 bimonthly sampling period (Exhibit G1). On March 28, 1991, a section 104(b) order was issued because
the samples for the March - April 1991 bimonthly period averaged
2.2 mg/m3. On December 2, 1991, a section 104(a) citation was
issued because the samples for the November - December 1991
bimonthly period averaged 2.7 mg/m3 (Exhibit G-2, page 2). On
February 11, 1992, another citation was issued because the
samples for the January - February 1992 bimonthly period averaged
2.8 mg/m3 (Exhibit G-2, page 3).
In the 12 bimonthly sampling periods during calendar years
1991 and 1992, mechanized mining unit # 056 was out of compliance
with 30 C.F.R. § 70.lOO(a) 5 of the 12 times it was sampled.
In
February 1991, Respondent was cited because the January February samples averaged 2.2 mg/m3 (Exhibit G-2).
In July 1991, Peabody was cited again because the May - June
samples averaged 2.7 mg/m3.
In February 1992, another citation
was issued because the January - February samples averaged 2.9
mg/m3 (Exhibit G-2, page 3). In April 1992, MSHA cited Peabody
again because the samples for the March - April period averaged
2.6 mg/m3.
The fifth violation during 1991 - 1992 was in the
November - December 1992 sampling period and is addressed by
order number 3551262.
Mechanized mining unit 047 was available for sampling in
only four of the 12 bimonthly sampling periods during calendar
years 1991 and 1992. In May 1991, Respondent was cited because
the March - April samples averaged 3.0 mg/m3 (Exhibit G-3). The
next time it was sampled was for the July - August 1992 sampling
period and it was barely in compliance with an average
concentration of 1.9 mg/m3 (Exhibit G-3, page 3). For the
September - October sampling period the average concentration was
2.4 mg/m3 precipitating another citation (Exhibit G-3, page 4).
MMU 047 was in compliance for the period November - December
1992, and then out of compliance for the January - February 1993
sampling period, which is addressed by order number 3551263.

1

At the time of the January 1993 citation and orders,
Respondent had 6 mechanized units in operation.

44

The Secretary's position is that the number of violations of
the respirable dust standard on each of these machines during a
two year period indicates more than ordinary negligence and is
sufficiently "aggravated" to constitute an unwarrantable failure
to comply with the standard. Peabody, on the other hand, points
to a number of steps it took, beginning in January 1992, to
improve dust control, which it contends establishes that it was
not "highly negligent" and makes the characterization of
unwarrantable failure inappropriate.
Respondent's evidence in this regard consists primarily of
the uncontroverted testimony of Michael W. Kirtley, who came to
Camp 1 in July 1992 to be Compliance Manager at this facility
(Tr. 173-74). The steps taken to remedy the excessive dust
problem at Camp 1 were as follows:
Beginning in January 1992, Respondent installed water
flow gauges on its continuous miners. This project,
which took 6 months to complete, allows the miner
operator to continuously monitor the amount of water
coming through his machine (Tr. 179);
In February 1992, Respondent began a 6 - 7 month
project to increase the size of the fittings on the
water lines leading to the continuous miners from 1/2
inch fittings to 2 inch fittings (Tr. 181 - 182);
In March 1992, Peabody increased the water volume on
its four continuous miners that are shuttle car units
by 25 percent. The water volume of its two continuous
miners that are continuous haulage units was increased
by 50 percent (Tr. 182 - 83);
Beginning in February 1992, Respondent replaced the 2inch plastic pipe in its water lines with 2-inch metal
pipe, which allows for the use of greater water
pressure (Tr. 183);
In March 1992, Peabody undertook to increase the size
of the water lines going to the miners from 1 inch to
1 1/2 inches (Tr. 184);
In a 6 week period during November and December 1992,
Peabody installed water sprays inside the ductwork of
the scrubbers on the continuous miners to improve
scrubber efficiency (Tr. 185);
In July 1992, the company replaced its water pumps with
pumps that allowed for increased water pressure and,
therefore, an increased volume of water (Tr. 188).

45

Peabody has also been working with Joy, the manufacturer of
its continuous miners, since January 1992, to reduce the
restrictions in the water lines on the mining machines (Tr. 187).
Since the issuance of the citations at issue in this case,
Peabody has acted upon a suggestion from inspector Ridley that it
assign additional supervisory personnel to monitor its employees
while they are being sampled for respirable dust exposure (Tr. 72
- 73, 96, 190). These supervisors insure that the sampled
employee positions himself where he can minimize his dust
exposure. The supervisor also checks on ventilation and water
pressure (Tr. 191).
Assessment of civil Penalties
Section llO(i) requires the Commission to consider 6 factors
in assessing penalties. Having considered these factors I
conclude that a $5,000 penalty is appropriate for each of the
violations at issue in this case.
The first factor, the operator's history of previous
violations is the most important consideration is this case.
Citation 3551261 was the fifth respirable dust violation on MMU
044 in a 2-year period. Order 3551262 was the fifth on MMU 056.
Order 3551263 was the third of out 5 sampling periods on MMU 047.
Although MSHA appears to have considered each MMU in isolation, I
believe that consideration must be given to the fact that~ in
January 1993, after numerous prior respirable dust violations, 3
of Respondent's 6 mechanized mining units were in violation of
the respirable dust standard. The number of violations of this
standard, which in protecting miners from respiratory diseases,
lies at the heart of the Act warrants a relatively high penalty,
regardless of whether these violations meet the criteria of
"unwarrantable failure."
By analogy, I would note that the Occupational Safety and
Health Act, a statute with almost identical purposes to the Mine
Safety and Health Act, provides for much higher civil penalties
for repeated violations than for first time violations. Under
the OSH Act, an employer may be penalized up to $7,000 for a
"serious" or "other-than-serious" violation but may be assessed a
penalty of up to $70,000 for a willful or repeated violation 29
u.s.c. 666 (a), (b}, and (c}.
I would deem it contrary to the
purposes of the Mine Act to assess a penalty in the instant case
which did not impose a significantly higher penalty given the
number of respirable dust violations on all of Respondent's
mechanized mining units.
I find a $5,000 penalty for each violation in this case
appropriate, given Peabody's size. Peabody produces in excess of
$10,000,000 tons of coal a year and is, thus, a relatively large
mine operator. The parties have stipulated that penalties of
this magnitude will not effect Peabody's ability to stay in

46

business.
The gravity of the violations in this case are quite high.
The parties have stipulated that the violations are "significant
and substantial." However, I would note that the record in this
case suggests that Respondent's employees have been regularly
exposed to respirable dust levels above those allowed by the
standard for a 2 year period. A penalty of anything less than
$5,000 would not be consistent with Congress' intent of using the
full panoply of the Act's enforcement mechanisms to effectuate
the goal of preventing respiratory disease Consolidated.Coal
Company v. FMSHRC, 824 F.2d 1071, 1086 (D.C. Cir. 1987).
Respondent demonstrated good faith in following the
suggestions of inspector Ridley in terminating the instant
violations and, thus, should not be penalized for not
demonstrating such good faith.
However, inspector Ridley's
suggestions for abatement and Respondent's implementation of
those suggestions leave something to be desired in terms of
complying with the Act.
Section 70.lOO(a) requires that each operator shall
continuously maintain the average concentration of respirable
dust at or below 2.0 mg/m3. Pursuant to 30 C.F.R. § 70.207,
sampling is to be taken during a normal production shift.
This
suggests that the sampling is to be representative of an
employee's regular, daily exposure to respirable dust (Compare
OSHA's standards such as 29 C.F.R. § 1910.1025(d) (iii)).
Sampling that is artificially low because supervisory
personnel are constantly watching and directing the sampled
employees would appear to be violative of section 70.207.
If
Respondent is taking other steps, such as frequent unannounced
spot checks on the work practices of its continuous miner
operators to assure that they minimize dust exposure as a regular
practice, the company's abatement measures would appear to comply
with the regulation. However, if the samples are under 2.0 mg/m3
only because Respondent is taking unusual steps while the
bimonthly sampling is in progress, Peabody appears to be in
violation of section 70.207.
On this record, it appears rather problematical that
Peabody's current sampling techniques comply with the Act. While
supervisors now make it a regular practice to watch employees
during sampling, there is little indication that anything is
being done to insure that employees follow the proper procedures
when they are not being sampled. There is an indication that the
requirements of Respondent's dust control plan has been discussed
with employees at annual refresher training and on one other
occasion {Tr. 213 - 215). However, nothing else indicates that
Peabody has done anything to assure that employees on a regular
and daily basis follow proper procedures with regard to

47

positioning themselves and using the line curtain or brattice to
direct intake air to the working face (Tr. 213 - 215).
Degree of Negligence and Unwarrantable Failure
The sixth factor for penalty assessment is whether the
operator was negligent. Inspector Ridley, when characterizing
the instant violations as due to a high degree of negligence and
Respondent's "unwarrantable failure" to comply with the standard,
did so on the assumption that the company had failed to take any
action to alleviate the situation (Tr. 39, 85, 141). Thus, the
question is whether this record establishes a high degree of
negligence and/or "unwarrantable failure" in light of measures
testified to by Mr. Kirtley.
Analytically, I find the issues as to the degree of
negligence and whether Respondent's conduct constitutes
"unwarrantable failure" to be inseparable. I conclude that
despite the measures taken by Peabody prior to the citation and
orders in this case, Respondent's violations were due to more
than ordinary negligence and that its conduct constitutes
"unwarrantable failure."
First of all, it is unclear what, if any, relationship
exists between the measures taken by Respondent to increase water
supply to its working sections and the numerous citations issued
to it for respirable dust violations. Given the numerous
citations received, a prudent employer would undertake a
comprehensive investigation of the reasons its sampling results
exceeded the permissible exposure limit on a regular basis.
Had Respondent done this they would have discovered, as they
discovered after the instant citation and orders, that the work
practices of its employees were deficient. The recognition that
its employees were not positioning themselves to minimize dust
exposure and were improperly using line curtains could have been
discovered (Tr. 213 - 215) before the issuance of the withdrawal
orders.
Commission caselaw makes it quite clear that ordinary
negligence does not constitute "unwarrantable failure." Emerv
Mining Corporation, 9 FMSHRC 1997 (December 1987); Rochester &
Pittsburgh Coal Company, 13 FMSHRC 189 (February 1991). However,
when a company has repeated respirable dust violations on a
number of mechanized mining units, its failure to do a
comprehensive analysis of what is causing this problem is more
than ordinary negligence. Given the importance in the statutory
scheme of preventing respiratory diseases, the failure to leave
any stone unturned in discovering the source of these violations
is "aggravated." Finally, for Inspector Ridley to show up at
Camp 1 in January 1993 and find 3 of the 6 mechanized mining
units in violation of the respirable dust standard, should, in

48

light of Respondent's compliance record during 1991 and 1992,
create a rebuttable presumption that the violations were due to
an unwarrantable failure to comply.
Had Respondent established that it had taken every
conceivable step to rectify the problem, I would be inclined to
find that the company's negligence was of an ordinary nature--if
that.
However, from the sampling done by MSHA in 1991 and 1992,
(Tr. 48, 89) which indicated that compliance with the standard
was achievable with the equipment already on site, Respondent was
on notice that something else, such as closer attention to proper
work practices, was necessary.
ORDER

1.
Citation 3551261 is affirmed as a section 104(d) (1)
citation.
Order 3551262 is affirmed. Order 3551263 is affirmed.
2.
Peabody Coal Company shall, within 30 days of the date
of this decision, pay to the Secretary $15,000 for the violations
found herein.

~ ~v~e--t~
;:;.t!.if
ur J . Amchan

Administrative Law Judge
703-756-6210

Distribution:
Anne T. Knauff, Esq., Office of the Solicitor, U. s. Department
of Labor, 2002 Richard Jones Rd., Suite B-201, Nashville, TN
37215 (Certified Mail)
David R. Joest, Esq., 1951 Barrett Court, P. O. Box 1990,
Henderson, KY 42420-1990 (Certified Mail)
/jf

49

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

JAN

5 1994

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

CIVIL PENALTY PROCEEDING
Docket No. KENT 93-114
A.C. No. 15-11012-03521

v.

Camp No. 9 Prep Plant
PEABODY COAL COMPANY,
Respondent
DECISION

Appearances:

Before:

MaryBeth Bernui, Esq., Office of the Solicitor,
u. s. Department of Labor, Nashville, Tennessee,
for the Petitioner;
earl B. Boyd, Jr., Esq., Henderson, Kentucky, for
the Respondent.

Judge Amchan
Statement of Facts

This matter arises from an inspection conducted on
September 18, 1992, by MSHA Electrical Inspector Michael Moore at
Respondent's Camp 9 Preparation Plant. The September 18
inspection was a follow-up to an inspection he had performed on
September 10, 1992 (Tr. 12-13, 27 - 28). On September 10,
Mr. Moore sampled for methane underneath the cover of a conveyor
belt at the bottom of the raw coal storage silo at the
Preparation Plant and had obtained readings of 5.2 percent and
5.4 percent methane.
As the result of these readings, he issued an imminent
danger order and a citation alleging a violation of 30 C.F.R.
§ 77.201, which prohibits a methane concentration of more than 1
percent in a structure, enclosure, or facility. Respondent
contested this citation and order, both of which were ultimately
vacated pursuant to a decision by Administrative Law Judge Roy J.
Maurer, Peabody Coal Company, 15 FMSHRC 746 (ALJ April 1993).

50

As part of its effort to abate the citation and order of
September 10, Respondent installed piping and a 25 horsepower fan
to draw air out from under the cover of the raw coal belt
conveyor. The fan was located inside the piping, 3 to 5 feet
from and outside of the raw coal silo, 60 feet from the covered
conveyor (Tr. 14, 65-66). When Inspector Moore examined the fan
on September 18, he found two things wrong with it. First of
all, it was plugged in with a flexible cord and secondly, its
motor was not approved for a Class I location, in that it was not
explosion-proof.
On September 18, Inspector Moore issued Respondent 2
citations alleging violation of 30 C.F.R. § 77.516. That
standard requires that all wiring and electrical equipment
installed after June 30, 1971, meet the requirements of the
National Electrical Code (NEC) then in effect.
Citation 3547316 alleges a non significant and substantial
violation of the standard in that the cord to the fan drawing air
from the raw coal conveyor did not meet the requirements of
Article 400-4 of the NEC. This article forbids the use of
flexible cord as a substitute for the fixed wiring of a structure
(Exh. G-2). MSHA contends that rigid conduit was required
because the raw coal silo is a permanent structure (Tr. 15, 56).
Citation 3547318 alleges a significant and substantial
violation of section 501 of the NEC. Pursuant to section 501-8,
motors in Class I, Division 1 and in Class I, Division 2
locations must be explosion proof (Exh. G-4). A Class I location
is defined by section 500-4 of the NEC as "those in which
flammable gases or vapors are or may be present in the air in
quantities sufficient to produce explosive or ignitable
mixtures." (Exh. R-1)
The Issues
Respondent contends that citation 3547316 is invalid because
its exhaust fan was not a permanent installation. The fan was
installed solely to terminate the imminent danger order and
citation issued on September 10, which Peabody contested
(Tr. 91). Upon vacation of this order and citation by Judge
Maurer, Respondent removed the fan (Tr. 39).
It is unclear whether Petitioner's theory is that rigid
conduit was required because the fan was a permanent installation
or because the flexible cord constituted part of the wiring of
the raw coal silo, which is a permanent structure (Tr. 14 -15).
In either case, I conclude that the Secretary has failed to prove
a violation of Article 400-4.
I find nothing in the record that would permit me to
conclude that the flexible cord was part of the wiring of the raw

51

coal silo. Similarly, when the citation was written, Mr. Moore
may have regarded the presence of the fan permanent; but
Respondent did not. Respondent installed the fan only to
terminate the September 10 citation and order, and fully intended
to remove it if it prevailed before the Commission. Therefore, I
vacate citation 3547316.
Citation 3547318 was also issued pursuant to Mr. Moore's
findings on September 10. Judge Maurer has made a finding that
the results of his sampling under the belt cover were invalid.
However, the question remains whether the Secretary has
established that the fan was located in a Class I location.
There is no dispute that the fan was not explosion-proof, as
required if it was located in a Class I location.
The record establishes that methane is released, at least
some of the time, when coal is fed onto the covered belt conveyor
(Tr. 97). The record does not establish anything definitive
about the concentration of methane or potential concentration of
methane underneath the cover. More importantly, there is nothing
definitive concerning methane concentrations or potential
concentrations at the fan. The methane readings at the fan on
September 18 were zero (Tr. 41). All of Peabody's methane
readings in the vicinity of the fan were zero (Tr. 88-89).
The Secretary's case is predicated on the theory that, if
there is methane under the cover of the belt conveyor, you can
never tell when you might have an ignitable or explosive
concentration of methane at the end of the ductwork where the fan
was located (Tr. 43-44). Respondent contends that the airflow of
the belt conveyor and the effect of the fan itself removed
whatever methane was present at the feeder (Tr. 104 - 108).
I conclude that, based on the record in this case, the
Secretary's evidence is far too speculative to establish that the
fan was located in a Class I location. The Secretary has not
established that methane could have been present in explosive or
ignitable concentrations at the location of the cited fan motor.
Therefore, I vacate citation 3547318.
ORDER

Citations 3547316 and 3547318 are hereby VACATED and this
case is dismissed.

fJA~~
~~~r J. Amchan

Administrative Law Judge
703-756-6210

52

Distribution:
MaryBeth Bernui, Esq., Office of the Solicitor, u. s. Dept. of
Labor, 2002 Richard Jones Rd., Suite B-201, Nashville, TN 372152862 (Certified Mail)
Carl B. Boyd, Jr., Esq., Suite A, 120 N. Ingram St., Henderson,
KY 42420 (Certified Mail)
/jf

53

PBDBRAL lllBB SAPB'l'Y DD HEALTH RBVJ:BW COlllllSSJ:Oll
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

JAN

5 1994

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

CIVIL PENALTY PROCEEDINGS
Docket No. WEVA 93-5
A.C. No. 46-01452-03901
Docket No. WEVA 93-92
A.C. No. 46-01452-03916

CONSOLIDATION COAL COMPANY,
Respondent

Docket No. WEVA 93-100
A.C. No. 46-01452-03918
Arkwright No. 1 Mine
Docket No. WEVA 93-164
A.C. No. 46-01968-04084
Blacksville No. 2 Mine
DECISIONS
Appearances:

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

Before:

Judge Koutras
Statement of the Proceedings

These proceedings concern proposals for assessment of civil
penalties filed by the petitioner against the respondent pursuant
to section llO(a) of the Federal Mine Safety and Health Act of
1977, 30 u.s.c. § 820(a), seeking civil penalty assessments for
several alleged violations of certain safety standards found in
Part 75, Title 30, Code of Federal Regulations. The respondent
filed timely answers and contests and hearings were conducted in
Morgantown, West Virginia. The parties filed posthearing briefs,
and I have considered their arguments in the course of my
adjudication of these matters.
Issues
The issues presented in these cases are (1) whether the
conditions or practices cited by the inspectors constitute
violations of the cited mandatory safety standards, (2) whether

54

the alleged violations were "Significant and Substantial" (S&S),
(3) whether the alleged violations were the result of an
unwarrantable failure by the respondent to comply with the cited
standards, and (4) the appropriate civil penalties to be assessed
for the violations, taking into account the civil penalty
assessment criteria found in section llO(i) of the Act.
Stipulations
The parties stipulated as follows in these matters
(Tr. 9-11).
1.

The presiding judge has jurisdiction to hear
and decide these cases.

2.

The subject coal mine is owned and operated
by the respondent, and the mine is subject to
the Act.

3.

The inspectors who issued the contested
violations were acting in their official
capacity as MSHA inspectors and
representatives of the Secretary of Labor.

4.

True copies of the orders were properly
served to the respondent's agents.

5.

Payment of the proposed civil penalty
assessments will not adversely affect the
respondent's ability to continue in business.

6.

The citations and orders contained in the
petitioner's initial civil penalty proposal
pleadings, including all appropriate
modifications and abatements, are true copies
of the citations and orders issued in these
proceedings.

7.

The preliminary requirements for the issuance
of the section 104(d) (2) orders, have been
met, and the section 104(d) "chain" applies
to the subject mine.
Discussion

Docket No. WEVA 93-100
This proceeding concerns a section 104(d)(2) non-"S&S" Order
No. 3718918, issued by MSHA Inspector Robert Huggins on July 27,
1992, citing an alleged violation of mandatory safety standard
30 C.F.R. § 75.514, and two section 104(d) (2) "S&S" orders
(3720838 and 3718252), issued by MSHA Inspector Spencer A.

55

Shriver on August 12, and September 4, 1992, citing alleged
violations of mandatory safety section 75.400. The respondent
admitted and conceded the fact of violations with respect to the
·August 12, and September 4, 1992, orders, but denied that it
violated the cited section 75.514, as stated in the July 27, 1992
order (Tr. 11-12).
The contested section 104Cdl (2) non-"S&S" Order No. 3718918,
July 27, 1992, citing an alleged violation of 30 C.F.R. § 75.514,
states as follows:
The supply track on the 2 south section is not provided
with mechanically and electrically efficient·track
bonding. The track is 350 feet long with no track
bonds on any of the joints. The 300 volt D.C. trolley
wire has been installed and is energized. There are
man trips and supply cars on the track. At the end of
the track the Galis D.C. roof bolter and the "Ako" D.C.
rock duster is grounded to the track by ground clamps.
The Galis roof bolter and the "Ako" rock duster is not
energized at this time. When talking with the UMWA
representative he informed me that the track had been
laid for at least two months. Track motors use this
track to place up supply cars on the section. The mine
floor which the track is laid on is dry and rock
dusted. A citation was also issued along with this
order for inadequate preshift examination. The
preshift examination book shows that the track had been
examined and no violations were found or reported. The
previous order which this order was written on is
No. 3107321 dated 4-11-88.
Petitioner's Testimony and Evidence
MSHA Inspector Robert Huggins confirmed that he issued the
violation and order after observing that none of the rail joints
on the cited supply tracks were bonded. He stated that he asked
company representative L.A. Smith, who accompanied him during his
inspection, about the matter, and Mr. Smith stated that "they had
messed up" (Tr. 20). Mr. Huggins stated that there were
approximately fifteen 30-foot lengths of track rails over the
cited 350 feet of rails which lacked track bonding {Tr. 21).
Mr. Huggins stated that he had no special training as an
electrician, and he relied on MSHA's section 75.514, July 1,
1988, Program Policy Manual guidelines (Exhibit P-7), which state
as follows (Tr. 23):
This section requires that conductors be joined
together with clamps, connectors, track bonds or other
suitable connectors to provide good electrical
connections.

56

At least one rail on secondary track haulage rails
shall be welded or bonded at every joint, and crossbonds shall be installed at intervals of not more than
two hundred feet.
Mr. Huggins confirmed that the cited supply track was
secondary haulage and that there were no welds at any of the
track joints and no cross bonding. He believed that the MSHA
policy provision was readily available to the respondent. He
confirmed that mantrips, a rock duster, and a roof bolter were on
the supply track and that the ground clamps were connected to the
rail at the end of the track with "alligator like clamps". The
power supplied to the track was 300 volt D.C. current
(Tr. 25-27). Mr. Huggins described the condition of the track
rails, and he was told that they had been installed for over two
months and some of them were "surface bent" (Tr. 28). The track
rails were connected with fishplates, which are strips of metal
that are attached rail-to-rail with bolts (Tr. 27-28).
Mr. Huggins described the hazards associated with the cited
conditions, and he explained that he designated the violation as
an "S&S" violation, but that this was later modified to a "non"S&S" violation by an MSHA conference officer" and that he
(Huggins) was never notified of the conference or contacted by
the conference officer (Tr. 28-32).
Mr. Huggins confirmed his "high negligence" and
unwarrantable failure findings, and he stated that mine
management knew about the cited conditions because the matter of
track bonding was discussed during the first day of his
inspection of the mine. He estimated that this was "probably
right after the fourth of July. The fifth or sixth, somewhere in
there" (Tr. 32-33). He also stated that preshift examiners at
other mine locations had noted the absence of track bonding, that
superintendent Terry Suder indicated that the track had been
installed prior to the development of the section and that they
forgot to go back in and bond it, and that L.A. Smith "said they
screwed up. Not those exact words" (Tr. 34). Mr. Huggins also
indicated that it was quite obvious that the required track bonds
were not in place, and that anyone walking the track should have
observed the conditions (Tr. 35). He confirmed that the preshift
books for the specific cited track area did not reflect the
missing track bonds, and that he issued a citation for an
inadequate preshift examination which was paid and not contested
by the respondent (Tr.36). He further confirmed that people
would walk the track numerous times during the day and that the
track was used on all three shifts. Preshift examiners would
also have occasion to be in the area, and other management
personnel would have occasion to pass by the area (Tr. ·37-42).
On cross-examination, Mr. Huggins stated that he took a
class in electricity for non-electrical inspectors. He confirmed

57

that at the time he observed the cited track conditions nothing
was moving on the track and he observed no arcing or sparking
(Tr. 44). He observed no change in the operation of the jeep or
jitney that he was riding on while traveling on the track, nor
did he see any jeep lights go out or fade, and he did not feel
any of the joints to determine if they were warm or hot. He
confirmed that steel ties placed on wood were being used on the
track in question (Tr. 45).
Mr. Huggins stated that the steel ties held the track
sections together, but he did not consider the fishplates to be
electrical connections between the rails. He confirmed if there
were no efficient current return on the tracks, the equipment on
the tracks would not have been able to operate. Since the
equipment was able to operate, he agreed that current was moving
through the track (Tr. 47-49).
Mr. Huggins stated that he could not identify any one
specific individual who was highly negligent with respect to the
violation, but that "a good number of management people had been
up and down the track". He believed that one or two people, as
well as the preshift examiners, should have seen the cited
conditions. He conceded that the same preshift examiners are not
used every day, and that an examiner could miss a condition.
However, he considered the fact that nothing was done after he
discussed track bonding with management when he began his mine
inspection, and Mr. Smith's admission that the respondent
"screwed up" (Tr. 54-55, 59).
Mr. Huggins stated that the steel ties he observed were used
ones and that they are usually rusty and dirty when they are
installed and that "common sense" would indicate that "you
wouldn't have an effective ground anyway" (Tr. 63). He did not
consider a steel tie to be a suitable cross-bond because MSHA has
never considered them to be acceptable and the entire mine is
cross-bonded with regular cross bonds welded to the mine rail
(Tr. 64) •
Mr. Huggins described a "track bond" as a piece of copper
twisted together like a wire rope with ends that are pounded onto
the edge of the bottom of the rail and welded and tacked to make
an efficient bond (Tr. 64). Mr. Huggins stated that he has never
been in a mine that did not use track bonds and he confirmed that
they are used on the tracks throughout the respondent's mine. He
had never before the hearing in this case heard management take
the position that fishplates and cross-ties were electrically
sufficient pursuant to section 75.514, and in his opinion, there
were no other suitable electrical connectors on the supply track
at the time o.f his inspection (Tr. 65) •
Mr. Huggins admitted that he made no determination as to
whether or not the use of f ishplates as bonding rendered the

58

cited track less than mechanically or electrically efficient, and
only knew that the normal type of copper wire bonding that he had
observed in other areas of the mine was not being used. He
concluded that the use of copper wires was the acceptable method
of bonding, and that the method being used was unusual
(Tr. 68-69).
Mr. Huggins was of the opinion that the use of a fishplate
as a track bond is not a good electrical connection because two
pieces of rusted steel put together cannot make good contact for
electrical connections. He conceded that he did not conduct any
test to determine whether the use ·Of the f ishplates was an
electrically efficient connection (Tr. 76). Mr. Huggins stated
that an acceptable definition of a track bond is a piece of
copper that goes either in front of or behind the fishplate and
is welded to both ends of the rail (Tr. 76). He stated that when
he discussed track bonding with management he did not
specifically discuss the cited supply track but only spoke
generally about bonding (Tr. 87).
MSHA Insoector Soencer Shriver testified that he is an
electrical engineer and has bachelor's and master's degrees in
electrical engineering from the West Virginia University
(Tr. 89). He stated that he was familiar with the mine and had
conducted prior electrical inspections and spot inspections at
the mine. He stated as follows with respect to the use of track
bonds (Tr. 91-93):
A.

A track bond, it varies in length. It's
about one and a half to two feet long. It
has a metal clamp on the end which is pounded
onto the flange of the rail, then welded in
place. Then this piece of wire is welded
across the track bond -- excuse me -- across
the track joint to get an electrically
efficient connection.

Q.

Now, is this term, track bond -- Well, first
of all, is the term, track bond, an accepted
term for this device in the mining industry?

A.

Yes, sir. I've never heard it called
anything else, a track bond or bond, in the
fifteen years I've been involved in it.

Q.

When the term, track bond or rail bond, is
used in the mining industry, is there any
doubt as to what the reference is to?

A.

Not in my opinion.

59

Mr. Shiver was of the opinion that the conditions cited by
Inspector Huggins constituted a violation of section 75.514, and
in particular, the sentence that states "all electrical
connections or splices in conductors shall be mechanically and
electrically efficient". He explained that the fishplates that
hold the track rails together may be rusted or corroded and that
"no matter how tight you get them, there is still some resistance
in that connection" (Tr. 92).
Mr. Shiver explained the direct current circuitry used on
the supply track in question and the application of MSHA's policy
manual interpretation of section 75.514. He confirmed that in
terms of compliance, MSHA considers the clamp and copper wire
bond as the only acceptable means of insuring electrical and
mechanical efficiency at all times (Tr. 95-102).
Mr. Shiver stated that he did not observe the cited track
area because he was on the four right track conducting an
inspection. He issued a citation at that track because two of
the track joints had not been bonded. The track was connected
with fishplates but was not bonded like all of the tracks in the
mine. He confirmed that the track had been bonded to a point but
personnel were called off that job and were dispatched to the
track cited by Mr. Huggins (Tr. 105-107).
Mr. Shriver did not believe it likely that the use of
f ishplates provided electrically efficient connections because of
the increased resistance caused by rusty rails. He confirmed
that a voltage drop test can be conducted to determine the
electrical efficiency of a conductor and that he has conducted
such tests on several occasions at various mines.
He stated
that the hazards presented by the cited conditions included the
possibility of electrocution, a fire due to hot joints, and a
short circuit not being interrupted by reduced short circuit
currents (Tr. 108-111). He further explained the injuries that
could result from the hazards, and he believed that it was
reasonably likely that a fatality could occur, irrespective of
the MSHA conference officer's non S&S finding (Tr. 113-121).
On cross-examination, Mr. Shriver confirmed that he never
observed the cited track before or during Mr. Huggins inspection
and he did not conduct a voltage drop test on that track. When
asked if the track connections in question were electrically
inefficient, Mr. Shriver responded "not having been there and
based on what I've been told, in my judgment, they would be
electrically inefficient" {Tr. 124). He confirmed that the never
observed the connections before they were bonded (Tr. 125).
Mr. Shriver stated that he was not familiar with the use of
stud terminals to attach a rail bond to a track (Exhibit P-8),
and that he has only seen welded connections. He confirmed that
the inspection of track joints is not required during weekly

60

electrical examinations (Tr. 127). Mr. Shriver further explained
the theory of track resistance, the hearing effects of welded
bonding, and the application of MSHA's policy (Tr. 128-137).
Respondent's Testimony and Evidence
William Runyan. section foreman, confirmed that he escorted
Mr. Huggins during his inspection and he described what occurred.
He confirmed that there was a supply car, portal bus, two jeeps,
a rock duster, and a roof bolter on the track in question, and
that except for forty feet of the track which one could observe
visually, the remaining portion was filled with the equipment he
described. Mr. Runyan observed no evidence of any track heating,
arcing, or sparking, and he stated that the roof bolter and rock
duster were used on the section and operated efficiently and he
had no reason to believe that there were any problems with the
return electrical feed for these machines. He confirmed that
Mr. Smith was not with the inspection party initially, but may
have met it later at an intersection (Tr. 138-143).
Mr. Runyon confirmed that no tests were made to determine
the efficiency of the connections on the cited supply track, and
the respondent immediately responded to the order by bringing
two people from the four right track section to begin bonding the
rails in question (Tr. 144-145).
On cross-examination, Mr. Runyon stated that Mr. Smith was
with inspector Shriver on the four right track section but he
could not recall whether he met them underground or outside of
the mine. Mr. Runyon believed that the track had been laid for
at least four weeks prior to the inspection by Mr. Huggins, and
he confirmed that the saw no track bonds on the cited section of
supply track (Tr. 145-147).
In response to further questions, Mr. Runyon stated that the
tracks in the mine are general bonded with the copper bonding
device described by Mr. Huggins and Mr. Shriver. He confirmed
that the cited tracks were connected with fishplates, and given
the absence of water, the dry conditions, and the length of track
that had been laid, he believed the use of fishplates was an
acceptable bonding method. If more track had been laid, the
fishplates may have presented a problem. Although it was hard to
see under the cars on the track, he acknowledged that the people
who laid the track would know it was not bonded. He did not know
why the track was not bonded in the manner required by the
inspectors (Tr. 148-154).
Robert L. Mabin testified that he was the section foreman on
the two south section at the time of the inspection and had
worked there for about a month. He confirmed that equipment had
operated on the track without any indications of problems with.
the return cirtuit for the equipment. He never observed any

61

track arcing or sparking, and saw no visual evidence of heated
track joints (Tr. 155-159).
On cross-examination, Mr. Mabin stated that the roof bolter
may have been used four or five times during a two-month period
on his shift, and he assumed that the cited supply track was not
bonded because it only covered 350 feet (Tr. 162-164).
Section 104Cdl (2) "S&S" Order No. 3720838, issued on
August 12, 1992, cites an alleged violation of 30 C.F.R.
§ 75.400, and the condition or practice is described as follows:
At 4 right transfer, coal has spilled on outby side of
headroller and chute, accumulating 4 feet high and
forcing back under bottom belt of Main South No. 2
Belt. This condition was reported in the preshift
examination book, and this hazardous condition was not
promptly corrected. Persons shoveling accumulation
stated that accumulations occur once or twice a week,
and review of preshift examination book disclosed that
accumulation was listed about ten times in last three
weeks. Violation therefore occurred due to failure of
operator to correct the underlying condition which
permitted the accumulations to repetitiously occur.
The violation was left uncorrected for three hours
after being listed in preshift examination book. The
violation is particularly serious, since there have
been many belt fires from such accumulations,
warranting increased attention from operator to correct
it.
The violation was listed several times in preshift
examination book, indicating an underlying problem.
The operator knew of violation and failed to promptly
correct it. Therefore, operator had high negligence,
and a serious accident is reasonably likely to occur.
Petitioner's Testimony and Evidence - Order No. 3720838.
Inspector Shriver confirmed that he issued the contested
order on August 12, 1992, for coal accumulations that he observed
at the locations described in his order, and he explained what he
observed. The section foreman informed him that "he had been
broke down and had not dumped any coal at all". Based on this
statement, Mr. Shriver concluded that the accumulations had been
present at least during the previous shift (Tr. 186-189).
Mr. Shriver stated that the cited coal spill was roughl¥ waist
deep, five or six feet wide, and probably ten feet long
("Tr. 190).

62

Mr. Shriver had no knowledge of any fires or injuries caused
by coal accumulations at the mine in question. He identified a
summary report of fires at other mines during the past five
years, and he described the hazards associated with the cited
accumulations and the reasonable likelihood of injuries resulting
from the hazards.
Mr. Shriver stated that three belt rollers were turning in
the coal accumulations and that the belt was "massaging the
coal". He believed it was reasonably likely that a fire would
start from that source. He stated that it was not uncommon for a
roller to break or stick, and the belt rubbing on the roller
would generate enough heat to ignite coal. In the event of a
fire, it could reasonably be expected that serious burns from an
explosion, or smoke inhalation from a fire would result
(Tr. 192, 197-199).
Mr. Shriver stated that mine management knew about the cited
accumulations because coal spillage at the four right transfer
point had been recorded "about ten times the previous few weeks"
in the preshift books which were countersigned by several company
officials. Accordingly, Mr. Shriver concluded that the recurrent
accumulations problems should have been known to these
individuals. He also indicated that there was "a rather obvious
big hole" in the sideboard at the transfer point which should
have been detected by the onshift and preshift examiners
(Tr. 200).
Mr. Shriver reviewed the preshift books for August 12, 1992,
and explained some of the entries. He believed that the
recurring spillage was caused by coal falling through the hole in
the side board (Tr. 203). Mr. Shriver stated that he returned to
the area a few days after the issued the order and found that the
condition had reoccurred. He issued a citation, and the hole was
repaired and the spillage has become practically nonexistent
(Tr. 204) .
Mr. Shriver stated that he has had occasion to issue
citations for coal accumulations along the belts four or five
times prior to the issuance of his order, and it was his
understanding that the sideboard hole had existed since it was
cut out to install a belt scraper, "probably about six weeks"
(Tr. 207).
In response to a question concerning the "aggravated
conduct" by the respondent in support of his unwarrantable
failure finding, Mr. Shriver stated as follows at (Tr. 211).
A.

The fact that it had been recorded, I think,
about ten times. I leafed back through the

63

fire boss book and I observed about ten
occasions when a problem had been reported.
And the comments of the two men who came to
shovel up the problem that they would have to
shovel it up once or twice a week. And the
fact that the belt examiners -- the on-shift
is done by the section foreman.
And several times, in my opinion, the onshift examination disclosed this problem and
they were able to clean it up before the next
shift start, in which case it would not be
entered in the fire boss book. So there were
actually times when it was there, but not
recorded.
And based on all these factors, but mainly
the fact that the mine foreman and the
superintendent had countersigned the fire
boss book, the running of the coal appeared
to me to be more important than to fix the
problem that was causing the accumulations.
On cross-examination, Mr. Shriver reviewed the relevant
preshift examination book and explained some of the entries, and
he confirmed that each time the accumulations were noted in the
book they were cleaned up every time (Tr. 219). He confirmed
that he considered the violation to be an unwarrantable failure
because the accumulations continued to repeatedly occur and not
because they were not cleaned up (Tr. 219).
Mr. Shriver confirmed that he did not test for methane, and
he identified the ignition sources as the three rollers turning
in coal and the belt rubbing on coal. He observed no hot
rollers, and he considered it reasonably likely that death or
serious injury would have resulted from the cited conditions
(Tr. 220). Mr. Shriver confirmed that he did not observe any of
the coal spilling out of the chute at the location of the hole,
but when he next returned to that location, there was no spillage
there (Tr. 224).
Mr. Shriver conceded that his order does not mention that
any belt rollers were turning in coal, and after referring to his
notes he stated that they say nothing about rollers turning in
coal, but do indicate that "coal worked under the belt"
(Tr. 228-229). The shift reports reflect that the accumulations
that were reported and recorded were cleaned up each time, but
that on August 12, 1992, when he was there, the individuals
assigned to clean up the cited accumulations had not reached that
area before he did (Tr. 237).

64

Mr. Shriver estimated that the cited spillage
accumulation had been present for half of the preceding midnight
shift, and that "it would take it a couple of hours to accumulate
that much coal spillage" (Tr. 238). He confirmed that he
reviewed the preshift books (Exhibit P-12) for ninety-five shifts
prior to his order, and that spillage was reported twelve times.
He agreed there would be many shifts where no spillage was
reported because "the on-shift people apparently cleaned it up
before they had to call it out". He also stated that "there was
spillage there and people were cleaning it up on-shift, but if
they couldn't get it all, then they would call it out as an entry
in the preshift book" (Tr. 240).
Respondent's Testimony and Evidence
John G. Blue, shift foreman, stated that he was present at
the cited area after Mr. Shriver issued his order. He confirmed
that he reviews the preshift reports from the prior shift in
order to determine the number of people needed to correct any
recorded violative conditions within a reasonable time (Tr. 243).
He stated that he assigned two people to clean up the spillage at
the cited four right transfer location because the foreman who
conducted the preshift told him the chute had plugged, that he
found it and cleared the plug, but that there was spillage on the
floor and around the ribs. The two men in question stopped along
the way to drag another belt that was more of a priority because
of float dust, and the foreman told him that the spillage in
question was not touching any belt or rollers, and that it was
not an immediate problem, but needed to be cleaned up
(Tr. 243-244).
Mr. Blue stated that the spillage entries shown in the
preshift books were not for the same cited conditions and that
there were six different areas where spillage may occur
(Tr. 247). He confirmed that the coal spillage, as well as all
of the coal on the section, is damp and that the transfer point
is "extremely wet". He further stated that he observed no
ignition sources in the cited area, and he found it highly
unlikely that the wet coal could have ignited (Tr. 250).
Mr. Blue believed that the cited accumulations had existed
for no more than two hours and ten minutes under "a worst case
scenario" (Tr. 250). He explained that the preshift examiner
found the spill and told him about it when he came outside.
Mr. Blue believed the spill occurred between 6:30 and 7:00, and
he stated that the two men who were dispatched to the area to
clean up the spill stopped at another belt area on their way to
the cited location. He made the clean up assignment at·
8:00 a.m., at the beginning of the shift (Tr. 253).
On cross-examination, Mr. Blue agreed that the cited
accumulations had existed for at least two hours. He confirmed

65

that he met with the foreman of the prior night shift who
informed him of the spillage and that he immediately assigned
personnel to clean it up (Tr. 258). He agreed that there were
accumulations at the cited location during the prior month, but
he believed the cited accumulations may have been caused by a
plugged chute (Tr. 260). However, he stated that "anything can
cause spillage," that it was not uncommon, and that no rollers
were turning in coal and no coal was in contact with the belt
(Tr. 2 61 , 2 6 9 ) •
Robert c. Andersch. Jr., confirmed that he accompanied the
inspector and that he was served with the order. He stated that
the cited transfer point was "very wet" and that the spillage was
caused by "some kind of a backup into the chute, some wet coal or
muck" (Tr. 273). He did not notice any ignition sources, and
although the belt was running, no coal had been mined prior to
their arrival and there was no coal on the belt. He observed no
belt rollers turning in coal or the belt touching and rubbing
coal (Tr. 274).
Section 104Cdl (2) Order No. 3718252, September 4, 1992,
cites an alleged violation of 30 C.F.R. § 75.400, and the cited
condition and practice states as follows:
At Main Butts No. 1 drive there is accumulation of fine
coal and dust under the bottom belt from the tail
roller to the drive roller nearest tipple. There is
accumulation of wet coal and dust under and around a
piece of belt over the north drive motor, with dry coal
and dust under the connection box and packed against
motor. Heat from motor had dried this material out,
possibly resulting in spontaneous combustion. on the
frame between the two motors, fine coal was packed so
tightly that a pick hammer was required to dig it
loose. The 4/0 AWG cable serving the drive motor
nearest tipple had the nut come loose from the fitting
into the junction box, and the cable had pulled out of
the box, leaving opening into connections. Substantial
dust had accumulated in the box. When the motor
junction boxes were opened, the pilot and ground
conductors in both motors were connected to same stud.
The possibility of a fire from friction and motor heat,
fire or explosion from dust, and water in the motor
junction box with opening, and improperly wired ground
monitor circuits, make a lost workday accident
reasonably likely.
The record of preshift examinations revealed that
spillage was reported on this belt from the tail
(piece) to tipple. Nobody was working at the drive,
which is the most likely location for a fire to result

66

from accumulation of coal. Operator therefore had high
negligence in permitting these accumulations to exist.
Petitioner's Testimony and Evidence
MSHA Inspector Spencer A. Shriver testified that he was
accompanied on his inspection of September 4, 1992, by the
respondent's Safety inspector Fred Morgan. Mr. Shriver stated
that an accidental spill had occurred two days earlier at another
location and that he returned on September 4, to check on that
cleanup and found the accumulations that he cited that day. He
confirmed that the accumulations were all located in the same
general location, but were different types of accumulations
(Tr. 274-279).
Mr. Shriver described the locations and extent of the
accumulations and stated that they ranged from damp to dry
(Tr. 279-282). He believed the accumulations presented a fire
hazard through spontaneous combustion at the location of the
motors, and he described the hazards at the other locations
(Tr. 282-285).
Mr. Shriver believed that the accumulations at the
connection box had existed for "several days" or "several shifts"
(Tr. 285-286). He believed that it was reasonably likely that an
injury would result from the hazards presented by the accumulations, and he explained what could have occurred if normal
mining operations were allowed to continue (Tr. 286-288).
Mr. Shriver stated that he based his "high negligence"
finding on his belief that the accumulations between the motors
had existed for several shifts and that he "had discussed this
situation there with Mr. Cole couple of days earlier and he said
that he would clean it up" (Tr. 288). Mr. Shriver also stated
that the preshift examiner would travel the area each shift and
should be looking for accumulations at the drives, tail pieces,
and transfers, but that the location of the motors were not among
the previous locations mentioned by mine foreman Cole (Tr. 289).
Mr. Shriver believed that the accumulations along the No. 1
belt drive rib had existed "over a period of time" and that it
was cleaned up from the drive and left by the rib. The
accumulation at the bottom belt had accumulated for "several days
from normal accretion of dust and fine coal" (Tr. 291). He
confirmed that none of the cited areas were the areas reported to
him by Mr. Cole (Tr. 291-293). Mr. Shriver could not recall
reviewing the preshift books to determine whether the cited
accumulations had been recorded (Tr. 295). He also confirmed
that he did not ask Mr. Cole about the cited accumulations
(Tr. 296). He later remembered reviewing the preshift books and
found that spillage was reported on the belt in question from the
tailpiece to the tipple (Tr. 299).

67

On cross-examination, Mr. Shriver confirmed that the coal
material packed against the motor was black and dry, that he
did not sample it, and did not check for methane in the area
(Tr. 306-307). He believed that the main ignition source was the
junction box. He stated that the cable entered the box through a
fitting that had "backed off" from the inside, but he saw no bare
wires. The insulation was somewhat damaged, and with the
continued vibration, he believed it would have cut through into
the energized wires over several shifts. He confirmed that the
area "was fairly damp" and was equipped with a sprinkler fire
suppression system (Tr. 308). He confirmed that the material
between the drive tipple was the result of a spill, and he
conceded that he did not include the accumulations along the rib
as part of his order (Tr. 309).
Respondent's Testimony and Evidence
Frederick D. Morgan. Sr., respirable dust foreman, confirmed
that the spillage under the belt tailpiece and tipple had been
reported and called out and two men and a foreman were working
on it. The area was damp and well rock dusted (Tr. 312-316).
Mr. Morgan confirmed the existence of the accumulations cited by
the inspector (Tr. 317-323).
Robert L. Mabin, testified that he was the regular section
foreman at the two south section on September 4, 1992. He
confirmed that there was a large spill at the belt transfer
point, that the section was idled, and that he assigned two men
to work on the spillage that had been reported on the preshift
(Tr. 327). He explained what work was done to address the
spillage, and he stated that the area is always wet and is
equipped with an operable fire suppression system (Tr. 329-330).
Docket No. WEVA 93-5
This proceeding concerns a section 104(d)(2) "S&S" Order
No. 3121715, issued by Inspector Spencer A. Shriver on June 18,
1992, citing an alleged violation of 30 C.F.R. § 75.400. The
cited conditions are described as follows:
On 3 right section, ID No. 028, the tailpiece of the 3
right belt, the tail roller is turning in fine dry coal
about 18 inches high and 18 inches long. Area was
covered with red dust. Float dust had covered 4 inch
water pipe and belt structure for about 35 feet outby
to inby rib of next crosscut. Float dust became
suspended in air when water pipe was patted.
Section foreman said he had made last check at
10:30 A.M., and due to problems with section equipment,

68

had only dumped half-dozen or less buggies of coal on
belt. Accumulations of fine coal and dust had occurred
at least during previous midnight shift, and probably
much earlier.
Most belt fires are caused by rollers turning in coal.
An accident is therefore reasonably likely. Such a
fire would generate dense smoke which would affect
persons working on belt. Accident would reasonably
result in lost workdays. Section Foreman should have
found and corrected violation between arrival on
section at 8:30 a.m. and issuance of order at
11:50 a.m.
Assistant Mine Superintendent was on section for
20 minutes before inspector knowing authorized
representative of secretary was heading for section.
He and section foreman were at feeder, 20 feet from
tailpiece, when violation was observed. Operator
therefore had high negligence in permitting violation
to exist.
The respondent's counsel conceded that the cited
accumulations existed and constituted a violation of
section 75.400, and that the crux of this case is the his dispute
with the inspector's unwarrantable failure and "S&S" findings
(Tr. 9-10).
Petitioner's Testimony and Evidence
Inspe9tor Shriver stated that he conducted the inspection on
June 18, 1992, and he explained what he found. He stated that
there was a considerable amount of red coal dust on the ribs and
belt structures and that "anytime I had seen that red dust in the
past, it usually meant that a roller was turning in coal for some
length of time". He believed that the dust had turned red
because "it was slightly oxidized by the friction of the roller
grinding in the coal" (Tr. 11-19). The accumulations next to
the roller were dry and the area under the belt drive was wet
(Tr. 26).
Mr. Shriver stated that the hazards associated with the
violation included the roller turning in the coal and generating
heat which turned the dust red, and the possibility of smoke
inhalation exposure to people in the area. He was also concerned
about a methane ignition on the section and believed that the
face was two to three hundred feet from the accumulations
(Tr. 30). He believed that an injury was reasonably likely, and
that persons in the area would be exposed to smoke inhalation,
or severe burns in the event of a float coal dust ignition

69

(Tr. 31-32). He also believed that it was reasonably likely that
a fire would have resulted if normal mining operations continued
and the roller continued turning in the accumulations (Tr. 32).
Mr. Shriver believed that the accumulations under the roller
existed for "several shifts" because the material "was more like
it had been gradually dribbled down into this area, and it would
have taken a few days to get to this point" (Tr. 33). He
confirmed that only "a couple of buggies" of coal had been mined
before he arrived, and he did not believe this was sufficient to
have cause the accumulations in question.
Mr. Shriver stated that the cited area was required to be
preshifted, and he checked the morning report and found that the
conditions had not been reported. He estimated that the
accumulations had existed for "several days", "fifteen or twenty
shifts", or "six days" (Tr. 33-36). He further stated that it
wa~ difficult to determine how long the accumulations existed,
but since little coal had been mined, "it would have had to have
been accumulated during the previous midnight shift" (Tr. 37).
Mr. Shriver believed that the assistant mine superintendent
should have known about the conditions because the conditions
were obvious and he went into the section ahead of him for an
inspection, and the section foreman told him that he had examined
the area approximately an hour and twenty minutes earlier. Under
the circumstances, Mr. Shriver concluded that "the company's
agents did know about it" and that "combined with the length of
time it had been in place", he believed that this constituted
aggravated conduct (Tr. 39). Mr. Shriver conceded that he had no
evidence that the superintendent and foreman actually saw the
cited accumulations, and no one admitted going by the area and
seeing the accumulations (Tr. 41-43).
Mr. Shriver explained the "aggravated factors" amounting to
an "unwarrantable failure" violation as follows (Tr. 43-44):
A.

The fact that there was an accumulation there
and, in my opinion, it had been there for a
substantial length of time; the fact that the
condition was obvious to a competent
observer, such as a section foreman; that he
told me he had made his check of the area at
ten thirty; and also that the assistant
superintendent was in the area. I felt at
the time he should have observed it.

Q.

Now, during those preceding six days which
you felt this accumulation had been present,
was this an area that mine management would
have passed through often?

70

A.

The section foreman on each section should
have examined the area for the preshift
examination for the following shift.

Q.

The preshift. Would any other members of
mine management have been through this area
during the preceding six days?

A.

It's difficult to say. They frequently do go
through there, but to pinpoint any specific
person at any specific time, I could not do
that.

On cross-examination, Mr. Shriver stated that when he has
found similar red dust conditions in the past "it is a condition
that requires several shifts to achieve", and that "we would find
it had been there for several shifts" (Tr. 49). He was not sure
that the red dust was combustible, and he has never tested it
(Tr. 49). The material contacting the belt "was not smoking and
it was not on fire", and he did not test or feel it for heat
content (Tr. 55).
Mr. Shriver stated that he made no methane checks and had no
indication of any methane problems. He was satisfied that the
section foreman checked for methane, and Mr. Shriver could not
recall seeing any areas inby the crusher, feeder and belt
tailpiece that were not adequately rock dusted (Tr. 57). He
explained his "S&S" finding as follows at (Tr. 55-59):
A.

If there were an ignition of methane on the
section and we have an accumulation of float
dust like we had on the structures here as
has happened in same other mines, the
concussion of the methane ignition can
suspend the float dust and cause a coal dust
explosion which is very severe. As in, I
believe it was the south mountain mine, we
had several fatalities in that case.

*

*

*

*

A.

Well, it's reasonably likely there would be a
serious accident either from a methane
ignition or from the roller turning in the
coal, causing a fire.

Q.

Is that a second ignition source that you're
hypothesizing here? It could start with a
methane ignition somewhere up near the face,
or it could come from an ignition of the coal
being contacted by the roller?

71

A.

That is right.

Q.

But you did not see any indication of heat
with respect to that roller turning in coal.

A.

Other than the condition of the dust I
observed.

Q.

No smoke, though.

A.

No.

Q.

No smell of combustion.

A.

No.

*

*

*

*

Q.

The second hypothetical source of ignition,
the ignition of the coal by the roller, the
friction between the coal and the roller,
that wouldn't cause the kind of concussion
that would mobilize float dust, would it?

A.

I don't believe it would.

In response to further questions, Mr. Shriver stated that he
detected no permissibility violations at the face that would
constitute potential ignition sources, and saw no ventilation
problems (Tr. 63-64). He conceded that when he makes an "S&S"
determination, he considers "a worst case scenario" if mining
were allowed to continue (Tr. 64).
Mr. Shriver stated that he checked the preshift book and
found no recorded violative conditions, but he did not check the
preshift books for the five or six days prior to his inspection
(Tr. 67). When asked if the accumulations had not been cleaned
up, and if mining were allowed to continue, whether the tail
roller turning in the accumulations would have ignited the coal,
he replied as follows at (Tr. 69):
A.

I think it's reasonably likely that it would
have ignited. I base that on conversations
with people I work with up at the District.
Most of them have been at least section
foreman or mine foreman and they indicate
that rollers turning in coal, if left for a
long period of time, will frequently result
in a fire.

72

Respondent's Testimony and Evidence
Leonard J. Lewandoski, section foreman, testified that he
worked the midnight shift on June 18, 1992, and conducted the
preshift examination of the belt and tailpiece, commencing at
5:15 a.m. Upon examination, he found that the tailpiece "was
clean" (Tr. 71-72).
On cross-examination, Mr. Lewandoski stated that he saw no
"red coal" when he traveled the area, and he observed no tail
roller turning in fine, dry coal. He has served as section
foreman since December, 1981, and has observed "a brownish red"
dust that results from rusty belt rollers. He observed no
accumulations of any kind when he conducted his examination
(Tr. 72-77).
Robert c. Andersch. Jr., stated he served as the inspection
escort for Mr. Shriver on June 18, 1992, when he conducted his
electrical inspection. He confirmed that two accumulations were
found at the tail roller of the three right section tailpiece,
one on each side of the roller. He estimated the accumulations
to be 12 inches high, with 3 to 5 inches submerged in water, and
they were "brownish" in color (Tr. 79). Mr. Andersch described
the materials as "residue coming off of the belt since our water
sprays down at the drive were inoperative" (Tr. 80).
Mr. Andersch stated that he observed the tops of the
accumulations "barely rubbing on the belt," but not onto the
roller. He also observed accumulations and brown dust at a
V-scraper located 10 feet outby the tail roller, and the tops
were dry, but the bottoms were wet. He further stated that he
has never seen any "red dust" as described by the inspector, and
he would classify it as "brown" (Tr. 81-83).
John E. Godwin, stated that he was the assistant mine
superintendent on June 18, 1992, and that between 9:30 and
10:00 A.M., the belt was reported as being dry (Tr. 84). Upon
inspection of certain belt sprays he found that the belt was dry,
and he described what occurs when the belt runs "off-center"
(Tr. 86-89).
Mr. Godwin stated that the section had been moved two days
prior to the inspector's arrival, and he believed the
accumulations could not have been present for more than two days
(Tr. 90). He believed that the "orangish brown dust" on each
side of the v-scraper was caused by the black and orange colored
rubber material used in the construction of the scraper and that
it was "residue and belt deposits" from the dry running belt
(Tr. 95-96).

73

Mr. Godwin conceded that accumulations were present, but
he did not believe that a (d) order was justified because the
pile was small and he observed no roller turning in the dust
(Tr. 98-100). He attributed the brown color of the accumulations
to the dry belt and not oxidation, and he believed that coal can
accumulate in seconds with the belt running off at the tailpiece
(Tr. 101) .
Inspector Shriver was recalled by the presiding judge and
stated in part as follows at (Tr. 109):
This type of dust that I observed in the area,
I've found when I see that dust - I didn't go to the
nearest tailpiece or what have you on the belt -- I
usually find that there is coal there, the rollers
turning in coal. That has been my experience.
Q.

When you see red dust, the rollers are turning
in coal?

A.

Reddish dust. Whether it's brown or red -- I'm
not that good at distinguishing colors, but
I've found on several occasions that when I
seen that color material in the area --

Q.

Could it have been brownish or orange or brown?

A.

Reddish brown.

On cross-examination, Mr. Shriver was of the opinion that
the "reddish dust" was caused by the tail roller, and he
explained as follows at (Tr. 113):
A.

Turning in the coal and suspending the reddish
dust into the air and depositing it on the ribs
and bottom; primarily because on several
occasions in by inspecting experience, I've
found a similar type of dust, and when I got to
the cause of it, it was a roller turning in
dust -- or a roller turning in coal.

Mr. Shriver stated that the longer a roller turns in coal
dust, the more dust is generated, and that a roller turning in
dust for a half-hour to two hours could turn the dust brown. He
confirmed that the cited dust accumulations consisted of "a light
coating of the ribs" rather then piles of material, and in his
opinion, they had existed "at least in the preceding shift and
probably much longer". He confirmed that his unwarrantable
failure finding was based on how long the condition existed and
the fact that the section foreman told him he had examined the

74

area (Tr. 116-120). Mr. Shriver believed that the foreman should
have observed the condition, and in his opinion, the foreman
didn't examine the area very closely (Tr. 124).
Mr. Shriver confirmed that he did not measure the
accumulations in question and only "eyeballed it across the back
of the tail roller". In his judgment it was "one and a half feet
in length in the direction of the belt" (Tr. 125). He believed
that it took 25 minutes for two men to clean it up with a shovel,
but that they were doing other work as well (Tr. 127-128).
Docket No. WEVA 93-92
This proceeding concerns four (4) section 104(a) "S&S"
citations issued by Inspector Spencer A. Shriver. Citation
No. 3720837, issued on August 12, 1993, citing an alleged
violation of 30 C.F.R. § 75.400, was settled by the parties and
the respondent agreed to pay the full amount of the proposed
civil penalty assessment of $506. The proposed settlement was
approved from the bench, and my decision in this regard is herein
reaffirmed (Tr• 131-132).
The three remaining contested citations are as follows:
Section 104(a) "S&S" Citation No. 3718250, issued on
September 3, 1992, cites an alleged violation of 30 C.F.R.
§ 75.701-3(a), and states as follows:
At No. 45 pump on main haulage, the 250 volt DC fuse
box does not have a frame grounding conductor. The
conductors in and out of the fuse box are subject to
vibration from passing locomotives, so possibility of
abraded insulation and an energized box is reasonably
likely. There have been several fatalities from
contacting trolley in past year: however, area at fuse
box was dry, so injury could reasonably be lost
workdays. These boxes have been changed from AC to DC
for over a year, and have had several weekly electrical
examinations. This box has never had a frame-grounding
conductor. Operator therefore had moderate negligence
in permitting violation to exist.
Section 104Cal "S&S" Citation No. 3718251, issued on
September 3, 1992, cites an alleged violation of 30 C.F.R.
§ 75.518, and states as follows:
At 35 Jug Pump on Main Haulage the fuse in fuse holder
is TRS 20R ampere rated. The pump is new and covered
with blue paint, and name plate could not be found.
However, this type of pump is 1 horse power or less,
requiring a 5 ampere fuse. If pump became overloaded
toxic fumes could be emitted, traveling about 2 miles

75

to lynch air shaft. Two motormen are in this area
shuttling loads and empties back and forth. A lost
workdays accident involving two motormen is therefore
reasonably likely. Weekly electrical examiner
checklist calls for 5 ampere fuse on this pump.
Operator therefore had moderate negligence in
permitting violation to exist.
Section 104Cal "S&S" Citation No. 3718256, September 4,
1992, cites an alleged violation of 30 C.F.R. § 75.512, and
states as follows:
An inadequate examination of electrical equipment is
being made at this mine. The following violations
which were abundantly obvious were cited:
1.

The fuse box at No. 45 pump had never had a
frame grounding conductor. Box has been
installed about a year - 104(a) No. 3718250.

2.

The fuse protecting No. 35 pump was
10 ampheres. The weekly examiner check list
calls for a 5 ampere fuse for this pump 104(a) No. 3718251.

3.

The cable in the belt drive junction box at
main butts drive was pulled out of the box.
Condition was extremely obvious - 104(a)
No. 3718253.

4.

The pilot and ground conductors on the cables
to the main butts drive motors were connected
to one stud. Motors have been installed for
about two years. Weekly examination should
include check of pilot circuit - 104(a)
No. 3718254.
Weekly examinations which permit these kinds of
violations to go undetected is reasonably
likely to result in lost workday accidents.
These examinations have been made over several
months with no follow up to determine adequacy.
Operator therefore had moderate negligence.
Petitioner's Testimony and Evidence

Citation No. 3718250. Inspector Shriver stated that he
issued the citation after finding that a 250 volt o.c. Square -D
fuse box located along the main haulage at the location of the
No. 45 pump was not properly frame grounded to hold the potential

76

on the box to a low value approaching zero volts if the box
became energized. The condition constituted a violation of
section 75.701-3(a), because none of the grounding methods
stated in the regulation were used to frame ground the box
(Tr. 139-143) •
Mr. Shriver described the hazards associated with the lack
of proper frame grounding and the likelihood of deterioration of
the grommet holding the conductor entering the box. He explained
that the power conductor entering the box could become abraded
over time, and if it were cut through to the insulation the fuse
box could be energize and would subject someone to "a fairly
severe shock" (Tr. 143-150).
Mr. Shriver stated that the grommet holding the power
conductor in place was "in good shape", and that it was "a tight
fit" as the conductor entered the hole in the box. The cited
condition concerned the one wire that entered the hole and was
not tied or grounded to the box to complete the circuit
(Tr. 151-154).
Mr. Shriver identified copies of prior citations issued at
the mine for missing frame grounds and fittings (Exhibits P-6
through P-10). He confirmed that the cited box in this case
would be subject to vibration by a passing locomotive, and that
persons conducting a weekly examination of the box could not see
that the frame grounding conductor that entered the box was not
connected or grounded to the frame. He was not aware of any
injuries at the mine in the past five years because of failure to
ground a fuse box. He further testified about his reasons for
his "S&S" finding (Tr. 160-184).
Citation No. 3718251. Inspector Shriver confirmed that he
issued the citation after finding that a fuse providing short
circuit protection for the one horsepower D.C. pump was four
times the capacity of what it should have been. The fuse that he
found was a 20 ampere fuse, and it should have been one that
ranged from five to six amperes to provide proper short circuit
or overload protection. He stated that the cited standard
section 75.518, was violated because the proper fuse type was not
used and the respondent's counsel did not dispute this (Tr. 187).
Mr. Shriver described the hazards associated with the cited
condition, and he stated that the oversized fuse would not
deenergize the pump if it "seized up or stalled for any reason".
If the pump were to overheat it would be the source of toxic
fumes or smoke or it would start a fire by igniting the coal,
exposing two motormen who normally shuttle through the-area to
these hazards (Tr. 187-188). Mr. Shriver believed that it was
reasonably likely that the pump motor would seize and overheat
because the bearings go bad and mud or rocks that do not go

77

through the pump strainer could become wedged in the motor and
cause it to stall (Tr. 188-189).
With regard to any injuries resulting from the hazards
presented, Mr. Shriver stated as follows at (Tr. 189-190):
Q.

What injuries could these persons be reasonably
expected to suffer from the fumes and other
hazards you've described?

A.

Smoke inhalation, which can be lost workdays.

Q.

How serious would you reasonably expect those
injuries of smoke inhalation to be?

A.

Lost workdays.

Q.

Now, what was the likelihood that a serious
injury would have resulted from the condition
you found if normal mining operations had
continued?

A.

I think it's reasonably likely.

Mr. Shriver did not know how long the oversized fuse had
been in the box, and he stated that the respondent knew the
required fuse size because of a chart posted in the safety off ice
(Tr. 191).
Citation No. 3718256. Inspector Shriver stated that when he
next returned to the mine on September 4, 1992, he found two
electrical violations at the connection box on the drive motor at
the main butts number one belt drive. He found a cable pulled
out of the box and a ground conductor and pilot conductor
connected to one stud, and he issued citations for these
conditions (Exhibits P-13 and P-14). These violations, coupled
with the two previous fuse violations, led him to conclude that
the required weekly electrical examinations were not adequate,
particularly since the first three conditions were quite obvious
(Tr. 195).
Mr. Shriver believed that at least three of the cited
violative conditions would have been present at the last weekly
electrical examination and he described the hazards associated
with inadequate electrical equipment examinations, and the
injuries that would reasonably likely result (Tr. 196-200).
Mr. Shriver did not know when management first knew that
electrical examinations were inadequate and he stated that
inadequate examinations have been "a chronic problem" at the mine
for several years. He confirmed that he has issued several
citations and orders in the past for the same conditions, and

78

also supplied the maintenance supervisor with references from the
electrical inspector's manual as guidance for making the
examinations (Exhibits P-15 through P-20; Tr. 201-205).
On cross-examination Mr. Shriver stated that it was his
practice in most cases to cite the respondent for inadequate
electrical examinations after he has issued citations for the
individual electrical violations. He explained that he does this
"If I find a significant number of violations and if it is spread
over a large part of the mine" (Tr. 206-210).
Mr. Shriver further clarified and explained the violative
condition associated with Citation No. 3718250. He explained
that the failure to connect the grounding conductor did not
provide for "a solid connection to the mine track" for purposes
of providing proper grounding protection as required by the cited
standard (Tr. 214-222). Mr. Shriver further explained that
vibration caused by passing trolleys would subject the power
conductor insulation to abrasion at the point where the conductor
entered the No. 45 pump box (Tr. 223-226).
With regard to the inadequate fuse on the No. 35 portable
"Jug pump", Mr. Shriver stated that he did not know how often the
pump would clog or blow fuses (Tr. 228). Mr. Shriver could not
recall if the 20 ampere fuse was put back after he found it, and
he "suspected" that it was because there were none readily
available and he allowed time for the respondent to obtain a new
fuse. He could not recall if the No. 35 pump were tagged out of
service, and he confirmed that the No. 45 pump was not taken out
of service (Tr. 230). He did not believe that the two pumps were
in unsafe operation condition requiring their removal from
service pursuant to section 75.1725(a) (Tr. 232).
Respondent's Testimony and Evidence
Insoector Escort Frederick D. Morgan. Sr., confirmed that he
is not an electrician. He stated that the area in question was
dry, that the pumps themselves are all grounded, and that a
rubber mat was provided for the No. 45 pump fuse box which was
mounted securely to the wall. The power wire conductor was
suspended from an insulated spad and there is very little
vibration (Tr. 243-249). He conceded that the failure to connect
the frame ground wire was a violation (Tr. 249).
With regard to the No. 35 jug pump, Mr. Morgan stated that
the closest coal was ten feet away, and if a pump fire had
occurred, he found it unlikely that it would ignite the coal .. He
confirmed that Mr. Shriver re-installed the oversized fuse after
checking it and the pump was reenergized (Tr. 250-251).
Donald s. Buckalew, maintenance foreman for 25 years,
confirmed that he was familiar with all of the citations issued

79

by Mr. Shriver. Mr. Buckalew stated that the examination of
electrical equipment is his responsibility. He stated that there
are 80 pumps located over seventeen miles, and that each pump has
17 different permissibility items that need to be checked. He
identified a check list and instructions that he gives to his
personnel for checking the pumps (Exhibit R-2; Tr. 257-259).
Mr. Buckalew stated that both of the pumps in question are
included on the check list and they are included as part of the
required weekly electrical examinations. He believed that the
pump installations in question were included as part of the
weekly examinations conducted just prior to the issuance of the
citations, and he identified a form that reflects that both pumps
were examined by a certified electrician on August 27, 1992, and
that "no dangerous conditions were found" (Exhibit R-1; Tr. 263).
Mr. Buckalew confirmed that the ungrounded No. 45 pump fuse
box had been in that condition for six to eight weeks
(Tr. 264). He stated that he has preventative maintenance and
electrical inspection programs in place, and grommets and
bushings are included. He confirmed that the pump with the
20 ampere fuse could burn up or quit functioning if it were stuck
or a rock fell into the impeller, or the fuse blew (Tr. 266).
On cross-examination, Mr. Buckalew confirmed that he
observed the fuse box prior to the issuance of the citation and
the ground connection had not been made (Tr. 217). He agreed
that the condition should have been detected during the
electrical examination (Tr. 274).
Findings and Conclusions
Docket No. WEVA 93-100
Fact of Violations
This case concerns three contested section 104(d) (2) orders.
The respondent admits that the two orders issued by Inspector
Shriver on August 12, and September 4, 1992, citing accumulations
of coal and coal dust, constituted violations of section 75.400
(Citation Nos. 3720838 and 3718252). The respondent's dispute is
with the inspector's special "significant and substantial" and
unwarrantable failure findings. Under the circumstances, I
conclude and find that the respondent's admissions, coupled with
the inspector's testimony and evidence, establish the two
violations of section 75.400 and they ARE AFFIRMED.

80

Section l04Cdl (2) non-"significant and substantial" Order
No. 3718918. July 27. 1992. 30 C.F.R. 75.514
In this instance the respondent is charged with an alleged
violation of mandatory safety standard 30 C.F.R. 75.514, a
statutory provision which provides as follows:
All electrical connections or splices in conductors
shall be mechanically and electrically efficient, and
suitable connectors shall be used. All electrical
connections or splices in insulated wire shall be
reinsulated at least to the same degree of protection
as the remainder of the wire.
MSHA's July 1, 1998, Program Policy Manual, Volume V,
Part 75, with respect to section 75.514, states in relevant part
as follows (Exhibit P-7):
This section requires that conductors be joined
together with clamps, connectors, track bonds, or
other suitable connectors to provide good electrical
connectors.
Where track is used as power conductor, efficient
connections require that:
1.

2.

At least one rail on secondary track-haulage
rails shall be welded or bonded at every joint,
and cross bonds shall be installed at intervals
of not more than 200 feet.

3.

4. In rooms where electric equipment is dependent upon
the room track rails as a power conductor, rail joints
shall be secured by means of fish plates, angle bars,
or the equivalent, and at least one rail shall be
bonded at each joint.
Visible arcing or heating at rail joints indicates poor
connections or poor bonding.
In the case of Secretary of Labor CMSHA) v. North American
Coal Company, 1 FMSHRC 1895 (November 1979), Commission Chief
Judge Paul Merlin vacated fourteen (14) citations alleg~ng
violations of mandatory safety standard 30 C.F.R. 75.514, after
concluding that this standard did not apply to track haulage
bonds and fishplates as alleged in the citations.

81

Judge Merlin took note of the fact that the legislative
history of section 75.514, refers to electrical connections "in
wiring," and that there is no reference to track haulage or to
bonding "although such references easily could have been made if
this had been what Congress intended," 1 FMSHRC at 1897.
Judge Merlin also took note of the fact that bonding and
track haulage are dealt with separately and specifically in a
companion situation pursuant to MSHA's Part 57, safety standards
for underground metal and nonmetal mines (30 C.F.R. 57.12042),
and he suggested that MSHA should have undertaken rulemaking to
cover the situation in coal mines pursuant to MSHA's Part 75
safety standards. Noting the absence of any evidence to
establish that the cited haulage system was not "electrically
efficient," and the conflicting testimony of MSHA's own experts,
Judge Merlin further commented that"··· MSHA itself does not
really believe 75.514 applies to track haulage bonds and
fishplates, but is selectively applying this mandatory standard
only where it wants to," 1 FMSHRC at 1899.
In the instant case, the parties are in agreement that the
critical issue is whether or not the track "bonding" or
connecting devices used by the respondent at the cited secondary
haulage area constituted suitable mechanically and electrically
efficient connections in satisfaction of the requirements found
in the cited mandatory section 75.514 (Tr. 51).
The burden of proof in this case lies with the petitioner.
In order to establish a violation, the petitioner must prove by a
preponderance of the credible and probative evidence that the
connection devices that were being used when the inspector found
them were unsuitable and did not provide the required
mechanically and electrically efficient electrical connections
for the cited haulage track in question.
The petitioner takes the position that the testimony of
Inspector Shriver, which is based for the most part upon the
observations of Inspector Huggins, the individual who issued the
violation, establishes that the electrical connections between
the cited supply track rails were electrically inefficient. The
petitioner also take the position that in the absence of one of
the connection methods outlined in MSHA's policy, the conditions
of the tracks in question prevented the existence of an
electrically efficient connection.
The respondent takes the position that the use of
fishplates, bolts, and steel ties as connecting devices for the
cited 350 feet of secondary supply track provided suitable or
good electrical connections in compliance with section 75.514,
and were in fact "other suitable connectors" that provided good
electrical connections within the meaning of MSHA's stated
policy.

82

Inspector Huggins, found that the devices used by the
respondent to provide the track rail connections were "unusual
and new" to him. He did not believe that they provided any
electrical connection on the tracks, and he obviously believed
that a track bonding device comprised of a copper wire rope that
is pounded and welded onto the track was the "normal" bonding
method for insuring an efficient bond and connection (Tr. 64-65).
Inspector Huggins, who is not an electrician, and who lacked
any special electrical training other than a course for nonelectrical inspectors, testified that he relied on MSHA's policy
manual in issuing the violation. I am convinced by his testimony
that he would accept nothing short of the "normal" copper track
bonding device that he observed in his experience as an inspector
as compliance with section 75.514. Indeed, the parties agreed
that if Mr. Huggins had found the type of track bond that he was
familiar with he would not have issued the violation.
Mr. Huggins confirmed that the tracks were grounded with a
clamp, that they were connected together with fishplates and
bolts, were installed on wood supports, and were tied together
with steel ties (Tr. 25, 28, 45). Although he confirmed that he
did not have a good view of the tracks under the supply cars that
were parked on the track, he described the track as "old, rusty,
and surface bent." These track conditions, coupled with the
absence of the type of "track bond" that he was familiar with,
led Mr. Huggins to conclude that there was "a lack of efficient
return of electrical current back through the current source"
(Tr. 27, 48). In short, he concluded that in the absence of the
track bond that he was used to seeing, the connections provided
by the fishplates, bolts, and steel ties, were not suitable to
insure an efficient mechanical and electrical connection.
Mr. Huggins conceded that the steel ties holding the track
rails together were properly installed. He confirmed that he saw
no evidence of any track sparking or arcing, and when he rode
into the area on the track jitney he noticed no change in its
operation or performance, and did not notice any fading of the
lights (Tr. 45, 47). Notwithstanding his testimony that the lack
of track bonds and the existing track conditions would prevent
efficient current return on the tracks and would render the
equipment on the track inoperable, Mr. Huggins conceded that
since the equipment was able to operate, current had to be moving
through the track (Tr. 47-49).
Inspector Huggins candidly admitted that he conducted no
tests to determine whether the use of f ishplates provided an
electrically efficient connection and that he simply relied on
MSHA's policy which he believed mandated the use of a welded
copper track bond as an acceptable method of bonding on secondary
track haulage. Mr. Huggins further conceded that he made no
determination as to whether the devices being used by the

83

respondent to connect and bond the tracks rendered them less than
mechanically and electrically efficient. He admitted that he
could not make such a determination without testing, but still
was of the opinion that the cited connections were inefficient
(Tr. 75-76). As noted earlier, Mr. Huggins has no electrical
expertise, and I have given little or no weight to his opinion.
Although Mr. Huggins described the tracks as rusty and dirty
and suggested that an efficient connection was impossible under
those conditions, he confirmed that the steel ties that connected
the rails together will conduct electricity if they are installed
correctly, and he conceded that they were so installed (Tr. 47).
He also conceded that there were electrical connections on the
tracks and stated that "there had to be some or it wouldn't run"
(Tr. 74) .
Inspector Shriver, an electrical engineer, stated that the
clamp and copper wire bond is the only acceptable means of
insuring electrical and mechanical efficiency at all times.
However, I note that under MSHA's policy, fishplates are
permitted as a means of securing rail joints in rooms where
electric equipment is powered by a track rail that functions as a
conductor.
Mr. Shriver was of the opinion that the conditions cited by
Inspector Huggins constituted a violation of 75.514, because the
fishplates may be rusted or corroded, resulting in a resistance
in the connection and a loss of efficiency. However, Mr. Shriver
did not observe the cited supply track and he had no personal
knowledge as to whether the tracks were in fact rusty or
corroded. Even if he did, I give little wight to his suggestion
that the electrical efficiency of a connection may be determined
by simply looking at it. Indeed, Mr. Shriver testified that a
voltage drop test could be conducted to determine the electrical
efficiency of a conductor and he confirmed that he had conducted
the tests on several occasions. He later recanted, and stated
that a voltage drop test was not necessary to determine an
electrically efficient connection. I find this testimony to be
contradictory and rather equivocal.
Mr. Shriver conceded that he never viewed the cited
connections before abatement, and even though he was not present
when the violation was issued, he was of the opinion that "based
on what I've been told, in my judgment, they would be
electrically inefficient" (Tr. 124). I conclude and find that
Mr. Shriver's opinion is highly speculative and lacking in any
evidentiary support, and I have given it little weight.
As noted earlier, as a condition precedent to establishing a
violation of section 75.514, the evidence must prove that the
type of connections alleged to be out of compliance are in fact
electrically and mechanically inefficient. Relying on, and

84

citing the absence of a welded bond of the kind provided for in
MSHA's Policy, which does not have the force and effect of a
mandatory standard that does not even mention track bonding, is
insufficient "evidence" to establish a violation. In this case,
I find no credible probative evidence to establish a violation.
Accordingly, the contested order is VACATED.
Signif i~ant and Substantial Violations
A "significant and substantial" violation is described in
section 104(d) (1) of the Mine Act as a violation "of such nature
as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard."
30 C.F.R. § 814(d) (1). A violation is properly designated
significant and substantial "if, based upon the particular facts
surrounding the violation there exists a reasonable likelihood
that the hazard contributed to will result in an injury or
illness of a reasonably serious nature." Cement Division,
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained its interpretation of the term "significant
and substantial" as follows:
In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum the Secretary of
Labor must prove: (1) the underlying violation of a
mandatory safety standard; (2) a discrete safety
hazard--that is, a measure of danger to safetycontributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will result
in an injury; and (4) a reasonable likelihood that the
injury in question will be of a reasonably serious
nature.
In United States Steel Mining Company, Inc., 7 FMSHRC 1125,
1129, the Commission stated further as follows:
We have explained further that the third element of
the Mathies formula "requires that the Secretary
establish a reasonable likelihood that the hazard
contributed to will result in an event in which there
is an injury." U.S. Steel Mining Co., 6 FMSHRC 1834,
1836 (August 1984). We have emphasized that, in
accordance with the language of section 104(d) (1), it
is the contribution of a violation to the cause and
effect of a hazard that must be significant and
substantial. U.S. Steel Mining Company, Inc., 6 FMSHRC
1866, 1868 (August 1984); U.S. Steel Mining Company.
Inc., 6 FMSHRC 1573, 1574-75 (July 1984).

85

The question of whether any particular violation is
significant and substantial must be based on the particular facts
surrounding the violation, including the nature of the mine
involved, Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498
(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
(December 1987). Further, any determination of the significant
nature of a violation must be made in the context of continued
normal mining operations. National Gypsum, supra, 3 FMSHRC 327,
329 (March 1985). Halfway, Incorporated, 8 FMSHRC 8, (January
1986) .
Order No. 3720838
The respondent concedes that the cited coal accumulations at
the transfer point where the belts came together and dumped coal
constituted a violation of section 75.400. Inspector Shriver's
credible and unrebutted testimony establishes that there was a
substantial accumulation of coal, approximately four feet deep,
or "waist high", extending over an area five to six feet wide and
ten feet long. According to Mr. Shriver, the coal was piled up
to the edge of the main south belt, which was at a forty-five
degree angle to the other belt, and it had accumulated and backed
up under the main south belt where the bottom belt turned over
the tail roller, and that some of the coal had backed up on the
belt chute (Tr. 188-191). Mr. Shriver stated that the
accumulations were damp, but that the coal that had accumulated
and backed up under the main south belt had dried out at the
location where the bottom belt turned over the tail roller.
Inspector escort Andersch described the accumulations as "a
considerable amount of coal spillage" (Tr. 273). Mr. Andersch
and shift foreman Blue testified that the accumulations were very
wet, and Mr. Blue agreed that the extent of the spillage was such
that the spilled coal had covered over the wet coal to the point
where the wet coal may not have been noticeable (Tr. 249).
Mr. Shriver testified that two belt rollers and the tail
roller of the main south belt were turning in the coal that had
accumulated and backed up under the belts, and that the main
south belt "actually humped up a little bit from the coal being
under it" (Tr. 192). Mr. Shriver considered the three rollers
turning in coal, and the belt "massaging the coal", as ignition
sources for a fire that he believed was reasonably likely to
occur (Tr. 192). If a fire had occurred, Mr. Shriver believed
that anyone working on the section where the air ventilation
traveled from the belt transfer point in question to another belt
location and regulator would be exposed to smoke inhalation, and
if an explosion were to occur, serious burns could be reasonably
expected (Tr. 197-199).
Mr. Andersch and Mr. Blue testified that they observed no
rollers turning in the coal and no coal that was in contact with

86

the belt. However, Mr. Blue agreed that belt rollers turning in
coal would dry out the coal if the roller was warm and caused
friction (Tr. 269). Further, Mr. Blue confirmed that he arrived
at the scene at approximately the same time that the men who were
assigned to clean up the spill did, and he conceded that
Mr. Shriver may have already ordered the belt shut down and that
he (Blue) would not have seen any rollers turning in the coal
(Tr. 271). All of the witnesses agreed that the belt was in
operation and moving, but that no coal had been mined before the
inspector observed the accumulations, and no coal was being moved
on the belts at that time.
Inspector Shriver conceded that his order does not specify
that any belt rollers were turning in the coal, and that his
notes do not reflect that this was the case. However,
considering the extent of the accumulations, the fact that they
were pushed up and under the tail roller and belt rollers, and
had backed up through the chute, and the fact that the belt was
moving over the turning rollers, Mr. Shriver concluded that the
rollers were turning in the coal. Mr. Shriver reiterated that
the coal that had accumulated and was pushed back under the main
south belt where the two belt rollers and tail roller were
located caused the belt to be "humped up a little bit from the
coal" (Tr. 230). Having viewed Mr. Shriver during his testimony,
he impressed me as credible on this issue and I find his
testimony regarding the rollers turning in the coal accumulations
to be consistent and believable, particularly in light of the
extent of the accumulations as described by Mr. Shriver, and as
corroborated by the respondent's witnesses.
Mr. Shriver confirmed that he made no tests for methene, and
that and the coal producing face was approximately 1,000 feet
from the cited belt transfer point where he found the coal
accumulations {Tr. 219, 221). Under the circumstances, and in
the absence of any other evidence reflecting the existence of
conditions that could present an explosion hazard, I cannot
conclude that an explosion was reasonably likely to occur as a
result of the cited accumulations.
I conclude and find that the cited coal accumulations
presented a discrete fire hazard. Although the evidence reflects
that the accumulations ranged from damp to very wet, Mr. Shriver
did not believe that the dampness of the coal would have affected
the likelihood of an injury because the heat from the rollers
turning in the coal would dry it out rapidly, and if an ignition
occurred, the coal would dry out further and burn (Tr. 193). As
noted earlier, Mr. Blue agreed that a warm roller subject to
friction would dry out the coal, and he confirmed that xhe
spillage and accumulations that were present covered up the wet
coal to the point where the wet coal was not readily observable,
and Mr. Shriver's credible testimony that the accumulations under
the main south belt had dried out is unrebutted.

87

In view of the foregoing, I conclude and find that in the
normal course of continued mining at the time the inspector
observed the cited coal accumulations, it was reasonably likely
that an ignition would have occurred as the coal continued to
accumulate and turn in the rollers of the moving belts, and that
a belt fire was reasonably likely to occur as a result of these
accumulations and ready sources of ignition that were present. I
further conclude and find that in the event of a belt fire, it
would be reasonably likely that the men on the section would
suffer smoke inhalation, and fire related injuries of a
reasonably serious nature. Under the circumstances, I conclude
and find that the violation was significant and substantial
(S&S), and the inspector's finding in the regard IS AFFIRMED.
Order No. 3718252
In its posthearing brief, the respondent admits that while
the violation did not result in any serious injuries or deaths,
it was still significant and substantial because the spill was of
major proportions, it had resulted in on electrical cable being
pulled from a junction box, and it required the efforts of a
number of miners to reestablish a walkway along the belt,
exposing then to slip and trip hazards. Under the circumstances,
and taking into account the testimony of the inspector in support
of his "S&S" finding, which I find credible, I conclude and find
that his finding was properly made and IT IS AFFIRMED.
Unwarrantable Failure Violation Issue
The governing definition of unwarrantable failure was
explained in Zeigler Coal Company, 7 IBMA 280 (1977), decided
under the 1969 Act, and it held in pertinent part as follows at
295-96:
In light of the foregoing, we hold that an inspector
should find that a violation of any mandatory standard
was caused by an unwarrantable failure to comply with
such standard if he determines that the operator
involved has failed to abate the conditions or
practices constituting such violation, conditions or
practices the operator knew or should have known
existed or which it failed to abate because of a lack
of due diligence, or because of indifference or lack of
reasonable care.
In several recent decisions concerning the interpretation
and application of the term "unwarrantable failure," the
Commission further refined and explained this term, and concluded
that it means "aggravated conduct, constituting more than
ordinary negligence, by a mine operator in relation to a
violation of the Act." Energy Mining Corporation, 9 FMSHRC 1997
(December 1987) ; Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007

88

(December 1987): Secretary of Labor v. Rushton Mining Company,
10 FMSHRC 249 (March 1988). Referring to its prior holding in
the Emery Mining case, the Commission stated as follows in
Youghiogheny & Ohio, at 9 FMSHRC 2010:
We stated that whereas negligence is conduct that is
"inadvertent," "thoughtless" or "inattentive,"
unwarrantable conduct is conduct that is described as
"not justifiable" or "inexcusable." Only by construing
unwarrantable failure by a mine operator as aggravated
conduct constituting more that ordinary negligence, do
unwarrantable failure sanctions assume their intended
distinct place in the Act's enforcement scheme.
In Emery Mining, the Commission explained the meaning of the
phrase "unwarrantable failure" as follows at 9 FMSHRC 2001:
We first determine the ordinary meaning of the
phrase "unwarrantable failure." "Unwarrantable" is
defined as "not justifiable" or "inexcusable."
"Failure" is defined as "neglect of an assigned,
expected, or appropriate action." Webster's Third New
International Dictionary (Unabridged) 2514, 814 (1971)
("Webster's"). Comparatively, negligence is the
failure to use such care as a reasonably prudent and
careful person would use and is characterized by
"inadvertence," "thoughtlessness," and "inattention."
Black's Law Dictionary 930-31 (5th ed. 1979). Conduct
that is not justifiable and inexcusable is the result
of more than inadvertence, thoughtlessness, or
inattention. * * *
Order No. 3720838
The petitioner argues that the recurrent nature of the
accumulations, as evidenced by Mr. Shriver's multiple
observations of accumulations occurring in the same location
from the same cause, as well as the numerous entries in the
preshift books that evidenced the recurrent problem at this
location, both serve to establish Consol's indifference to this
recurrent safety problem and establishes the unwarrantable nature
of the violation.
The respondent asserts that coal spills and accumulations at
belt transfer areas are not unusual repetitive problems in any
mine using conveyor belt haulage, and acknowledging that such
accumulations might be violations of section 75.400, the
respondent maintains they do not constitute unwarrantable
violations unless they are allowed to remain in place for
extended time periods and are not taken care of within a
reasonable period of time. In this case, the respondent believes

89

that the cited accumulations, as well as the prior accumulations
relied on by the inspector, were promptly cleaned up.
In support of its position that the violation was not
the result of its unwarrantable failure to comply with
section 75.400, the respondent points out that the spillage cited
by Mr. Shriver occurred because of a clogged belt chute which
caused a backup of coal when it spilled out through the open
space at the top of the chute, and not because of any "hole"
deliberately cut into the chute by the respondent. The
respondent acknowledged that it was aware of the spillage because
it had been reported by the preshift examiner, and that the
foreman had promptly assigned two miners to clean up the spillage
on the very next shift.
Inspector Shriver confirmed that the prior coal
accumulations that had occurred at the four right transfer point
as reflected by the entries in the preshift examiner's book,
"were probably cleaned up every time" (Tr. 219). He further
confirmed that he considered the violation to be an unwarrantable
failure because the accumulations repeatedly occurred, and not
because they occurred and were not cleaned up (Tr. 219, 226).
With respect to the coal spillage conditions recorded in the
preshift books as early as July 12, 1992, at the four right
transfer point, Mr. Shriver agreed that these conditions would
have been cleaned up and that this prior spillage was not the
same spillage he observed at the time of his inspection on
August 12, 1992 {Tr. 225).
Mr. Shriver believed that the coal accumulation that he
observed had to have occurred before 5:00 A.M. on the morning of
his inspection or during the midnight shift. Considering the
amount of spillage, he estimated that the accumulation had been
there during half of the midnight shift because "it would take a
couple of hours or more to accumulate that much coal spillage"
{Tr. 238). Based on his review of the fire boss books,
Mr. Shriver believed that the recurring spillage was being
cleaned up on-shift, and if all of it could not be cleaned up, it
would be called out as an entry in the preshift book and "the
next shift would have to catch up" {Tr. 240).
Shift foreman Blue testified that under the worst case
scenario, "there is no way this coal could have been present far
more than two hours and ten minutes" {Tr. 250). Mr. Blue's
credible and unrebutted testimony reflects that the midnight
shift foreman advised him of the spillage situation and that
Mr. Blue assigned two men to clean it up during the morning
shift. Mr. Blue explained that the men were on their way to
clean up the spillage but stopped at another area to take care of
another problem, and that this delayed them {Tr. 252, 255).

90

I take note of the fact that Mr. Shriver's order itself
makes reference to "persons shovelling accumulations".
Petitioner's counsel conceded that coal accumulations were being
cleaned up in another area, that the cited transfer point was
scheduled to be cleaned up by the cleanup personnel dispatched by
Mr. Blue, but they had not reached that location before the
inspector (Tr. 254). Counsel agreed that if the cleanup crew had
started cleaning up at the cited transfer point, rather than
stopping along the way to address another problem, they would
have arrived and started shovelling before the inspector arrived
and it was possible that the violation would never have been
issued (Tr. 254-255).
The petitioner's suggestion that a violation may have been
avoided if the shovelling crew had been in action when the
inspector arrived undercuts the petitioner's position that
recurrent accumulations constitutes indifference amounting to
aggravated conduct. Insofar as the recurrent nature of the
accumulations is concerned, it seems clear to me that the
respondent promptly addressed these conditions as they occurred,
including the accumulations cited by Mr. Shriver in this
instance.
·
Recurrent coal accumulations are inherent by-products of
large scale mining operations and they are not unusual events
justifying unwarrantable failure orders simply because no one is
shovelling them up when an inspector happens on the scene and
finds them. Each case must be decided on its own facts. Here,
the evidence dearly establishes that the respondent acted with
reasonable promptness to address the accumulations in question.
Under the circumstances, I agree with its position and cannot
conclude that the petitioner has established a case of aggravated
conduct in supporting of the inspector's unwarrantable failure
finding. Accordingly, that finding IS VACATED, and the contested
order IS MODIFIED to a section 104(a) "S&S" citation.
Order No. 3718252
The petitioner concludes that it has clearly established the
unwarrantable failure nature of the violation in that the cited
accumulations had been present "for a few days in a location that
is more likely than others to be involved in serious problems and
fires" and that the preshift and weekly examiners "did not
recognize these obvious violations". The petitioner further
concludes that this amounts to aggravated conduct supporting the
inspector's unwarrantable failure finding.
The respondent suggests that when the order was issued the
inspector was dissatisfied with where people were working to
clean up the massive spill that had occurred in that he noted in
his order that nobody was working at the drive where he believed

91

it was most likely that a fire would occur from the
accumulations. The respondent further suggests that in order
to support his unwarrantable failure finding, the inspector, at
the hearing, testified that the reason the respondent was highly
negligent was the fact that its management knew about the
accumulations for several days.
The respondent asserts that the fact that the respondent
knew about the coal spill on the beltline should not be
considered an aggravated situation in that mine foreman Cole had
discussed the spill with the inspector and had assigned people to
work on the cleanup at the time the inspector arrived on the
scene. The respondent maintains that with the exception of the
solidified material around the belt drive, the other
accumulations cited by the inspector were materials that had
resulted from the massive spill a few days earlier.
The respondent acknowledges that the material around the
drive motors had apparently been there for some period of time
prior to the spill, but that its combustibility was undermined,
and its consistency was such as to make it unlikely that it could
go into suspension. Since the combustible content of the
material was not known, the respondent concludes that it would be
impossible to base a violation entirely upon this accumulation
alone, and that it should not be viewed as a basis for an
unwarrantable failure charge based on an accumulation of inert
material in proximity of a couple of electric motors. Conceding
that the existence of inert materials may be a violation of
section 75.1725(a), if the materials rendered the motors unsafe
to operate, the respondent maintains that the material must be
shown to be combustible before section 75.400, can be cited.
The respondent acknowledges that a massive spill occurred at
a critical mine location, but points out that management knew
about the spill and promptly began work to correct the situation.
The respondent asserts that cleanup could not be accomplished in
a matter of hours starting at all locations at once, and it
points out that the section foreman had to first establish a
walkway to facilitate the cleanup in an orderly and safe manner
and he did not consider the belt drive area to be a critical
problem that needed to be taken care of before anything else.
The respondent concludes that the inspector decided that he would
have cleaned' up the spill differently by starting at the belt
drive, and that since this was not done, he decided to issue the
order for an unwarrantable failure to properly address the spill.
Inspector Shriver's order cited the main Butts No. 1 belt
drive, and it describes fine coal and dust accumulations under
the bottom belt from the tail roller to the drive roller nearest
the tipple, accumulations of wet coal and dust under and around a
piece of belt over the North drive motor, with dry coal and dust
under the connection box and packed against the motor, fine coal

92

packed tightly between the two motors, and "substantial dust"
accumulations inside the drive motor junction box.
The evidence reflects that for approximately two days before
the September 4, 1992, inspection an accidental massive spill had
occurred on the belt. Two men were assigned to clean up the
spill, and Mr. Shriver did not issue any citation for that spill
because mine foreman Cole was aware of it and Mr. Shriver gave
him an opportunity to clean it up. Upon his return to the area
on September 4, Mr. Shriver found one man shovelling and a
"sizeable" portion of the spill still remained. He issued a
citation for that spill and proceeded with foreman Morgan to the
main butts drive where he found the accumulations cited in his
order (Tr. 294-295).
Mr. Shriver estimated that the accumulations between the
motors had existed for "several days" or "several shifts"
(Tr. 285-286, 288). He based his "high negligence" finding on
his belief that the respondent knew about the accumulations in
that they had existed for several days and "he had discussed the
situation there with Mr. Cole a couple of days earlier and he
said that he would clean it up" (Tr. 288). He also considered
the fact that the tipple operator who was with him as the miner's
representative when they walked up to the drive on September 4,
"said that he had worked some on it the day before. In fact,
there was a guard.left off where he had shoveled on it"
(Tr. 288-289). Mr. Shriver later testified that the
accumulations discussed with Mr. Cole were not the same ones he
cited at the drive, and that he found those independent of any
conversations with Mr. Cole (Tr. 293-295).
Although the order states that the preshift examination
records reflected reported spillage on the belt from the tail
piece to the tipple, Mr. Shriver initially could not remember
whether he reviewed the preshift book (Tr. 295). When reminded
of the statement in his order, Mr. Shriver repeated it on the
record (Tr. 299).
Mr. Shriver confirmed that the distance from the tail roller
to the drive roller, which encompasses the area described in his
order, was less than 100 feet, and that the belt was shut down
for approximately an hour and fifteen minutes to clean up the
accumulation (Tr. 304).
Although Mr. Shriver believed that the preshift and weekly
examiners should have observed the cited accumulations, there is
no evidence that he spoke with these individuals, and they were
not called to testify. Further, even though mine foreman Cole
may have known about the spillage at the drive, Mr. Cole did not
speak with him at the time the order was issued, and Mr. Cole was
not called to testify (Tr. 296).

93

When asked to describe the "aggravated conduct" that
prompted him to issue the order, Mr. Shriver replied "permitting
the condition to exist for a long period of time" (Tr. 298).
When asked to explain how long a period of time he had in mind,
Mr. Shriver responded "probably on the order of weeks" (Tr. 298).
Dust foreman and inspector escort Morgan testified that the
coal spillage from the tailpiece to the tipple had been called
out and reported in the preshift book and that a foreman and two
men were working on it when he and Inspector Shriver arrived at
the scene (Tr. 314). Aside form the fresh spill, Mr. Morgan
confirmed that the cited accumulations at the motors had been
there prior to the spill that had occurred two days earlier and
it had accumulated in the process of cleanup with water hoses.
Mr. Morgan described the material as "a mixture of rock dust, and
ground up coal" that had become wet and then dried out and had
become hard (Tr. 317-318).
Mr. Morgan also acknowledged the presence of some spillage
that had been dragged back from the large spill along the
beltline and he indicated that the foreman decided that he first
had to establish a safe walkway along the beltline and clean up
the spilled coal before moving on to the belt drive area. He
confirmed that foreman Mabin shut down the section in order to
have enough people to address the situation and they were in the
process of cleaning up the area from the tail roller to the
tipple when he and Mr. Shriver arrived at the area. Mr. Morgan
acknowledged that no one was working at the belt drive at that
time (Tr . 3 19 ) .
Mr. Morgan testified that the accumulations between the
cited motors could have been part of the spillage that had been
called out because the coal that spills between the belts is
carried back to the drive area and is dragged off into that area
(Tr. 320) Mr. Morgan stated that there was an appreciable amount
of materials packed between the motors, and he conceded that if
he had made the preshift examination he would have called it out
as needing cleaning up (Tr. 320). Mr. Morgan was of the opinion
that the material was not combustible (Tr. 321).
Mr. Morgan described the material packed between the motors
as "a mixture of rock dust and coal and stuff" (Tr. 323). A pick
hammer was used to break the material loose and scrape it out and
he characterized the consistency of the material as "powder that
had gotten wet, and packed" and that he could have dug into it
with his finger (Tr. 323-324).
Section foreman Mabin confirmed that the section was idled
because of the coal spill at the main South belt transfer. The
spill had been reported on the preshift examination and he and
two of his crew members proceeded to clean up the area from the
main butts tailpiece to the tipple. Mr. Mabin testified that he

94

walked the entire length of the belt, and concluded that he first
had to establish a walkway where the spillage was over five high
before doing anything else. He conceded that there was spillage
at the drive, and stated "the most important thing was to take my
two men and establish a walkway. And the drive was not the
problem" {Tr. 327-329).
After careful review of all of the evidence in this matter,
I conclude and find that the petitioner has failed to make a case
of aggravated conduct on the part of the respondent. In this
regard, I find the testimony of the inspector to be rather
confusing and conflicting with respect to the question of
management's knowledge of the conditions and the length of time
that the cited accumulations existed.
Mr. Shriver first testified that the accumulations had
existed for several days or several shifts and that he had
discussed them with the mine foreman. He later testified that
the cited accumulations were not the same ones he discussed with
the foreman, and that they had existed "for weeks".
Although Mr. Shriver stated that the respondent's allowing
the cited accumulations to exist "for a long period of time"
amounted to aggravated conduct, I find no evidentiary support for
this conclusion. Although Mr. Shriver generally alluded to the
preshift reports, which he initially could not remember
reviewing, and copies of several reports covering a period from
mid-July, 1992, to mid-August, 1992, were introduced as evidence
{exhibit P-12), I find them of little value and weight, and none
of these reports cover the immediate three week period before the
issuance of the order on September 4, 1992. Further, the
"spillage" reported in these reports cover a number of mine
areas, and such generalized, non-specific book entries are of
little or no evidentiary value, particularly when they remain
unexplained.
The respondent's credible and unrebutted evidence
establishes that at least two days before the inspector
discovered the accumulations that he cited, a massive spill had
occurred in the same general area and the respondent was
addressing the spill by first establishing a walkway to allow
further work to continue before doing any other work. The
section had shut down for this work, and I find nothing
unreasonable about the manner in which the respondent was
proceeding to clean up. On the facts of this case, I believe
that one could reasonably conclude that the accumulations cited
by Mr. Shriver in the midst of the respondent's clean up efforts
in connection with the larger spill, would have been addressed
and taken care of before full coal production was again started.
Under all of these circumstances, I conclude and find that the
petitioner has failed to establish the unwarrantable failure

95

nature of the violation, and the inspector's finding in this
regard IS VACATED. The citation is modified to a section 104(a)
11 s&s 11 citation.
Findings and Conclusions
Docket No. WEVA 93-5
As noted earlier, the respondent has conceded that the cited
coal accumulations at the tailpiece of the 3 right belt
constituted a violation of 30 C.F.R. § 75.400, as stated in the
section 104(d) (2) 11 S&S 11 Order No. 312175, issued by Inspector
Shriver on June 18, 1992. Accordingly, the violation IS
AFFIRMED.
Significant and Substantial Violation
I conclude and find that the credible testimony of the
inspector supports his "S&S" finding. The respondent has
conceded the violation, and I conclude and find that the belt
tail roller turning in the fine dry coal constituted a discrete
fire hazard. Although the inspector did not check for, or find
any methane, I find that the roller turning in the coal
constituted a potential source of ignition that could have
ignited a fire if normal mining operations were to continue and
the roller continued to turn in the accumulations. I further
conclude and find that in the event of a belt fire, it would be
reasonably likely that the men on the section, including the face
area approximately two to three hundred feet away, would suffer
at least smoke inhalation, and fire related injuries of a
reasonably serious nature. Accordingly, the inspectors 11 S&S 11
finding IS AFFIRMED.
Unwarrantable Failure Violation
Inspector Shriver based his unwarrantable failure finding on
the length of time that he believed the accumulations had
existed, his belief that the section foreman should have found
and corrected the violation between his arrival on the section at
8:30 a.m. and 11:50 a.m., when the order was issued,· and the fact
that the assistant mine superintendent was on the section for
twenty minutes he (Shriver) arrived, and knew that he was on his
way to the section.
The presence of the assistant superintendent on the section,
and the fact that the section foreman should have observed the
conditions, is insufficient evidence of aggravated conduct, and
at most may support an ordinary negligence finding. Further,
Mr. Shriver conceded that there was no evidence that the
superintendent or the foreman actually saw the accumulations.

96

Mr. Shriver estimated that the accumulations had existed for
time periods ranging from "the prior midnite shift", to "several
shifts", "fifteen or twenty shifts," "several day's", or "six
days" (Tr. 33-37). These estimates were based on the fact that
as little as "two buggies" of coal had been produced on the
section, and Mr. Shriver's opinion that the "red" or "brownish"
color of the coal dust was the result of the belt roller turning
in the coal accumulations "for some length of time".
Section foreman Lewandoski testified credibly that he worked
the midnight shift on June 18, 1992, and preshifted the belt and
tailpiece at 5:15 a.m., and he found no accumulations and
indicated that the belt was "clean". Assistant mine
superintendent Godwin conceded that the accumulations were
present, but he indicated that the section had been moved two
days prior to the inspection, and that the accumulations could
not have existed for more than two days. He attributed the
"orangish brown" coal dust color to the residue and dry deposits
from a belt scraper of similar colors.
Althougn Inspector Shriver checked the preshift book for the
shift in question, he did not check the books for the previous
days (Tr. 67-68). I conclude and find that Mr. Shriver's time
estimates based on the color of the coal dust that he observed
are speculative and lacking in probative value. I believe that
Mr. Shriver's order was prompted by his belief that the section
foreman or assistant mine foreman who were on the section before
he arrived for his inspection should have found them and had them
cleaned up. Even if this were established, I would find no basis
for concluding that this amounted to aggravated conduct
warranting an unwarrantable failure order. Under these
circumstances, I conclude and find that the petitioners evidence
does not support the inspectors unwarrantable failure finding,
and IT IS VACATED. The order IS MODIFIED to a section 104(a)
"S&S" citation.
Docket No. WEVA 93-92
Findings and Conclusions
Fact of Violations
As noted earlier, section 104(a) "S&S" citation No. 3720837,
August 12, 1992, citing a violation of 30 C.F.R. § 75.400, was
settled by the parties and the respondent agreed to pay the full
amount of the proposed civil penalty assessment of $506.
With respect to section 104 (a) "S&S" Citation No •.3718250,
September 3, 1992, citing a violation of 30 C.F.R. § 75.701-3(a),
for failure to provide frame grounding for the cited fuse box,
and section 104(a) "S&S" citation No. 3718251, September 3, 1992,
citing a violation of 30 C.F.R. § 75.518, for having an oversized

97

fuse in the fuse holder of the 35 Jug pump, the respondent does
not dispute the fact that the cited conditions constituted
violations. Under the circumstances, the respondent's
admissions, coupled with the testimony of the inspector who
issued the citations, establishes the violations as charged.
Accordingly, the two citations in question ARE AFFIRMED.
Section 104Cal "S&S" Citation No. 3718256
In support of his conclusion that the examinations of
electrical equipment at the mine were inadequate, Inspector
Shriver relied on the two electrical violations that the found
the day before on September 3, 1992, concerning the oversized
fuse for the No. 35 Jug pump, and the lack of frame grounding for
the No. 45 pump fuse box (Citation Nos. 3718250 and 3718251). He
also considered two additional electrical violations that he
issued in the course of his inspection on September 4, 1992, for
a belt drive junction box cable that had been pulled out of the
box, and the connection of a pilot conductor and a ground
conductor of a drive motor to a single stud.
Mr. Shriver stated that it was his practice to issue a
violation for inadequate electrical examinations after he has
issued separate citations for the individual electrical
violations. In this instance, having found four electrical
violations in two successive days of inspections, he concluded
that the electrical examinations that either failed to detect, or
ignored, the violative conditions, were inadequate. He also
believed that inadequate electrical examinations have been "a
chronic problem" at the mine for several years, and he alluded to
the fact that he has issued several violations in the past for
the same conditions that he cited during his inspections of
September 3, and 4, 1992.
Exhibits P-15 and P-17 through P-19, are copies of prior
citations for violations of section 75.512, issued by Inspector
Shriver in 1990 and 1991, for inadequate examination of
electrical equipment. Exhibits P-6 through P-10, are copies of
citations issued by Mr. Shriver on February 28, 1990, for various
electrical violations of sections 75.701, and 75.515. Although
the petitioner did not produce any more recent prior citations
covering the period from February, 1990, and January, 1991 to
September, 1992, these prior citations do lend some support to
inspector Shriver's assertion that the respondent has had
problems with the sufficiency and adequacy of its electrical
examinations required by section 75.512.
The respondent is charged with making inadequate e1ectrical
examinations of its electrical equipment. The relevant and
applicable language of section 75.512, is found in the first
sentence which requires that "all electric equipment shall be

98

frequently examined, tested, and properly maintained by a
qualified person to assure safe operating conditions".
The respondent's unrebutted evidence reflects that both of
the pump locations cited by Inspector Shriver on September 3,
1993, were examined by a certified electrician on August 27,
1992, and they were included on a check list used for the
required weekly electrical examinations. Although I find nothing
in section 75.512, that makes reference to "adequate" or
"inadequate" examinations, I believe the clear intent of the
standard is to insure that the required examinations are
conducted in such a manner to insure that potentially hazardous
electrical conditions are timely detected, corrected, and
maintained in safe operating condition.
Inspector Shriver's credible and unrebutted testimony
reflects that at least three of the four electrical violations
that he discovered and relied on when he issued the violation in
question were quite obvious. Respondent's maintenance foreman
Buckalew admitted that the ungrounded No. 45 pump fuse box had
been in that\condition for a long period of time, and that the
ground connection had not been made. He agreed that the
condition should have detected during the electrical examination.
Although I recognize the fact that electrical equipment
conditions may change between examinations, and that a violative
condition, standing alone, may not reflect that the examinations
are inadequate, on the facts of this case where the inspector
cited three or four violations within a relatively short period
of time, and had in the past cited the respondent for a number of
electrical violations, as well as violations for failure to
adequately examine its electrical equipment, I cannot conclude
that the inspector here acted unreasonably. Considering the
intent of section 75.512, and the unrebutted fact that the
violative conditions had existed for some time and should have
been detected and corrected by the respondent before the
inspector found them, I conclude and find the required electrical
examinations were inadequate, and that the petitioner has
established a violation of section 75.512. Accordingly, the
citation IS AFFIRMED.
Significant and Substantial Violations
Section 104(a)

11

s&s Citation No. 3718250
11

Inspector Shriver cited the violation because the fuse box
was not grounded in that the frame grounding conductor inside the
box was not attached and there was no external frame ground
attached to the box going back to the track.
Mr. Shriver stated that a hazard would exist if the grommet
where the conductor entered the box were to pop out and

99

distintergrate due to a vibration of the trolley wire from
passing motor cars. If the grommet failed, the conductor would
abrade against the sharp edge of the hole in the box and would
cut through the insulation to the bare copper wire inside the
conductor, energizing the fuse box (Tr. 143). When asked how
likely it was that a grommet would come loose under normal mining
operations, Mr. Shriver stated that on prior occasions at
different locations on the same haulage he has found grommets
that either failed or disintegrated (Tr. 144). In his opinion,
once a grommet has popped out, it would take about a week before
the insulation would be worn through (Tr. 146).
Inspector Shriver made reference to several prior violations
that he issued in 1990 for missing or improper fittings, and he
indicated that the cables or conductors would be subject to the
same type of haulage vibrations as in the instant case
(Exhibits P-6 through P-10; Tr. 155-160). I take note of the
fact that in one instance where Inspector Shriver cited a
violation of section 75.515, and noted that a sharp edge of the
hole through which a conductor passed had abrated the conductor
insulation, he found that the violation non-"S&S" (Exhibit P-9).
In the instant case, Inspector Shriver conceded that there
was nothing wrong with the grommet or fitting through which the
power conductor entered the fuse box, and that it provided a
tight fit where the conductor entered the box (Tr. 151).
Mr. Shriver agreed that the fact that the ground wire inside the
box was not tied to the box did not, of itself, present any
injury hazard (Tr. 152). He also agreed that the area was dry
and did not likely present a fatal injury hazard if the box were
energized, and he was aware of no accidents at the mine related
to the cited condition (Tr. 162). Further, Mr. Shriver believed
that the box had been without a frame grounding conductor, which
was the cited condition in this case, for approximately a year
and that nothing happened during all of this time (Tr. 166).
Under all of these circumstances, I cannot conclude that it was
reasonably likely that the grommet or fitting in question, which
was in fact installed and in good condition, and which provided a
good tight fit for the cable which entered the box, would
disintegrate or pop out due to any vibrations from any passing
haulage traffic. That event would have to occur before the
completion of any "S&S" chain of events sufficient to establish
an "S&S" violation. In this instance, the condition which
prompted the citation had existed for a year according to the
inspector, yet the grommet or fitting showed no sign of
deterioration. Mr. Shriver confirmed that the fuse box was not
tagged out or removed from service, and it continued in use
(Tr. 230). Under all of these circumstances, I conclude and find
that the inspector's "S&S" finding was speculative and
unsupported, and IT IS VACATED. The citation IS MODIFIED to

a non-"S&S" citation.

100

Section 104Cal "S&S" Citation No. 3718251
Mr. Shriver did not believe that the cited pump in question
was in an unsafe condition requiring it to be immediately removed
from service (Tr. 232). He believed that an "S&S" violation
could range from "dangerous" (bad roof and bare, energized
conductors), to "medium grade and low grade S&S violations where,
for a few hours, they can remain in service" (Tr. 232).
Mr. Shriver believed that the oversized fuse was replaced in its
holder after the rating was checked and the pump was allowed to
continue in service for nearly six hours in order to allow the
respondent time to replace the fuse with one of proper size
(Tr. 229). Inspector Escort Morgan confirmed that Mr. Shriver
put the fuse back after checking it, and that the pump was
re-energized (Tr. 251-252).
Mr. Morgan stated that the pump was installed in a pit or a
hole, and that it was ten feet from the closest coal rib and
approximately fifteen feet from the mine roof (Tr. 250).
Mr. Morgan described the pump motor as "small" and he believed
that any fire in the motor would only damage the pump itself and
would not ignite the rib or roof coal (Tr. 251).
Inspector Shriver described the "jug" pump in question as a
small portable pump approximately one-foot in diameter that could
readily be moved by one person (Tr. 227). His principal concern
was that the pump motor could "seize up" or stall, causing a fire
that would ignite the rib coal and result in noxious fumes from
the motor windings or smoke inhalation from the coal fire
(Tr. 188). Although Mr. Shriver indicated that the motor pump
bearings may go bad or that small rocks may become wedged in the
motor, causing it to stall (Tr. 189), when asked how often this
was likely to occur, or how often such a pump becomes clogged,
stuck, or blows a fuse, Mr. Shriver responded "I don't have any
specific knowledge in that area" (Tr. 228).
I find no credible evidence to establish that it was
reasonably likely that the pump motor in question would seize or
stall, thus causing it to burn up the motor. Even if a motor
fire were to occur, given the small size of the motor and the
fact that the motor was installed in a pit, some ten to fifteen
feet from the coal rib and roof, I find it unlikely that any fire
would ignite the rib and roof coal. Aside from the motor
winding, there is no evidence that other combustible materials
were near the pump. Under the circumstances, I cannot conclude
that the violation was "S&S", and the inspector's finding in this
regard IS VACATED. The citation IS MODIFIED to a non-"S&S"
citation.

101

Section 104(a) "S&S" Citation No. 3718256
Inspector Shriver testified that the hazards associated with
the failure to perform adequate electrical examinations "are
almost without limit", and he cited several examples of missing
and overlooked frame grounds, inadequate short circuit and
overload protection, fine dust inside a motor box, and other
undetected conditions that may develop into serious and hazardous
permissibility violations, some of which could develop into
situations presenting potential electrocution and shock hazards
(Tr. 197-200).
I agree with the inspector's "S&S" finding in this
instance. The failure to adequately examine electrical equipment
to make certain that it is in safe operating condition presented
a discrete safety hazard in that miners who work around the
equipment might not be aware of hazards and potential hazards.
Ignorance of these hazards would reasonably likely result in
injuries of a reasonably serious nature. Accordingly, the
inspector's "S.&S" finding IS AFFIRMED.
Docket No. WEVA 93-164
This case concerns a section 104(a) "S&S" Citation
No. 3716846, issued on October 21, 1992, by MSHA Inspector
Robert L. Huggins, citing an alleged violation of 30 C.F.R.
§ 75.514, and it states as follows:
The supply track is not mechanically and electrically
efficiently bonded for approximately 150 feet for the
3-5 section MMU 067-0. This area is from the end of
the supply track to approximately 150 feet outby. There
was grounding clamps connected to the end of the rail
which provide grounding protection for electrical
equipment which is being used to clean up and support
roof around the fall area at the end of the track. A
track bolter is being used to bolt top in this area
along this track area.
This case was assigned to me on October 19, 1993, after the
hearing in Docket No. WEVA 93-100, which also involved an alleged
violation of section 75.514, issued by Inspector Huggins. The
parties agreed that my decision in the prior case would apply in
this case (See Chief Judge Merlin's October 19, 1993, Order of
Assignment) .
In the prior case I vacated the violation after finding and
concluding that the petitioner failed to prove that the·
respondent's track bonding method was not mechanically and
electrically efficient. Assuming that the evidence in this case
would be the same, and in light of the agreement by the parties
that my decision in Docket No. WEVA 93-100, would be dispositive

102

of this case, I incorporate by reference my findings and
conclusions in the prior case and conclude that the citation here
should be vacated on the ground that the petitioner has failed to
prove the alleged violation. Accordingly, the citation in
question here IS VACATED.
Size of Business and Effect of Civil Penalty Assessment on the
Respondent's Ability to Continue in Business
I conclude and find that the respondent is a large mine
operator and the parties have stipulated that payment of the
civil penalty assessments for the violations in question will not
adversely affect the respondent's ability to continue in
business.
History of Prior Violations
The petitioner's computer print-outs for the Arkwright No. 1
Mine, reflect that for the period covering June 18, 1990, through
September 3, 1992, there were seventy-nine (79) violations of
section 75.4QO, including those contested in these proceedings.
Sixty-nine o~these violations were issued as section 104(a)
citations. For an operation of its size, I cannot conclude that
this is a particularly egregious compliance record. However,
given the number of past accumulations violations, the respondent
needs to continually address its cleanup practices.
The computer print-outs also reflect four (4), prior paid
citations of 30 C.F.R. § 75.518, and twelve (12), prior paid
citations of 30 C.F.R. § 75.512, all of which were issued as
section 104(a) citations. I cannot conclude that this is a
particularly bad compliance record.
Good Faith Abatement
In the absence of any evidence to the contrary, I conclude
and find that the respondent timely abated the violations in good
faith.
Gravity
Based on my "S&S" findings and conclusions, I conclude and
find that those violations affirmed as "S&S" violations were
serious violations, and those modified and affirmed as non-"S&S"
were non-serious violations.
Negligence
I conclude and find that all of the section 75.400,
violations that I have affirmed resulted from the respondent's
failure to exercise reasonable care amounting to a moderately

103

high degree of negligence, and that the remaining violations
resulted from a moderate and ordinary degree of negligence.
ORDER
In view of the foregoing findings and conclusions, IT IS
ORDERED AS FOLLOWS:
Docket No. WEVA 93-100
1.

Section 104{d) (2) non-"S&S" Order No. 3718918,
July 27, 1992, citing an alleged violation of
30 C.F.R. § 75.514, IS VACATED, and the
proposed civil penalty assessment IS DENIED
AND DISMISSED.

2.

Section 104{d) (2) "S&S" Order No. 3720838,
August 12, 1992, citing a violation of
30 C.F.R. § 30 C.F.R. § 75.400, IS MODIFIED
to a section 104(a) "S&S" citation, and the
citation IS AFFIRMED.

3.

Section 104(d) (2) "S&S" Order No. 3718252,
September 4, 1992, citing a violation of
30 C.F.R. § 75.400, IS MODIFIED to a
section 104(a) "S&S" citation, and the
citation IS AFFIRMED.

Taking into account the 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 that have been affirmed, and
the respondent IS ORDERED TO PAY THEM.
Citation No.
3720838
3718252

8/12/92
9/4/92

30 C.F.R. Section

Assessment

75.400
75.400

$1,200
$1,500

Docket No. WEVA 93-5
Section 104(d) (2) "S&S" Order No. 312175, June 18, 1992,
citing a violation of 30 C.F.R. § 75.400, IS MODIFIED to a
section 104{a) non-"S&S" citation, and as modified, IT IS
AFFIRMED. The respondent IS ORDERED to pay a civil penalty
assessment of $1,000, for the violation.

104

Docket No. WEVA 93-92
1.

Section 104(a) "S&S" Citation No. 3720837,
August 12, 1992, citing a violation of
30 C.F.R. § 75.400, has been settled. The
respondent IS ORDERED to pay the agreed upon
settlement amount of $506 in settlement of the
violation.

2.

Section 104(a) "S&S" Citation No. 3718250,
September 3, 1992, citing a violation of
30 C.F.R. § 75.701-3(a}, IS MODIFIED to a
section 104(a) non-"S&S" citation, and as
modified IT IS AFFIRMED. The respondent IS
ORDERED to pay a civil penalty assessment of
$250, for the violation.

3.

Section 104(a) "S&S" Citation No. 3718251,
September 3, 1992, citing a violation
of 30 C.F.R. § 75.518, IS MODIFIED to a
section 104(a) non-"S&S" citation, and as
modified, IT IS AFFIRMED. The respondent IS
ORDERED to pay a civil penalty assessment of
$250 for the violation.

4.

Section 104(a) "S&S" Citation No. 3718256,
September 4, 1992, citing a violation of
30 C.F.R. § 75.512, IS AFFIRMED, and the
respondent IS ORDERED to pay a civil penalty
assessment of $500, for the violation.

Docket No. WEVA 93-164
Section 104(a) "S&S" Citation No. 3716846, October 21, 1992,
citing an alleged violation of 30 C.F.R. § 75.514, IS VACATED,
and the petitioner's proposed civil penalty assessment IS DENIED
AND DISMISSED.
IT IS FURTHER ORDERED that payment of the aforementioned
civil penalty assessments, including the settlement amount, shall
be made to the petitioner (MSHA) within thirty (30) days of the
date of these decisions and Order. Upon receipt of payment,
these matters are dismissed.

~~~
Administrative Law Judge

105

Distribution:
Charles M. Jackson, Esq., Roberts. Wilson, Esq., Office of the
Solicitor, U.S. Department of Labor, 4015 Wilson Blvd., Rm. 516,
Arlington, VA 22203 (Certified Mail)
Daniel E. Rogers, Esq., Joan W. Yoho, Consol Inc.,
1800 Washington Road, Pittsburgh, PA 15241-1421 (Certified
Mail)
/ml

106

l'BDBRAL XZllB SUETY DD llBALTJI RBVJ:BW COIDUSS:IOB
OFFICE OF ADMllllSTRATIVE LAW DGES
2 SKYLlllE, 10th FLOOR
5203 LEESBURG PllCE
FALLS CllJRCH, VJRGllllA 22041

JAN 7 1994
CIVIL PENALTY PROCEEDING

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

Docket No. SE 93-254-M
A.C. No. 31-00212-05542

v.
Lee Creek Mine
TEXASGULF INC. ,
Respondent
DECISION
Appearances:

Leslie John Rodriguez, Esq., Office of the
Solicitor, U.S. Department of Labor, Atlanta,
Georgia, for the Petitioner;
T. Carlton Younger, Jr., Esq., Texasgulf, Inc.,
Raleigh, North Carolina, for the Respondent.

Before:

Judge Koutras
statement of the Case

This is a civil penalty proceeding initiated 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).
Petitioner seeks a civil penalty assessment in the
amount of $50 for an alleged violation of mandatory safety
standard 30 C.F.R. § 56.12067. The respondent filed a timely
answer contesting the alleged violation, and a hearing was held
in Raleigh, North Carolina. The parties waived the filing of
posthearing arguments, but I have considered their oral arguments
at the hearing in my adjudication of this matter.
Issues
The issues presented in this proceeding are (1) whether
the respondent has violated the cited standard as alleged in
the proposal for assessment of civil penalty; and (2) the
appropriate civil penalty that should be assessed for the
violation based upon the civil penalty assessment 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.

107

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

3.

30 C.F.R.

4.

Commission Rules, 29 C.F.R.

§

56.12067.
§

2700.1 et seq.

stipulations
The parties stipulated to the following (Tr. 5-6):
1.

The respondent is subject to the jurisdiction
of the Mine Act.

2.

The presiding judge has jurisdiction to hear
and decide this matter.

3.

The respondent is a large mine operator.

4.

The cited conditions were timely abated by
the respondent in good faith.

5.

The respondent's history of prior violations
is reflected in an MSHA computer printout
(Exhibit P-18).
Discussion

Section 104(a) non-"S&S" Citation No. 4094761, issued on
February 2, 1993, by MSHA Inspector Terry Scott, cites an alleged
violation of 30 C.F.R. § 56.12067, and the cited condition or
practice is described as follows:
The transformer casing at the "I" portable substation
(high voltage) was within 3 feet of the chain link
fence.
Petitioner's Testimony and Evidence
Billy B. Foster, respondent's General Foreman, was called as
an adverse witness and testified that he is an electrical
engineer and is the second line supervisor over the electrical
maintenance personnel. Referring to photographic Exhibits P-1,
P-2, and P-3, Mr. Foster pointed out the cited transformer casing
in question and described its component parts. He also explained
and described the other electrical equipment shown in the
photographs. He stated that the transformer casing appears to be

108

"butted right up against" the chain link fence shown in the
photographs and that there is little space been the transformer
casing "fins" and the fence (Tr. 11-19).
Mr. Foster stated that in his 34 years of experience he
has never seen or heard of an energized transformer casing
(Tr. 20). Mr. Foster identified and marked the energized parts
shown in Exhibit P-1, and the energized wires, insulators, and
small transformers shown in Exhibit P-2 (Tr. 20-24).
Petitioner's counsel stated that the photographs depict
substation "J", which is representative of the identical
equipment located at substation "I" and the remaining nonconforming substations on mine property that include equipment
less than three feet horizontal from the fence (Tr. 26). Counsel
further explained that Inspector Scott observed 26 transformers
at the time of his inspection and issued the citation citing only
one of the substations because of MSHA's current policy not to
issue multiple citations for similar violations (Tr. 27).
Respondent's counsel contended that all of the transformers
are not similar, and he pointed out that the inspector only cited
substation "I" and that the evidence should focus on that
particular equipment. Counsel further pointed out that the
configuration for substation "I" is substantially different from
those shown in the photographs in question (Tr. 29-30).
Petitioner's counsel stated that MSHA does not have a
photograph of the cited substation "I" and he could not explain
why one was not obtained. Counsel stated that the respondent's
photographs, Exhibits R-1 through P-5 depict the cited substation
11
I" (Tr. 3 o- 31) .
Mr. Foster confirmed that photographic Exhibits R-1 and R-2
represent substation "I" with the MSHA approved abatement, and
that Exhibits R-3 through R-5, show the conditions found by
Inspector Scott. The cited transformer casing, which includes
the "radiator" type fins, and the "skin and body" of the
transformer, is shown in Exhibit R-3 (Tr. 31-32). After viewing
the photographs, and confirming that he made no measurements,
Mr. Foster "assumed" that the casing in question is less than
three feet from the fence and he stated that "I'd have to go by
what the citation says" (Tr. 31-33).
Mr. Foster stated that the fence shown is six feet high and
he did not recall the distance from the height of the fence to
the inside of the transformers. He stated that the incoming
voltage on the "I" substation is 23,000 volts and that the
outgoing voltage is 4,160 volts (Tr. 34).

109

Respondent's counsel confirmed that photographic
Exhibits R-1 through R-5, are of the cited substation "I". He
explained that the substation is mounted on a skid and that the
fence immediately surrounding the substation is installed around
the perimeter of the skid. The skid is used to facilitate the
moving of the substation from one location to another. The outer
fence shown in Exhibits R-1 and R-2, was installed to achieve
compliance and abate the citation.
Petitioner's counsel confirmed that if the skid-mounted
fence were moved further away from the transformer and other
substation equipment to provide three-feet of clearance, or a
"walkway" between the equipment and the fence, MSHA would
consider this to be in compliance with the cited standard
(Tr. 34-36). Respondent's counsel stated that this could be
done, but that it would require the reconstruction of the skids.
However, he believed that the cited substation was in compliance
with only the skid-mounted fence around it (Tr. 34-38).
On cross-examination, Mr. Foster stated that an ungrounded
transformer casing could present a dangerous hazard if it became
energized. However, the grounding would prevent this from
happening and this is the primary consideration in the design and
maintenance of a substation. Mr. Foster pointed out the
energized parts in Exhibits R-1 through R-5, and he stated that
measurements taken established that the nearest distance from the
fence to any energized parts was three-feet three-inches. He
also indicated that the six-foot high fence distance does not
include the. barbed wire installed at the top of the fence
(Tr. 41) .
Dennis H. Miller, respondent's safety and health supervisor,
was called as an adverse witness. He stated that the substations
have always been mounted on skids without the fence mounted
directly on the skid. The fence was installed on the ground and
it was grounded. He confirmed that the skid-mounted fence shown
in Exhibit R-3, was the one cited by Inspector Scott, and that
the additional outer fence was installed to abate the citation.
Both fences are still in place (Tr. 42-44).
Mr. Miller stated that the purpose of the fence is to keep
unauthorized and unqualified persons from the substation.
Referring to Exhibit R-3, Mr. Miller could not state the distance
between the transformer casing and the fence, or from the "high
voltage" sign on the fence to the coils, and he confirmed that he
made no measurements (Tr. 45). Assuming that the fence were less
than three-feet away, Mr. Miller did not believe that there was a
hazard of employees reaching and touching the transformer casing.
Mr. Miller stated that he has never heard of an energized
transformer casing (Tr. 45).

110

In response to further question, Mr. Miller stated that the
outer fencing gate is locked and precludes access to the skid
mounted substation (Tr. 47). He stated that the transformer
casing for substation "I" is not energized and that if someone
touched it nothing would happen (Tr. 51-52).
MSHA Inspector Terry A. Scott, testified as to his
experience, which included work as a high voltage lineman, an
underground electrician repairman, and work with transformers
similar to the ones at issue in this case. He has also had
transformer training and completed a two-year course in
industrial electricity at Mayo State Vocational School in
Paintsville, Kentucky (Tr. 54-58).
Mr. Scott stated that when he observed the transformer on
February 2, 1993, it was mounted on a skid that was approximately
12 to 14 inches high, and that the fence was mounted on the skid
as shown in photographic Exhibit R-3 (Tr. 58). Referring to the
photograph, Mr. Scott testified that he measured the distance
from the fence to the "Danger-High Voltage" sign, and that the
distance to the fence from one side of the transformer casing was
14 to 18 inches, and on the other side, the distance to the fence
was 8 to 12 inches (Tr. 58-59). An additional substation "J"
shown in photographic Exhibit P-4, was also measured and the
measurements were similar (Tr. 60). The petitioner's counsel
confirmed that since the measurements reflected that the
transformer parts were less than three feet from the fence, there
was a violation of section 56.12067 (Tr. 60).
Mr. Scott stated that he issued the citation because the
transformer casing was less than three feet from the fence that
was installed on the skid around the substation (Tr. 62). He
believed that the intent of the three-feet clearance requirement
in section 56.12067, between the fence and the transformer "is
for working inside the area," and "to keep anyone from poking or
sticking any kind of objects in toward the transformer or into
the energized parts" (Tr. 62).
Mr. Scott stated he abated the citation after the respondent
installed a portable outside fence that eliminated the hazard
when the gate is locked, and that the purpose of the fence is to
keep unauthorized personnel out of the substation, (Exhibits R-1
and R-2; Tr. 62). The outside portable fence prevents anyone
from touching the transformer live parts because it is more than
three feet away (Tr. 63).
Mr. Scott stated that he was aware of a ground fault that
occurred on a transformer. He explained that a ground fault
occurs when a live wire touches a part of the grounded frame
(Tr. 63) .

111

Mr. Scott stated that during his inspection he spoke with
Karl Simons, respondent's electrical engineer, and safety
superintendent Howell Miller, and Mr. Simons contended that the
cited transformer was totally enclosed because it had a fence
around it. However, Mr. Scott believed that a "totally enclosed"
transformer was one with no terminals on the exterior (Tr. 66).
In response to further questions, Mr. Scott stated that the
abatement shown in Exhibits R-1 and R-2, which still includes the
skid mounted fence less than three inches from the transformer
casing, is still is compliance even though no one is able to work
on the transformer because of the lack of clearance, because he
was informed that no one goes inside the fence to work (Tr. 68).
He confirmed that if the skid mounted fence were taken down, and
the exterior portable fence with a locked gate were kept in
place, it would comply with section 56.12067 (Tr. 68).
Mr. Scott confirmed that he cited only the transformer
casing for being less than three feet of the skid mounted fence,
and that he did not contend that any transformer energized parts
or wiring were,within three feet of the fence (Tr. 69). The
respondent's counsel took the position that the three items noted
in the standard must be considered together, and that the casing,
as well as the energized parts or wiring, must all be in fact
energized in order for the standard to apply (Tr. 69-70).
On cross-examination Mr. Scott confirmed that he issued the
citation because the transformer casing was within-three feet of
the skid mounted fence (Tr. 71). He was of the opinion that the
standard applies to unenergized casings, and stated that "anybody
that knows anything about electricity knows that transformer
casings are not energized" (Tr. 72). He explained that an
ungrounded or improperly grounded casing is not energized unless
a ground fault occurred (Tr. 73).
Mr. Scott explained his understanding of the meaning and
intent of the words used in the cited standard, and he indicated
that the word "casing" is independent of the words "energized
parts" and "wiring" (Tr. 73). He also indicated that his
supervisor concurred in his interpretation (Tr. 76). He
confirmed that if the fence were less than three feet from any
wiring, energized or not, it would be a violation (Tr. 76).
Mr. Scott confirmed that he measured the distance from the
fence to the transformer casing with a wooden ruler from outside
the fence, and he doubted that he could get his hand through the
fence and confirmed that the only way to access the fence would
be with a key to the lock (Tr. 80).
Mr. Scott believed that the intent of the standard was to
protect people working in the particular area and to prevent
people from poking anything into energized parts. He indicated

112

that his primary concern is to prevent the casing or energized
parts from being close to the fence where someone was able to
touch it with some foreign object (Tr. 82).
Mr. Scott confirmed that he has discussed the moving of the
substations with company officials and agreed that mounting the
fence on the skid is solving some problems. However, he believed
that the skids need to be extended to move the fence three feet
from the transformer casing, and he did not believe that this
would be a problem and that the skids could be fabricated in the
mine shop (Tr. 85-86).
Mr. Scott further stated that section 56.12067, pertains to
transformers, the transformer casing, and wiring, regardless of
whether it is energized or deenergized wire (Tr. 87). He
confirmed that he later learned from the National Electrical Code
about the three-foot work area clearance requirement between a
transformer casing and the fence (Tr. 88). When asked to
reconcile the fact that the skid-mounted fence with less than
three-foot clearance between the fence and transformer casing is
still in place after abatement, Mr. Scott responded "I made a
mistake. I should have had this fence removed. That's about all
I can say about that" (Tr. 89). He believed that the abated
conditions as depicted in photographic Exhibits R-3, R-4 and R-5,
are not in compliance with the standard (Tr. 89).
Terrance D. Dinkel, electrical engineer and technical
adviser, MSHA Safety and Health Technology Center, Denver,
Colorado, holds a Bachelor's Degree in electrical engineering
from the university of Colorado and a Master's Degree in
Management from the American Technology University. He confirmed
that he did not view the cited transformer substation "I", but
did view the others that were photographed, including
substation "J". He identified a copy of an MSHA letter of
interpretation relating to mandatory safety standard 30 C.F.R.
§ 77.509, applicable to surface coal mines, and which contains
language substantially identical to that found in the cited
standard section 56.12067 (Exhibit P-16; Tr. 101-106).
Mr. Dinkel identified a copy of a U.S. Bureau of Mines
Information Circular regarding fences or barriers for outdoor
transformer stations (Exhibit P-17). He stated that he has never
known of an "energized casing", but that it can theoretically
exist. If a transformer casing elevated on a pole becomes
energized there is no hazard if no one can reach it. In his
opinion, the intent of the eight foot fence elevation found in
section 56.12067, is to keep unauthorized personnel and
bystanders away from the transformer installation, and the
three-foot clearance requirement is to assure sufficient
clearance for qualified people when they go in and do their work
(Tr. 113-114). He stated that photographic Exhibits R-1 and R-2,
which show the skid-mounted fence and the second outer fence, do

113

not reflect total abatement of the cited condition because of the
still existing restricted clearance for people who have to work
around the transformer (Tr. 115).
On cross-examination, Mr. Dinkel stated that the Bureau of
Mines circular information is no longer in effect (Tr. 116). He
confirmed that the respondent's transformer stations are secured
with locked fences and fence doors (Tr. 116-117).
Respondent's Testimony and Evidence
Dennis H. Miller testified that he discussed the citation
with Inspector Scott when he issued it and there was a
disagreement as to whether the transformer casing was an
energized piece of equipment. Mr. Miller stated that the
discussion took place in his off ice and that electrical
superintendent Karl Simons was present (Tr. 125). Mr. Miller
confirmed that the transformers need to be on skids because
they are moved often as mining advances. There are about
30 skid-mounted transformers at the site and they are moved at
least twice a year (Tr. 126).
Mr. Miller explained that at one time the skid had no fence
around it, but that in 1988 or 1989, he had a discussion with
MSHA inspector Thel Hill, and as a result of this the fencing was
installed on the skids (Tr. 128-129). He stated that the height
of the fence from the ground to the top is six feet, and with the
added barbed wire, it is higher. According to the measurements
taken, the distance from the energized transformer parts to the
closest part of the fence is 3.3 feet. He believes that the
cited substation is in compliance with the standard in question
(Tr. 130).
On cross-examination, Mr. Miller stated that at the time of
his conversation with Mr. Hill, Mr. Hill was shown a substation
and was informed about what the company intended to do "and that
proposal was agreed with" (Tr. 132).
Mr. Miller further
explained that the company proposal was made orally to Mr. Hill
(Tr. 133) •
Billy Foster was recalled by the respondent, and he
confirmed that he accompanied Mr. Hill and Company safety
specialist Billy Salter to look at a fenced substation as part
of the respondent's proposal to install fences around the skidmounted transformers. Mr. Foster stated that additional MSHA
inspectors viewed the skids on different occasions, and he
identified them as Ed Jusso and Ron Lilley (Tr. 135). He
confirmed that the work was done with some outside help from
a fencing and welding contractor, at an estimated total cost
of $90,000 to $120,000 (Tr. 137).

114

On cross-examination, Mr. Foster could not recall the
particular substation that was shown to the inspectors "because
they were coming in at different times, and we had different
units out of service each time" (Tr. 137). He stated that no
reference was made to section 56.12067 when the inspectors viewed
the substation, and he could not state whether the cited
substation "I" was ever viewed {Tr. 139). Mr. Foster confirmed
that after the inspectors stated "that looks okay to me, 11
he believed it was sufficient for compliance (Tr. 139). He
confirmed that nothing was reduced to writing, that the
discussions with the inspectors were informal, and the skid
mounted fenced configuration was not questioned further until
the contested citation in this case was issued (Tr. 141).
Johnny B. Dagenhart, electrical engineer, Clapp Research
Associates, Raleigh, North Carolina, was accepted as an expert
witness in electricity and electrical engineering {Tr. 143). He
stated that he was "somewhat familiar" with the respondent's
operations and visited the mine site on one occasion the week
prior to the hearing. He confirmed that he was familiar with the
transformer f~ncing and the MSHA regulation in question, and he
is of the opinion that the respondent is in compliance with that
regulation {Tr. 143-144).
Mr. Dagenhart was of the further opinion that only energized
transformer casings and wirings and energized parts should be
covered by the regulation. He believed that the skid-mounted
transformer installation as installed by the respondent supplies
equivalent protection. He stated that the overriding concern in
installing fences around transformers and substations is "to
protect from inadvertent contact of persons with exposed
energized parts" (Tr. 145) .
Upon review of the MSHA letter of April 4, 1985
(Exhibit P-16), which mentions the application of
section 110-34(e) of the National Electric Code, Mr. Dagengart
stated that this section does not apply to transformer
substations because it refers to working spaces in front of
switches, cabinets, and other such devices. He further stated
that "utility-like functions" are covered by the National
Electrical Safety Code (Tr. 147).
On cross-examination, Mr. Dagenhart stated that there are
exposed energized bushings on the top of the transformer, but
that the casing is not energized. In the event of a ground
fault, if the casing is not grounded, it may become energized
{Tr. 149). He further explained as follows at (Tr. 153):
A.

Well there -- If you're in physical contact
with a transformer that is properly grounded,
there's not gonna be a problem under normal
circumstances. If a ground fault occurs,

115

naturally that equipment casing becomes
energized for a brief period of time, the
time it takes for a fuse or a breaker to
deenergize that transformer, for that period
of time.
However, with the grounding of a transformer
and the grounding of a fence, the two are
simultaneously grounded to the same point.
And electrically, there's no difference
between the casing of that transformer and
the fence around it.
So the argument about touching a transformer
during a ground fault, the same thing can
happen if you're leaning up against the fence
when a ground fault occurs. So it's really a
difficult situation to say that -- It's
impossible to say that the transformer is
more hazardous than the fence in this case.
And under normal circumstances they're both
fine.
Mr. Dagenhart stated that other than location, the outer
fence installed on the ground is no different than the skidmounted fence and it has to the grounded back to the transformer
and the transformer casing (Tr. 156).
Thel Hill, retired MSHA inspector, was called in rebuttal by
the petitioner. He confirmed that he inspected the respondent's
operations from 1978 through 1989, but that he did not recall any
conversations concerning the skid mounted transformers. He
confirmed that Mr. Salter always accompanied him during his
inspections, and he could not recall seeing any transformer
protection plans or designs (Tr. 158-159).
Background
The respondent operates an open pit phosphate mine, and its
electrically operated equipment is frequently moved to different
mining areas at the site as they are being developed. Electrical
service is provided by transformers mounted on "sleds" so that
they can readily be moved to the new mining locations. The
respondent originally relocated its transformers by preparing a
new site, moving the skid mounted transformers to the new site,
and building a separate fence around the relocated transformers.
In order to move the facility again, a crane was used to lift the
fence so that the skid-mounted transformer could be moved to the
next location. However, out of concern for overhead power lines,
the respondent concluded that it would be more prudent and safe
to erect a fence around the skid on which the transformer is
located, thus avoiding the possibility of the crane contacting

116

the overhead power lines. The skid-mounted transformer, with the
attached fence around it, would then be moved to the new
location. The respondent maintains that this procedure and
transformer configuration had the approval of an MSHA inspector
who has since retired.
The cited alleged violative condition in this case was
abated by leaving the skid-mounted fence in place and simply
installing a second portable fence with a locked gate around the
skid-mounted fence enclosing the transformer substation. The
substation is now surrounded by two fences; an "inner" fence
mounted on the transformer substation skid that still does not
provide a three-foot access clearance to the transformer, and a
second "outer" portable fence that has a locked gate preventing
access to the skid altogether.
Petitioner's Arguments
The petitioner asserts that since the cited skid-mounted
transformer casing was less than three feet from the fence, a
violation of section 56.12067, has been established. The
petitioner takes the position that the regulatory language
"energized parts, casings, or wiring" should be interpreted and
applied alternatively or separately, and that the cited
transformer casing in question was properly cited, regardless of
whether it was energized or not. Assuming that I find that the
standard does not apply to the transformer, petitioner's counsel
asserted that it can be established that "energized parts and
wiring" were within three feet of the fence, and that this
establishes a violation (Tr. 8-9; 151-152).
Respondent's Arguments
The respondent takes the position that the present skidmounted transformer configuration, with the protective fence
around the perimeter of the skid, complies with the requirements
of section 56.12067, and provides an equivalent and practical
safe method for relocating the frequently moved transformer and
keeping unauthorized personnel out.
The respondent further argues that section 56.12067, should
be construed to apply to energized parts, energized casings, and
energized wires. Since the cited transformer casing is not, and
was not energized, the respondent concludes that a violation has
not been established (Tr. 9-10; 77).

117

Findings and Conclusions
Fact of Violation
The respondent is charged with an alleged violation of
30 C.F.R. § 56.12067, which provides as follows:
Installation of transformers.
Transformers shall be totally enclosed, or shall be
placed at least 8 feet above the ground, or installed
in a transformer house, or surrounded by a substantial
fence at least 6 feet high and at least 3 feet from any
energized parts, casings, or wiring (Emphasis Added).
Contrary to the petitioner's suggestion that energized parts
and wiring were also within three feet of the fence, the
inspector confirmed that he only cited the transformer casing and
that he was not contending that any energized parts or wiring
were within three feet of the fence (Tr. 69). Under the
circumstances, and in the absence of any amended citation, the
petitioner is bound by the citation as issued, and it has the
burden of proving that the transformer casing, which I find was
less than three feet from the fence, was in violation of
section 56.12067.
The respondent's suggestion that the petitioner is estopped
from citing it with a violation because a former inspector
approved the transformer configuration in question IS REJECTED.
The inspector in question could not recall any discussions with
the respondent concerning the transformers. Even if he had
approved the installation of the skid-mounted fence in question,
MSHA would not be bound by this and at most, it would only serve
to mitigate any penalty assessment if a violation were found.
In Secretary of Labor v. King Knob Coal Company, Inc .. ,
3 FMSHRC 1417 (June 1980}, the Commission rejected the doctrine
of equitable estoppel with respect to a mine operator's liability
for a violation.
However, the Commission viewed the erroneous
action of the Secretary (mistaken interpretation of the law
leading to prior non-enforcement) as a factor which may be
considered in mitigation of the civil penalty. Further,
Commission Judges have consistently rejected an operator's
reliance on prior inspections and the lack of citations, and have
held that the lack of prior inspections and the lack of prior
citations does not estop an inspector from issuing citations
during subsequent inspections. See: Midwest Minerals Coal
Company, Inc., 3 FMSHRC 1417 (January 1981): Missouri Gravel Co.,
3 FMSHRC 1465 (June 1981); Sertex Materials Company, 5 FMSHRC
1359 (July 1983); Emery Mining Corporation v. Secretary of Labor,
5 FMSHRC 1400 (August 1983), aff'd, 10th Cir. U.S. Court of
Appeals, 3 MSHC 1585.

118

The inspector believed that the intent of section 56.12067,
is (1) to provide and maintain at least a three-foot clearance
between the transformer and related equipment and the fence so as
to provide ready access to the equipment for anyone working on
it, and (2) to prevent anyone from poking or sticking objects
through the fence into the transformer or energized parts
(Tr. 62). The inspector further believed that the installation
of an additional outside portable fence with a locked gate around
the skid mounted fence that enclosed the substation to abate the
violation eliminated the hazard, and as long as the outer fence
gate is locked, he concluded there would be no violation because
"the purpose of the fence now is to keep unauthorized personnel
out of the substation", and "no one can touch the live parts. No
one can touch the transformer casings" (Tr. 62-63).
The inspector confirmed that the installation of the second
portable fence would effectively prevent anyone from entering the
transformer substation. However, notwithstanding this abatement
action, he further confirmed that the skid-mounted fence is still
in place and is still less than three feet from the transformer
casing, and is not in compliance with section 56.12067. He
earlier testified that the fence was in compliance, even though
there was a lack of clearance because he was told that no one
works inside the fenced area (Tr. 68). When asked to reconcile
these rather contradictory enforcement and abatement actions, the
inspector stated that he had made a mistake and should have had
the skid-mounted fence removed (Tr. 89).
MSHA's technical adviser Dinkel was of the opinion that the
fence height requirement stated in section 56.12067, is intended
to keep unauthorized personnel and others away from the
transformer installation, and that the three-foot clearance
requirement is intended to assure sufficient clearance for
qualified personnel while working on the equipment.
MSHA's policy manual guidelines do not address
section 56.12067, or section 77.509(a), a standard that
applies to transformer installations at a surface coal mine
with language substantially identical to that found in
section 56.12067. However, the petitioner introduced a copy
of an April 14, 1985, letter by MSHA's Coal Mine Safety and
Health Administrator in response to an inquiry from a
manufacturer of skid-mounted substations (Exhibits P-16).
The inquiry by the manufacturer states as follows:
Most substations have a high voltage house and a low
voltage house throat connected to a transformer or a
high voltage structure connected to cover-mounted
bushings then throat connected to the low voltage

119

house. In the first case, there are no exposed live
parts on the transformer- they are throat enclosed. In
the second case, exposed live parts are above NEC
requirements or throat enclosed.
For these two instances and in trying to comply with
Section 77.509, part{a) of the code, is a fence
necessary? If so, is it necessary to maintain three
feet clearance around the cooling radiators when they
are in a different segment than the bushings?
MSHA's response to the inquiry states in relevant part as
follows:
• . • • In the first case, a substation fence is not
required by 30 C.F.R. § 77.509, provided there are no
exposed live parts on the high-voltage house, lowvoltage house, or power transformer. However, if any
of these components of the substation contain exposed
live parts, then the entire substation is required by
30 C.F.R. t 77.509 to be enclosed by a fence.
{Emphasis added).
In the second case, • • • • a substation fence is
required by 30 C.F.R. § 77.509 because the power
transformer contains exposed live parts. {Emphasis
Added).
Finally, the intent of the clearance requirements
specified in 30 C.F.R. § 77.509{a) is to provide
adequate work space around all equipment in a
substation. Consequently, the three-foot clearance
requirement in 30 C.F.R. § 77.509{a) applies to cooling
radiators on power transformers even when they are in a
different segment than the bushings.
Petitioner's counsel conceded that the aforesaid letter is
an "opinion letter" and not an MSHA policy statement {Tr. 104).
He further asserted that it was introduced in support of his
position that the intent of the standard is also to provide a
three-foot clearance for any work performed on the transformer
{Tr. 105) .
The citation issued by the inspector in this case simply
states that the transformer casing was within three feet of the
fence. It seems to me that if the inspector intended to cite the
respondent with a failure to maintain a three-foot "walkway"
clearance around the transformer substation, he should have said
so in his citation and supported it with some credible evidence
that work is in fact performed on the transformer inside the
fenced area. He did neither.

120

I take note of the possible application of more appropriate
standards that may apply to inadequate work clearances. For
example, section 56.11001, found in subpart J, dealing with
travelways, requires a safe means of access to all working
places. Section 56.11008, requires the conspicuous marking of
restricted clearances that create hazards to persons.
Section 56.12019, requires suitable clearance where access is
necessary at stationary electrical equipment or switch gear.
Although the respondent's counsel suggested that any
transformer repair work is not done on location, that the fence
is taken down and the transformer is moved elsewhere for this
work, that the transformer configuration does not allow for
anyone to do work inside the skid-mounted fence area, and that a
switch is simply thrown (Tr. 50, 120), he elicited no testimony
or evidence to support these proffers.
The burden of proof in this case lies with the petitioner,
and it was incumbent on the petitioner to prove its case. The
petitioner presented no evidence to establish that work was in
fact performed.inside the skid-mounted transformer fenced area,
or that mine personnel do in fact venture inside that area to
perform work. The only sworn testimony on this issue is the
inspector's admission that "they told me they don't go in there
to work" (Tr. 67), and this is supportive of the respondent's
position.
I conclude and find that a piece of electrical equipment,
such as a transformer, would be considered "energized" when the
electricity supplying it with electric power is turned on.
Insofar as the transformer casing is concerned, the evidence
reflects that under normal operating conditions the transformer
casing itself is not considered to be energized, notwithstanding
the fact that the transformer is supplied with electricity and is
energized.
Respondent's electrical expert Dagenhart believed that the
installation of a fence around the transformer substation was
intended to prevent persons from inadvertently contacting exposed
energized transformer parts (Tr. 145). Mr. Dagengart does not
consider a transformer casing to be an energized part unless it
is ungrounded, in which case he would consider the casing to be
"energized under any circumstances" (Tr. 149). He also agreed
that in the event of a ground fault, the casing would become
energized during the time it would take a fuse or circuit breaker
to deenergize the transformer, and that in the event of any
grounding or fuse breaker failure the casing could remain
energized indefinitely (Tr. 153, 155).
The inspector believed that the three-foot clearance
requirement found in section 56.12067, is intended to provide
working space between the fence and the transformer and to keep

121

anyone from poking or sticking objects into the transformer or
energized parts (Tr. 62). He confirmed that his belief in this
regard was based on his understanding of the National Electrical
Code (Tr. 88). Petitioner's counsel conceded that the code is
not incorporated by reference as part of.section 56.12067,
(Tr. 98-90; 110).
The inspector believed that a transformer casing would only
be energized if there were a ground fault,and that this would
constitute a hazard (Tr. 61, 72-74). He confirmed that the
casing is considered a part of the transformer and that there is
wiring inside the casing (Tr. 74). The inspector agreed that he
could not place his hand through the fence, and he confirmed that
his primary concern was that in the event of a ground fault, and
with the casing close to the fence, someone would be able to
touch the casing with a foreign object (Tr. 80, 82, 88-89).
MSHA technical Advisor Dinkel, an electrical engineer,
believed that an energized casing within reach of someone would
be a hazard. He further believed that the 8-foot fence
requirement found in section 56.12067, is intended to keep
unauthorized persons away from the transformer substation, and
that the 3-foot clearance requirement is to provide adequate work
space when work is performed inside the.fenced substation.
Although I have some doubt that the clear intent of the
three-foot clearance requirement found in section 56.12067, is to
provide a walkway or ready access to the equipment, I cannot
conclude that the inspector's belief in this regard was an
unreasonable interpretation and application. However, in the
absence of any evidence that the respondent ever performed any
work on the transformer inside the skid-mounted ·fenced substation
area, or that such work would be performed at that location in
the normal course of mining operations, I cannot conclude that
the petitioner has proved that the failure to provide such an
access area inside the skid-mounted fence around the transformer
constituted a violation of section 56.12067.
I conclude and find that the primary intent of section
56.12067, in requiring a substantial fence around the transformer
station is to prevent unauthorized persons from venturing inside
the fenced area and inadvertently contacting exposed energized
parts. The respondent's suggestion that the words "energized
parts, casings, or wiring" must be read together, and that in
order to establish a violation in this case it must first be
established that the cited transformer casing was energized
before a fertce may be required IS REJECTED. The petitioner's
credible and unrebutted evidence establishes that ground faults
that may energize a transformer casing do occur, and that when
they do, they present a potential hazard of shock or
electrocution. Under the circumstances, I believe that
interpreting and applying the standard to require a fence only

122

after a casing becomes energized would be less than prudent and
unreasonable. However, on the facts of this case, and even
though the cited casing was within three feet of the fence, I
cannot conclude that it was unprotected and presented a hazard.
As noted earlier, there is no evidence that anyone worked in and
around the skid-mounted transformer substation, and the inspector
conceded that he could not place his hand through the fence to
reach the transformer casing. Under all of that circumstances, I
conclude and find that the petitioner has failed to establish a
violation, and the citation IS VACATED.
ORDER
In view of the foregoing findings and conclusions,
section 104(a) non-"S&S" Citation No. 4094761, February 2, 1993,
citing an alleged violation of 30 C.F.R. § 56.12067, IS VACATED,
and the petitioner's civil penalty proposal IS DENIED AND
DISMISSED.

.;/

ii~

./~~A. Koutras

Administrative Law Judge

Distribution:
Leslie John Rodriguez, Esq., Office of the Solicitor,

u.s. Department of Labor, Room 339, 1371 Peachtree St., N.E.,

Atlanta, GA

30367

(Certified Mail)

T. Carlton Younger, Jr., Esq., Vice-President, Law, Texasgulf
Inc., 3101 Glenwood Avenue, P.O. Box 30321, Raleigh, NC 276220321 (Certified Mail)
/ml

123

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

JAN

7 1994
CIVIL PENALTY PROCEEDING

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

Docket No. WEST 93-239
A.C. No. 48-01052-03515

v.

FMC - Skull Point Mine

FMC WYOMING CORPORATION,
Respondent
DECISION
Appearances:

Margaret A. Miller, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Matthew F. McNulty III, Esq., VAN COTT, BAGLEY,
CORNWALL & McCARTHY, Salt Lake City, Utah,
for Respondent.

BEFORE:

Judge Morris

The Secretary of Labor, on behalf of the Mine Safety and
Health Administration ("MSHA") charges Respondent FMC Wyoming
Corporation ("FMC") with violating safety regulations promulgated under the Federal Mine Safety and Health Act, 30 u.s.c.
§ 801, et .§filL.. (the "Act").
A hearing on the merits was held in Salt Lake City, Utah on
September 1, 1993.
The parties filed post-trial briefs.
Stipulation
At the commencement of the hearing the parties stipulated as
follows:
A.
FMC is engaged in mining and selling bituminous coal in
the United States and its mining operations affect interstate
commerce.

124

B.
FMC is the owner and operator of Skull Point Mine, MSHA
I.D. No. 48-01052.

c. FMC is subject to the jurisdiction of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. §§ 801 et~ ("the
Act") .
D.
matter.

The Administrative Law Judge has jurisdiction in this

E. The subject citations were properly served by a duly
authorized representative of the Secretary upon an agent of
respondent on the dates and places stated therein, and may be
admitted into evidence for the purpose of establishing their
issuance, and not for the truthfulness or relevancy of any
statements asserted therein.
F. 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.
G. The proposed penalties will not affect Respondent's
ability to continue in business.
H. The operator demonstrated good faith in abating the
violations.
I.
FMC is a medium size mine operator with 839,453 tons of
production in 1991.
J. 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. 3243012

This citation, issued under section 104(a) of the Act, alleges FMC violated 30 C.F.R. § 77.501. 1

The cited regulation provides:
77.501 Electric distribution circuits and equipment;
repair.
No electrical work shall be performed on electric
distribution circuits or equipment, 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

125

The citation reads:
Electrical repairs were being performed on
a 70 amp 3 phase 480 VAC lighting distribution circuit circuit breaker located in the
tipple motor control center panel, Mee 2
(equipment #508). Disconnect devices for the
circuit were not locked out and suitably
tagged by the person performing such work.
Citation No. 3243013

This citation, issued under section 104(a) of the Act,
alleges FMC violated 30 C.F.R. § 77.1710(c). 2
The citation reads:
Protective gloves were not being worn by an
electrician while trouble-shooting and/or
making repairs on a 70 amp 3 phase 480 VAC
lighting distribution circuit circuit
breaker.
Based on the credible evidence I enter the following:
FINDINGS OF FACT
1. MICHAEL MOE, an hourly employee, was employed by FMC for
seven years as a master electrician.
(Tr. 11, 80).
2. On March 10, 1992, Moe grounded a screw driver in the
circuit breaker; this caused a panel flash.
(Tr. 12).

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.
2

77.1710 Protective clothing; requirements.
Each employee working in a surface coal mine or in
the surface work areas of an underground coal mine
shall be required to wear protective clothing and
devices as indicated below.
(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.

126

3. As a result of the grounding Moe was not shocked but he
sustained.burns to his hands, face and neck; he was unable to
work for two months and was hospitalized for 8 or 10 days.
(Tr. 12, 13, 17) .
4. Moe began his work by shutting off a 480 volt circuit
breaker in order to tighten some loose connections on the bottom
side of the breaker. Turning the breaker to "off" de-energizes
the lower half but not the upper side of the breaker.
(Tr. 16;
Exhibit R-4 shows the breaker box; the burned area is shown at
the left edge of the left breaker slightly to the left of the
left screw shown in the center of R-4).
5.
In his trouble-shooting Moe determined one of the leads
in the circuit breaker was loose.
(Tr. 14).
6.
The motor controlled by the electricity was not running;
the breaker had functioned properly because it had tripped.
{Tr.
14) .

7.
When Moe was using the amp meter to check the equipment
he was not wearing gloves.
{Tr. 15).
8.
The equipment Moe was working on was a motor control
panel containing a motor starter, a circuit breaker and thermal
overloads.
Its function was to reduce voltage to start 480 volt
motors.
{Tr. 16) .
9.
The screw driver was ten inches long. As Moe was tightening the loose wire he leaned the screw driver against the metal
frame of the motor control center.
(Tr. 16).

10.
There was a disconnect device on the motor control
panel.
(Tr. 18). To de-energize the top portion of the panel
you could go to a different building and de-energize a large
breaker that shuts down the entire system. As an alternative
each individual unit can be de-energized by pulling out one or
all of the 12 individual units.
(Tr. 19, 25).
11.
Moe did not lock or tag out the equipment when working
on the top part of the motor control center.
(Tr. 19).
12.
Moe remembered receiving an FMC policy manual (Ex. R-2)
that talks about lock-out and de-energization policies.
(Tr.
22) .
13.

As a result of this accident Moe was disciplined by FMC.

(Tr. 23) .
14. Troubleshooting is finding any problem and fixing it.
The fixing of any problem would constitute a repair.
(Tr. 23,

127

24). Moe thought he was repairing the equipment when he was
injured.
(Tr. 25).
15. RONALD J. RUDY accompanied Moe on the date of the
accident.
(Tr. 29, 30).
16.

Moe was not wearing gloves on March 10th.

(Tr. 32) .

17. PAUL PRICE has been an MSHA electrical engineer for over
13 years. His duties include the investigation of electrically
oriented accidents.
(Tr. 34, 35).
18. The motor control panel is an electrical distribution
circuit. Basically it takes a larger amount of electricity and
distributes it as reduced loads.
(Tr. 36).
19. When an electrician is working on a distribution circuit
MSHA requires that the circuits be locked out and tagged; further, when troubleshooting a worker must wear gloves.
(Tr. 36).
20. When he was using the meter and examining the system Moe
was troubleshooting.
For such work gloves are required.
(Tr.
37) .
21. Gloves would protect someone from being electrocuted
while troubleshooting. MSHA's records indicate workers have been
hurt while troubleshooting without using gloves.
(Tr. 38).
22.
It is illegal to troubleshoot while the circuits are
energized .
(Tr . 3 9 ) .
23. As a result of not de-energizing the equipment there are
three hazards: burns, electrocutions, and blasts.
(Tr. 42).
24. In this case a loose connection caused a wire to be warm
to the touch.
(Tr. 43).
25. MSHA's program policy manual does not require gloves
while an electrician is working.
(Tr. 44).
26. The use of gloves would not have prevented Moe's
accident.
(Tr. 45).
27. Moe did not lock out or tag out before working on the
energized portion.
(Tr. 48).
28. RON HALE testified for FMC. He is in charge of all
maintenance at the mine. In addition, he is a master electrician.
(Tr. 55-56) .

128

29.
In his investigation Hale found leather gloves three and
one half feet from the electrical panel. The gloves were next to
Moe's volt meter and hard hat.
(Tr. 75).
30.
FMC's lockout procedure is contained in Exhibit R-2.
Moe was familiar with the procedure.
(Tr. 61).
31.
During the annual refresher training, lockout procedures and de-energization were discussed.
(Tr. 65).

DISCUSSION AND FURTHER FINDINGS
AS TO CITATION NO. 3243012

Moe grounded his screwdriver when he tightened the loose
screw shown in the recessed portion of the upper part of the
circuit breaker in Exhibit R-4. At the time he was performing
electrical work on the distribution circuits. The evidence further shows that while performing this work the disconnecting
devices were not locked out. Moe indicated the disconnecting
device is located in a different building. An alternative disconnect could have been accomplished by removing the breaker can,
but neither was done.
It is true that the breaker switch was in the "off" position
(see Ex. R-4). However, even with the breaker lever on the "off"
position the upper portion of the breaker remained energized.
The loose screw being tightened by Moe and the blast scar were in
the upper portion of the can.
The Judge is aware of the testimony of Ron Hale.
From his
investigation Hale concluded Moe was working on the "T leads"
which were de-energized.
(Tr. 59, 69).
At some point, as Hale contends, Moe was also most likely
working on the de-energized "T-leads" located in the bottom half
of the breaker can. However, when Moe caused the panel flash, he
could only have been working on the top energized portion of the
circuit breaker.
(See Fact, par. 4). Hale confirms this scenario, since he did not dispute the fact that the top half was
energized. He further identified the burn mark shown on Exhibit
R-4.
(Tr. 76-78).
In its oral argument FMC has confused the upper and lower
portion of the breaker can. I find that electrical work was being performed on the energized upper portion when Moe tightened
the loose screw. Moe admits he did not lock out or tag the
equipment when he was performing such work.
(Tr. 19).
The facts establish that a violation of 30 C.F.R.
and Citation No. 3243012 should be affirmed.

129

§

77.501

DISCUSSION AND FURTHER FINDINGS
AS TO CITATION NO. 3243013
The uncontroverted evidence shows Moe was not wearing protective gloves while troubleshooting. Moe was troubleshooting
when he was using the amp meter to check the equipment.
On the uncontroverted evidence, Citation No. 3243013 should
be affirmed.
SIGNIFICANT AND SUBSTANTIAL
The citations herein where denominated by the Secretary as
"Significant and Substantial."
An "S&S" 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." A violation is properly
designated significant and substantial "if, based upon the particular facts surrounding the violation there exists a reasonable
likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious nature." Cement Division, National Gypsum co., 3 FMSHRC 822, 825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained its interpretation of the term "Significant
and Substantial" as follows:
In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum the Secretary of Labor must prove:
(1) the underlying
violation of a mandatory safety standard; (2)
a discrete safety hazard--that is, a measure
of danger to saf ety--contributed to by the
violation; {3) a reasonable likelihood that
the hazard contributed to will result in an
injury; and (4) a reasonable likelihood that
the injury in question will be of a reasonably serious nature.
In United States Steel Mining Company, Inc. 7 FMSHRC 1125,
1129, the Commission stated further as follows:

130

We have explained further that the third
element of the Mathies formula "requires that
the Secretary establish a reasonable likelihood that the hazard contributed to will result in an event in which there is an injury." U.S. Steel Mining Co., 6 FMSHRC 1834,
1836 (August 1984). We have emphasized that,
in accordance with the language of section
104(d) (1), it is the contribution of a violation to the cause and effect of a hazard that
must be significant and subtantial.
U.S.
Steel Mining Company, Inc., 6 FMSHRC 1866,
1868 (August 1984); U.S. Steel Mining Company, Inc., 6 FMSHRC 1573, 1574-75 (July
1984) .
In considering the Mathies formula, I find there were underlying violations of two mandatory safety regulations, namely
§ 77.501 and § 77.1710.
Further, a measure of danger was contributed to bythe violations. The third facet, a reasonable
likelihood that the hazard contributed to will result in an
injury is established as to Citation No. 3243012 by the injury
and hospitalization of electrician Moe.
The reasonable likelihood that the injury in question will
be reasonably serious is established by the hospitalization of
electrician Moe.
FMC contends the S&S allegations cannot be sustained.
However, the facts and Commission precedent establish a contrary
conclusion as to the failure to de-energize(§ 77.501).
The S&S
allegations as to Citation No. 3243012 should be affirmed.
The failure to wear gloves is a separate violation from the
failure to de-energize.
It is true that MSHA requires workers to
wear gloves only when troubleshooting the equipment.
(Tr. 36,
37).
I further agree he was repairing but not troubleshooting
when the panel flash occurred. However, part and parcel of Moe's
activities at the time of this accident included troubleshooting
without gloves and, since workers have been hurt, even electrocuted in such circumstances, an S&S violation is established as
to citation No. 3243013.
OK and vw Coal Company, 13 FMSHRC 1063, 1067 (July 1991),
relied on by FMC is not inopposite the views expressed here.

CIVIL PENALTIES
The statutory criteria for assessing civil penaltfes are
contained in section llO(i) of the Act, 30 u.s.c. § 820(i).

131

FMC's favorable history indicates it was assessed 11 violations for the two years ending March 11, 1992.
(Ex. M-1).
The proposed penalties will not affect FMC's ability to
continue in business.
(Stipulation).
The S&S allegations as to Citation No. 3243013 should be
vacated.
FMC was not indifferent to de-energizing electrical equipment and it also furnished gloves to its electricians. In view
of this evidence, I conclude the assertion of moderate negligence
must be reduced for this non-supervisory employee.
As previously discussed, the gravity of the violations was
high.
FMC demonstrated good faith in attempting to achieve prompt
abatement.
On balance, I believe the penalties set forth in this order
are appropriate.
For the foregoing reasons I enter the following:
ORDER

1. Citation No. 3243012 is affirmed and a penalty of
$2,000.00 is ASSESSED.
2. Citation No. 3243013 is affirmed and a penalty of $1000
is ASSESSED.

Judge
Distribution:
Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1585 Federal Office Building, 1961 Stout street,
Denver, co 80294
(Certified Mail)
Matthew F. McNulty III, Esq., VAN COTT, BAGLEY, CORNWALL &
McCARTHY, 50 South Main St., Suite 1600, P.O. Box 45340, Salt
Lake City, UT 84145 (Certified Mail)
ek

132

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

JAN 1 0 1994
CIVIL PENALTY PROCEEDING

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

Docket No. LAKE 93-241
A.C. No. 12-02033-03593

v.

Buck creek Mine

BUCK CREEK COAL COMPANY, INC.,
Respondent
DECISION
Appearances:

Lisa A. Gray, Esq., Office of the Solicitor, U.S.
Department of Labor, Chicago, Illinois for
·Petitioner;
Patrick A. Shoulders, Esq., Ziemer, Stayman,
Weitzel & Shoulders, Evansville, Indiana for
Respondent.

Before:

Judge Hodgdon

This case is before me on a petition for assessment of civil
penalty filed by the Secretary of Labor against Buck Creek Coal
company, Inc. pursuant to Sections 105 and 110 of the Federal
Mine Safety and Health Act of 1977, 30 u.s.c. §§ 815 and 820.
The petition alleges a violation of Section 75.360(a), 30 C.F.R.
§ 75.360(a), of the Secretary's mandatory safety standards.
For
the reasons set forth below, I find that Buck Creek committed the
violation alleged, that the violation was not of such nature as
could significantly and substantially contribute to the cause and
effect of a coal mine safety hazard, but that the violation was
caused by Buck Creek's unwarrantable failure to comply with the
mandatory safety standard.
The case was heard on October 26, 1993, in Sullivan,
Indiana. Inspectors John D. Stritzel and Michael A. Bird
testified on behalf of the Petitioner. Mr. H. Michael McDowell,
Vice President of Human Resources, testified for the Respondent.
The parties have also filed post hearing briefs which I have
considered in my disposition of this case.
FINDINGS OF FACT
The essential facts are not contested. Mine Safety and
Health Administration Inspectors Stritzel and Bird arrived at

133

Respondent's Buck Creek mine in Sullivan County, Indiana, at
6:45 A.M. on Monday, April 26, 1993, for the purpose of making a
ventilation technical investigation. The mine had been idle
since the completion of the day shift at 3:30 P.M. on Saturday,
April 24, 1993.
On arriving at the mine office, the inspectors discovered
that the next shift did not begin until 9:00 A.M. While waiting,
they checked Buck Creek's preshift book and noted that the
preshift examination for the next shift had not been recorded.
Further investigation indicated to the inspectors that there
were miners in the mine other than the preshift examiners. The
preshift examination of the north side of the mine had begun at
6:22 A.M., was completed at 7:22 A.M. and was called to the
surface at 7:30 A.M. The examination of the south side began at
7:00 A.M., was completed at 7:30 A.M. and was called out at
7:35 A.M.
Inspector Stritzel spoke on the phone with Charles Austin,
the mine manager and one of the preshift examiners, when Austin
called out at 7:35 A.M., and asked him who was in the mine. When
Austin acknowledged that there were miners in the mine in
addition to the preshift examiners, Stritzel told him to come out
of the mine and to "bring everyone in the mine with you out. 11
The inspector also told Austin that he was "issuing a 104-D code
order."
Inspector Stritzel interviewed everyone who had been in the
mine: Austin and Charles Chin, who were performing preshift
examinations of the north and south sides of the mine, and
Carlos Maggard, Dave Sales and Terry O'Bannon, who were
performing maintenance on a disabled mantrip at the foot of the
slope of the mine. The maintenance crew had gone into the mine
at 6:45 A.M.
Inspector Stritzel issued a withdrawal order under Section
104(d) (2) of the Act, 30 u.s.c. § 814(d) (2), 1 alleging a
Section 104(d) (2) provides in pertinent part:
If a withdrawal order with respect to any area in a coal
• • • mine has been issued pursuant to paragraph (1), a
withdrawal order shall promptly be issued by an
authorized representative of the Secretary who finds upon
any subsequent inspection the existence in such mine of
violations similar to those that resulted in the issuance
of the withdrawal order under paragraph (1) until such
time as an inspection of such mine discloses no similar
violations.

134

violation of Section 75.360(a) of the Regulations in that
"[t]hree miners entered the mine at 6:45 A.M. without a valid
pre-shift examination of the mine being completed" (Joint Ex. 1,
Tr. 31-34). The order was terminated at 9:00 A.M. when "all
miners were instructed by Gary Timmins, Safety Dir. to not enter
[the] mine until the pre-shift exam for the on coming shift is
completed and the results called out and entered into book"
(Joint Ex. 1, TR. 39).
Respondent argues in his Proposed Findings (RPF) and
Memorandum in Support (Memo) that the maintenance crew was not
part of the "coal mining" shift beginning at 9:00 A.M., entered
the mine during "idle hours" and was working in an "idle" area of
the mine so that no preshift examination was required {RPF 7-9,
Memo 2). This argument, with its references to "every working
section" and "active workings" of the mine, apparently relies on
a former version of the Regulations. At any rate, the argument
does not hold up under either the old or the new Regulation.
FURTHER FINDINGS OF FACT
AND

CONCLUSIONS OF LAW

Section 75.360{a) provides that:
Within 3 hours preceding the beginning of any shift and
before anyone on the oncoming shift, other than
certified persons conducting examinations required by
this subpart, enters any underground area of the mine,
a certified person designated by the operator shall
make a preshift examination.
Section 75.360 is similar, but not identical, to Section
303{d) (1) of the Act, 30 u.s.c. § 863(d) (1). It replaced Section
75.303(a), 30 C.F.R. § 75.303(a), in 1992, when subpart D was
revised. Section 75.303(a) was identical with the Act. 2
"Shift" is not defined in Part 75 or anywhere else in the
Regulations or the Act. However, it seems apparent that just
because the men were entering to perform maintenance rather than
2

The main differences between the new regulation and the old
regulation and the Act are that Section 75.360 is separated into
various subsections while Section 75.303(a) and the Act consisted
of one continuous paragraph, some of the language in the new
Regulation has been updated and changed and the new regulation is
more specific and requires more areas of the mine to be inspected.

135

to mine coal does not mean that they were not part of the shift. 3
Nor does the fact that they began work before the of.ficial start
of the shift mean that they were not part of the shift. They
were undoubtedly part of the group of miners coming to work that
morning and would be working during the shift (Tr. 214). In
fact, the evidence indicates that the repair of the mantrip was
necessary before the rest of the shift could go into the mine
(Tr. 167). Moreover, any doubt whether the crew was part of the
shift must be resolved in favor of inclusion since the purpose of
the Act and the Regulation is to insure as nearly as possible
that the mine is safe to enter. Secretary of Labor & UMWA v.
Jones & Laughlin Steel Corp. & Vesta Mining, 7 FMSHRC 1058, 1062
(July 1986).
Respondent both at the hearing and in his Findings and Memo
argues that the maintenance crew were not in the "active
workings" of the mine, apparently in the belief that such areas
were the only areas into which entry was prohibited prior to
completion of the preshift examination. A superficial reading of
Section 75.303{a) could lead to that conclusion, however, under
Section 75.360(a) there is no question of distinguishing between
"active workings" and "idle" areas of the mine.
It prohibits
entry into any underground area of the mine.
Furthermore, even under the old regulation, Respondent's
argument fails because when Section 75.303(a) was in effect,
Section 75.2(g) (4), 30 C.F.R. S 75.2(g) (4), defined "active
workings" as "any place in a coal mine where miners normally work
or travel" (emphasis added) . 4 It is undisputed that the three
maintenance men were at the foot of the slope, a place where
anyone entering or leaving the mine had to travel (Tr. 171-172,
207). Thus, they were in an area into which entry was prohibited
prior to completion of the preshift examination even under the
old rule.

3

Section 70.2(1), 30 C.F.R. S 70.2(1), defines "production
shift" in terms of the work done on the shift and not the crew
make-up of the shift.
This would argue against Respondent's
assertion that there is a distinction between coal producers and
others as to whether they are part of a "shift," since it is
undisputed that the oncoming shift in this case was going to be
producing coal.
4

Section 75.2 was revised, effective August 16, 1992. "Active
workings" is defined exactly the same in the revised section. See
also Section 318(g) (4) of the Act, 30 u.s.c. § 878(g) (4), ('"active
workings' means any place in a coal mine where miners are normally
required to work or travel").

136

Having concluded that the maintenance crew was part of the
oncoming shift, Respondent's argument that the crew entered the
mine during "idle hours" and, therefore, that no preshift
examination was required before entering need not be addressed.
According to Respondent, this contention is based on Section
303 (d) (2) of the Act, 30 u.s.c. § 863 (d) (2), (RPF 9-11, Memo 2) . 5
However, it is noted in passing that it is undisputed that an
examination satisfying the requirements of Section 303(d) (2) had
not been made within eight hours of the crew's entry (Tr. 209).
Consequently, this argument must rest on the inconsistent premise
that an uncompleted preshift examination, which does not permit
entry into the mine until it is completed, can satisfy the
requirements of Section 303(d) (2) and permit entry into the mine
before it is completed.
Fact of Occurrence

Section 75.360(a) provides that "before anyone on the
oncoming shift, . • . , enters any underground area of the mine"
(emphasis added) a preshift examination must be made. Section
75.360(g) further requires that:
A record of hazardous conditions and their locations
found by the examiner during each examination and of
the results and location of air and methane
measurements shall be made in a book provided for that
purpose on the surf ace before any persons other than
certified persons conducting examinations required by
this subpart enter any underground area of the mine.
(Emphasis added).
Obviously then, a preshift examination has not been completed and
miners cannot enter the mine until the results of the preshift
examination have been entered in the preshift book on the
surface. It is unchallenged that Maggard, Sales and O'Bannon
entered the mine before the results of the preshift examination
had been recorded. Therefore, I conclude that Respondent
violated Section 75.360(a) as alleged. See Secretary of Labor v.
Birchfield Mining Company, 11 FMSHRC 31, 35 (January 1989).
Siqnif icant and Substantial

The violation was cited as being "significant and
substantial." A "significant and substantial" (S&S) violation is
described in Section 104(d) (1) of the Act as a violation "of such
nature as could significantly and substantially contribute to the
5

Section 303 (d) (2) provides: "No person • • . shall enter any
underground area, except during any shift, unless an examination of
such area as prescribed in this subsection has been made within
eight hours immediately preceding his entrance into such area."

137

cause and effect of a coal or other mine safety or health
hazard." A violation is properly designated S&S "if, based upon
the particular facts surrounding that violation, there exists a
reasonable likelihood that the hazard contributed to will result
in an injury or illness of a reasonably serious nature." Cement
Division. National Gypsum co., 3 FMSHRC 822, 825 (April 1981).
In Mathies Coal co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained:
In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum, the Secretary of
Labor must prove:
(1) the underlying violation of mandatory
safety standard; . • • (2) a discrete safety hazard--that
is, a measure of danger to safety--contributed to by the
violation; (3) a reasonable likelihood that the hazard
contributed to will result in an injury; and (4) a
reasonable likelihood that the injury in question will be of
a reasonably serious nature.
In United States Steel Mining Company, Inc., 7 FMSHRC 1125,
1129 (August 1985), the Commission stated further as follows:
We have explained further that the third element of the
Mathies formula 'requires that the Secretary establish
a reasonable likelihood that the hazard contributed to
will result in an event in which there is an injury.'
U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August
1984). We have emphasized that, in accordance with the
language of section 104(d) (1), it is the contribution
of a violation to the cause and effect of a hazard that
must be significant and substantial. U.S. Steel Mining
Company, Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S.
Steel Mining Company, Inc., 6 FMSHRC 1573, 1574-75
(July 1984).
The question of whether a particular violation is
significant and substantial must be based on the particular facts
surrounding the violation. Texasgulf. Inc., 10 FMSHRC 498 (April
1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 1007 (December
1987) •
In his Brief in Support of Proposed Findings (Sec. Brief),
the Secretary takes the position that a violation of Section
75.360 is per se a "significant and substantial" violation
because "[i]t stands to reason that until a preshift examination
has been conducted to prove otherwise, the mine contains

138

conditions which could reasonably be expected to cause an injury
of a reasonably serious nature to anyone who enters those areas
unaware" of the conditions present (Sec. Brief 14). While this
may be true as a general proposition, based on the facts of this
case and existing case law, I cannot agree that the violation in
this case was "significant and substantial."
Applying the Mathies formula, I have already found that
there was (1) a violation of a mandatory safety standard. I also
find that there was (2) a discrete safety hazard in that the mine
had been idle since Saturday, April 24 and had a history of roof
falls and high methane levels (Tr. 35, 118).
However, I do not find (3) a reasonable likelihood that the
hazard contributed to would result in an injury because:
(a) two
of the three men on the maintenance crew were certified preshift
examiners (Tr. 164-65) who, it can be inferred, would have been
more acutely aware of potential hazards than the average miner;
(b) they only entered the mine as far as the foot of the slope;
and (c) the preshift examination of the north side of the mine
began at 6:22 A.M. so that when the three men entered at about
6:45 A.M. the area into which they went had already been examined
and no hazards were noted. 6 Accordingly, I conclude that the
violation was not "significant and substantial." Birchfield,
supra, at 34-5.
unwarrantable Failure

The violation was cited as having been caused by Buck
Creek's unwarrantable failure to comply with the mandatory safety
standard. The Commission has held that unwarrantable failure is
aggravated conduct constituting more than ordinary negligence by
a mine operator in relation to a violation of the Act.
Emery
Mining Corp., 9 FMSHRC 1997, 2004 (December 1987); Youghiogheny &
Ohio Coal Co., 9 FMSHRC 2007, 2010 (December 1987).
In Emery Mining, supra at 2001, the Commission stated that:
"Unwarrantable" is defined as "not justifiable" cir
"inexcusable." "Failure" is defined as "neglect of an
assigned, expected, or appropriate action." Webster's Third
New International Dictionary (unabridged) 2514, 814 (1971)
(Webster's). Comparatively, negligence is the failure to
use such care as a reasonably prudent and careful person
would use and is characterized by "inadvertence,"
6

Mr. McDowell's testimony that the area at the foot of the
slope had been examined at 6:10 A.M.
(Tr. 177) is clearly
erroneous.
Despite that, I am satisfied that the area had been
examined by the time the three maintenance men entered the area.

139

"thoughtlessness," and "inattention." Black's Law
Dictionary 930-31 (5th ed. 1979). conduct that is not
justifiable and inexcusable is the result of more than
inadvertence, thoughtlessness or inattention.
A preshift examination of a mine has been required at least
since the 1952 Coal Act. 30 u.s.c. § 479(d) (7)&(8)
(1964) (repealed 1969). Entry into the mine of persons, other
than the preshift examiners, before the results of the
examination are recorded in the preshift book at the surf ace has
also been prohibited since the 1952 Coal Act. Id. In fact, the
preshift examination is so fundamental to mine safety and such an
established requirement that it would be astonishing to find any
miner who was not aware of it. Certainly the miners at Buck
Creek were aware of the requirement (Tr. 186-87, 210).
Accordingly, I conclude that failure to follow the requirement in
this case was the result of more than inadvertence or
thoughtlessness and, thus, the result of an unwarrantable failure
on Buck Creek's part. 7 Cf. Birchfield, at 38 (finding a
violation of 30 C.F.R. § 75.303(a) to have resulted from the
operator's unwarrantable failure).
CIVIL PENALTY ASSESSMENT

The Secretary has proposed a penalty of $5,500.00 in this
case. In making my own assessment, I have considered the
criteria set forth in Section llO(i) of the Act, 30 u.s.c. §
820(i). The pleadings indicate that as of July 12, 1993, the
mine had an annual production of 1,126,362 tons which was the
overall production of Respondent's mines. I conclude that
Respondent is a large operator and that imposition of a civil
penalty will not affect its ability to continue in business. In
view of its size, I cannot conclude that Respondent's 317
violations in the past two years is excessive. Based on my
finding that the violation was not "significant and substantial"
I conclude that the gravity of the violation was not high,
however, I do find that Respondent demonstrated a high degree of
negligence in allowing the violation to occur. Finally, I find
that the Respondent demonstrated good faith in abating the
violation. Under these circumstances, I find that a civil
penalty of $3,000.00 for the violation is appropriate.

7

In reaching this conclusion, I do not decide what difference,
if any, McDowell's self-serving, uncorroborated, hearsay testimony
that the three men called into the mine before entering to
determine if it was safe to go in (Tr. 180, 195) makes, since I do
not credit that testimony.

140

ORDER

Buck Creek Coal Company is ORDERED to pay a civil penalty of
$3,000.00 for a violation of Section 75.360(a) of the mandatory
safety standards within 30 days of the date of this decision.
Upon receipt of payment, this proceeding is DISMISSED.

~~~

T. Todd H~~~~--'
Administrative Law Judge
(703) 756-4570

Distribution:
Lisa A. Gray, Esq., Office of the Solicitor, U.S. Department of
Labor, 230 s. Dearborn Street, 8th Floor, Chicago, IL 60604
(Certified Mail)
Patrick A. Shoulders, Esq., Ziemer, Stayman, Weitzel & Shoulders,
P.O. Box 916, Evansville, IN 47706 (Certified Mail)
/lbk

141

FEDERAL BIRB SAPB'1'Y DD BBALTll RBVIElf COllllISSIOH
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

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

v.

CIVIL PENALTY PROCEEDINGS

.

RB COAL COMPANY, INC.,
Respondent

Docket No. KENT 93-244
A.C. No. 15-08293-03556
Docket No. KENT 93-608
A.C. No. 15-08293-03563
No. 4 Mine

DECISION

Appearances:

Donna E. Sonner, Esquire, Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
for the Petitioner;
Richard D. Cohelia, Safety Director, R B Coal
Company, Pathfork, Kentucky, for the Respondent

Before:

Judge Melick

These cases are before me upon the petitions for civil
penalties filed by the Secretary of Labor pursuant to
Section 105(d) of the Federal Mine Safety and Health Act of
1977, 30 u.s.c. § 801, et seg., the "Act," charging RB Coal
Company, Inc. (R B) with three violations of mandatory standards
and seeking civil penalties of $7,700 for those violations. The
general issue is whether R B violated the cited standards and,
if so, what is the appropriate civi.l penalty to be assessed.
Additional specific issues are addressed as noted.
Docket No. KENT 93-608
At hearing the Secretary moved for approval of a settlement agreement for the one Section 104(d)(l) order at issue
in this case, Order No. 3829445. The operator agreed to pay
the proposed penalty of $2,600 in full. I have considered
the representations and documentation of record in support
of the motion and I conclude that the proffered settlement
is appropriate under the criteria set forth in Section 110(i)
of the Act. The order following this decision will incorporate
that settlement.

142

Docket No. KENT 93-244
Citation No. 3832908, issued pursuant to Section 104(d)(l)
of the Act, 1 alleges a "significant and substantial" violation
of the mine operator's roof control plan under the standard at
30 C.F.R. § 75.220 and charges that "the approved roof control
plan was not being complied with in No. 4 right brake [sic]
where the depth of the cut was measured 26 feet deep." Order
No. 3832910, also issued under Section 104(d)(l) of the Act,
similarly alleges a violation of the roof control plan and
charges that "the approved roof control plan was not being
complied with in No. 3 entry of 001 section the depth of the
cut was 24 feet deep from the last row of roof bolts." The
violations were alleged to have occurred on August 29, 1992.
It is undisputed that the relevant roof control plan
provides that "continuous miner runs shall not exceed 20 feet
in depth" (Gov't Exhibit No. 4, p. 7). It is also undisputed
that the admitted continuous miner runs of 26 feet and 24 feet
were in violation of the roof control plan. R B maintains,
however, that·. the violations were neither "significant and
substantial" nor the result of its "unwarrantable failure."
Section 104(d)(l) of the Act provides as follows:
"If, upon any 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
a 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."

143

Roger Dingess, a roof control specialist for the Mine
Safety and Health Administration (MSHA), has significant
roof control experience and, in the mining industry, has
been a roof bolter and supervisor. Pursuant to a code-aphone complaint on August 28, 1992, the MSHA District office
manager directed Dingess to conduct an investigation at the
R B No. 4 Mine. The mine was not operating on August 28 so
Dingess returned the following day and observed two miners
working underground. Mine Superintendent Paul Goins accompanied
Dingess as they proceeded to the No. 5 face. Dingess measured
with a tape a place that had been cut on the left hand side
and found it to be 26 feet deep. Thereafter proceeding to the
No. 3 entry Dingess measured a cut on the left side at 24 feet.
Noting that the roof control plan allows for a maximum 20 foot
cut, Dingess proceeded to issue the citation and order at bar.
Dingess concluded that the violations were "significant
and substantial." He noted that the mine roof in both areas
consisted of thick "draw rock" and the roof was fractured.
Dingess described "draw rock" as a massive rock layer between
the mine roof and coal seam which tends to "let loose and
fall out. 11 Because of these conditions Dingess opined that
it was highly likely for fatal injuries to occur to the roof
bolter operator and to a miner operator operating from the
deck. According to Dingess the roof bolter would be particularly vulnerable as he would be the next person to enter the
excessively deep entries in the mining cycle.
Dingess testified the roof was so bad in some areas outby
the deep cuts that some roof had fallen and had been rebolted.
Even Superintendent Goins acknowledged that there had been
cracks appearing between the roof bolts and they had "bad roof."
Goins testified that "you never know when it's [the roof in
this mine] is going to go bad."
A violation is properly desigl,lated as "significant and
·substantial" if, based on the particular facts surrounding
that violation, there exists a reasonable likelihood that the
hazard contributed to will result in an injury or illness of
a reasonably serious nature. Cement Division, National Gypsum
Co., 3 FMSHRC 822, 825 (1981). In Mathies Coal Co., 6 FMSHRC 1,
3-4 (1984), the Commission explained:
In order to establish that a violation of a
mandatory standard is significant and substantial
under National Gypsum the Secretary must prove:
(1) the underlying violation of a mandatory safety
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

144

hazard contributed to will result in an injury; and
(4) a reasonable likelihood that the injury in
question will be of a reasonably serious nature.
See also Austin Power Co. v. Secretary, 862 F.2d
99, 103-04 (5th Cir. 1988), aff'g 9 FMSHRC 2015, 1021
(1987) (approving Mathies criteria).
The third element of the Mathies formula
requires that the Secretary establish a reasonable
likelihood that the hazard contribute to will result
in an event in which there is an injury. (U.S. Steel
Mining Co., 6 FMSHRC 1834, 1836 (1984), and also that
in the likelihood of injury be evaluated in terms of
continued normal mining operations (U.S. Steel Mining
co •. Inc., 6 FMSHRC 8, 12 (1986) and southern Ohio
Coal Co., 13 FMSHRC 912, 916-17 (1991).
Within this framework of law and evidence it is clear that
both violations herein were "significant and substantial" and
quite serious. I reach this conclusion based on a combination
of factors, including the excessively deep cuts, the undisputed
fractures and "draw rock" in the mine roof and the previous
recent history of problems with "draw rock" in this area of
the mine. I have also considered the Mine Superintendent's
acknowledgement of the existence of bad roof in this mine and
the unpredictability of roof falls therein.
The Secretary also alleges that the violations were the
result of the operator's "unwarrantable failure" to comply
with the cited standard. Inspector Dingess concluded that both
conditions should have been observed by the foreman during the
course of his preshift examination. It is not disputed that,
in fact, no preshift examination had been performed prior to the
shift in which the violations were discovered by the inspector.
It is further undisputed that the roof had been cut on the
evening shift of August 28 and that a preshift examination, if
required for the shift at issue (the 6:00 a.m. to 2:30 p.m. day
shift) should have been performed between 3:00 and 6:00 a.m. on
the morning of August 29.
In Emery Mining Corp., 9 FMSHRC 1997, 2004 (1997), the
Commission determined that unwarrantable failure is aggravated
conduct constituting more than ordinary negligence. Unwarrantable failure is characterized by such conduct as "reckless
disregard," "intentional misconduct," "indifference," or a
"serious lack of reasonable care." Rochester and Pittsburgh
Coal co., 13 FMSHRC 189 (1991). The Commission has also stated
that use of a "knew or should have known test by itself would
make unwarrantable failure indistinguishable from ordinary

145

negligence," and accordingly the Commission rejected such an
interpretation. See Secretary v. Virginia Crews Coal Co.,
15 FMSHRC 2103 (1993).
In support of his "unwarrantable" findings the Secretary
first argues that the miners working on the shift during which
the deep cuts were made were not task-trained on the specific
continuous miner used to create those cuts. This argument is
apparently advanced to rebut R B's contention that the continuous miner used to cut these deep cuts, a Simmons Rand 500 model,
was about 18 inches higher and four feet longer than the miner
the crew was familiar with and that its controls were two feet
further away from the cutter head. According to R B the
continuous miner operator was unaware of the two-foot difference
in the machines and while using the remote control misjudged the
depth of the cuts.
While I agree with the Secretary that the absence of
appropriate task training may have been a factor in this misjudgment, it is unclear whether the position of the controls
in relation to the cutter head of the machine would necessarily
be covered in such training and, in any event, I do not find
that such failure amounts to such an aggravated omission as to
constitute "unwarrantable failure." While the Secretary also
maintains that the deep cuts were readily visible to the
continuous miner operator, the evidence is inconclusive in
this regard. Moreover, the negligence of the miner operator
alone could not under the circumstances be imputed to R B.
The Secretary also maintains that the failure of R B
to have performed a preshift examination of the cited entries,
amounted to such an aggravated omission as to constitute
"unwarrantable failure." The Secretary maintained at hearing
that under the standard at 30 C.F.R. § 75.303 2 the operator
was required to inspect during the preshift examination, among
other areas, the cited entries. The failure to perform such
an examination of the cited entries was, according to the
Secretary, therefore a particularly aggravated omission
constituting "unwarrantable failure."
R B maintains, however, that only two miners were
underground at the time and that those miners were working
on brattice at the tailpiece outby the section. R B argues
that since no one was scheduled to work that shift in the area
of the cited faces, there was no need to perform a preshift
examination of those face areas. R B's position is clearly
correct. Nothing in 30 C.F.R. § 75.360 requires that the
2
The preshift examination requirements under 30 C.F.R.
75.303 were superseded effective July 1, 1992 by 30 C.F.R.
§ 75.360.

§

146

face areas at issue in this case be subject to a preshift
examination when persons are neither working nor expected to
work there during the shift. Accordingly, the failure to have
conducted a preshift examination of the cited face areas may
not be considered as a basis for "unwarrantable failure" or
high negligence findings.
While the Secretary further argues that the cited conditions should also have been discovered by management during
an on-shift examination, it is not disputed that, even if an
on-shift examination was required in the cited areas, the time
for conducting such an exam had not yet expired when the
conditions were cited. Accordingly, the argument is vacuous.
In the absence of any other evidence of unwarrantability
or high negligence, I conclude that the Secretary has failed
to meet her burden of proof in this regard. Accordingly, the
citation and order at bar must be modified to citations under
section 104{a) of the Act.
considering the criteria under Section llO{i) of the Act,
the penalties . noted in the following order are deemed
appropriate.
ORDER

Citation No. 3832908 and Order No. 3832910 are hereby
modified to citations under Section 104{a) of the Act. R B Coal
company, Inc. is hereby directed to pay civil penalties of $500
each for the violations charged in these citations within 30 days
of the date of this decision. In addition, Order No. 3829445 is
affirmed and R B Coal Company, Inc. is directe to pay a civil
penalty of $2,600 for the violation charged th rein within
30 days of the date of this decisiam.

J Gar¥

:r:ie i ick.
Adm1n1s rative

Distribution:
Donna E. Sonner, Esq., Office of the Solicitor,
U.S. Department of Labor, 2002 Richard Jones Road,
Suite B-201, Nashville, TN 37215-2862 {Certified Mail)
Richard D. Cohelia, Safety Director, R B coal Company,
HC 61, Box 610, Pathfork, KY 40863 {Certified Mail)
/lh

147

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

JAN 1 9 1994
CIVIL PENALTY PROCEEDING

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

Docket No. WEST 92-634-M
A.C. No. 26-00827-05519

v.

Cortez Gold Mine

CORTEZ GOLD MINES,
Respondent
DECISION

Appearances:

Steven R. Desmith, Esq., Office of the Solicitor,
U.S. Department of Labor, San Francisco,
California,
for Petitioner;
Laura E. Beverage, Esq., JACKSON & KELLY, Denver,
Colorado,
for Respondent.

Before:

Judge Morris

The Secretary of Labor on behalf of the Mine Safety and
Health Administration ("MSHA"} charges Respondent with violating
safety regulations promulgated under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801, et .§fill.:.. (the "Act").
A hearing on the merits was held in Elko, Nevada, on October 6, 1993. The parties filed post-trial briefs.

148

Citation No. 3928117
This citation issued under Section 104(a) of the Act alleges
Respondent violated 30 C.F.R. § 56.14207. 1 It is further alleged
the citation was significant and substantial.
The citation reads as follows:
The # M-6 pickup truck was observed parked on
a grade while the wheels were not chocked or
turned into the bank. This vehicle was left
unattended. The vehicle transmission was
placed in netural (sic) and the park brake
released, at this time t~e vehicle started to
roll down the grade.
STIPULATION
The parties stipulated as follows:
1. The mine site and history of violations is as contained
in the proposed assessment.
(Tr. 8).
2.

Cortez showed good faith in abating the violation.

3. Payment of the proposed penalty will not adversely
affect the operator's ability to continue in business. (Tr. 8).
4. Cortez is covered by the Act and subject to its
regulations.
(Tr. 56).
MSHA's EVIDENCE
JERRY MILLARD, an authorized representative of the Secretary
of Labor, has conducted several hundred inspections over 13
years.
(Tr. 9, 10).
On June 10, 1992, he inspected the Cortez site.
(Tr. 10).
In the inspection he observed a half-ton pickup truck (F-150)

The cited regulation reads as follows:
§

56.14207

Parking Procedures for unattended
equipment.

Mobile equipment shall not be left unattended unless
the controls are placed in the park position and the
parking brake, if provided, is set.
When parked on a
grade, the wheels or tracks of mobile equipment shall be
either chocked or turned into a bank.

149

located on an access road between the thickner tanks and the
grinding plant.
(Tr. 11, 15).
The truck was parked facing downhill on 5 to 6 degree grade.
The inspector did not see any chocks and the vehicle's wheels
appeared to be in a straight forward position.
The inspector asked company representative Pruitt to test
the vehicle by putting it in neutral and then releasing the brake
to see if it would roll. These functions verify whether there
was a grade that would permit the truck to roll.
{Tr. 11, 15).
The inspector was concerned because in the past six to eight
months there had been three fatalities in MSHA's Western District. All three fatalities were related to small vehicles and
service type vehicles.
In cross-examination Mr. Millard clarified that he could not
say if the brakes on the vehicle failed, but he could only determine that the vehicle had rolled.
{Tr. 19).
The inspector believes that if a truck is parked unattended
on a grade the park brake should be set and the transmission put
in the "park" position. In addition, the wheels should either be
turned into a berm or chocked.
The vehicle here lacked chock blocks. There was a berm two
feet away but the truck wheels were not turned into it.
(Tr.
12) •

When the described test was performed by Mr. Pruitt the
vehicle started rolling forward and picking up speed.
It rolled
about 50 feet.
{Tr. 13, 14) .
After the described test they repositioned the vehicle; the
front wheels were turned into the berm and parked within two feet
of it.
(Tr. 13, 28).
The inspector then issued a citation.

(Tr. 14, Ex. P-1).

When the inspector parked his vehicle on the day of the
inspection a similiar test indicated his vehicle would not roll.
{Tr. 17).
The inspector admitted he couldn't say if the fatal accidents he referred to involved a vehicle with a park brake failure. However, the vehicles had rolled.
Mr. Millard's MSHA supervisor originally brought the matter
of chocking to the inspector's attention.
(Tr. 19).

150

The inspector's first citations for similiar violations were
issued between 1988 and the early 1990's after the three fatalities had been reviewed.
(Tr. 22).
Mr. Millard designated citation No. 3928117 as an S&S violation.
(Tr. 29). This evaluation was based on the gravity
involved and an injury could reasonably be expected.
(Tr. 29).
ing.

The standard is intended to protect against a vehicle roll(Tr. 30).

Prior to 1992, the inspector did not issue citations for
this type of violation involving pickup trucks such as the Cortez
Ford F-150.
(Tr. 23, 24).
Mr. Millard was not aware of performance standards for parking brakes applicable to self-propelled mobile equipment.
He always goes by the manufacturer's recommendations but he did know
what they were on the F-150.
(Tr. 27).
The issuance of a citation in this situation was a change in
enforcement policy ordered by his supervisor, Paul Belanger.
(Tr. 24).
Mr. Millard had not seen any written documentation advising
operators of the change in enforcement policy.
(Tr. 24). There
was nothing in writing concerning the change in applying such a
standard to require manual chocking to F-150 type vehicles.
(Tr.
24-25).
When the inspector came on the stationary vehicle at the
Cortez site it was in a parked position and the park brake was
set.
(Tr. 25, 26). He did not have any reason to suspect the
parking brake was not adequate to hold the vehicle.
(Tr. 26).
PAUL BELANGER, a supervisory special investigator, is
employed at MSHA's office in Vacaville, California.
(Tr. 33).
He is required to carry out all of the mandates of the 1977 Mine
Act.

He reviews citations issued by the inspectors as well as the
characterizations of negligence, gravity and S&S.
(Tr. 34).
Mr. Belanger assumed the vehicle in question was a half-ton
pickup or three-quarter ton, standard sized pickup truck.
He
also studied the regulation.
(Tr. 35, 36).
In Mr. Belanger's opinion a pickup truck in the half ton
range is not excluded from the regulation.
(Tr. 36).
After conferring with his District Manager, Vern Gomez, Mr.
Belanger confirmed that the standard applied to the truck.
(Tr.

151

36). The national MSHA office has expressed no concern as to
this enforcement policy.
(Tr. 37).
The standard was changed in 1988 from Section 9 to Section
14. It was also combined from two separate standards.
It now
consists of a single standard. Mr. Belanger did not consider
there had been change in enforcement policy.
(Tr. 38).
Two of the three fatalities in MSHA's Western District
involved small vehicles of this type; another was a small utility
type vehicle.
(Tr. 39).
Concerning the three fatalities: all the vehicles rolled
independently of a driver; they were parking on grades and all
three resulted in a worker being crushed or run over by the
equipment.
In connection with this citation Mr. Belanger was in
agreement with the inspector's characterization of "moderate
negligence" and reasonably likely "gravity."
(Tr. 39, 40).
Mr. Belanger believed that if an accident occurred it would
be permanently disabling.
(Tr. 41). Accidents involving vehicles of this type usually resulted in a fatality.
The standard was changed in 1988 as indicated in the Federal
Register.
(Tr. 42, 53, Ex. P-2).
Other mine operators raised the question whether there had
been a change in policy.
(Tr. 52).
MSHA has no written policy relating to chocking a vehicle on
grades.
{Tr. 53) .
CORTEZ'S EVIDENCE

TIM PRUITT, has been the Cortez safety training coordinator
for three years.
(Tr. 57).
He is familiar with the requirements of Part 56 and he
accompanies MSHA inspectors on the job site.
(Tr. 58).
He and mill foreman, Gary McGill, were traveling with
Inspector Millard.
The Ford F-150 supervisor's truck was parked on a gravel
access road. The hill where the truck was located was sloped
between 4 and 6 percent. The truck was not pointing straight
down slope but somewhat across the hill.
(Tr. 59, 60).
It was
approximately 15 feet from the descaling pond and berm that goes
around the pond.
(Tr. 60-61).

152

Photographs were taken of a similiar vehicle.
through R-9).

(Exs. R-1

The foremen use the road at least once a day. There have
not been any changes in the gravel roadway or the berm around the
pond.
(Tr. 66-68) .
The F-150 truck is appropriate for highway travel.
on the day of the inspection the truck was in second gear.
Either first or second gear would be a standard park position for
this type of transmission.
In addition, the emergency brake was
set. With a manual type transmission the witnesses' definition
of a park position would be a gear low enough to prohibit the
transmission and the engine from turning over.
(Tr. 69, 70).
With the exception of a shovel there was nothing in the back
of the truck.
(Tr. 70).
In Mr. Pruitt's opinion the park position of the truck would
hold the truck in place.
Mr. Pruitt had previously worked on and driven trucks of
this type.
(Tr. 70).
On this type of truck when the operator depresses the pedal,
the cable pulls on a lever inside the brake drum.
In turn the
brake pads are pushed against the brake drum.
This prevents the
wheels from turning.
(Tr. 71).
The setting of the park brake is similiar to an automobile
when the operator depresses the pedal inside the cab.
On this roadway the maximum grade would be 10 percent.
(Tr.
71).
Five hundred pounds would be the maximum load for this type
of truck.
(Tr. 72).
Manual chocking is when you physically use some mechanical
device to prevent the wheels from turning. This generally has
the same effect of setting a park brake.
(Tr. 72).
The park
brake is more effective because it locks both rear wheels.
On
the other hand you manually chock one wheel.
(Tr. 73).
Mr. Pruitt was not aware of any history of accidents in a
mine where a park brake failed.
(Tr. 73).
When Mr. Pruitt released the parking brake the truck in five
to six seconds at a walking speed of two to three miles per hour
rolled 15 feet to the berm.
(Tr. 74, 78).
Mr. Pruitt had never previously conducted a similiar test.
(Tr. 75) .

153

Manual chocking had never been previously required and he
believed this was a change in MSHA policy.
{Tr. 75).
Prior to 1992 it was not common practice in the industry to
manually chock transportation-type vehicles such as the one in
question.
Prior to June 10, 1992, Cortez had not been cited for such a
violation.
(Tr. 76). No MSHA representative said pickup trucks
were excluded from the regulation. Not since the change of 1988
had he seen anything written indicating pickup trucks were excluded from the standard.
(Tr. 77).
Mr. Pruitt has seen a parking-brake failure on five-ton
trucks.
He described such failure as the truck being unable to
hold the load on the grade where it was parked.
(Tr. 78).
As a mechanic he has seen parking-brake failures where
brakes were worn out and had to be replaced.
(Tr. 78).
Cortez has a preventative maintenance program.
Most P.M. is
at 3,000 miles.
This includes a check of the brakes.
It is a common practice to leave a vehicle of this type
unattended with the parking-brake set and in a park position.
(Tr. 80) .
Performance standards on self-propelled mobile equipment
require that parking-brakes hold a vehicle from moving on the
maximum incline or slope where it would be parked and also with a
typical load.
(Tr. 81).
In Mr. Pruitt's opinion the parkingbrake would meet the performance standard. Mr. Pruitt was also
familiar with the standard that requires all brakes to be maintained in an operating condition.
Mr. Pruitt has seen chock failures occur but not on the type
of vehicle involved here.
(Tr. 81).
JOHN BUNCH has been the Director of Safety, Security and
Training at Cortez for over four years. He is familiar with
Parts 56 and 57 of MSHA's regulations.
(Tr. 82-84).
In addition, he is familiar with MSHA's enforcement policies
and he has traveled with MSHA inspectors many times.
{Tr. 84).
Mr. Bunch is familiar with 30 C.F.R. § 56.14207.
It is his
understanding that the F-150 Ford pickup was in a park position
prior to the issuance of the citation.
(Tr. 84).
In addition,
the parking-brake was engaged.
The pickup was parked diagonally on a 4 to 5 percent slope.
(Tr. 86, Ex. R-1).

154

Prior to June 10, 1992, MSHA had never raised an issue as to
a manual chocking requirement for these types of vehicles.
(Tr.
87). Mr. Bunch believed that applying a manual chocking standard
to a Ford F-150 would be a change in policy.
(Tr. 87-88).
It is not standard mining practice to manually chock vehicles like this at other mines.
Further, MSHA did not apply such
a requirement at other facilities or at Cortez prior to the time
the citation was issued.
Prior to 1992 MSHA inspectors have not carried manual chocks
nor had Mr. Bunch ever seen a chock on a MSHA vehicle.
(Tr. 8889) .
If a parking brake is provided it must be maintained in an
operating condition.
Some self-propelled equipment do not have a
parking brake.
(Tr. 89-90).
Considering the mechanics of the truck park position and the
load (none) the park position would be sufficient to hold the
truck stable.
(Tr. 90, 91).
The truck was a 1988 Ford F-150. Mr. Bunch identified the
1988 Service Manual for such vehicles.
(Tr. 91-92, Ex. R-10).
When the pedal in the cab is depressed the levers pull forward.
This activates the brake shoe against the inside of the drum and
stabilizes both rear wheels.
(Tr. 92-93).
(Page 5 illustrates
the brake pedal and the control assembly as shown in View W, Ex.
R-10).
The parking brakes on the Ford F-150 truck serve as a
mechanical inhibitor for the wheels.
(Tr. 95). Chocking is
manually placing a device against a wheel to prevent the wheel
from turning and the vehicle from moving. The effect of chocking
is not different than the effect of setting a parking brake
automatically.
The park brake was adequate to hold this vehicle.

(Tr. 95) .

Mr. Bunch was not aware of any incidents where parking
brakes had failed.
(Tr. 96).
In this case the pickups have a regularly scheduled P.M.
program where fluids are changed and brakes are checked.
(Tr.
96) .
During the conference it was not implied there was a change
in the enforcement practice; however, Mr. Bunch understood there
had been such a change. There had been no written documentation
announcing this change.

155

Finally, Cortez had never been charged with a violation of
30 C.F.R. § 56.14207 in a situation involving a Ford F-150 truck.
(Tr. 97) .
Mr. Bunch agreed that since 1988 MSHA had never told him
that F-150 trucks were excluded from this regulation.
Eighty-five percent of the trucks are equipped with power
steering and weigh about 2,100 pounds.
(Tr. 99, 100).
When Mr. Bunch has seen brakes become inoperable he would
chock them.
(Tr. 100).
DISCUSSION AND FURTHER FINDINGS

The evidence is essentially uncontroverted.
ISSUE

The issue is whether the wheels of a F-150 Ford pickup truck
must be chocked or turned into a bank when the vehicle is parked
on a grade.
Cortez initially argues the 1988 revisions to Subpart M and
Subpart H whereby the previously distinctive rules for mobile and
self-propelled equipment were merged into a single category of
mobile equipment created vagueness as to the inclusions of
passenger pickup vehicles under 30 C.F.R. § 56.14207.
I am not persuaded the revisions created any vagueness.
Prior to August 25, 1988, the precursor standard of 30 C.F.R.
§ 56.14207 was codified at 30 C.F.R. § 56.9037.
The initial
standard and the revisions in 1988 were essentially the same.
Each standard began with the term "mobile equipment." While
"mobile equipment" was not further defined until 1988 it would
have a common dictionary meaning of "capable of moving or being
moved." 2
In 1988 the revision the new subparts define "mobile
equipment" as "wheeled, skid-mounted, track-mounted or railmounted equipment capable of moving or being moved." Further,
"whenever the final rule refers to equipment capable of moving
itself, it uses the term "self propelled mobile equipment, for
which a separate definition is not necessary."
(Subpart E
Definitions, Ex. D-2).
In sum, the F-150 mobile pickup truck was mobile equipment
under 30 C.F.R. § 56.9037 and under 30 C.F.R. § 56.14207. No

2

Webster's New Collegiate Dictionary at 732.

156

vagueness was created by the Secretary's revisions in August
1988.
I agree with Cortez that the evidence establishes that MSHA
did not enforce this regulation as to F-150 pickup trucks before
the August 1988 revision. However, it has been established that
non-enforcement does not bar MSHA from citing violations.
Conesville Coal Preparation Company, 12 FMSHRC 639, April 1990.
Cortez further argues that since 30 c.F.R. § 56.14207 fails
to provide adequate notice it is necessary to apply the reasonably prudent person test in determining the interpretive validity
of the regulation.
Many of the Secretary's regulations are designed to deal
with the myriad of circumstances that can arise in the mining
industry.
For example, see the leading case of Ideal Cement
Company, 12 FMSHRC 2409, (November 1990) involving 30 C.F.R.
§ 56.9002 3 (1987).
As a result of the design of the regulations
many of them are subject to the claim that they are overly broad
or vague.
This case is no different.
Cortez asserts it did not have
fair notice that its F-150 half-ton pickup truck was subject to
the contested regulation.
In such circumstances, the Commission has ruled that the
appropriate test in interpreting and applying such broadly worded
standards is not whether the operator had explicit prior notice
of a specific prohibition or requirement, but whether a reasonably prudent person familiar with the mining industry and the
protective purposes of the standard would have recognized the
specific prohibition or requirement of the standard.
Ideal, 12
FMSHRC at 2416; Cyprus Tonopah Mining Corporation, 15 FMSHRC 367,
375 (March 1993).
In support of its position that it did not have fair notice
of the requirement Cortez relies on Lanham Coal Co. Inc., 13
FMSHRC 1710 (October 1991).
Lanham was remanded by the Commission to Judge James A.
Broderick to "determine, through application of the reasonably
prudent person test, whether Lanham had fair notice that 30

3

The standard provided that: Equipment defects affecting safety shall
be corrected before the equipment is used.

157

c.F.R. § 77.1710(g) 4 required the use of safety belts or lines
under the circumstances of this case." 13 FMSHRC 1341.
In his decision after remand (13 FMSHRC 1710) Judge Broderick vacated the citation on the basis of several findings.
Those
were that (1) prior to the accident, neither the operator nor the
MSHA inspector who issued the citation considered the cited
standard applicable to the tarping of trucks, (2) the inspector
had never previously cited the practice and had never used safety
belts in such circumstance, (3) MSHA had no standards or guidelines that covered the practice and (4) Lanham had no specific
notice that the practice violated the standard that dealing with
safety belts and lines.
In this case the facts fairly establish (1), (2) and (4).
However, Cortez knew or should have known of MSHA's requirements
of parking procedures for unattended equipment because MSHA's
regulation fairly covered the practice. As a result Lanham is
not controlling.
Cortez further contends that even if 30 C.F.R. § 56.14207
could be read to encompass passenger pickup vehicles, the operator complied with the regulation.
specifically, it is asserted that the vehicle's engine was
off, the transmission was in the park position and the manual
brake was cable activated.
Cortez's argument does not address the relevant portion of
the regulation; namely, the last sentence of 30 C.F.R. § 14207
which provides:
When parked on a grade, the wheels or
tracks of mobile equipment shall be either
chocked 5 or turned into a bank.

4

The regulation involved 30 C.F.R. S 77.1710 entitled "Protective
Clothing; requirements provides in pertinent part:
Each employee working in a surf ace coal mine or in the
surface work areas of an underground coal mine shall be
required to wear protective clothing and devices as
indicated below:
(g) Safety belts and lines where there is danger of
falling; a second person shall tend the lifeline when
bins, tanks, or other dangerous areas are entered.
Webster's New Collegiate Dictionary at 194 defines a chock as "a
wedge or block for steadying a body (as a cask) and holding it motionless, for
filling in an unwanted space, or for blocking the movement of a wheel."

158

It is clear from the evidence that the pickup was parked on
a 5 to 6 degree grade. In addition, its wheels were neither
chocked or turned into a bank.
Cortez has attached to its post-trial brief as Exhibit A
MSHA's Program Information Bulletin No. P93-29 dated November 4,
1993.
I decline to take official notice of the bulletin.
Its
subject matter does not appear relevant to this case since it
deals with automatic transmission defects in certain named Ford
vehicles.
Cortez finally claims the violation was not Significant and
Substantial.
A violation is properly designated S&S "if, based upon the
particular facts surrounding that violation, there exists a
reasonable likelihood that the hazard contributed to will result
in an injury or illness of a reasonably serious nature." Cement
Division, National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).
In Mathies Coal co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained:
In order to establish that a violation of a mandatory
safety standard is significant and substantial under
National Gypsum, the Secretary of Labor must prove: (1)
the underlying violation of a mandatory safety
standard; ... (2) a discrete safety hazard ... that is
a measure of danger to safety -- contributed to by the
violation; (3) a reasonable likelihood that the hazard
contributed to will result in an injury; and (4) a
reasonable likelihood that the injury in question will
be of a reasonably serious nature.
See also Austin Power Co. v. Secretary, 861 F.2d 99, 103-04 (5th
Cir. 1988), aff'g 9 FMSHRC 2015, 2021 (December 1987) (approving
Mathies criteria). The Commission has held that the third element of the Mathies formula "requires that the Secretary estab1 ish 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) (emphasis in original) .
In the instant case the Secretary failed to establish the
third facet of the Mathies formulation. The inspector noted the
pickup was stationary and he saw no reason to suspect the brake
was not adequate to hold the weight of the vehicle on the
existent grade.
{Tr. 26).
Evidence was offered by the Secretary concerning prior
fatalities involving unattended vehicles running over workers.

159

The comparison fails.
The credible evidence establishes the
vehicle was stationary with adequate transmission and brakes.
{Tr. 25, 54).
The S&S allegations should be stricken.
For the foregoing reasons the citation should be affirmed.
CIVIL PENALTY
Section llO(i) of the Act mandates consideration of certain
criteria in assessing appropriate civil penalties.
The size of Cortez is stipulated to be 1,221,241 production
tons and the size of the mine itself is 362,640.
The payment of the proposed penalty will not adversely
affect Cortez's ability to continue in business.
There is no evidence of the operator's prior history.
Cortez was negligent as company vehicles were left
unattended without taking the necessary precautions as required
by the regulations.
The gravity of the violation was low since the parking and
transmission adequately held the pickup truck on the grade.
Cortez demonstrated good faith in abating the violative
condition.
Considering the statutory criteria I conclude that a civil
penalty of $75.00 is appropriate.
Accordingly, I enter the following:

ORDER
Citation No. 3928117 is affirmed and a civil penalty of
$75.00 is assessed.

Law Judge

160

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

JAN 1 9 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. WEVA 93-11
A. C. No. 46-05907-03655

v.
Docket No. WEVA 93-340
A. C. No. 46-05907-03685

U. S. STEEL MINING COMPANY,
INC. I
Respondent

Docket No. WEVA 93-368
A. C. No. 46-05907-03688
Shawnee Mine

DECISION APPROVING SETTLEMENT
Appearances:

Before:

Javier I.Romanach, Esq., Office of the Solicitor,
U. S. Department of Labor, Arlington, Virginia,
for the Secretary;
Billy M. Tennant, Esq., Pittsburgh, Pennsylvania,
for Respondent.

Judge Maurer

These cases are before me upon a petition for assessment of
civil penalties under section 105(d) of the Federal Mine Safety
and Health Act of 1977 (the Act). An evidentiary hearing in
these matters was held on November 18, 1993, in Beckley,
West Virginia.
At the conclusion of that hearing, the parties
filed a motion to approve a settlement agreement and to dismiss
these cases.
The citations, initial assessments, and the proposed
settlement amounts are as follows:

CITATION NO.

PROPOSED
ASSESSMENT

PROPOSED
SETTLEMENT

3738158

$

$

WEVA 93-11

161

136

136

WEVA 93-340
3579354

189

50 1

50
50

50
Vacated
Vacated

WEVA 93-368
3976690
3976694
3578514
TOTAL

-2Q

$

475

$

236

I have _considered the representations and documentation submitted
in these cases, as well as the testimony contained in the record
of proceedings, 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 $236 within
30 days of this order.

Law Judge
Distribution:
Javier I. Romanach, Esq., Office of the Solicitor,
U. S. Department of Labor, 4015 Wilson Boulevard, Room 516,
Arlington, VA 22203 (Certified Mail)
Billy M. Tennant, Esq., 600 Grant Street, Room 1580, Pittsburgh,
PA 15219-4776 (Certified Mail)
dcp

1

/
Citation No. 3579354 is modified to delete the
"significant and substantial" finding.

162

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

JAN 2 4 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. KENT 92-1079
A.C. No. 15-11012-03520

v.
Camp 9 Preparation Plant
PEABODY COAL COMPANY,
Respondent
DECISION
Appearances:

Before:

Brian W. Dougherty, Esq., Office of the Solicitor,
u. s. Department of Labor, Nashville, Tennessee,
for Petitioner;
David R. Joest, Esq., Henderson, Kentucky, for
Respondent.

Judge Amchan
Statement of Facts

On the morning of July 21, 1992, MSHA Inspector
Philip Dehart examined a refuse pile at Respondent's Camp 9
Preparation Plant (Tr. 12). This pile, which consists of debris
from washed coal, is approximately 100 feet high and bigger than
100 feet x 100 feet horizontally (Tr. 21). Mr. Dehart found 2
pools of water on the refuse pile. One was about 40 feet by 20
feet and an inch deep and the other was about 35 feet by 20 feet
and also an inch deep (Tr. 13 - 14).
Mr. Dehart issued Respondent Citation No. 3551344, which
alleged that the refuse pile was not graded to allow for proper
drainage and that the inadequate grading violated Peabody's
approved plan for the refuse area (Exh G-1). Water on the refuse
pile creates a potential fire hazard due to spontaneous
combustion (Tr. 10 - 11). However, MSHA apparently did not
consider the water on Camp 9's refuse pile to present a hazard to
miners as of July 21, 1992 (Tr. 19 - 20).
The citation referenced 30 C.F.R. § 77.215 as the regulation
violated. However, there is no standard requiring a mine
operator to comply with an approved refuse pile design plan (See
Tr. 22 - 25).

163

At trial, the Secretary argued that the facts in this case
establish a violation of 30 C.F.R. § 77.215(e). This issue has
been tried with the consent of Respondent (Tr. 25).
Section 77.215(e) requires:
Refuse piles shall not be constructed so as to
impede drainage or impound water.
Respondent's position on the merits is that the refuse pile
was not designed to impound water (Tr. 45). The 2 pools of water
observed by Inspector Dehart were the result of heavy rains the
previous evening and differential settling of the refuse in the
pile (Tr. 40). Peabody contends it complied with the regulation
by reshaping the refuse pile as soon as it could do so safely
(Tr. 44) .
Peabody submits that there is no way to avoid differential
settling and that to prevent a hazard developing from standing
water it reshapes the pile with rubber-tired vehicles.
Respondent argues that, to do this before the pile dries, would
be hazardous to the operators of its dump trucks, bull dozers and
scrapers.
Moreover, Respondent contends that the pile was not
In fact, it is designed so that
water will drain off the pile and flow away from the pile (Tr. 40
- 42) .
constructed to impound water.

Issues
The issues in this case are whether the fact that there were
standing pools of water on Respondent's refuse pile establishes
that water was impounded and, if so, whether the evidence
establishes that the pile was constructed so as to impede
drainage or impound water. I conclude that the Secretary has not
met his burden of proof on either of these issues.
The testimony of Gordon Ingram, an engineering supervisor
for Respondent at camp 9, that the accumulation of water on
July 21 was unavoidable is uncontroverted. This testimony is
also not inconsistent with Mr. Dehart's testimony that
dessication cracks indicated that there had been other pools of
standing water on the pile before July 21. 1
The word impounded suggests a purposeful rather than an
1

The citation alleged a violation only with regard to the 2
pools of water observed on July 21, 1992 (Exh. G-2). Moreover,
the record does not establish that the dessication cracks could
only have been present if Respondent failed to take reasonably
prompt steps to reshape the refuse pile after a rainstorm.

164

accidental accumulation of water. In some circumstances, one
could reasonably conclude that the lack of any corrective action
to remove water, which had accidently accumulated, might be an
impoundment. However, Mr. Ingram's uncontroverted testimony
establishes that the accumulation of water in this case was the
unavoidable result of differential settling of the refuse. It
also establishes that Respondent tried to remove the water as
soon as it was reasonably safe to do so.
Moreover, even if any accumulation of water is an
impoundment, there is no evidence in this record to support a
finding that Respondent's refuse pile was constructed to impede
drainage or impound water within the meaning of
section 77.215(e). However, I agree with petitioner that, in
some circumstances, a failure to take timely corrective action to
remove water that has collected on a refuse pile may violate
section 77.215(e).
A refuse pile is in an ongoing state of construction.
Therefore, a failure to timely reshape areas in which water has
collected may 'be "construction" within the meaning of the
standard. How~ver, the record, in this case, does not establish
that the water present on the refuse pile on July 21, 1992, was
present due to any intentional act of Respondent or a failure to
take reasonably prompt abatement measures.
In conclusion, it has not been established that the refuse
pile was constructed so as to impede drainage or impound water.
I, therefore, vacate Citation No. 3551344.
ORDER
Citation No. 3551344 is hereby VACATED and this case is
dismissed.

~r~

Administrative Law Judge
703-756-6210

Distribution:
Brian W. Dougherty, Esq., Office of the Solicitor, U. s.
Department of Labor, 2002 Richard Jones Rd., Suite B-201,
Nashville, TN 37215-2862 (Certified Mail)
David R. Joest, Esq., 1951 Barrett Court, P.
Henderson, KY 42420-1990 (Certified Mail)
/jf

165

o. Box 1990,

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

JAN 2 5 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.

ISLAND CREEK COAL COMPANY,
Respondent

CIVIL PENALTY PROCEEDING
:

Docket No. KENT 92-1034
A.C. No. 15-02706-03722-R

.
.: Hamilton No. 2 Mine
.

.

DECISION
Appearances:

Anne T. Knauff, Esquire, Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
for the Petitioner;
Marshall s. Peace, Esquire, Lexington, Kentucky,
for the Respondent

Before:

Judge Melick

This case is before me upon the petition for assessment
of civil penalty filed by the Secretary of Labor pursuant to
Section 105(d) of the Federal Mine Safety and Health Act of
1977, 30 u.s.c. §801 et seq., the "Act," charging the Island
Creek Coal Company (Island Creek) with violations of mandatory standards. The general issue before me is whether
Island Creek violated the cited standards and, if so, what
is the appropriate civil penalty to be assessed. Additional
specific issues are also addressed as noted.
The parties moved to settle Citation/Order Nos. 3418856,
3420270, 3548984, 3548985, 3549015, 3549019, 3548656 and 3548657,
proposing a reduction in penalties from $9,979 to $8,326,
deleting the "significant and substantial" findings from Citation
Nos. 3548984, 3549015, and 3549019, vacating Order No. 3420253
and modifying Citation No. 3418856, Order No. 3548657, and Order
No. 3548985 to citations under Section 104(a) of the Act. 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. An order directing payment of these penalties will be
incorporated in the order accompanying this decision.
The one citation remaining, Citation No. 3549007, alleges a
"significant and substantial" violation of the mine operator's
roof control plan under the mandatory standard at 30 C.F.R.
S 75.220 and charges as follows:
166

The addendum to the roof control plan was not
being followed as required by letter dated 6-18-90
in the main east Antioch Mains where a section of
supply entry was driven 26 feet wide for a distance
of 200 feet. The WF steel beams, 26 feet long
spaced in between each truss bolt, seven (7) of
these beams was [sic] not installed as required by
the approval of the addendum.
It is not disputed that the "addendum" to the roof control
plan set forth in the Secretary's letter dated June 18, 1990,
became an enforceable part of such plan. The addendum reads as
follows:
Your request dated June 5, 1990, for permission to
widen the existing supply road from the approved
20 feet width, to a maximum of 26 feet wide for a
distance of 200 feet on the No. 4 unit, in the
Antioc~ Mains, for two Parallel sets in the same
entry i's approved, provided:
The 200 feet shall be truss bolted on 4 feet [sic]
centers with 6 inch WF Steel Beams, 26 feet long,
spaced in between each truss. The steel beams
shall be supported with steel legs on each end and
in the middle. Additional support such as steel
beams and legs and or cribs shall be installed in
the connecting crosscuts. Steel beams shall be
secured to the mine roof on each end and the middle.
The testimony of experienced Inspector Harold Gamblin of
the Mine Safety and Health Administration (MSHA) is not disputed.
Gamblin testified that on January 8, 1991, he was performing a
routine inspection of the subject mine when he observed that
the referenced addendum to the roof control plan was not being
followed. Gamblin stated that pursuant to the addendum, the
mine operator was permitted to utilize a 26 foot-wide supply
road, six feet wider than ordinarily permitted, only on condition
that additional roof support was provided. That additional
support required "I" beams placed every four feet between the
truss bolts. Gamblin estimated that there should therefore
have been so beams in place over the 200 foot-long supply road
and noted that seven beams were missing. According to Gamblin,
representatives of the mine operator told him that they were
waiting for "clips" to install the horizontal beams at these
seven locations.
Inspector Gamblin opined that the violation was "significant
and substantial" because the roof in the area was weak and soft
and was in an area where roof failures had already occurred. It
was his opinion that it was very likely for there to be roof
failures under these conditions. Gamblin concluded that if there

167

was a roof fall, it would have been reasonably likely to have
contributed to reasonably serious injuries because of frequent
travel through the area, i.e., 10 to 12 people at a time passing
throughout the day. Gamblin also noted that the normal entry
width is 20 feet and that MSHA allowed the 26-foot-wide entry
only on condition that the additional support set forth in the
addendum to the roof control plan was in place. He also observed
that vibrations caused by diesel equipment used in this mine
caused serious vibrations that could also contribute to unstable
roof conditions.
Island Creek, in its post-hearing brief, now admits that
the cited conditions were in fact violations of its roof control
plan and now disputes only the associated "significant and
substantial" findings. A violation is properly designated as
"significant and substantial" if, based on the particular facts
surrounding that violation, there exists a reasonable likelihood
that the hazard contributed to will result in an injury or illness of a reasonably serious nature. Cement Division. National
Gypsum Co., 3 FMSHRC 822, 825 (1981). In Mathies Coal Co.,
6 FMSHRC 1, 3-4 (1984), the Commission explained:
In order to establish that a violation of a
mandatory standard is significant and substantial
under National Gypsum the Secretary must prove:
(1) the underlying violation of a mandatory safety
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
injury in question will be of a reasonably serious
nature.
See also Austin Power Co. v. Secretary, 861 F.2d
99, 103-04 (5th Cir. 1988), aff'g. 9 FMSHRC 2015, 2021
(1987) (approving Mathies criteria).
The third element of the Mathies formula requires that
the Secretary establish a reasonable likelihood that the hazard
contributed to will result in an event in which there is an
injury.
(U.S. Steel Mining co., 6 FMSHRC 1834, 1836 (1984), and
also that in the likelihood of injury be evaluated in terms of
continued normal mining operations (U.S. Steel Mining Co .. Inc.,
6 FMSHRC 1573, 1574 (1984); see also, Halfway. Inc., 8 FMSHRC 8,
12 (1986) and Southern Ohio Coal Co., 13 FMSHRC 912, 916-17
(1991).
Within the above framework of law and the undisputed facts
in this case it is clear that the violation was indeed "significant and substantial" and quite serious.
Inspector Gamblin further observed that the operator was
negligent in causing the violation inasmuch as it was obvious

168

that the beams were missing. Representatives of the operator
were clearly also aware that the beams were missing in admitting
that they were waiting for clips to install the beams. Finally,
Gamblin observed that the seven beams had been missing for a long
period of time. He estimated they had been missing for at least
30 days since mining had progressed inby the cited area about
2,000 feet. In light of this undisputed evidence it is indeed
clear that the violation was result of high operator negligence.
In light of the above evidence, and considering all the
factors under Section llO(i) of the Act, I find that a civil
penalty of $300 to be appropriate for the violation charged in
Citation No. 3549007.
ORDER

Island Creek Coal Company is hereby directed to pay a
civil penalty of $300 for the violation charged in
Citation No. 3549007 within 30 days of the date of this decision.
As a result of the settlement agreemen noted herein the Island
Creek Coal Company is further diiecte
o p
civil pen lties of
$8,326 within JO days of the datL of th
d

Gary Meli
Administr
Distribution:
Anne T. Knauff, Esq., Office of the Solicitor,
U.S. Department of Labor, 2002 Richard Jones Road,
Suite B-201, Nashville, TN 37215 (Certified Mail)
Marshall s. Peace, Attorney at Law, 157 W. Short Street,
P.O.Box 670, Lexington, KY 40568 (Certified Mail)
lh

169

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

JAN 2 5 1994
CIVIL PENALTY PROCEEDING

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

Docket No. KENT 93-160
A. C. No. 15-15670-03542

v.
Mine: #1
MAYO RESOURCES INCORPORATED,
Respondent
DECISION

Appearances:

Thomas A. Grooms, Esquire, Office of the
Solicitor, U.S. Department of Labor, Nashville,
Tennessee for Petitioner;
Mr. Larry Mills, Lovely, Kentucky for Respondent.

Before:

Judge Fauver

This is an action for civil penalties under § llO(a) of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801
et seq.
Having considered the hearing evidence and the record as a
whole, I find that a preponderance of the substantial, probative,
and reliable evidence establishes the following Findings of Fact
and Further Findings in the Discussion below:
FINDINGS OF FACT

1.
Respondent operates an underground coal mine known as
Mine No. 1, which produces coal in or substantially affecting
interstate commerce.
2.
In 1991 Respondent produced 2,600,713 tons of coal, of
which 48,713 tons were produced at Mine No. 1.
3.
On July 16, 1992, Federal Mine Inspector Theodore
Herrera issued two of the three citations at issue. On July 28,
1992, he issued the third citation.
4.
Citation No. 4029449 alleges a violation of 30 C.F.R.
75.400. Combustible materials, including float coal dust, in
accumulations from 6 to 10 inches deep were beneath the No. 1
belt for a distance of about 100 feet. The float coal dust was
dry and subject to ignition.
§

170

5.
Citation No. 4029500 alleges a violation of 30 C.F.R.
75.1725{a). The beltline had three stuck conveyor belt
rollers. They had been stuck for a sufficient time to have flat
places worn where the belt rubbed against them.
§

6.
The stuck rollers involved in Citation No. 4029500 were
covered with float coal dust, which was involved in Citation
No. 2049499.
7.
At the time, the belt was operating and transporting
coal. The mine was producing coal on three shifts, 24 hours per
day.
8.
The size of the accumulations indicated that the float
coal dust had accumulated for at least three working shifts. The
wear on the stuck rollers indicated that they had been stuck for
at least one shift and possibly a week.
9.
The combination of combustible accumulations and stuck
rollers rubbing against the belt in float coal dust created a
serious threat of fire or explosion. Smoke caused by fire or
explosion would probably be carried forward to the working faces
where miners were working.
10. The third citation, No. 4030042, alleges a violation of
30 C.F.R. § 75.517. A permanent splice in the trailing cable to
a Lee Norse roof-bolting machine was not properly insulated, and
was not protected, as required by the standard. The inner
electrical leads were exposed creating an electrocution hazard.
Inspector Herrera observed this condition while the roof-bolting
machine was operating. The splice had been torn exposing the
inner energized electrical leads. The exposed leads had no
insulation so that they were completely exposed to the touch.
The cable was subject to frequent handling by miners working in
the vicinity of the roof-bolting machine, and thus created a
highly dangerous condition.
11. Government's Exhibit No. 1, a computer printout of the
operator's compliance history for 24 months before the citations,
shows a very poor level of compliance. In the 2-year period, the
operator received citations or orders with assessments of civil
penalties for a total of $27,039. Of this amount, the operator
paid $7,166, contested $2,478 and ignored $17,395 in final civil
penalty orders {i.e. penalties not litigated). In addition to
ignoring final penalty orders, the history shows a number of
previous violations of the standards at issue in this case.
These include violations of § 75.400 for combustible
accumulations along the belt lines, violations of S 75.1725 for
stuck rollers on the No. 1 belt line, and violations of § 75.517
for cable hazards on a Lee Norse roof-bolting machine.

171

DISCUSSION, FURTHER FINDINGS AND CONCLUSIONS

Citations Nos. 4029499 and 4029500
The combination of these citations increases the gravity of
the two violative conditions: accumulations of loose coal, coal
dust and float coal dust in the presence of stuck belt conveyor
rollers that created a ready ignition or heat source.
Accumulations of loose coal, coal dust and float coal dust
are one of the most serious threats to the safety of miners and
one which Congress sought to eliminate in passing the Mine Act.
As the Commission stated in Black Diamond Coal Mining, 7 FMSHRC
1117, 1120 (1985)
We have previously noted Congress'
recognition that ignitions and explosions are
major causes of death and injury to miners:
"Congress included in the Act mandatory
standards aimed at eliminating ignition and
fuel sources for explosions and fires.
(Section 75.400) is one of those standards."
Old Ben Coal Co., 1 FMSHRC 1954, 1957
(December 1979) . . . • The goal of reducing
the hazard of fire or explosions in a mine by
eliminating fuel sources is effected by
prohibiting the accumulation of materials
that could be the originating sources of
explosions or fires and by also prohibiting
the accumulation of those materials that
could feed explosions or fires originating
else where in a mine.
The violations involved in these citations were obvious and
highly dangerous. Failure to prevent or correct the hazards
before the inspector observed them demonstrates aggravated
conduct beyond ordinary negligence.
The violations were also reasonably likely to result in
serious injuries, and were therefore "significant and
substantial" violations within the meaning of the Act •. Mathies
Coal Co., 6 FMSHRC 1, 3-4 (1984); Energy West Mining Co.,
15 FMSHRC 1836, 1839 (1993).
Citation No. 4030042
The violation proved under this citation was obvious and
highly dangerous. The damaged cable, which was exposed to the
touch, presented an immediate threat of death or serious injury
to the operator of the Lee Norse roof bolter and to the miners
who had occasion to handle the cable. The violation was
"significant and substantial" (Mathies, supra).

172

Operator's Size and Compliance History
The operator is a fairly large coal producer (over two
million tons in 1991). It has a poor compliance history, showing
a significant number of delinquent civil penalties ($17,395) in
the 2-year period preceding the violations in this case, and a
significant number of violations of the same standards involved
in this case. Indeed, some of the prior violations involve the
same beltline and equipment.
Considering all of the criteria in § llO(i) for assessing
civil penalties, I find that the following penalties are
appropriate:
Citation No. 4029499
Citation No. 4029500
Citation No. 4030042

$ 3,500
3,500
5,000
$12,000

CONCLUSIONS OF LAW
1.

The judge has jurisdiction.

2. Respondent violated the safety standards as alleged in
Citation Nos. 4029499, 4029500 and 4030042.
ORDER
WHEREFORE IT IS ORDERED that:
1.

The above citations are AFFIRMED.

2. Within 30 days of the date of this Decision, Respondent
shall pay civil penalties in the amount of $12,000.

v)~~~v~
William Fauver
Administrative Law Judge
Distribution:
Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215-2862 (Certified Mail)
Mr. Larry Mills, c/o Mr. James H. Booth, P.O. Box 190, Lovely, KY
41231 (Certified Mail)
/efw

173

l'BDBRAL IUllB SAl'Bft DD HEALD RBVIBW COIOllSSI:OB
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

JAN 2 5 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
On Behalf of JAMES JOHNSON,
Complainant
and
UNITED MINE WORKERS OF
AMERICA (UMWA) ,
Intervenor

v.
JIM WALTER RESOURCES,
INCORPORATED,
Respondent

. DISCRIMINATION PROCEEDING
.
. Docket No. SE 93-127-D
Mine ID 01-01401
No. 7 Mine

...
...
.

DECISION
Appearances:

William Lawson, Esq., Office of the Solicitor,
U.S. Department of Labor, Birmingham, Alabama,
for Complainant;
David M. Smith, Esq., Mark Strength, Esq., and
R. Stanley Morrow, Esq., Birmingham, Alabama,
for the Respondent.

Before:

Judge Fauver

The Decision on November 18, 1993, held that
Respondent discriminated against James Johnson in violation
of Section 105(c) of the Federal Mine Safety and Health Act
of 1977, 30 u.s.s. § 801 et seg. The discrimination included
a two-day suspension without pay. Jurisdiction was retained
pending a final decision on damages.
I find that James Johnson is entitled to back pay for the
two-day suspension (March 14 and 15, 1992) in the total amount of
$564.70 plus interest from March 15, 1992, until the date of
payment of the back pay.
ORDER
1. Within 30 days of the date of this Decision, Respondent
shall pay James Johnson back pay of $564.70 plus interest accrued
from March 15, 1992, until the date of payment, interest to be
computed in accordance with the Commission's decisions
prescribing the method of computing interest.

174

2.
This Decision and the Decision of November 18, 1993,
constitute the judge's final disposition of the issues in this
proceeding.

-uJ~
:+-~vtAWilliam Fauver
Administrative Law Judge

Distribution:
William Lawson, Esq., Office of the Solicitor, U.S. Department
of Labor, Suite 150, Chambers Building, Highpoint Office Center,
100 Centerview Drive, Birmingham, AL 35216 (Certified Mail)
David M. Smith,, Esq., Mark Strength, Esq., Maynard, Cooper &
Gale, 1901 Sixth Avenue, North, 2400 AmSouth, Harbert Plaza,
Birmingham, AL 35203-2602
(Certified Mail)
R. Stanley Morrow, Esq., Jim Walter Resources, P.O. Box 133,
Brookwood, AL 35444 (Certified Mail)
Mary Lu Jordan, Esq., United Mine Workers of America,
900 Fifteenth St., N.W., Washington, D.C. 20005 (Certified
Mail)
/ml

175

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

JAN 2 5 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
on behalf of PERRY PODDEY,
complainant,

DISCRIMINATION PROCEEDING
Docket No. WEVA 93-339-D
MORG CD 93-01

v.
Coal Bank No. 12
TANGLEWOOD ENERGY, INC.,
Respondent
DECISION ON DAMAGES

On November 29, 1993, the undersigned issued a decision
finding Respondent in violation of section 105(c) of the Act and
directing the parties to file a stipulation regarding the amount
due Mr. Poddey.
Pursuant to this stipulation, Respondent is
hereby ordered to pay Mr. Poddey $9,094.38. This figure
represents the back wages due Mr. Poddey from January 7, 1993,
through May 17, 1993 minus $4,000 received in unemployment
compensation benefits from the state of West Virginia.
It also
includes interest calculated at the short-term federal interest
rate on all net backpay earnings (gross backpay minus
unemployment insurance benefits) through the end of calendar year
1993, payment for Mr. Poddey's travel expenses related to this
case, and compensation for one day of work missed to attend the
hearing in this matter.
ORDER

Respondent is hereby ordered to pay Perry Poddey $9,094.38
within 20 days of this decision and order. This constitutes my
final decision in this matter.

a

Arth r J. Amchan
Administrative Law Judge
703-756-6210

176

Distribution:
Heather Bupp-HaBuda, Esq., Office of the Solicitor, U. s.
Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203
(Certified Mail)
Paul O. Clay, Jr., Esq., Conrad and Clay, P. o.
Drawer 958, Fayetteville, WV 25840 (Certified Mail)
/jf

177

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

JAN 2 6 1994
DISCRIMINATION PROCEEDINGS

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION {MSHA),
ON BEHALF OF
JAMES A. WEATHERINGTON,
Complainant

Docket No. PENN 93-433-DM
NE-MD 93-01

v.
THOMASVILLE STONE & LIME
COMPANY,
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION {MSHA) ,
ON BEHALF OF
DALE H. HOKE,
Complainant

Docket No. PENN 93-434-DM
NE-MD 93-02
Thomasville Mine

v.
THOMASVILLE STONE & LIME
COMPANY,
Respondent
ORDER OF DISMISSAL

Before:

Judge Hodgdon

These cases are before me on complaints of discrimination
under Section 105{c) of the Federal Mine Safety and Health Act of
1977, 30 u.s.c. § 815{c). The complainants, by counsel for the
Secretary, have filed a motion to withdraw their discrimination
complaints and to dismiss the cases.
This motion is being made pursuant to a settlement agreement
between the parties. In the agreement, the Respondent agreed "to
remove, upon execution of this Agreement, any and all documents
from all personnel and other files that it maintains on (the

178

complainants] related to the period and events at issue in this
case" and the Complainants agreed to " withdraw the complaint of
discrimination which was filed with the Mine Safety and Health
Administration on October 30, 1992" and to authorize "the
Secretary of Labor to seek dismissal of the Complaint filed with
the Federal Mine Safety and Health Review Commission."
It appears that the parties have carried out their
commitments under the settlement agreement. Accordingly, the
motion to withdraw the discrimination complaints and to dismiss
the cases is GRANTED and the captioned cases are DISMISSED with
prejudice.

J.~~

T. Todd H~~(a~n .
Administrative Law Judge
(703) 756-4570

Distribution:
Susan M. Jordan, Esq., Office of the Solicitor, U.S. Department
of Labor, 3535 Market street, Room 14480, Gateway Building,
Philadelphia, Pennsylvania 19104 (Certified Mail)
Henry Chajet, Esq., Jackson & Kelly, 2401 Pennsylvania
Avenue, N.W., Suite 400, Washington, DC 20037 (Certified Mail)
Thomasville Stone & Lime Company, P.O. Box 23,
Thomasville, Pennsylvania 17364 (Certified Mail)
Office of Special Investigation, MSHA, Metal/NonMetal,
U.S. Department of Labor, 4015 Wilson Blvd., Arlington,
Virginia 22203 (Certified Mail)
Dale Hoke, R.D. #1, Box 456, Thomasville, Pennsylvania
(Certified Mail)
James Wetherington, 418 North Franklin Street, Hanover,
Pennsylvania 17331 (Certified Mail)
/lbk

179

17364

PBDBRAL Jo:BB SUB'l'Y DD JIBAL'l'B BBVJ:BW COJOllSSJ:Oll
OFFICE OF ADMINISTRATIVE LA~ Jll>GES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

JAN 3 1 1994
CIVIL PENALTY PROCEEDINGS

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

Docket No. PENN 93-111
A. C. No. 36-06967-03775

v.
TANOMA MINING COMPANY, aka
TANOMA MINING COMPANY, INC.,
Respondent

Docket No. PENN 93-112
A. C. No. 36-06967-03773
Tanoma

DECISION
Appearances:

Maureen A. Russo, Esquire, Office of the
Solicitor, U.S. Department of Labor, Philadelphia,
PA for Petitioner;
Joseph A. Yuhas, Esquire, Barnesboro, PA for
Respondent.

Before:

Judge Fauver

This is an action for civil penalties under § llO(a) of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et
seq.
Having considered the hearing evidence and the record as a
whole, I find that a preponderance of the substantial, probative,
and reliable evidence establishes the Findings of Fact and
Further Findings in the Discussion below:

FINDINGS OF FACT
1.
Respondent 1 operates an underground coal mine known as
the Tanoma Mine, which produces coal in or substantially
affecting interstate commerce.
2.
On September 23, 1992, Federal Mine Inspector Gene T.
Ray issued Order No. 3486015 at the Tanoma Mine, alleging in
part:
No guards of any kind were installed on the
discharge roller and drive rollers of the C-1 No. 2

1 To conform to the

evidence, the caption is hereby AMENDED to
add the following to the name of Respondent: "aka Tanoma Mining
Company, Inc."
180

No guards of any kind were installed on the
discharge roller and drive rollers of the C-1 No. 2
belt drive. This belt drive had been installed on
September 22, 1992 and coal was loaded with this drive
on September 23, 1992 on the 12:00 a.m. to 8:00 a.m.,
shift. This condition is easily observed and the area
had been pre-shifted. This drive is also in a location
were responsible persons travel on a frequent basis
during the shift and should have been observed. This
area was a wet slippery location and persons could fall
and come in contact with these rollers.
After an MSHA-operator conference, the order was modified to
read:
Due to the results of a Health and Safety
Conference. This order is hereby modified to show
Section I No. 8 as deleting the first sentence and
including the following.
Adequate guarding was not provided for the
discharge roller and drive rollers of the C-1 No. 2
belt drive in that a wooden plank was attached to posts
on each side of the belt drive that persons could reach
over, under and around and become caught in the
inadequately guarded rollers. This order is also
modified to show Section I No. 9(c) as 75.1722(b)
instead of 75.1722(a).
The regulation cited, 30 C.F.R.

§

76.1722(b), states:

75.1722 Mechanical equipment guards.
(b) Guards at conveyor-drive, conveyor-head, and
conveyor-tail pulleys shall extend a distance
sufficient to prevent a person from reaching behind the
guard and becoming caught between the belt and the
pulley.
3.
The operator had installed a board on each.side of the
low belt drive. Each board, nailed to 2 posts, was about 14 feet
long, 4 to 6 inches wide, and about 1 to 1-1/4 inches thick.
4.
On the "clearance side" of the belt drive, the
discharge roller extended about 20 inches beyond the edge of the
belt. The board was about 36 inches from the mine floor, and
about 4 feet from the pinchpoint of the drive roller. Each end
of the board extended about 6 inches from the post, leaving an
exposed area of the belt drive of 2 or 3 feet. The discharge
roller was not reasonably accessible to accidental contact
because the discharge roller was above the center of the main
belt, 56 to 57 inches above the mine floor. The nearest

181

pinchpoint on the drive rollers was about 45 or 46 inches from
the board. A person falling under the board might reach out to
break the fall and come in contact with a pinchpoint on a belt
drive roller. Also, a person might fall beyond the end of the
board and accidentally come in contact with a belt drive roller
pinchpoint.
5.
On the "tight side" of the belt drive, the nearest
pinchpoint of the drive rollers was about 2 feet from the board
and the travelway was about 2 feet wide. The nearest pinchpoint
of the discharge roller was also close to the board. Persons on
the tight side might fall and accidentally come in contact with a
pinchpoint of a drive or discharge roller.
6.

The mine floor around the belt drive was wet and

slippery.
7.
A low belt drive discharges coal onto a main belt. The
low belt is mobile, and usually moves in a month or two, whereas
the main belt is immobile and kept in one place for a long
period.

a.
Low belts are stopped for maintenance work
(lubrication, adjustments, repairs, etc). Also, cleanup work
around a low belt is usually done when the belt is stopped.
However, at times miners may shovel or clean up around a moving
belt. Miners travel on the clearance side of the belt and on
less frequent occasions may have duties on the tight side of the
belt drive.
9.
The operator used the board-and-posts method of
guarding low belt drives for years, and continued to use this
method after the citation was terminated. To abate the condition
cited by Inspector Gay, the operator installed belting material
to prevent contact with the belt drive and discharge rollers.
However, when the low belt conveyor was moved after the citation,
the belting material was not used and the operator resumed the
same practice of using a board nailed to two posts as the only
guard of the low belt drive.
10. Before and after the citation issued by Inspector Gay,
low belts drives were frequently inspected by MSHA but no other
MSHA inspector cited a violation for the board-and-posts method
of guarding a low belt drive.
Citation No. 3708614
11. On October 13, 1992, Federal Mine Inspector Joseph E.
Colton issued Citation No. 3708614, alleging in part:
Guards were not provided to prevent a person from
contacting the rotating tail pulley of the Low belt

182

located in the 016 active section. This tail pulley
was approximately 9 11 in diameter and centered 10 11 above
the mine floor. Both sides of this conveyor system
tail pulley area contained a 13" x 7 1/2" opening on
each end of this pulley and bearing block assembly.
And a 7 1/2" x 22 11 opening directly in front of this
pulley. The tail piece is located 48" from the coal
rib and the height of this entry is approximately 52 11 •
12. on the sides of the tail pulley, there were openings
about 13 inches by 7-1/2 inches on each end of the tail pulley
and bearing block assembly. There also was an opening about
7-1/2 inches by 22 inches directly in front of the pulley.
13. Guarding for the tail pulley did not extend down the
sides to prevent contact or to prevent a person from reaching in
and coming in contact with pinchpoints.
DISCUSSION, FURTHER FINDINGS AND CONCLUSIONS

Order No. 3486015
30 C.F.R. § 75.1722(b) provides: "Guards at conveyor-drive,
conveyor head, and conveyor tail pulleys shall extend a distance
sufficient to prevent a person from reaching behind and becoming
caught between the belt and the pulley."
The only guarding for the c-1, Number 2 belt drive was a
four to six inch wide board on each side of the pulley, nailed on
two posts and positioned about 36 inches from the ground.
Each board ended about 6 inches beyond the posts, and left
the discharge rollers exposed on both sides of the belt. The
boards served more as a warning, rather than a guard, and plainly
did not "extend a distance sufficient to prevent a person from
reaching behind and becoming caught between the belt and the
pulley." Also, as stated in the Findings, above, in places the
boards would not prevent accidental contact with the pinchpoints.
I therefore find a violation of§ 75.1722(b).
The Secretary alleges that the violation was "significant
and substantial." A "significant and substantial" violation is
defined in § 104(d) (1) of the 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." The
Commission has developed the following test (in Mathies Coal
Co., 6 FMSHRC 1, 3-4 (1984):
In order to establish that a violation of a
mandatory safety standard is significant and
substantial • • • the Secretary of Labor must prove:

183

(1) the underlying violation of a mandatory safety
standard; (2) a discrete safety hazard-- that is, a
measure of danger to safety --contributed to by the
violation; (3) a reasonable likelihood that the hazard
contributed to will result in an injury; and (4) a
reasonable likelihood that the injury in question will
be of a reasonably serious nature.
In United States Steel Mining Company, Inc., 7 FMSHRC 1125,
1129, the Commission stated further:
We have explained further that the third element
of the Mathies formula "requires that the Secretary
establish a reasonable likelihood that the hazard
contributed to will result in an event in which there
is an injury." U.S. Steel Mining Co., 6 FMSHRC 1834,
1836 (August 1984). We have emphasized that, in
accordance with the language of Section 104(d) (1), it
is the contribution of a violation to the cause and
effect of a hazard that must be significant and
substantial. U.S. Steel Mining Company. Inc., 6 FMSHRC
1866, 1868 (August 1984); U.S. Steel Mining Company,
Inc., 6 FMSHRC 1573, 1574-75 (July 1984).
The question of whether a violation is significant and
substantial must be based on the particular facts surrounding the
violation. Texasgulf, Inc., 10 FMSHRC 498 (1988); Youghiogheny &
Ohio Coal Company, 9 FMSHRC 1007 (1987).
I find there was a reasonable likelihood that, if the
condition remained unabated, a miner would come in contact with a
roller pinchpoint and suffer a serious injury. Contact could
result from reaching out to break a fall and becoming caught
between the belt and roller.
I therefore find that the violation was significant and
substantial.
The Secretary also alleges that the violation was
"unwarrantable" within the meaning of the Act. In Emery Mining
Corp., 9 FMSHRC 1997, 2004 (1987), the Commission held that
"unwarrantable" means aggravated conduct constituting more than
ordinary negligence. Applying this test, I find that the
Secretary has not proved an "unwarrantable" violation. The
operator regarded the board-and-posts method as an adequate guard
and a number of MSHA inspectors apparently had seen this type
guard and not cited a violation. I find there was ordinary
negligence.
Considering all the criteria for a civil penalty in § llO(i)
of the Act, I find that a civil penalty of $1,800 is appropriate
for this violation.

184

Citation No. 3708614

On each side of the tail pulley there was an opening of
about 7-1/2 inches by 13 inches. There also was an opening in
front of the tail pulley. I find there was a reasonable
likelihood that, if the condition remained unabated, a miner
would come in contact with a roller pinchpoint and suffer a
serious 1n)ury. I therefore find that this was a "significant
and substantial" violation.
Considering all the criteria for a civil penalty in S llO(i)
of the Act, I find that a civil penalty of $288 is appropriate
for this violation.
CONCLUSIONS OP LAW

1.

The judge has jurisdiction.

2. Respondent violated 30 C.F.R. S 75.1722(b) as alleged in
Order No. 3486015 with the exception of the allegation of an
"unwarrantable" violation.
3. Respondent violated 30 C.F.R. S 75.1722(b) as alleged in
Citation No. 3708614.
ORDER

1. Order No. 3486015 is converted to a S 104(a) citation
without an allegation of an "unwarrantable" violation and as such
is AFFIRMED.
2.

Citation No. 3708614 is AFFIRMED.

3. Respondent shall pay civil penalties of $2,088 within
30 days of the date of this Decision.

a/~1 f-/MAVtA-

William Fauver
Administrative Law Judge

Distribution:
Maureen A. Russo, Esq., Office of the Solicitor, U.S. Department
of Labor, Room 14480 Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
Joseph A. Yuhas, Esq., Tanoma Mining Company, 1809 Chestnut
Avenue, Ebensburg, PA 15714 (Certified Mail)
/ew-fb

185

ou.S. GOVERNMENT PRINTING OFFICE:

186

1994-301-878-93382