OCTOBER 1997

COMMISSION ORPERS
10-09-97
10-10-97
10-29- 97

Peabody Coal Company
Rock of Ages Corporation
Kentucky Stone·

KENT 97-342
YORK 94-76-RM
KENT 97-352-M

Pg. 1613
Pg. 1617
Pg. 1621

WEST 97-85-M
WEST 97 - 77
WEST 97-159-RM
94-244-R
SE
KENT 97-90
WEST 96-64-DM
WEVA 97-34
WEST 96 - 1.84 - M
WEVA 97-95
WEST 95-434-M
KENT 93-369

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

ADMINISTRATIVE LAW JUPGE DECISIONS
1 0-09-97
10-14-97
10-14-97
10-15-97
10-16-97
10-16-97
10-20-97
10-23-97
10-27-97
10-28-97
10-30-97

Yukon No. 1 Mining Claim
Triton Coal Company
Newmont Gold Company
Jim Walter Resources, Inc.
Costain Coal Incorporated
Clyde Perry v. Phelps Dodge Morenci, Inc.
Windsor Coal Company
Energy Trucking, Inc.
Windsor Coal Company
Newmont Gold Company
Peabody Coal Company

i

1625
1630
1640
1646
1653
1664
1675
1685
1694
1730
1760

OCTOBER

19 97

Review was granted in the following cases during the month of October:
Secretary of Labor, MSHA v. Peabody Coal Company, Docket No . KENT 97-342.
(Request for Relief)
Consolidation Coal Company v. secretary of Labor, MSHA, Docket No.
WEVA 97-84-R .
(Judge Melick, September 15, 1997)
Secretary of Labor, MSHA v. Ke.n tucky Stone, Docket No. KENT 97-352-M.
(Request for Relief)
There were no cases filed in which reyiew was denied.

ii

COMMISSION ORDERS

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

October 9, 1997

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

v.

Docket No. KENT 97-342
A.C. No. 15-14074-03711

PEABODY COAL COMPANY

· BEFORE: Jordan, Chairman; Marks, Riley, and Verheggen, Commissioners

ORDER

BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (1994) ("Mine Act"). On September 18, 1997, the Commission received from
Peabody Coal Company ("Peabody") a request to reopen a penalty assessment that had become a
final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). It
has been administratively determined that the Secretary of Labor does not oppose the motion for
relief filed by Peabody.
Under section 105(a) of the Mine Act, an operator has 30 days following receipt of the
Secretary of Labor's proposed penalty assessment within which to notify the Secretary that it
wishes to contest the proposed penalty. If the operator fails to notify the Secretary, the proposed
penalty assessment is deemed a final order of the Commission. 30 U.S.C. § 815(a).
Peabody asserts that its late filing of a hearing request to contest the proposed penalty for
the violation alleged in Citation No. 4067695 was due to a misunderstanding concerning the need
to separately contest the proposed penalty. According to Peabody, on April 10, 1997 it timely filed
a Notice. of Contest with respect to the violation alleged in Citation No. 4067695. Mot. at 2; Ex. B.
Peabody contends that following its receipt of the proposed penalty assessment on June 30, its
counsel sent a copy of the assessment to the mine for review, in accordance with its internal ·

1613

procedures, and advised the mine that a notice of contest had already been filed. Mot. at 2.
Peabody's counsel, however, did not specifically advise the mine that it was necessary to separately
contest the penalty proposed with respect to Citation No. 4067695. ld Peabody claims that, as a
result, the mine retained control of a vital internal form until August 1, when its counsel immediately completed and mailed the hearing request concerning the proposed assessment. ld at 3.
Peabody asserts that due to these events, its hearing request was not received by MSHA until
August 5 - six days after the 30-day deadline. !d. Peabody asserts that it is entitled to relief
under Fed. R. Civ. P. 60(b)(l) and (6).
We have held that, in appropriate circumstances and pursuant to Rule 60(b), we possess
jurisdiction to reopen uncontested assessments that have become final under section 105(a). Jim
Walter Resources, Inc., 15 FMSHRC 782, 786-89 (May 1993); Rocky Hollow Coal Co.,
16 FMSHRC 1931, 1932 (September 1994). We have also observed that default is a harsh remedy
and that, if the defaulting party can make a showing of adequate or good cause for the failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Preparation Services, Inc., 17 FMSHRC 1529, 1530 (September 1995). In accordance
with Rule 60(b)( 1), we previously have afforded a party relief from a final order of the
Commission on the basis of inadvertence or mistake. See General Chemical Corp., 18 FMSHRC
704, 705 (May 1996); Kinross DeLamar Mining Co., 18 FMSHRC 1590, 1591-92 (September
·1996); Stillwater Mining Co., 19 FMSHRC 1021, 1022-23 (June 1997).
The record indicates that Peabody intended to contest Citation No. 4067695 and any related
penalty and that, but for an apparent lack of coordination between its counsel and personnel at the
mine, Peabody likely would have timely submitted the hearing request and contested the proposed
penalty assessment for this citation. In the circumstances presented here, Peabody's late filing of a .
hearing request properly could be found to qualify as inadvertence or mistake within the meaning
of Rule 60(b)(l). See Stillwater, 19 FMSHRC at 1022-23 (granting operator's motion to reopen
when operator failed to submit request for hearing to contest proposed penalty due to lack of
coordination between recipient of assessment at mining facility and its attorneys, after indicating
intent to contest related citation); Riyco Dredging Corp., 10 FMSHRC 624, 624-25 (May 1988)
(granting operator's petition for review when operator filed notice of contest as to alleged
violations, but was unaware that contest of civil penalty proposals was required).

1614

Accordingly, in the interest of justice, we grant Peabody's unopposed request for relief and
reopen this penalty assessment that became a final order with respect to Citation No. 4067695.
The case shall proceed pursuant to the Mine Act and the Commission's Procedural Rules,
29 C.F,R. Part 2700.

Marc Lincoln Marks, Commissioner

1615

Distribution

Caroline A. Henrich, Esq.
Peabody Coal Company
P.O. Box 1233
Charleston, WV 25324
Douglas N. White, Esq. .
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Ralph York
Associate Regional Solicitor
Office of the Solicitor
U.S. Department of Labor
2002 Richard Jones Rd., Suite B-201
Nashville, TN 37215

1616

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

October 1 0,

1~ 9 )

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket Nos. YORK 94-76-RM
through YORK 94-83-RM

v.
ROCK OF AGES CORPORATION
ORDER
BY THE COMMISSION:

On October 9, 1997, counsel for Rock of Ages filed a Motion to Participate in Oral
Argument on behalf of .David Gomo, and Motion to Accept Late Request for Participation in the
above-captioned matter. Upon review of the motions, Chairman Jordan and Commissioner
Marks vote to deny them. Commissioner Riley and Commissioner Verheggen would grant the
motions.
To grant the relief requested requires the affirmative vote of a majority of participating
Commissioners. Jim Walter Resources, Inc., 17 FMSHRC 1682 (October 1995). Accordingly,
because there is no majority vote on this motion, the motion is denied.
The separate views of the Commissioners follow:
Chairman Jordan and Commissioner Marks, in favor of denying the motion:
We vote to deny the Motion to Participate in Oral Argument filed by counsel for Rock of
Ages on behalf of David Gomo. Our denial is based on the fact that David Gomo' s prior motion
for amicus curiae status indicated that it was filed on behalf of "[t]he employees of the Rock of
Ages Corporation, by and through their undersigned union representative." Mot. at 1. The
Commission subsequently granted amicus curiae status to "the employees of Rock of Ages,
through their union representative." Order of December 29, 1995. The motion filed by counsel
for Rock of Ages now makes clear that Mr. Gomo seeks to appear at oral argument "on his own
behalf." Mot. at 1. Our colleagues urge us not to impose the "extraordinary reasons" for aniici
participation in oral argument required by Fed. R. App. P. 29. However, it is our colleagues who
are prepared to take the extraordinary step of allowing an individual to appear before us who has
not been granted status as a party or an amici in this matter. We note further that Mr. Gomo has
never filed a brief in this case. It would be patently unfair to the other participants at the oral
argument (all of whom have submitted briefs to the Commission) to pennit him to offer his
views when they have not had the benefit of being able to prepare a response by reviewing his
brief.

1617

Although it is _true, as our colleagues remind us, that the Commission has usually granted
participation to amici asking to argue before the Commission, that right generally has been
granted only to organizations or unions representing the views of industry or workers. We recall
no instance in recent Commission history when an individual, in no representative capacity, was
permitted to share his thoughts with the Commission during oral argument. We also do not
remember an instance in which an amicus was permitted to argue after failing to file a brief.
Accordingly, after careful review of this motion on its own merits, we have voted to deny
it. Because we review each motion that comes before us based on the substance of its own
independent arguments, we fail to understand our colleagues' position that the Commission's
grant of the USWA's motion to participate in oral argument necessitates that we grant Mr.
Gomo's motion. 1 Under that rationale, once an amicus has been permitted to argue on behalf of
one party, any person asking to argue for the opposing side must be similarly entitled, simply in
the name of equitable considerations.
True equity does not mean that the Commission must employ a "tit-for-tat" rule requiring
an equal number of amici on both sides of a question. Rather, true equity means that the
Commission must carefully evaluate the merits of each motion, taking into account the
procedural and substantive issues raised, and any institutional concerns the motion might
generate.

1

We are frankly puzzled by our colleagues' assertion that "the USWA has come before
us after the fact to assume the 'representative' role." The Commission's previous orders
permitted Mr. Gomo and the International Union to each play a distinct representative role, and
to submit separate arguments on behalf of each side. The key phrase, as our colleagues
recognize, is that we assumed amici would appear in a "representative role." Since Mr. Gomo · ·
has now indicated he would be appearing at argument "as an eyewitness to the even~ at issue,"
Mot. at 1, we disagree with our colleagues' claim that "it is too late in the game to withdraw our
invitation."

1618

Commissioner Verheggen and Commissioner Riley, in favor of granting the motion:
We write separately because we are deeply troubled by the Commission's denial of Mr.
Gomo's motion to participate in the upcoming oral argument in this case. Until today, the
Commission has routinely accommodated amici wishing to participate in oral argwnent. Clearly,
the Commission has never relied upon Rule 29 of the Federal Rules of Appellate Procedure,
which states that motions by amici "to participate in oral argument will be granted only for
extraordinary reasons." Fed. R. App. P. 29. Indeed, o~ colleagues who now vote to deny Mr.
Gomo's motion only days ago voted in favor of granting a similar motion from the amicus curiae
United Steel Workers of America ("USWA"). That our colleagues now refuse to similarly
accommodate Mr. Gomo strikes us as inequitable.
Mr. Gomo moved for amicus status, and his motion was granted. Although technically
we did not grant amicus status to Mr. Gomo personally, that the USWA has subsequently come
before us to assume the "representative" role does not alter the fact that a local worker asked for
and was granted amicus status. It is too late in the game to withdraw our ''invitation." To
quibble with exactly who he represents, especially in light of the fact that the Secretary does not
oppose Mr. Gomo's motion ("on the condition that [he] not be allowed to testify ... and that his
argument be otherwise proper in scope"),2 is to exalt form over substance at the expense of equity
and a balanced and open exchange of ideas.

James C. Riley, Commissioner

2

The Commission's Office of General Counsel has determined administratively that the
USWA has no position on Mr. Gomo's motion. We also note that our colleagues are concerned
that "[i]t would be patently unfair" if Mr. Gomo were allowed to present oral argument because
he chose not to file a brief, and thus, the Secretary and USWA were not "able to prepare a
response." But the Commission never required Mr. Gomo to file a brief. Moreover, the
Commission is institutionally capable of ensuring that any presentation given by Mr. Gomo
would not stray beyond the evidentiary scope of our review.

1619

Distribution

Henry Chajet, Esq.
Patton Boggs, LLP
2550 M Street, N.W.
Washington, D.C. 20037
Robin Rosenbluth, Esq . .
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Harry Tuggle
United Steel Workers of America
Health & Safety Department
Five Gateway Center
Pittsburgh, PA 15222
David Gomo
c/o Rock of Ages
P.O. Box 482
Barre, VT 05641

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

October 29, 1997

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMrNISTRATION (MSHA)
V.

Docket No. KENT 97-352-M
A.C. No. 15-00003-05552

KENTUCKY STONE

BEFORE: Jordan, Chairman; Marks, Riley , and Verheggen, Commissioners

ORDER

BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977,30 U.S.C.
§ 801 et seq. (1994) ("Mine Act"). On September 29, 1997, the Commission received from
Kentucky Stone a request to reopen a penalty assessment that had become a final order of the
Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). It has been
administratively determined that the Secretary of Labor does not oppose the motion for relief
filed by Kentucky Stone.
Under section 105(a) of the Mine Act, an operator has 30 days following receipt of the
Secretary of Labor's proposed penalty assessment within which to notify the Secretary that it
wishes to contest the proposed penalty. If the operator fails to notify the Secretary, the proposed
penalty assessment is deemed a final order of the Commission. 30 U.S.C. § 815(a).
In its request, Kentucky Stone asserts that its failure to file a hearing request to contest the
proposed penalty for the violation alleged in Citation No. 04554612 was due to an internal
processing error made by its accounts payable department. According to Safety Director Terry
Jones, Kentucky Stone decided to contest this citation, and Jones checked the "appropriate box"
on the assessment sheet and forwarded it to the accounts payable department "for our process to
be completed." Letter from Safety Director Terry Jones of Sept. 25, 1997. Apparently believing

1621

that he had taken the appropriate steps to contest the citation, Jones was surprised to receive a
notice of delinquency from MSHA on September 15, 1997. Id: Upon Jones' investigation into
the matter, he learned that the accounts payable department had failed to process the hearing
request. Id. Jones then searched for and located the notice of contest form, which w~ still
attached to the paperwork he had sent to the accounts payable department. Id. By this time, the
thirty-day period for submitting a hearing request had already passed.
We have held that, in appropriate circumstances and pursuant to Fed. R. Civ. P. 60(b), we
possess jurisdiction to reopen uncontested assessments that have become final by operation of
section 105(a). See, e.g., Jim Walters Resources, Inc., 15 FMSHRC 782,786-89 (May 1993);
Rocky Hollow Coal Co., Inc., 16 FMSHRC 1931, 1932 (September 1994).
We have also observed that default is a harsh remedy and that, if the defaulting party can
make a showing of adequate or good cause for the failure to timely respond, the case may be
reopened and appropriate proceedings on the merits permitted. See Coal Preparation Services,
Inc., 17 FMSHRC 1529, 1530 (September 1995). In accordance with Rule 60(b)( 1), we have
previously afforded a party relief from a final order of the Commission on the basis of
inadvertence or mistake. See General Chemical Corp., 18 FMSHRC 704, 705 (May 1996);
Kinross DeLamar Mining Co., 18 FMSHRC 1590, 1591-92 (September 1996). See also Del Rio,
Inc., 19 FMSHRC 467, 467-68 (March 1997) (remanding for judge's consideration operator's
request to reopen penalty assessment after Green Card was misfiled in accounts payable file);
Eastern Associated Coal Corp., 19 FMSHRC 494, 494-95 (March 1997) (remanding operator's
request to reopen final order when substitute mail room employee failed to· refer proposed
assessment to legal department); RB Coal Co., Inc., 17 FMSHRC 1110, 1110-11 (July 1995)
(remanding for judge's consideration operator's request to reopen penalty assessment after Green
Card was misplaced among other penalty assessments that operator intended to pay).

1622

On the basis of the present record, we are unable to evaluate the merits of Kentucky
Stone's position. In the interest of justice, we remand the matter for assignment to a judge to
determine whether Kentucky Stone has met the criteria for relief under Rule 60(b). If the judge
determines that such relief is appropriate, this case shall proceed pursuant to the Mine Act and
the Commission's Procedural Rules, 29 C.F.R. Part 2700.

Marc Lincoln Marks, Commissioner

~ c__ ¥-.:__CL__,_
ames C. Riley, Commissioner

Theodore F. Verheggen, Co

1623

d----·

Distribution

Terry Jones, Safety Director
Kentucky Stone
209 Old Harrods Creek Rd.
Louisville, KY 40223
Douglas N. White, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203

1624

ADMINISTRATIVE LAW JUDGE DECISIONS

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

OCT

9 1997.
CIVIL PENALTY PROCEEDING

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

Docket No . WEST 97-85-M
A.C. No. 24-02089-05501

V.

Yukon #1 Mine
YUKON NO. 1 MINING CLAIM,
Respondent

DECISION
Appearances:

Edward Falkowski, Esq., Office of the Solicitor, U.S. Department of
Labor, Denver, Colorado, for Petitioner;
Glenn Davis, Owner-Operator, Yukon Mine, Moccasin, Montana;
Mark N. Savit, Esq., and Willa Perlmutter, Esq., Patton Boggs,
L.L.P., Washington, DC, for Respondent.

Before:

Judge Weisberger

This case is before me based on a Petition for Assessment of Penalty filed by the
Secretary of Labor (Petitioner) alleging violations by Yukon No. 1 Mining Claim
(Respondent) of various mandatory safety standards set forth in Title 30 ofthe Code of
Federal Regulations. Pursuant to Notice the case was scheduled for hearing on
August 26, 1997. At the hearing, Glenn Davis, owner-operator ofRespondent, who had
been representing Respondent, advised the court that he intended to have Respondent
represented by Mark Savitt, Esq. A conference call was arranged between the court,
counsel for Petitioner, and Mark Savitt. The latter indicated he would represent
Respondent. Counsel for both parties conferred and attempted to limit the issues to be
litigated. The matter was continued to allow counsel to continue to negotiate.
Counsel have stipulated the following:
1. Respondent withdraws its contest to the citations involved in this
proceeding. All information contained in the citations (including any special
findings and any narrative information) may be regarded as established. The only
remaining issue with respect to each citation is the appropriate penalty.

1625

a. History. Respondent has no previous MSHA inspection and violation
history.
b. Size of business. The mine is a small mine. Four individuals are
involved in the business. The operator has reported to MSHA that: 1. during the
third quarter of 1996, two employees worked a total of240 hours at the mine;
2. during the first quarter of 1997, no work was performed at the mine; and
3. during the s~cond quarter of 1997, two employees worked a total of 96 hours
at the mine.
c. Negligence. Each of the violations involved in this case resulted from
the respondent's moderate negligence.
d. Gravity. As indicated in lines 10(a), 1O(b), and 10( c) on each citation,
the gravity of each violation involved in this case is a follows:
Citation 4645194: An injury was unlikely to occur as a result of the
violation. If an injury did occur as a result of the violation, it is reasonably likely
that the injury would result in lost workdays. The violation was non-significantand-substantial ("non-S&S").
Citation 4645195: An injury was unlikely to occur as a result ofthe
violation. If an injury did occur as a result of the violation, it is reasonably likely
that the injury would result in lost workdays. The violation was non-S&S.
Citation 4645196: An injury was unlikely to occur as a result of the
violation. If an injury did occur as a result of the violation, the injury was IlQt
reasonably likely to result in lost workdays. The violation was non-S&S.
Citation 4645197: An injury was unlikely to occur as a result of the
violation. If an injury did occur as a result of the violation, it is reasonably likely
that the injury would result in lost workdays. The violation was non-S&S.
Citation 790Q303: There was no likelihood that an injury would occur as a
result of the violation. The violation was non-S&S.
Citation 7900304: There was no likelihood that an injury would occur as a
result of the violation. The violation was non-S&S. ·

1626

Citation 7900305: An injury was reasonably likely to occur as a result of
the violation, and if an injury did occur, it is reasonably likely that the injury
would be fatal. The violation was significant and substantial ('"S&S").
Citation 7900306: An injury was reasonably likely to occur as a result of
the violation, and if an injury did occur, it is reasonably likely that the would
result in lost workdays. The violation was S&S.
Citation 7900307: An injury was unlikely to occur as a result of the
violation. If an injury did occur as a result of the violation, it is reasonably likely
that the injury would result in lost workdays. The violation was non-S&S.
Citation 7900308: An injury was reasonably likely to occur as a result of
the violation, and if an injury did occur, it is reasonably likely that the injury
would be fatal. The violation was S&S.
Citation 7900309: An injury was unlikely to occur as a result of the
violation. If an injury did occur as a result of the violation, it is reasonably likely
that the injury would result in lost workdays. The violation was non-S&S.
Citation 7900310: An injury was unlikely to occur as a result of the
violation. If an injury did occur as a restllt of the violation, it is reasonably likely
that the injury would result in lost workdays. The violation was non-S&S.
Citation 7900311 : An injury was unlikely to occur as a result of the
violation. If an injury did occur-as a result of the violation, it is reasonably likely
that the injury would result in lost workdays. The violation was non-S&S.
Citation 7900312: An injury was unlikely to occur as a result of the
violation. If an injury did occur as a result of the violation, it is reasonably likely
that the injury would result in lost workdays. The violation was non-S&S.
Citation 7900313: An injury was unlikely to occur as a result of the
violation. If an injury did occur as a result of the violation, it is reasonably likely
that the injury would result in lost workdays. The violation was non-S&S.
Citation 7900314: An injury was reasonably likely to occur as a result of
the violation, and if an injury did occur, it is reasonably likely that the injury
would be fatal. The violation was S&S.

1627

Cit~tion 7900315:

An injury was reasonably likely to occur as a result of
the violation, and if an injury did occur, it is reasonably likely that the injury
·
would be fatal. The violation was S&S.
Citation 7900317: An injury was unlikely to occur as a result of the
violation. If an injury did occur as a result of the violation, it is reasonably likely
that the injury would result in lost workdays. The violation was non-S&S.
2. On September 23, 1997, Respondent filed its Motion for Reduction of
Proposed Assessment, attaching documentary evidence in support of the motion. The
Secretary stipulates that the court may consider, to the extent it is appropriate to do so,
Respondent's documentary evidence for the purpose of determining an appropriate
penalty in this case. The Secretary notes that she intends to file a brief response to the
motion for reduction of penalties.
Based on the parties' stipulations, I find that Respondent violated the mandatory
standards cited in the citation at issue, and affirm these citations as written.
I further find, based on the parties' stipulation, that the violations cited in the
following citations were of a moder~te level of gravity: 4645194, 4645195, 4645196,
4645197,7900306,7900307,7900309,7900310,7900311,7900312, 7900313,and
7900317. I find that the violations cited in citation Nos. 7900305, 7900308, 7900314,
and 7900315 were of a high level of gravity. I find that the violations cited in citations
Nos. 7900303, and 7900304, were of a low level of gravity. I find, based on the parties'
stipulations, that each of the violations cited resulted from Respondent's moderate
negligence. I find, based on the parties' stipulations, that Respondent had no previous
violation history and that the subject mine is a small mine. These factors serve to
mitigate the amount of penalty to be assessed.
On September 26, 1997, Respondent filed a Motion for Reduction of Proposed
Assessment. Attached to this motion are signed statements from four individuals Clare
E. Knight, Glenn Davis, Jack Hughes, and Lee Bliss. Each of these statements contain
the following language: "I declare under penalty of perjury that the foregoing is true and
correct." The declaration indicates that the mine at issue is owned and operated by a
partnership consisting of Davis, Bliss, Knight, and Hughes. The declarations indicate
that the mine is not in production, and does not have any income. It is asserted that the
mine has no assets aside from $300 in a bank account, and owes approximately $4,000.
Tax returns of Bliss, Davis, Knight, and Hughes indicate minimal income. I find that the
imposition of a penalty would have an adverse effect on Respondent's ability to continue
in business considering all the above factors, I find that the following penalties are

1628

appropriate for the violations cited in the following citations: 4645194- $40;
4645195 - $40; 4645196 - $40; 4645197 - $40; 7900303 - $20; 7900304 - $20;
7900305 - $88; 7900306 - $40; 7900307 - $40; 7900308 - $88; 7900309 - $40;
7900310- $40; 7900311- $40; 7900312- $40; 7900313- $40; 7900314- $88;
7900315 - $88; and 790031 7 - $40.
ORDER
It is ordered that, within 30 days of this decision, Respondent shall pay a total
civil penalty of $872.
<

A 'ifram Weisberger
Administrative Law Judge
Distribution:
Edward Falkowski, Esq., Office of the Solicitor, U.S. Department of Labor,
1999 Broadway, Suite 1600, Denver, CO 80202-.5716 (Certified Mail)
Mr. Glenn Davis, Yukon # I Mining Claim, P.O. Box 158, Moccasin, MT 59462
(Certified Mail)
/It

1629

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

October 14, 1997

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

CIVIL PENALTY PROCEEDING
Docket No. WEST 97-77
A. C. No. 48-01200-03540

v
Buckskin Mine
TRJTON COAL COMPANY,
Respondent

DECISION
Appearances: Ned Zamarripa, Esq., Conference and Litigation Representative, U. S. Department
of Labor, Mine Safety and Health Administration, Denver, Colorado, for the
Secretary;
Michael 0 . McKown, Esq., LaTourette, Schlueter & Byrne, P.C., St. Louis,
Missouri, for Respondent
Before:

Judge Barbour

This civil penalty case arises under section IOS(d) ofthe Federal Mine Safety and Health
Act of 1977 (30 U.S.C. § 815(d)) (Mine Act or Act). The Secretary of Labor (Secretary), on
behalf of her Mine Safety and Health Administration (MSHA), seeks the assessment of a civil
penalty against Triton Coal Company (Triton or the company) for an alleged violation of
30 C.F.R. § 77.1606(c), a mandatory safety standard for surface coal mines requiring defects
affecting the safety of loading and haulage equipment to be corrected befor~ the equipment is
used. The Secretary alleges the violation occurred at the company's Buckskin Mine, a surface
coal mine located in Campbell County, Wyoming, and that the violation was a significant and
substantial (S&S) contribution to a mine safety hazard. The Secretary proposes a penalty of
$362 for the alleged violation. Triton denies it violated the standard, and contests the Secretary's
S&S allegation. The case was heard in Gillette, Wyoming.

STIPULATIONS
At the commencement of the hearing, the parties stipulated as follows:
1. The Buckskin Mine is engaged in mining and selling coal in the United
States, and its .. . operations affect interstate commerce.

1630

2. Triton ... is the owner and operator of the ... [m]ine. The ... [m]ine
is subject to [the] jurisdiction of the ... Act.

3. The ... [j]udge has jurisdiction.
4. The ... [c]itation was properly served by ... [an inspector] upon an
agent of ... [Triton] on the date and place stated therein, and may be admitted
into evidence for the purpose of establishing its issuance and not for the
truthfulness or relevance of any statements asserted therein.

5. The exhibits offered by .. . [Triton] and the Secretary ... [are]
authentic, but no stipulation is made as to their relevance or [the] truth of matters
asserted therein.
6. The proposed penalty will not affect ... [Triton' s] ability to continue in
business.
7. [Triton] demonstrated good faith in abating the violation.

8. Triton ... is the coal mine operator, with 34, 139,068 tons [of coal
produced] and 11 ,6 16,418 hours of production in 1996.

9. The certified copy of the MSHA Assessed Violation History accurately
reflects the history of the mine for the two years prior to the date of the [c]itation
(Tr. 9-1 0; Joint Exh. 1).
The parties further agreed that the company should be characterized as a large operator
(Tr. 11).

THE NATURE OF THE DISPUTE
The parties disagree whether a tire on a 190 ton haulage truck affected safety. The
company's tire contractor altered the tire by cutting funnel shaped holes into it (a process known
as "skiving"). The company moved the tire from the front to the rear of the truck and used the
truck to haul refuse. The Secretary maintains the tire was defective, adversely affected safety,
and should not have been used (Tr. 12). The .company maintains the tire did not adversely affect
safety and was properly used without violating section 77 .1606(c) (Tr. 89-90).

1631

THE CITATION
Citation
4366121

8/8/96

77 C.F.R. §

Proposed Penalty

1606(c)

$362

The citation states in part:
The right rear outside tire on the 190 ton ... dump haul truck ... is in an
unacceptable condition. The outer rubber layer (tread) of the tire is separated
from the tire core around the outer circumference for a distance of about 4lh [feet].
Three holes about 4 [inches] in diameter and 3lh [inches] in depth have been cut
through the tread layer to relieve pressure and prevent heat buildup. The holes
leave the tire core and outer steel belts visible. The two outer protective steel belt
layers are worn and frayed away in the 4lh [feet) area. One of the cords is broken
in the third steel belt layer and the third layer is showing wear. The tire should
have been removed from service before deteriorating to this condition
(Gov. Exh. P-2).

THE TESTIMONY
Herbert J. Skeens is the MSHA inspector who issued the citation. He has been an
inspector for 4lh years. Prior to that he has had 18 years of experience in the coal mining
industry, first in the eastern coal fields and later in the west (Tr. 14-15). He has operated heavy
equipment associated with su.rface coal mining (bulldozers, backhoes, drills, etc.) including coal
haulage trucks similar to the truck at issue (Tr. 15). Skeens has had some experience in the
maintenance oftires, _and he believes he ha:· more knowledge oftires than the average MSHA
inspector (Tr. 43). As part of his MSHA training, Skeens received instruction in tire safety in a
one day course. Prior to the course he estimated he received one other day of training in tire
maintenance and repair (Tr. 45).
Skeen testified that in the late 1980s, steel belted radial tires for heavy equipment came
into common use (Tr. 44). In a steel belted radial tire the air is contained within the tire's casing.
The casing is the foundation of the tire. Layers of steel belts cover the casing and help give the
tire its strength (Tr. 57, 59-60). The tread layer is the outer surface of the tire (Tr. 57). The tread
layer protects the steel belts and gives the tire traction (Tr. 61 ).
On the morning of August 8, 1996, Skeens went to Triton's Buckskin Mine to conduct an
inspection. (Throughout the inspection Skeens was accompanied by Triton mining technician,
Paul Norfolk (Tr. 18).) After inspecting the pit, high-walls, and roadways, Skeens selected three
or four pieces of equipment to inspect, including the subject haulage truck (Tr. 20).

1632

The truck.was loaded to capacity hauling refuse {overburden) {Tr. 22). As Skeens and
Norfolk approached the truck, Skeens requested the driver stop so he and Norfolk could look at
the tires. There were two front tires and four rear tires, two rear tires on each side (Tr. 20, ~
also Tr. 122). As the truck carne to a halt, Skeens could see part of the tread layer on the outside
right rear tire ')iggle like Jell-0" (Tr. 23). This indicated to Skeens "something wasn't right"
(Tr. 83).
When Skeens inspected the tire, he found:
[T]he outer rubber-layer tread of the tire ... [was] separated from the tire
core around the outer circumference for a distance of four and a half feet ... holes
about four inches in diameter and three and a-half inches in depth . . . [were] cut
through the tread layer to relieve pressure and prevent heat !Juildup.
The holes [left] the [tire] core and outer steel belts visible. The two outer
protective steel-belt areas . . . were worn and frayed away in a four-and-a-half-foot
area. One ofthe cords ... [was] broken in the third steel belt layer, and the third
layer ... [was] showing wear (Tr. 20-21)_1
Skeens described the holes as "skived out."2 The purpose of skiving was to relieve
pressure and heat inside the tire (Tr. 47, 50). The holes allowed air that was heated and expanded
when the tire rotated, to escape the tire, which, in turn, relieved heightened air pressure inside the
tire (Tr. 62). Skeens did not have the capacity to measure the tire's pressure and heat so he did
not know what the air pressure was when he cited the alleged violation, nor did he know what the
pressure was supposed to be, or what pressure should cause concern about the tire's condition
(Tr. 62, 69). However, after Skeens insisted the tire be taken out of service, the pit mechanic
read the temperature and pressure with a gauge. The temperature inside the holes measured
between 127 to 132 degrees Fahrenheit (Tr. 128-131). The pressure was 122 pounds per square
inch (Tr. 130).
Skeens believed the holes should have been fill with rubber to protect the exposed steel
belts (Tr. 47-48). The rubber would have "act(ed] as a guard to keep a rock from going through
the ... hole(s] and puncturing the steel belts" (Tr. 30). Also, it would have prevented debris
from getting between the tread layer and the steel belts (Tr. 30, 48).

1

I Although Skeens initially testified there were three holes in the tire and although the

citation mentions three holes, he later testified there were five holes (Tr. 83). All other witnesses
who referenced the number of holes, agreed there were five (Tr. 97, 126, 161-162), and I find
there were five holes in the tire.
2

/"Skiving" is defined as the "[r]emoval of a material in thin layers or chips with a high
degree of shear or clippage, or both, of the cutting tool" (U.S. Department of the Jnterior A
Dictionary ofMining, Mineral, and Related Terms (1968) at 1022).

1633

In addition to noticing the loose tread and skived holes, Skeens saw the word "runout"
painted on the sidewall of the tire. To Skeens, the word meant the company had decided "to
run ... [the tire] until it destroy[ed] itself' (Tr. 39, see also Tr. 67-68, 84).
Given the condition of the tire, Skeens feared a rock could penetrate to the tire's core and
cause a blowout. Or, heat produced by the tire's operation could cause a blowout (Tr. 25). In
either event, the driver could loose control of the truck, veer into the path of another vehicle, or
plunge through a berm ·and over the edge of the roadway. Injuries resulting from the blowout
could be fatal (Tr. 25-26).
The company's witnesses challenged Skeens' opinion the tire posed a hazard.
After the citation was issued, Richard K. Burns, the safety coordinator, went to the mine and
examined the tire (Tr. 97). He saw that some of the tread had separated from the tire' s steel b.elt
layers (Tr. 115). Also, he saw the holes (Tr. 97). When he looked into the holes, he saw "some
insignificant wire breakage" (Tr. 97). He could not see the tire's casing (Tr. 100).
Burns testified that tires for 190 ton haulage trucks are "very expensive" and that skiving
is a way to mitigate damage to a tire and to keep damage from worsening (Tr. 99): (The cited
tire cost between $16,500 and $17,000 (Tr. 145-146)). Burns also explained the company used a
contractor, Cobre Tire, for tire maintenance and repair. Representatives of Cobre visited the
mine each week. They inspected all of the tires in use (Tr. 100). Employees ofTriton also
inspected the tires during each of mine's two shifts (Tr. 101-102).
Burns did not believe the company violated section 77.1606(c) because the defect in the
tire "had been mitigated .. . or corrected. Not reversed, but stopped so that it did not become a
defect that affected safety" (Tr. 102). Burns explained:
[I]f a tire .. . has a rock cut and is left uncorrected ... it can build up heat
and it can separate the tread from the steel. But if . . . skiving is done
correctly ... it prevents or .. . stops that heat from building up .... When a cut
is made, the rocks get in it and the .. . dirt gets in it and it keeps making that
separation larger .... (I]fyou can skive those cuts ... then the dirt isn't allowed
to stay in there. It falls out. It also cools it so it prevents ... [the tire] from
overheating ....and skiving mitigates that . . . or prevents that from happening.
And ... the separation is stopped at that point (Tr. 103).
Equally important to Bums was the fact the tire's casing was free from damage. He
described the casing as the "load-bearing part of the tire" (Tr. 104). Since the casing was not
compromised, neither was safety. Burns explained that although tire cuts can lead to the tread
layer separating from the tire, if the casing is unimpaired the tire still supports the load (Tr. 112116).

1634

Bums believed Skeens misunderstood what was meant by "runout." As used by the
company and the contractor, the word signaled a tire had been moved from the front of the
equipment to the rear. He stated:
We normally put ... new tires on the front, and then if ... there's a
cut .. . we move those front tires to the rear to be run out. And we put new ones
on the front. It does not mean that we're running it until it blows ....
It .. . means ~e've changed the location from the front of the truck to the back of
the truck (Tr. 116).
·
Norfolk, who also noticed the holes, three damaged belts, and loose tread, agreed with
Bums that part of the purpose of skiving is "to extend the life of the tire by preventing further
tread separation from the steel cords underlying the tread" (Tr. 132). The skived holes "blow out
debris that may get in between the tire tread and the ... belt below" (k!.). According to Norfolk,
skiving is common at the mine and in the industry (Tr. 131 ). Indeed, with "rocks and
everything," Norfolk felt it would be "highly unusual" for a tire not to be skived (Tr. 134).
He believed the tire was safe because if one of the four rear tires failed, " the extra
tire ... [would] carry that load until you can get [the truck] safely stopped" (Tr. 136). (This is
not true in the front of the truck, where there is only one tire on each side.) He also believed the
tire was safe because there was no indication of heat build up or dangerously high air pressure.
Wesley, the Cobre store manager, stated that when a tire is cut the area around the cut is
removed to reach the top of the steel belts. If the resulting hole is small, it is filled with rubber.
If the hole is filled, the tire may continue to be used on the front ofthe truck (Tr. 156-157). If the
cut out area is large and has not reached the casing, the hole is left unfilled. Leaving the hole
unfilled allows air to ventilate and cool the tire when the truck is operating. The unfiled hole
also allows dirt to fall out of the tire and prevents the tread from separating. If the tread has
started to separate, skiving helps to keep the separation form growing (Tr. 147-148, 158).
Wesley ~ent to the ri-line to look at the tire. He believed the holes were skived for these
purposes (Tr. 161-162). He noted the tire's casing was unaffected (Tr. 153), and the tire showed
no evidence of heat and air pressure buildup (Tr. 155). In Wesley's view, air pressure above
138 pounds per square inch was something about which to be concerned because it indicated heat
was being generated in the tire (Tr. 146). Conversely, pressure below 138 pounds per square
inch was acceptable (Tr. 147).
To Wesley the word "runout" indicated the tire should be put on "the rear and
watch[ed] . . . until it becomes unsafe to run" (Tr. 151, see Tr. 151-152).
The company's final witness was Glen Whitear, an engineer who works for Cobre. He
has spent approximately 45 years in the tire industry (Tr. 167-168). He described steel belted
radial tires in detail. A single band of steel run's radially round the inner circumference of the tire

1635

and forms the casing of the tire (Tr. 175-176). The casing is "the strength" of the tire (Tr. 176).
Whitear agreed with all of the other witnesses that inside the casing is a "cushion of air" that
carries the weight of the truck and its load. Steel belts over the casing protect it and "stabilize the
tread so it doesn't squirm" (Tr. 177). The tread provides traction (ki.). Here, where three of the
steel stabilizing belts were damaged, but the casing remained in tact, Whitear believed the tire
was capable of safely supporting its load (Tr. 177-178, 182-183).
Whitear agreed with the other company witnesses that "skiving" was a method of
"significantly" prolonging the life of a tire while still providing safety (Tr. 179-180). Skiving is
recommended by all rubber companies (Tr. 182, 186). It does not weaken the tire in any way.
Rather, it stops the tire' s deterioration (Tr. 188).
If a front tire is skived and moved to the rear, continued safe operation of the truck is
unaffected (Tr. 180). If one of the two front tires fails, the truck can swerve and go off the road.
If one of the four rear tires fails, the other three bear the load (Tr. 187), and unlike the front tires,
those on the rear do not tum from side to side (Tr. 190).
Finally, Whitear agreed with Bums and Wesley that the term "runout" means a tire "has
to be removed to the rear and it remains there while it is safe" (Tr. 189).

THE VIOLATION ·
Section 77.1606 is headed "Loading and haulage equipment; inspection and maintenance." Section 77 .1606(c) states ''[e ]quipment defects affecting safety shall be corrected before
the equipment is used." The standard' s requirement is clear, ifloading and haulage equipment
has a defect that makes the equipment unsafe, the equipment cannot be used until the defect is
corrected. The standard is "simple and brief in order to be broadly adaptable to myriad
circumstances" (Kerr-McGee. Corp., 3 FMSHRC 2496, 2497 (November 1981)). Compliance is
evaluated by an objective test of those actions taken by a reasonable prudent person familiar with
the mining industry, the relevant facts, and the protective purpose of the standard (~. ~Austin
Power, Inc., 9 FMSHRC 2015, 2018 (December 1981);Alabama By-Products, Corp.,
4 FMSHRC 2128,2129 (December 1992)).
The evidence establishes: the haulage truck was in operation when the alleged violation
was observed; the right rear outside tire on the truck had a 4Yl to 5 feet area where the tread layer
was loose and separated; five holes were skived in the tire;· the holes exposed three of the tire' s
six steel belts; the two belts closest to the tread were cut; the third exposed belt was worn and
frayed; and the casing of the tire was unaffected.3

3

/I recognize Skeens stated in the citation the core was visible (Gov. Exh. P-2). (Skeens
used the terms "core" and "casing" interchangeably.) However, because the holes affected the
outer three and not the inner three belts, I believe he confused the casing with the inner belts, and
I credit the testimony of the company' s witnesses the casing was fully functional.

1636

The first question is whether these conditions constituted "equipment defects?" "Defect"
is defined in part as, "Wanting or absence of something necessary for completeness, perfection,
or adequacy in form or function" (Webster's Third New International Dictionary (1986) at 591).
Clearly, the loose tread, the skived holes, and the damaged steel belts detracted from the tire's
form and diminished its completeness. In other words, they were equipment defects.
The next question is whether the defects adversely affected safety? Or, to put the
question in the context of the Commission's test, whether a reasonably prudent person familiar
with the mining industry and the Buckskin Mine would have believe the tire was unsafe and have
corrected the condition before using the truck? I conclude the answer is "no," that whether the
loose tread, the holes. and the damaged belts are viewed separately or in combination, the record
does not support finding they made the tire unsafe.
Skeens testified the purpose of the tread layer was to give the tire traction (Tr. 57). He
also testified the tread layer protected the steel belts (!Q.). Wesley agreed with Skeens that the
purpose of the tread layer was to provide traction, and he described the relationship of the tread
and the belts as one in which the belts stabilized the tread (Tr. 177). This testimony bespeaks the
obvious. What is not obvious is how the loose tread adversely affected safety. There is no
testimony linking the partially separated tread layer to a specific hazard, and even if I assumed
the loose layer caused the loss of some traction, there is no evidence that the loss of traction on
one of the four rear tires posed a hazard.
One of the reasons the holes were skived in the tire, as Norfolk, Wesley, and Whitear
testified, was to prevent the tread layer from separating further (Tr. 132, 145,147-148, 158, 161,
163, 188). While I might infer from this that tread separation needed to be stopped for safety
reasons, I might as easily find it needed to be stopped for fiscal reasons. (The tire cost $16,500
to $17,000 (Tr. 145-146).) The point is, the Secretary did not establish a nexus between a hazard
and the loose tread.
The parties also agreed, as Skeens, Bums, and Wesley testified, that in addition to
preventing further tread separation, the reason the holes were skived in the tire was to relieve
heat and pressure build up (Tr. 47, 50, 62, 103, 147-148, 158 ). These palliative purposes
enhance, rather than diminish safety, and the testimony establishes the holes were meeting these
objectives.
Although Skeens did not know what the tire's temperature and pressure were, or what the
pressure was supposed to be (Tr. 62, 69), the pit mechanic.measured both and Norfolk testified
without dispute the pressure was acceptable and the tire showed no signs of"overheating"
(Tr. 130-131 ). In addition, Wesley testified air pressure below 138 pounds per square inch was
safe (Tr. 147). (Clearly, the 122 pounds of pressure found by the pit mechanic was well below
this amount.) The Secretary did not challenge any of this testimony. I therefore conclude the
Secretary failed to prove the heat, air pressure, or the holes themselves affected the safe operation
of the tire.

1637

The Secre~ary also failed to prove the damaged steel belts affected safety. Below the
three damaged belts were three undamaged steel belts that protected the tire's casing. The
company presented compelling testimony that because the cas1ng was functional, it was safe to
use the tire.
Burns explained the casing was the "load-bearing part of the tire" (Tr. 103 ), and as long
as the casing remained in tact, safety was unaffected (Tr. 112-116). His testimony was
corroborated by Wesley (Tr. 148, 153), and was further bolstered by Whitear, an engineer with
nearly an half century of experience in the tire industry (Tr. 177-178 , 182-183). I recognize
Skeens believed "[t]he strength of the tire had been compromised," and I do not doubt his
sincerity (Tr. 64). However, the company's witnesses offered detailed accounts of the structural
makeup of the tire and their testimony, based on their thorough understanding of the tire's
structure and capacity, is more persuasive.
In addition, the Secretary did not overcome the company's contention that even if the tire
somehow suffered a blowout, the driver would not loose control. The tire was one of four rear
tires. Norfolk's testimony that in the event of a blo~out, the three remaining tires were sufficient
to carry the weight of the truck until it could be safety stopped was not rebutted (Tr. 136). Also,
Whitear persuasively pointed out that because the tire was on the truck's rear axel, the tire could
not be turned to the right or left like a front tire. Therefore, if the rear tire failed, the truck would
not be pulled suddenly to one side or the other (Tr. 187, ~ ~ Tr. 190).
Finally, I conclude Skeens' citation of the company was triggered by his incomplete
understanding of the purpose of skiving and tire usage at the mine. Skeens believed rubber
should have been poured into the holes (Tr. 47-48). However, Norfolk and Wesley explained the
holes were purposefully left unfilled so dirt and debris fell out of the holes rather than worked
between the tread and belt layers, causing further tread separation and belt damage (Tr. 132, 147148, 158). In addition, Skeens clearly misunderstood the meaning ofthe word "runout." He
thought it meant the tire could not be repaired and the company would "run it until it destroy[ed]
itself' (Tr. 39, see also Tr. 67-68, 84). He acted to prevent this from happening.
However, the testimony of Bums, Wesley, and Whitear leads to the conclusion the word
was put on the tire to further safety not to detract from it. They agreed "runout" was painted on
the tire to keep the tire from being mistakenly placed on the front of the truck (Tr. 116, 151-152,
189). The word alerted company employees to watch the tire to make sure it was safely
used - that is, to make sure it was used as a rear tire and that it remained in safe condition
(Tr. 151-152). Had Skeens understood the holes were preventing not contributing to further
deterioration of the tire, and had he understood company employees were on notice not to use the
tire on the front of the truck and to keep watch over its condition, I doubt he would have issued
the citation.

1638

Commission Administrative Law Judge T. Todd Hodgdon, recently vacated a citation
issued under similar circumstances (although alleging a violation of a different standard) because
the Secretary had not proven a violation. He found, "the company's witnesses were more
knowledgeable concerning the tire in question than was the inspector, who ... was not aware of
all the facts pertaining to the tire" (A max Coal West, Inc., 19 FMSHRC 1311 , 1312 (July 18,
1997)). Judge Hodgdon's observation is equally applicable here. Like Judge Hodgdon, I believe
that a reasonably prudent person familiar with the Buckskin Mine and the condition of the tire
would have concluded the tire was not in an unsafe condition. I find the company did not violate
·
section 77. I 606(c).
ORDER
Citation No. 4366121 is VACATED and this proceed;ng is DISMISSED.

j)IAA/1(/

-r.gMbO_,~

David F. Barbour
Administrative Law Judge
Distribution:
Ned Zamarripa, Conference and Litigation Representative, U. S. Department of Labor, Mine
Safety and Health Administration, P. 0. Box 25367, Denver, CO 80225 (Certified Mail)
William A. Miller, Esq., Zeigler Coal Holding Company, 50 Jerome Lane, Fairview Heights, IL
62208 (Certified Mail)
Michael 0. McKown, Esq., LaTourette, Schlueter & Byrne, P.C., 11 South Meramec, Suite
1400, St. Louis, MO 63105 (Certified Mail)
dcp

1639

FEDERAL MI NE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582 ·
303-844-3993/FAX 303-844-5268

OCT 1 4 1997
CONTEST PROCEEDINGS

NEWMONT GOLD COMPANY,
Contestant

Docket No. WEST 97-159-RM
Order No. 7704275; 4/2 1/97
Docket No. WEST 97-160-RM
Order No. 7704276; 4/21/97
Docket No. WEST 97-161-RM
Order No. 7704277; 4/21/97
Docket No. WEST 97-162-RM
Order No. 7704278; 4/21/97
Docket No. WEST 97-163-RM
Order No. 7704279; 4/21/97

v.

Docket No. WEST 97-164-RM
Citation No. 7704270; 4/21/97
Docket No. WEST 97-165-RM
Citation No. 7704271; 4/21/97
Docket No. WEST 97-166-RM
Citation No. 7704272; 4/21 /97
Docket No. WEST 97-167-RM
Citation No. 7704273; 4/21/97
Docket No. WEST 97-168-RM
Citation No. 7704274; 4/21197

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

Genesis Mine
Mine ID 26-00062

1640

DECISION
Appearances: David J. Farber, Esq., PAITON BOGGS L.L.P.,
Washington, D.C.,
for Contestant;
James B. Crawford, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia.,
for Respondent.
Before:

Judge Cettti

These ten consolidated cases are before me on the request ofNewmont Gold Company
(Newmont) for a hearing under section 105 of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 80 I et seq., the "Act" and Commission Rule 20, 29 C.F.R. 2700.20, to contest the
validity ofthe five citations and the five 104(b) orders.
At the hearing, the Secretary by counsel entered into the record the order of the Secretary
vacating the 104(b) orders in Docket Nos. WEST 97-159-RM through WEST 97- 163-RM. (Ex.
N-2) and requested an order dismissing these dockets. There being no objection, the undersigned
Judge at the hearing verbally issued a bench order dismissing docket Nos. WEST 97-159-RM
through WEST 97- 163-RM and now by this decision confirms the bench order in writing. This
leaves for resolution the issues arising out of the citations in Docket Nos. WEST 97-164-RM
through WEST 97-168-RM including the validity of the citations.
STIPULATIONS
At the hearing, the parties entered into the record the following stipulations:
1. Contestant, Newmont Gold Company, is a mine operator as defined under section 3(d)
of the Mine Act and has products and mining operations and extracts products which enter and
affect commerce.
2. The Administrative Law Judge has authority to hear and rule in these proceedings
under section 113(d)(l) ofthe Federal Mine Safety and Health Act of 1977.
STATEMENT OF THE PROCEEDINGS
On April21, 1997, Inspector Bonifacio issued five citations to Newmont Gold Company.
Each citation alleges an identical guarding violation of the moving parts of the front mounted
engine of each of the five haul trucks used at the Genesis Mine. All five trucks were Dresser
Haulpak 510 haul trucks. Each of the citations has an identical description of the alleged
violation for all of the haul trucks. Each citation alleges violations of 30 C.F .R. § 56.14107
concerning the guarding of moving parts of the engine of each haul truck. The identical
description in each citation reads as follows:

1641

The fan blades and accessories drive pulleys and v-belts located at
the front of the motor on the Dresser Haulpak 510 haultruck Co.
No. HT-026 weren't guarded. The unit is operated at the pit 24
hours per day and the motor is left running during shift change, the
truck operator must stand within 7 feet of the moving parts in order
to check for defects to the steering, braking and suspension
components during the pre-operational inspection of the unit. The
truck driver could contact the moving parts and sustain a serious
InJUry. ·
The citations fixed the abatement time as 8 a.m. on April21, 1997.
It is undisputed and clear from the citations and the record that the citations were not for
guards that were available from the manufacturer or for missing guards that had been previously
installed by the manufacturer or others and then removed for making repairs or maintenace and
not replaced. The citations were issued because Respondent did not install new additional guards
which the inspector believed should be added to supplement the guards installed by the truck's
manufacturer.
As a preliminary matter Newmont presented undisputed evidence that no miner had ever
sustained any injury because of contact with a moving machine part of the engine of any of the
haul trucks.
Newmont entered into the record undisputed measurements it took to support its
contention that in any event, the exposed moving parts of the truck's engine were at least seven
feet away from walking or working surfaces. MSHA on the other hand never took any
measurements whatsoever and thus, MSHA did not provide any measurements that refute
Respondent's measurements or contentions that the moving machine parts came within the
express exception stated in subsection "b" of the cited safety standard. Each citation was issued
for the alleged violation of 30 C.F .R. § 56.14107 which expressly provides under subsection (b):
"Guards shall not be required where the exposed moving parts are at least seven feet
away from walking or working surfaces."
In support of its position that the cited standard was applicable to the engines of haul
trucks, counsel for the Secretary placed in evidence as Exhibit G-2 a copy of the preamble of the
cited safety standard which states in part:
... larger, off-road vehicles present special hazards because of the
greater accessibility to their moving machine parts. In some
instances persons can walk directly under the vehicle to inspect the
engine and be exposed to its moving parts. In most instances.
these parts are already guarded by the manufacturer but guards are

1642

~ometimes removed during repair .work and not replaced.

MSHA' s
Objective is to ensure that these guards remain in place. (Emphasis
added).
In my opinion, the wording and context of the preamble shows that the promulgators of
the standard intended that, except in a rare exceptional case, there would be no requirement to
supplement the existing guards that the manufacturer of the truck had installed in and around the
truck's engine area. The preamble clearly indicates that its primary purpose was to insure that
the truck manufacturer's installed guards were reinstalled and "remain in place" after any
removal for maintenance or repair of the engine.

The Inspector Exceeded His Statutory Authority In Issuing Citations That Did Not
Conform With the Statutory Requirements of
Section 104(a) of the Mine Act
The inspector did not act in conformance with the mandate of section 104(a) of the Act in
issuing the citations in question. Section 104(a), in addition to requiring the citation to be in
writing, mandates that the 104(a) citation "fix a reasonable time for the abatement of the
violation." The time specified for abatement in the written citation was 8 a.m. on April 21, 1997,
which was more than 7 hours~ the written citation was issued to the operator. The citations
were issued on April 21st at approximately 3:30 p.m. Thus it clearly appears that the inspector
did not even attempt to comply with this mandatory requirement of fixing a reasonable time for
abatement of the alleged violations and under the facts of this case, the citations should be
dismissed.
Counsel for MSHA in attempting to justify its issuance of the written citations that did
not conform to the statutory requirements, entered into the record evidence and arguments which
on close analysis demonstrate that it was pushing for enforcement of what the inspector referred
to as an "oral citation" issued a few days before the abatement time of 8 a.m. April 21, 1997.
This oral citation must also fall as it clearly exceeds the statutory authority granted in section
104(a) of the Mine Act.
The evidence presented by the Secretary demonstrates that the inspector was apparently
. intentionally trying to enforce an oral citation. First the inspector testified that, although he
never observed haul truck drivers making the required preoperational inspections of the haul
trucks, he determined on the 9th of April by interview with truck drivers and the foreman and
looking at the trucks, there was a violation of the cited standard in that the factory installed
guards were inadequate. (Tr. 161, 737). The inspector notified this determination to the
maintenance foreman Mr. Mueller. The inspector testified Mr. Mueller agreed that he would
install supplementary guards as soon as possible. Mr. Mueller, on the other hand, gave credible
testimony that the inspector misunderstood what he said. He only said he ''could," not that he
"would," add the requested supplementary guarding."

1643

On April 14, 1997, the inspector inquired about the supplemental guarding and learned
Mr. Mueller's boss, Mr. Peske, wanted to check with the truck's manufacturer about a permanent
guard installation and the fact that additional guards might cause other problems. I The inspector
agreed but insisted that temporary guards to be installed as soon as possible. (Tr. 169).
The inspector testified that on April 17111 he went to the MSHA field office and at the
request of Dennis Tobin, the MSHA supervisor, made a call to Mr. Bill Miles, an agent of
Newmont. (Tr. 172). The inspector testified the MSHA supervisor, Mr. Tobin, got on the line
and told Mr. Miles that, in lieu ofNewmont's request for a ruling on whether they needed to
install additional guarding or not, "Yes he had checked on it and that it was a violation" and
added that a citation was issuing "effective then" with an abate time of 8 a.m. April 21, 1997.
On April 21 the inspector went to the mine "a little bit before l 2 o'clock," talked to Mr.
Muel1er and handed him "draft copies" ofthe citations. (Ex. N-1). The "draft copies" had
printed at the top and bottom in large print "DRAFT COPY ONLY- NOT FOR ISSUE." The
inspector testified that Mr. Mueller and others seemed to have no knowledge of the conversation
of April 17 between Mr. Tobin and Mr. Miles. On further questioning, the inspector testified
that citations were issued verballv on Thursday, the 171h of April to Mr. Miles. (Tr. 177).
Again, on further direct examination, the inspector testified that on April 21 , 1997, he
explained to Mr. Mueller and other company officers, "that the citations had been issued the
previous Thursday (April 17, 1997) per a conversation with Mr. Miles." This obviously referred
to the phone conversation between Mr. Tobi~ and Mr. Miles. (Tr. 179).
Thus it is clear from the record that the abatement time of 8 a.m. April 21, 1997, on the
written citations was no inadvertent error. It was the abatement date orally specified on
Thursday, April 17, 1997, to Mr. Miles and again specified in the written citations served
approximately 3:30 p.m. on April 21, 1997, seven hours after the abatement time deadline. The
inspector testified that when he went to the property on April21 just before 12 o'clock, to see
what "action" had been done and testified "and if no action was done, you issue a noncompliance
order" and that is exactly what the inspector did." (Tr. 181, lines 21-22). Thus it is clear from
the record that both the oral and written citations are invalid for failure to conform to the
statutory authority clearly set forth in section 104(a) of the Mine Act which requires that the
citation be in writing and that it fix a reasonable abatement time. As stated by the Chief Law
Judge Merlin in his Order of Dismissal in D.H. Blattner & Sons, Inc., 17 FMSHRC 1073, 1074
(June 1995), "An Administrative agency is a creature of Congress and cannot exceed the
jurisdiction given to it by Congress." Lyung v. Payne, 476 U.S. 926, 937 (1986); Killip v. Office

1

At the hearing Newmont contended that the additional engine guards created a greater
hazard for drivers because of fire that could result from overheating the haul truck's engine and
its interference with the engine fire suppression system.

1644

Management, 991 F.2d 1564, 1569 (Fed Cir. 1993)." See, also, Kaiser Coal Corp., 10 FMSHRC
1165, 1169 (September 1988). The citations are dismissed.

ORDER
Citation Nos. 7704270, 7704271, 7704272, 7704273 and 7704274 are vacated and
Docket.Nos. WEST97-164-RM, WEST97-165-RM, WEST97-166-RM, WEST97-167-RM
and WEST 97-168-RM are DISMISSED. Order Nos. WEST 97-159-RM, WEST 97-160-RM,
WEST 97-161-RM, WEST 97- 162-RM and WEST 97-163-RM are DISMISSED, pursuant to
the Secretary's order dismissing the corresponding 104(b) orders.

August F. Cetti
Administrative Law Judge

Distribution:
Henry Chajet, Esq., David Farber, Esq., PATTON BOGGS. LLP, 2550 M Street NW,
Washington, DC 20037 (Certified Mail)
James B. Crawford, Esq., Office ofthe Solicitor, U.S. Department of Labor, 4015 Wilson
Boulevard, Suite 400, Arlington, VA 22203 (Certified Mail)

Ish

1645

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

OCT 1 5 1997
nM WALTER RESOURCES, INC.,
Contestant

v.

CONTEST PROCEEDING
Docket No. SE 94-244-R
Citation No. 3182848; 1131/94

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

No. 7Mine
Mine ID No. 01-01401

DECISION ON REMAND

Appearances:

David M. Smith, Esq., J. Alan Truitt, Esq., and
Warren B. Lightfoot, Esq., Maynard, Cooper & Gale,
Binningham, Alabama, and R. Stanley Morrow, Esq.,
Jim Walter Resources, Inc., Brookwood, Alabama,
for the Contestant;
William Lawson, Esq., Office of the Solicitor,
U.S. Department of Labor, Binningham, Alabama,
for the Respondent.

Before:

Judge Melick

This case is before me upon remand to this Commission by the United States Court of
Appeals for the District of Columbia Circuit, by decisio~ dated May 2, 1997, (Secretazy of Labor
y. FMSHRC, 111 F.3d 913) and upon subsequent remand to this judge by the Commission ori
August 11, 1997, (19 FMSHRC 1377).
The procedural and factual background of the case was set forth by the Commission in its
initial decision on April 19, 1996, (18 FMSHRC 508) as follows:
On January 24, 1994, MSHA Inspector Thomas Meredith cited JWR [Jim Walter
Resources, Inc.,] for a violation of [30 C.F.R.] section 75.400 because of trash
accumulations in the No.2 entry of JWR's No.7 Mine. Tr. 29-30; Govt. Ex. 3. See 16
FMSHRC at 1514.
On January 31, 1994, the date of the citation at issue, Meredith conducted a
follow-up inspection and conflrmed that JWR had abated the conditions that led to the

1646

issuance of the January 24 citation. 1 Tr. 31 . During the inspection, he observed in the
No. 3 entry an accumulation of trash at the check curtain, which directed ventilation
across the longwall face and also separated the active outby area from the inactive inby
area. Tr. 16; 64. The judge found that the trash in the outby area consisted of"[a]
garbage bag, one box and one rock dust bag .. .. " 16 FMSHRC at 1513. lnby the
curtain, there was a larger accumulation of trash that extended for 250 feet and included
paper bags, rags, rock dust bags, wooden pallets and large cable spools. Tr. 21-24;
Gov't Ex. 2. The materials on both sides of the curtain were combustible. Tr. 24. See 16
FMSHRC at 1512. ·
Inspector Meredith issued a citation, which charged a violation of section 75.400,
and a withdrawal order, pursuant to section 104(d)(2) of the Act, 30 U.S.C. § 814(d)(2).
[fn 1, supra]. The inspector designated the violation as S&S and alleged that it was due
to the operator' s unwarrantable failure to comply with the standard. 16 FMSHRC at
1511-13; Govt. Ex. 2.

JWR challenged the citation and, following hearing, Judge Melick affirmed the
violation. [fn 1, supra]. Although be noted that the existence of accumulations inby and
outby the check curtain was undisputed, the judge concluded that "the inactive inby area
cited in the order was not within the tactive workings' and the accumulations located
therein were therefore not in violation of the cited standard." /d. at 1512. He further
concluded that the evidence concerning combustible material outby the line curtain was
insufficient to establish that the violation was S&S. 16 FMSHRC at 1512-13. The judge
also determined that the evidence was
insufficient to establish that the violation was due
.
to the operator's unwarrantable failure. /d at 1513-14.
'

Subsequent events were reported by the Commission in its August 16, 1997, decision:
The Secretary petitioned the Conunission to review the S&S and
unwarrantable detenninations. A divided Commission affirmed the-judge's
decision. 18 FMSHRC 508 (April 1996).
Subsequently, the Secretary filed a petition for review in the U.S. Court of
Appeals for the District of Columbia Circuit. On May 2, 1997, the court issued its
decision, affirming in part and reversing and remanding in part the decision of the
Comniission. SecretaryofLaborv. FMSHRC, 111 F.3d 913 (D.C. Cir. 1997).

1 As a matter of clarification, the only charging document at issue

in this caSe is the
withdrawal order issued by Inspector Meredith on January 31, 1994, pursuant to Section
104(d)(2) of the Act, Order No. 3182848. That withdrawal order was subsequently modified to a
citation by decision of the trial judge on August 28, 1994.

1647

The court ~rmed the Commission's determination that the section 7[5].400
violation was not S&S and rejected the Secretary's argument that, in considering
whether the violation was S&S, the Commission should take accot.mt of the
seriousness of the nearby non-violative accumulation. /d. at 917-18. Relying on
the language of section 104(d)(l ), the court determined that "Congress has plainly
excluded consideration of surrounding conditions that do not violate health and ·
safety standards" from the S&S determination. /d. at 917.
However; the court determined that section 104(d)(1) was ambiguous on
the question whether the non-violative accumulation could be considered for the
unwarrantable determination. /d. at 919-20. The court noted that, when the Mine
Act is ambiguous on a point in question, a court is required to apply the analysis
set forth in Chevron U.S.A. Inc., v. Natural Resources Defense Council, Inc., 467
U.S. 837, 842-45 (1984), and defer to a reasonable interpretation of the Secretary.
111 F.3d at 914-15,919-20.
The court agreed with the Secretary's interpretation of Section 104(d) of the Act, which
had not been advanced at the trial below, that, in determining unwarrantable failure,
consideration must also be given to the surrounding non-violative conditions. The Secretary
argued before the court that the existence of inby trash, although not violating any health or
safety statute or regulation, demonstrates negligence rising to unwarrantability. The court
accordingly remanded this case to the Commission to determine whether, "applying the
Secretary's interpretation of the statute, the record contains sufficient evidence of causation and
culpability to support an' unwarrantable failure' finding." In its subsequent remand order to this
judge, the Commission directed that the non-violative accumulations in the inactive area of the
mine therefore be considered "in light of the other factors that the Commission may examine in
determining whether a violation is unwarrantable, including the extent of the violative condition,
the length of time that the violative condition has existed, whether the violation is obvious or
poses a high degree of danger, whether the operator has been placed on notice that greater efforts
are necessary for compliance and the operator's efforts in abating the violative condition made
prior to the issuance of the citation or order."
Before proceeding with an analysis of the issues on remand it should be observed that
two issues in this case have now been resolved through the appellate process, i.e., that the
accumulations cited in the inactive area were not violations and that the violative accumulations
in the active area were not the result of "unwarrantable failure" or high negligence based upon
consideration of those violative conditions alone. Accordingly, those issues are not reconsidered
here.
The limited issue on remand, then, is whether or not the non-violative accumulations
were the result of operator negligence (culpability) and, if so, whether that negligence was of

1648

such an aggravated nature as to constitute more than ordinary negligence.2 If such non-violative
accumulations were the result of such negligence, the issue then is whether the record contains
sufficient evidence of causation to support an "unwarrantable failure" fmding as to the violative
condition.

In general, negligence is defined as "the failure to do something which a reasonably
careful person would do or the doing of something which a reasonably careful person would not
do, under circumstances similar to those shown by the evidence." Mod Tort Law§ 3.01 (Rev.
Ed). The Secretary defines negligence in Part 100 of her regulations as follows:
Negligence is committed or omitted conduct which falls below a standard of care
established under the Act to protect persons against the risks of harm. The standard of
care established under the Act is that the operator of a mine owes a high degree of care to
the miners. A mine operator is required to be on the alert for conditions and hazards in
the mine which affect the safety or health of the employees and to take the steps
necessary to correct or prevent such conditions or practices. 30 C.F.R. § 100.3(d).
A finding of negligence presupposes that there was a legal duty to conform to the
standard of conduct established by law. Mod Tort Law § 3.02 (Rev. ~). In a pervasively
regulated industry such as coal mining, those duties are specifically defined by statute and
regulation. Indeed, the Supreme Court of the United States ree<?gnized this in Donovan v.
Dewey, 452 US 594, 69 LEd 2d 262, 101 S Ct 2534, when it stated as follows:
... the standards with which a mine operator is required to comply
are all specifically set forth in the Act or in Title 30 of the Code of Federal
Regulations. Indeed, the Act requires that the Secretary inform mine
operators of all standards proposed pursuant to the _Act. § 811 (e). Thus,
rather than leaving the frequency and purpose of inspections to the
unchecked discretion of Government officers, the Act establishes a
predictable and guided federal regulatory presence. Like the gun dealer in
Biswell, the operator of a mine "is not left to wonder about the purposes of
the inspector or the limit.s of his task." 406 US, at 316, 32 L Ed 2d 87, 92
S Ct 1593. 452 US at 604.

2

Unwarrantable failure is deflned as aggravated conduct constituting more than ordinary
negligence. Emery Mining Corp., 9 FMSHRC 1997 (December 1987). Unwarrantable failure is
characterized by such conduct as."reckless disregard," "intentional misconduct," "indifference" or
a "lack of reasonable care." /d. at 2003-04; Rochester and Pittsburgh Coal Comparry, 13
FMSHRC 189, 193-194 (February 1991). As noted by the Commission in its remand order,
relevant issues therefore include such factors as the extent of a violative condition, the length of
time that it existed, whether an operator has been placed on notice that greater efforts are
necessary for compliance, and the operator's efforts in abating the violative condition. Mullins
and Sons Coal Company, 16 FMSHRC 192, 195 (February 1994).
·

1649

The duties of a mine operator (and, conversely, what are not duties) are even further
defmed when Congress, in enacting mandatory standards such as the one at issue, carefully
carves out an exception and clearly distinguishes between prohi~ited and non-prohibited conduct.
As also noted by Commissioner Riley and the court on review of this case, if the Secretary is
truly concerned about hazards presented by accumulations of trash outside active workings, she
has a responsibility to clearly proscribe such hazards through rulemaking. The absence of a
legally defined duty in such a pervasively regulated industry may therefore appropriately be
considered in determining whether negligence existed or at least in mitigation of negligence.
Mod Tort Law§§ 3.33 and 3.36 (Rev. Ed).
Within this legal framework and based on the present record, it is reasonable to conclude
that the operator was at least minimally negligent to have allowed the non-violative
accumulations to exist. Accepting Inspector Meredith as a reasonably prudent person familiar
with the mining industry and based on Meredith's undisputed testimony, it is apparent that even
the non-violative accumulations in this case presented a hazard that such a person would
recognize and, therefore, had some duty to promptly remove.3 Based on the amount of
combustible materials found in the inactive area, it may also reasonably be inferred that
management knew or should have known of the existence of those materials. The non-violative
accumulations extended throughout the Number 3 Entry over a distance of250 feet and included
approximately 100 to 250 empty rockdust bags that had been piled tWo or three feet high along
the rib, five wooden pallets and a number of wooden cable spools. It may also reasonably be
inferred, based on Inspector Meredith's observations of rock dusting activity on January 24,
1994, that at least some of the materials, i.e., some of the rock bags and wooden pallets, may
have accumulated over as long as a week. On the other hand, even Inspector Meredith conceded
that he had no idea how long some of the other materials, e.g., the wooden cable spools, had been
present.
While the Secretary also notes that, only seven days earlier, another withdrawal order
(Gov. Exh. 3) had been issued for accumulations in an adjacent entry, those accumulations were
pr.esumably in an active area of the mine, and were, therefore violative. The prior order would
not, therefore, have provided notice in itself that the accumulations now at issue, which were in
an inactive area of the mine, were unlawful or had to be promptly removed. The Secretary
correctly observes, however, that there is no evidence that the operator attempted to abate or
clean up the non-violative accumulations.
Under the circumstances, it is clear that JWR was not without negligence in allowing
these non-violative accumulations to exist. Such negligence was, however, strongly mitigated by
the factors previously discussed and clearly was not so aggravated or of such a gross nature as to
constitute unwarrantable failure. As the Commission noted in Secretaty y. Mettiki Coal

3

It is noted that since this issue was first raised by the Secretary on appellate review and
was not squarely presented at trial, there may be an absence of contrary evidence in the record.
Because of the result in this case, however, "due process" concerns in this regard are moot.

1650

Cor;poratjon, 13 FMSHRC 760 (May 1991 ), typical definitions of gross negligence include: "the
intentional failure to perform a manifest duty and reckless disregard of the consequences; "an act
or omission-respecting a legal duty of an aggravated character as distinguished from a mere
failure to exercise ordinary care;" "indifference to present legal duty and utter forgetfulness of
legal obligations;" and "a heedless and palpable violation oflegal duty." Citing Black's Law
Dictionary (5th Ed.), 931-32 (1979). The non-violative facts of this case considered in light of
the mitigating factors, previously discussed, do not meet these definitions.

In its remand order, the court also directed the Commission to address the issue of
causation. In determining legal responsibility for negligence, it is indeed customary to divide the
inquiry into two steps, i.e., was there negligence (culpability), and, if so, was that negligence the
proximate cause of the subsequent harm (causation).4 Although the Secretary was accordingly
directed to specifically address the issue of "causation" in her brief on remand, she declined to
do so. The Secretary's failure to have addressed this essential element may be considered an
abandonment of her claim on which she has the burden of proof and a default.
However, even assuming, arguendo, that the Secretary had a theory of causation and the
record evidence supported such a theory, on the facts of.this case it would in any event be
irrelevant. Since the level of negligence associated with the non-violative accumulations has
been found on the unique facts of this case to be minimal, I conclude that such negligence would
not enhance the negligence in regard to the violative accumulations sufficient to justify
unwarrantable failure findings.
ORDER

Order No. 3182848, is hereby modified to a citation under Section 104(a) of the Act.~

Gary lick
Administrative Law Judge

4

Under the "substantial factor" test of causation which has been adopted by the·
Restatement (second) of Torts§ 431, conduct is the cause of an effect if that conduct has such an
effect in producing the harm "as to lead the trier of fact, as a reasonable person, to regard it as a
cause, using that word in the popular sense." Mod Tort Law § 4.03 (Rev. Ed).
~ Inasmuch as this is a Contest Proceeding, no civil penalty is assessed.

1651

Distribution:
David M. Smith, Esq., J. Alan Truitt, Esq., Maynard, Cooper & Gale, P.C., 1901 Sixth Avenue
North, 2400 AmSouth!Harbert Plaza, Birmingham, AL 35203-2602 (Certified Mail)
R. Stanley Morrow, Esq., Jim Walter Resources, Inc., P.O. Box 133, Brookwood, AL 35444
(Certified Mail)
William Lawson, Esq., Office of the Solicitor, U.S. Dept. of Labor, Chambers Building,
Highpoint Office Center, Suite 150, 100 Centerview Drive, Birmingham, AL 35216
(Certified Mail)

\mea

1652

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF THE ADMINISTRATIVE LAW.JUDGES
2 SKYLINE, lOTH FLOOR
5203 LEESBURG PIKE
FALlS CHURCH, VIRGINIA 22041

OCT 1 6 1991'
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMJNISTRATION,' (MSHA),
Petitioner

cnnLPENALTYPROCEEDINGS
Docket No. KENT 97-90
A.C. No. 15-14492-03725

v.
COSTAIN COAL INCORPORATED,
Respondent

Docket No. KENT 97-131
A.C. No. 15-14492-03726
Docket No. KENT 97-132
A.C. No. 15-14492-03727
Baker Mine
Docket No. KENT 97-160
A.C. No. 15-16020-03530
Smith Underground No. 1
DECISION

Appearances: Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department of Labor,
Nashville, Tennessee, for the Petitioner;
Charles E. Lowther, Esq., Mitchell, Joiner, Hardesty & Lowther, Madisonville,
Kentucky for the Respondent in Docket No. KENT 97-160;
Carl B. Boyd, Jr., Esq., Sheffer-ijoffman, Henderson, Kentucky, for the
Respondent in Docket Nos. KENT 97-90, KENT 97-131 and KENT 97-132.
Before:

Judge Feldman

These consolidated proceedings concern petitions for assessment of civil penalties filed
by the Secretary of Labor against the respondent corpOration pursuant to section llO(a) of the
Federal Mine Safety and Health Act of 1977 (the Act), 30 U.S.C. § 820(a). These consolidated
matters were called for hearing on July 22, 1997, in Owensboro, Kentucky. At 1rial, the parties
moved for the approval to settle Docket No. Kent 97-90 in its entirety by reducing the proposed
civil penalty from $937.00 to $381.00 for the two.citations in issue. The parties also moved for
the approval of their settlement agreement with respect to a reduced civil penalty from $957.00
to $100.00 for two citations in Docket No. KENT 97-131; and a reduction in civil penalty from
$1,643.00 to $1,430 for three citations in Docket No. KENT 97-132. The settlement terms were
approved on the record as consistent 'with the statutory penalty criteria and will be summarized at
·
the end of this decision.

1653

A. Background
There are four remaining citations to be resolved through this hearing process. Three of
these citations involve excessive respirable dust concentrations in violation of section 70.1 OO(a),
30 C.F.R. § 70.100(a), that were detected as a result of bimonthly respirable dust samples
obtained from a designated occupation in several of the respondent's mechanized mining units
(MMU).
The mandatory safety standard in section 70.100(a) provides:
Each operator shall .c~mtinuously 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 .. .
In order to ensure that miners are exposed to less than 2.0 milligrams per cubic meter of
air (2.0 mg/m3) section 70.207(a), 30 C.F.R. § 70.207(a), provides, in pertinent part:
Each operator shall take five valid respirable dust samples from the designated
occupation in each mechanized mining unit during each bimonthly period ....
Designated occupation samples shall be collected on consecutive normal
production shifts or normal production shifts each of which is worked on
consecutive days. The bimonthly periods are: January 1-February 28 (29),
March 1-April 30, May 1-June 30, July 1-August 31.
The designated occupation in a given mechanized unit is the work position determined to
have exposure to the highest respirable dust concentration. Section 70.2(f), 30 U.S.C. § 70.2(f).
The five valid samples are obtained from Mine Safety and Health Administration (MSHA) ·
approved filter cassettes contained in an air sampling unit worn by the miner in the designated
occupation. In accordance with section 70.207(a), these five cassette dust samples are sent by
the operator to MSHA's laboratory where the filter is removed and weighed to determine if the
average respirable dust concentration is in compliance with the 2.0 milligram standard in section
70.1 OO(a). If violations of section 70.100 (a) are detected by the MSHA laboratory, an MSHA
inspector issues a citation that establishes a deadline for abatement. The citation and abatement
commonly occur without a mine facility visit or an inspection by MSHA personnel.
During the time flXed for abatement, the operator must take corrective action to lower the
concentration of respirable dust to within a permissible concentration and then sample each
production shift until five valid respirable dust samples are taken. 30 C.F.R. § 70.201(d).
Citation Nos. 9898430, 9898420 and 9898402, issued during the period October through
December 1996, concern violative respirable dust samples, based on the average of five samples,
taken from the designated occupation, i.e., the continuous miner operator, in several different

1654

mechanized mining units at the respondent's Smith and Baker mines. The citations were issued
by Robert G. Smith, an MSHA District Industrial Hygienist. Each of the citations was issued
after the bimonthly sample submitted by the respondent for MSHA's laboratory analysis revealed
average respirable dust concentrations in excess of 2.0 mg/m3 obtained from five samples.
Specifically, the violative average respirable dust concentrations for Citation
Nos. 9898430, 9898420 and 9898402 were 2.2, 4.4 and 3.4 mglm3, respectively.
Consistent with 'M SHA' s normal respirable dust monitoring procedures, Smith did not
inspect the subject MMU and has no personal knowledge concerning the circumstances
surrounding each violative dust sample. However, Smith concluded the respondent's degree of
negligence was moderate for Citation No. 9898430 issued at the Smith Underground Mine, and
high for Citation Nos. 9898420 and 9898402 issued at the Baker Mine. The high negligence was
based on the Baker Mine's general history of generating large quantities of coal dust. Smith also
concluded the entire MMU crew was affected (the foreman, shuttle car operators and roof bolt
operators) based on the respirable dust exposure of the miner in the designated occupation
(continuous miner operator).
The fact of the violations cited in these MMU citations, as well as the violations'
significant and substantial (S&S) characterizations, are not in dispute. What is disputed is the
number of persons affected by the violations and the degree of culpability (negligence)
attributable to the respondent. Thus, in essence, the issue is the application of the penalty criteria
to the respirable dust violations in issue. Consequently, each penalty criterion with respect to
each MMU citation will be discussed in tum.
However, consideration of the statutory penalty criteria must be viewed in the context of
the unique circumstances and issues concerning excessive respirable dust concentrations. In this
regard, the Commission has concluded, "in the particular context of the control of respirable dust
in coal mines some departure [from normal enforcement considerations] is justified because of
fundamental differences between a typical safety hazard and the respirable dust exposure-related
health hazard at issue." (Emphasis added). Consolidation Coal Company, 8 FMSHRC 890, 895
(June 1986), aff'd sub nom. Consol. Coal v. Fed. Mine Safety & H. Rev. Com 'n., 824 F .2d 1071
(D.C. Cir. 1987). Thus, the D.C. Circuit agreed with the Commission that, given the insidious
nature of respirable dust exposure:
Congress clearly intended the full use of the panoply of the Act's enforcement
mechanisms to effectuate [the goal of preventing respiratory disease], including
the designation of a violation as a significant and substantial violation. 824 F.2d
at 1086, quoting 8 FMSHRC at 897.

1655

B. Civil Penalty Criteria - MMU Violations

I. Previous HistoO' of Violations
Although the Commission has stated that an operator's general history of violations is a
relevant consideration in assessing a civil penalty, it is well settled that a history of similar
violations serves as a significant basis for imposition of a higher civil sanction. Sec y of
Labor o/b/o James Johnson v. Jim Walter Resources, Inc., 18 FMSHRC 841, 850 (June 1996);
But see AMAX Coal Company, 19 FMSHRC 1542, 1551 (dissenting opinion) (September 1997),
citing Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (February 1994); Peabody Coal Co.,
14 FMSHRC 1258, 1261 (August 1992). Thus, an important inquiry is whether an operator's
history of similar violations placed that operator on notice that greater compliance efforts were
required. AMAX, 19 FMSHRC at 1551. However, this routine inquiry is not so simple to apply
in respirable dust cases.
Respirable dust concentrations vary from shift to shift and are affected by the level of
coal production as well as other varying factors, such as temperature and hwnidity. Unlike most
mine hazards caused by violative conditions, excessive respirable dust concentrations ordinarily
cannot be observed. Thus, the only method of ascertaining the existence of excessive respirable
dust is through MSHA's bimonthly sampling process. Moreover, excessive dust problems are
MMU specific. In other words, a history of excessive dust in MMU-007 would not place an
operator on notice that there was a potential dust problem in MMU-009, particulary if prior
bimonthly sample results from MMU-009 were compliant.
Of course, there may be instances where a pattern of an operator's failure to abide
by its dust control plan, such as a history of a failure to maintain sprayers, is an important
inculpating factor, regardless of the respirable dust history of a specific MMU. However,
such circumstances are not reflected in the record evidence. Although there are approximately
29 MMU violations of 70.1 OO(a) at the Baker Mine during the two year period preceding
January 1997, Smith testified the respondent had no history of violations for failure to follow its
dust control plan. (Gov. Ex. 8; Tr. 154). Although Smith testified that the respondent was
required, on several occasions, to increase the amount of sprayers required by its dust control
plan, there is no evidence of the respondent's failure to comply. (Tr. 114-15).
With respect to the specific citations, Citation No. 9898430 cites MMU-002 at the Smith
Underground No. 1 facility. There is no evidence of previous section 70.100(a) violation in this
MMU. Therefore, I must conclude that prior bimonthly samples for MMU-002 did not provide
notice that greater dust control efforts were called for.
Citation No. 9898420 cites MMU-009 at the Baker facility. Smith testified that
MMU-009 was a relatively new mechanized mining unit with no history of pertinent violations.
(Tr. 106).

1656

Citation No. 9898402 cites MMU-007 at the Baker facility. This citation illustrates the
difficulty in applying the traditional notice test .based on a history of similar violations.
MMU-007 was cited for excessive respirable dust in October 1994, October 1995, and
Citation No. 9898402 was issued in October 1996. After the October 1994 citation, presumably,
there were five compliant bimonthly samples before the October 1995 citation. Similarly, the
October 1995 citation was followed by five compliant bimonthly samples prior to the issuance of
Citation No. 9898402. Thus, in each prior instance, the respondent believed it had corrected the
dust control problem i~ view of the series of compliant bimonthly samples.
Although the submission of more frequent dust samples for analysis may be prudent for
mine facilities that generate large quantities of dust, the Secretary has not alleged, nor does the
record reflect, that operators are encouraged to submit dust samples to MSHA more frequently
than on a bimonthly basis. In this regard, although Smith alleged the Baker Mine generated large
amounts of coal dust, there is no evidence of heightened monitoring by MSHA.
In swnmary, I do not view the respondent's history of section 70.100(a) violations, in
view of Smith's admission of no history of pertinent dust control plan violations, as a factor
having a significant impact on the degree of the respondent's civil penalty liability.
2. Al)propriateness of the Size of the Penalty and Effect on Business Operations
Costain Coal Company is a large operator that produces over ten million tons of coal each
year. Imposition of the civil penalties proposed in these matters is not inappropriate to the size
of the respondent's business and will no affect its ability to conduct its business.
3. De~ree ofNe~li~ence
As noted above, traditional considerations used to evaluate degrees of negligence, such as
the extent of the violative condition, the length of time that it existed, whether the violation was
obvious, and, whether the operator was placed on notice that greater efforts for compliance were
necessary, are not helpful in matters concerning excessive coal dust conditions. AMAX Coal
Company, 19 FMSHRC at 1551. 1 Smith acknowledged excessive respirable dust conditions
cannot be seen, even in situations where respirable dust concentrations are relatively high.
Therefore, considerations of the extent of the violation, and how long it existed, in the context of
an MMU with prior compliant bimonthly sample results, are not material.

1

While AMAX, and the cases cited therein, concern the parameters for unwarrantable
failure, which has not been charged in these matters, the guidelines discussed in AMAX are
essential for determining the degree of an operator's negligence~

1657

As previously discussed, prior compliant bimonthly samples, in the absence of an
identifiable equipment malfunction or other dust plan violatio~ do not suggest that greater
compliance efforts are necessary. In fact, the Commission bas vacated high negligence and
unwarrantable failure findings for a section 70.100(a) M:MU violation noting that the operator
•had reason to believe its remedial efforts [controlling dust] were working" because of a series of
compliant bimonthly sampling results immediately prior to the violative sample that gave rise to
the section 70.1OO(a) citation. PeabodY Coal Company, 18 FMSHRC 494,499 (April1996).2
Thus, it is in the context of these unique circumstances that the issue of the degree of the
respondent's negligence for each of the MMU citations is discussed below. However, it must be
noted that, although high negligence may provide a basis for an increased civil penalty, low
negligence, or even a lack of negligence, is not a significant mitigating factor when considering
respirable dust violations. The Mine Act is a strict liability statute. In the final analysis, who, if
not the operator, is responsible for ensuring that miners are not exposed to excessive respirable
dust? Mine operators must ensure that the maximum levels of permissible respirable dust
concentrations are not exceeded. An operator' s failure to do so, regardless of fault, warrants the
imposition of meaningful civil penalties.
The Secretary attributed the degrees of the respondent' s negligence for each of the MMU
citations as follows:
Citation No. 9898430 - MMU-002 - Smith Underground - Moderate Negligence
Citation No. 9898420 - MMU-009 - Baker Mine - High Negligence
Citation No. 9898402 - MMU-007 - Baker Mine - High Negligence
Prior to the issuance of Citation No. 9898430, the approved dust control plan required
32 continuous miner sprayers, with a requirement that at least 26 of the 32 sprayers remain
operative. As noted, Smith did not inspect the subject mine facilities before issuing the citations.
Thus, there is no evidence to attribute the excessive dust sample to an identifiable d~t control
plan violation. To abate Citation No. 9898430, the respondent, pursuant to an amendment of its
dust control plan, increased the number of sprayers on the continuous·miner from 32 to 33, and
increased the minimum number of operative sprayers from 26 to 27. There is no evidence of a
history of excessive respirable dust conditions at MMU-002. Accordingly, the negligence
attributable to the respondent for Citation No. 9898430 is low.

2

To attribute high negligence to an operator for a section 70.100(a) violation in the
absence of a pertinent identifiable dust control plan violation, or an MMU specific history of
violative qust samples providing notice that greater dust control measures at that MMU were
required, is tantamount to the presumption of high negligence approach rejected by the
Commission in Peabody Coal, 18 FMSHRC at 498.

1658

Citatiol). No. 9898420 concerns MMU-009, a new mechanized unit without a history of
excessive dust violations. There is also no evidence of any specific equipment malfunction or
inadequate dust control plan provision that contributed to the violative condition. Consequently,
the record reflects the excessive dust conditions were transitory and resolved without significant
abatement action. 3 Accordingly, the degree of negligence attributable to the respondent for
Citation No. 9898420 is also low.
Citation No. 9898402 was abated by correcting a malfunction of the scrubber blade and
housing on the MMU-007 continuous miner. Given the general history of previous violations
concerning excessive dust at the Baker facility, the respondent was obligated to remain on a
heightened state of awareness regarding potential dust control problems. The failure of the
respondent to detect this malfunction, on balance, constitutes a high degree of negligence with
regard to Citation No. 9898402.
4. Gravity
The gravity penalty criterion under section llO(i) of the Mine Act requires an evaluation
ofthe seriousness of the violation. Consolidation Coal Company, 18 FMSHRC 1541, 1549
(September 1996). Here, the respondent concedes the S&S nature of the MMU violations. The
respondent, however, seeks to mitigate the gravity associated with the violations by attempting to
limit the number of persons affected to the designated occupation. Specifically, the respondent
asserts the excessive respirable dust concentrations taken from samples on the person performing
the designated high risk occupation cannot be extrapolated to other personnel on the section.
While it is true that other occupations on the section, by definition, ordinarily have less respirable
dust exposure than the designated occupation, I fail to fmd this argument persuasive.
The purpose of section 70.1 OO(a)'is to limit the permissible concentration of respirable
dust exposure by mine personnel in active workin~s . Section 70.2(b) defmes active workings
as "any place in a coal mine where miners are normally required to work or travel." 30 C.F .R.
§ 70.2(b). Thus, the purpose ofMSHA's high risk occupation bimonthly sampling program is to
monitor the atmospheric conditions in active workings. Monitoring the high risk occupation
ensures that, if the high risk miner is not overly exposed, no one on that MMU shift is exposed to
impermissible levels of respirable dust. Put another way, monitoring the high risk continuous
miner occupation at the face provides the earliest warning of excessive respirable dust in the
active workings atmosphere.

3

Respirable dust conditions are not static. They vary from shift to shift. In fact, it is not
uncommon for individual shift dust samples within a bimonthly five shift sample to be above
2.0 milligrams although the five shift average is below the 2.0 milligram maximum permissible
concentration. See, eg., Gov. Ex. 7, p.2. Thus, excessive dust conditions may exist during a
particular shift, although the condition resolves without remedial action by the operator.

1659

Virtually all MMU shift members, e.g., shuttle car operators, scoop operators, roof bolt
operators, are exposed to the face during the course of their duties. Consequently, the
Secretary's assertion that all shift members are effected by MMU dust violations is reasonable
and entitled to deference, particularly in view of the respiratory hazards associated with .
cumulative pulmonary exposure. Consequently, the violations cited in the subject citations affect
all shift members and are serious in gravity.
Accordingly, th~ number of persons effected- 12 persons in Citation Nos. 9898430 and
9898420, and 14 person~ effected in Citation No. 9898402 - is affmned. These numbers
represent the total number ofMMU members in each of the cited units multiplied by two daily
shifts.
5. Good Faith Efforts to Achieve Rapid Compliance
The evidence reflects the respondent sought to modify its dust control plan where
appropriate ~d made good faith efforts to achieve compliance.
C. Penalty Assessment - MMU Violations

In view of the serious gravity and the strict liability considerations related·to the risk of
severe pulmonary disease posed by the MMU citations, the Secretary's proposed civil penalty of
$595.00 for Citation No. 9898430 in Docket No. KENT 97-169 is affmned. Although the
Secretary proposes, apparently based on allegations of high negligence, a civil penalty of
$2,384.00 for Citation No. 9898420 in Docket No. KENT 97-132, the reduction in negligence to
low discussed above warrants a similar $595.00 civil penalty, consistent with the principle of
strict liability.4
Finally, given the high negligence attributable to the respondent's failure to adequately
maintain the continuous miner scrubber in view of its history of coal dust problems, the
$2,384.00 civil penalty proposed by the Secretary for Citation No. 9898402 in Docket
No. KENT 97-131 is affirmed.
·

• Although I have exercised restraint in these proceedings in the civil penalties imposed
on the basis of strict liability, a continuing general pattern of additional respirable dust violations
may subject the respondent to significantly higher civil penalties under strict liability in the
future.

1660

D. Civil Ptmalty Criteria • Desjpated Area violation

In addition to section 70.207(a) that specifies the bimonthly sampling requirements in
mechanized mining units, Section 70.208, 30 U.S.C. § 70.208, governs the bimonthly sampling
~ments in designated areas capable of generating high dust concentrations that are
. identified in the operator's MSHA approved dust control plan. This mandatory standard requires
one bimonthly dust sample obtained from a sampling device placed at the specified location. If
this single bimonthly ~ple exceeds 2.0 milligrams, the operator must furnish MSHA with a
five dust sample, obtained from consecutive shifts, to determine if the 2.0 milligram standard in
section 70.100(a) is violated.
Citation No. 9898431, issued by Smith on January 7, 1997, concerns a·violative
respirable dust sample of 2.2 mg/m3, based on an average of five samples, obtained at designated
area 200-1, inby the No. 5 belt transfer_point at the respondent's Baker Mine. Although the fact
of the violation cited in Citation No. 9898431 is admitted, the degree of the respondent's
negligence, and whether the violation was properly designated as S&S, are contested.
Although Smith concluded the degree of the respondent's negligence associated with this
violation was high, there is no evidence of an identifiable dust control plan violation that
contributed to this violation. Moreover, the violation resolved itself in a timely manner in that
subsequent samples were compliant without any particular abatement action on the part of the
respondent. Consequently consistent with the discussion above, I conclude the record does not
support more than a fmding of low negligence.
With respect to the S&S issue, Alan Shelton, the respondent's Baker Mine belt foremen,
testified there is a belt walker on each of the two shifts that travels along the entire 6,000 to
7,000 feet ofbeltline to detect hazards or malfunctions each day. There are also belt mechanics
that routinely perform maintenance. If a problem were encountered downwind of the cited
designated area that required cleanup or maintenance, Shelton opined that these employees could
be exposed to the excessive respirable dust conditions for approximately 45 minutes.
It is well settled that the operative time period for considering whether a violation is
properly designated as S&S includes the time that the violative condition existed prior to the
citation, as well as the time it would have existed if normal mining operations had continued.
Mechanicsville Concrete, Inc., 18 ~MSHRC 877, 884 (June 1996) (Citations omitted). Given
the fact that "respirable dust disease is insidious, furtive and incapable of precise prediction," the
controlling case law concerning the presumptive S&S nature of section 70.1 OO(a) violations that
are based on excessive designated occupation samples, must also be applied to violations based
on sampling devices at designated areas, particularly where employees are routinely exposed to
such areas. Consolidation Coal Company, 8 FMSHRC at 898, 899. Accordingly, the S&S
designation for Citation No. 9898431 is affirmed. Consi'stent with the gravity discussion for the
MMU citations, the cited designated area violation is, likewise, serious in gravity.

1661

E. Penalty Assessment- Desimated Area Violation
The Secretary has proposed a civil penalty of $1,019.00 for this citation. In view of the
statutory civil penalty criteria discussed above, a civil penalty of$595.00 is appropriate for the
cited condition. This reduction in civil penalty is warranted due to a reduction in the
respondent's degree of negligence from high to low. Although the civil penalty is being reduced,
it remains meaningful and is consistent with the strict liability imposed on operators in the event
of their failure to maintain safe environmental working conditions.
F. Total Civil Penalties
Docket No. KENT 97-90- The approved settlement agreement provides for a reduced
civil penalty from $93 7.00 to $381.00 for the two citations in issue. The settlement terms
include deleting the S&S designation from Citation No. 4067436.
Docket No. KENT 97-131- The parties have settled two of the three citations in issue.
The settlement terms include payment of a civil penalty of $50.00 each for Citation Nos.
4067875 and 4064262 as well as deletion of the S&S designations in these citations. A
$2,384.00 civil penalty for Citation No. 9898402 has been imposed herein. Consequently the
total civil penalty for Docket No. KENT 97~131 is $2,484.00.
Docket No. KENT 97-132- The parties have agreed to settle three of the five citations in
issue. The respondent has agreed 1o pay a total civil penalty of$1,430.00 for Citation Nos.
4063629,4064265 and 4064268. Civil penalties of$595.00 for Citation No. 9898420, and
$595.00 for Citation No. 9898431, have been imposed in this decision. Thus, the total civil
penalty imposed for the subject five citations is $2,620.00.
Docket No. KENT 97-160 -This docket concerns only Citation No. 9898430. The
$595.00 civil penalty proposed by the Secretary for Citation No. 9898430 is affirmed herein.
Thus, the total civil penalty for the four docketed cases is $6,080.00.

ORDER
In view ofthe above, IT IS ORDERED that the respondent SHALL PAY a total civil
penalty of $6,080.00 in satisfaction of the citations in issue in these proceedings. Payment shall
be remitted within 30 days of the date of this decision. Upon timely receipt of payment, Docket
Nos. KENT 97-90, KENT 97-131, KENT 97-132 and KENT 97-160 ARE DISMISSED.

1662

Distribution:
Joseph B. Luckett, Esq., Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Department of
Labor, 2002 Richard Jones Rd., Nashville, TN 37215 (Certified Mail)
Carl B. Boyd, Jr., Esq., Sheffer and Hoffman, 30 First Street, Henderson, KY 42420
(Certified Mail)
Charles E. Lowther, Esq., Mitchell, Joiner, Hardesty & Lowther, 113 East Center Street,
P.O. Drawer 659, Madisonville, KY 42431-0659 (Certified Mail)
\mh

1663

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

OCT 1 6 1997
CLYDE W. PERRY,
Complainant
v.

Docket No. WEST 96-64-DM

PHELPS DODGE MORENCI, INC.,
Respondent

Morenci Branch Mine
Mine ID No. 02-00024

DISCRIMINATION PROCEEDING

DECISION ON REMAND
Appearances:

Clyde Perry, Silver City, New Mexico, Complainant, llli2 g ;
Laura E. Beverage, Esq., Jackson & Kelly, Denver, Colorado,
for Respondent.

Before:

Judge Bulluck

This discrimination proceeding is before me on a Complaint of Discrimination brought
by Clyde W. Perry against Phelps Dodge Morenci, Inc., ("Phelps Dodge"), under Section 1OS (c)
ofthe Federal Mine Safety and Health Act of 1977,30 U.S.C. § 81S(c). The complaint alleges
unlawful discharge in retaliation for safety complaints raised with Phelps Dodge.
Perry filed his discrimination complaint with the Secretary of Labor's Mine Safety and
Health Administration ("MSHA") pursuant to Section 10S(c)(2) on September 14, 199S (Ex. R6). 1 On November 6, 199S, MSHA notified Perry and Phelps Dodge that, based on its
investigation of the allegations, it had concluded that a violation of Section 1OS(c) had not
occurred (Ex. R-3}. Perry instituted this proceeding before the Commission on November 17,
199S, under Section IOS(c)(3), 30 U.S.C . § 81S(c)(3).2

1

Section 1OS(c)(2) provides, in pertinent part, that "Any miner... who believes that he has
been discharged, interfered with, or otherwise discriminated against by any person in violation of
this subsection may, within 60 days after such violation occurs, file a complaint with the
Secretary alleging such discrimination."
2

Section 1OS(c)(3) provides, in pertinent part, that "If the Secretary, upon investigation,
determines that the provisions of this subsection have not been violated, the complainant shall

1664

Former Commission Administrative Law Judge Arthur Amchan issued an Order dated
April 26, 1996, dismissing the complaint for failure to state a claim upon which relief may be
granted. 18 FMSHRC 643 (April 1996). The Commission vacated the judge's Order and, noting
Perry's prose status, found that Perry had met his burden of alleging discrimination actionable
under Section 105(c), and remanded the case for further evidentiary proceedings, including a
determination of whether the instant circumstances warrant a waiver of the time requirements for
filing a complaint. 3 On ~emand, the case was assigned to me.
A hearing was conducted in Tuscon, Arizona, on March 25 and 26, 1997. The parties
presented testimony and documentary evidence, and filed post-hearing briefs. For the reasons set
forth below, I conclude that while Perry engaged in, activity protected under the Act, he was not
· discharged by Phelps Dodge for engaging in that activity.
Factual Background
Phelps Dodge operates a copper mine in Morenci, Arizona. Perry began employment at
Phelps Dodge in May 1984, and was employed at the Morenci facility as a spray attendant,
beginning in February 1992 (Tr. 105-1 06). On February 16, 1993, Perry sustained a crush injury,
as a result of a three-ton tire rolling over his right foot during the performance of his job duties
(Tr. 108-111 ). Subsequent to emergency medical treatment, Perry received orthopedic treatment
and physical therapy (Tr. 112-113 ). In March 1993, Perry returned to work and was assigned
light duty until October 1993, when he assumed the position of truck driver, into which he had
successfully bid in May 1993 (Tr. 107, 120; Ex. C-8). Perry drove 190 and 240 ton trucks on a
rotational basis during 8 hour shifts (Tr. 122-123 ), and on at least one occasion, reported to mine
shift foreman, Robert Spoon, that truck driving caused discomfort in his right foot (Tr. 124,
423-424).

have the right, within 30 days of notice of the Secretary's determination, to file an action in his
own behalf before the Commission .... "
3

Perry filed his discrimination complaint under the Mine Act 223 days after he was
discharged and 38 days after the issuance of the arbitration decision upholding his discharge
(Exs. C-2, R-7). Considering Perry's prose status, his testimony, and given the ab~ence of any
allegation of discrimination in his defense throughout the Phelps Dodge appeal process, I
conclude that Perry formed the belief that he was discharged for having a lost-time accident and
raising a related safety complaint only after he had not prevailed in arbitration. Accordingly, I
find Perry's filing 163 days in excess of the 60-day time limit set forth in section 105(c)
excusable and without prejudice to Phelps Dodge, and conclude that he timely filed his
complaint within 60 days of exhausting Phelps Dodge's appeal process (see "discrimination
complaint designating "arbitration decision 8113/95" as date of discriminatory action at Ex. R-6).

1665

Perry continued to perfonn as a truck driver on the grayeyard shift (11 p.m. to 7 a.m.),
until January 28, 1995, when the incident giving rise to the instant complaint occurred. At
approximately 3:00 a.m., during the lunch break, Perry began to experience severe armpit and
chest pain, along with blurred vision, requiring him to be transported by ambulance to the
Morenci Clinic ("clinic") for emergency medical treatment; Perry was accompanied in the
ambulance by assistant shift supervisor, Jimmy Gojkovich (Tr. 146-150; Ex. C-1 0). In the
meantime, safety inspector Robert Zimmermann, who had weekend safety responsibility for the
mine facility, was contacted at home and dispatched to the clinic. Upon arrival in the emergency
room, in the presence of Gojkovich, attending physician assistant Terry Brooks and nurse Jenny
Montano, when asked by Zimmermann whether he had taken any medication, Perry' s response
included the word "crystal" (Tr. 27-31, 151-152, 176-177, 136, 360, 362, 386-388; see also Ex.
C-7). Based on this statement, which created the impression that Perry may have taken an illicit
substance (crystal methamphetamine), Gojkovich requested that Zimmennann have Perry submit
to a Phelps Dodge sponsored drug and alcohol test (Tr. 32, 388). Perry refused to sign the
consent and chain of custody forms which authorize and initiate Phelps Dodge drug and alcohol
testing under the administration of the Morenci Clinic (Tr. 33; Ex. C-11 ). During this same
period, Brooks asked Perry for a urine sample, in order to provide appropriate medical treatment,
and attempted to flush Perry's system by administering one liter of intravenous fluid; ultimately,
Brooks was unable to prescribe medication because of Perry's repeated failure to produce a urine
sample (Tr. 39, 154, 364-366). Perry left the emergency room after three hours of attention, and
returned twice that day, in order to produce a urine sample. It was during his third visit, at
approximately 9:30 p.m., that Perry produced a sample for Brooks, which tested negative for
illicit drugs, and Brooks prescribed medication for Perry's then diminished, non life-threatening
symptoms (Tr. 368-369).
In the meantime, earlier that morning at about 7:30, with Perry's consent, Zimmermann
drove Perry from the clinic to a meeting with shift foreman Robert Spoon at the old Morenci
mine office (Tr. 41, 154, 409-41 0). Spoon, with Zimmermann present, reviewed Phelps
Dodge's drug and alcohol policy with Perry, explained management's concern that Perry had
taken crystal methamphetamine based on Perry's own statements, explained the consequences
of failure to clear himself by refusing to take a drug and alcohol test, and gave Perry repeated
opportunities to return to the clinic for testing; Perry refused and insisted that he be permitted to
go home (Tr. 42-46, 159-165, 177, 415; Exs. C-9 and C-11). Consequently, Spoon issued a
Notice oflnvestigation and placed Perry on a 5-day suspension (Tr. 414-415; Ex. C-13).
Ultimately, Perry was discharged by Phelps Dodge on February 3, 1995 (Ex. R-17; Tr. 418).
Perry, represented by then employee representative John Shock, subsequently presented
management with the negative drug and alcohol test results from his treatment by Brooks at the
clinic on the night of January 28th (Tr. 84-85, 98; Ex. C-4), but was unsuccessful in overturning
his suspension and discharge through Phelps Dodge's appeal process (open-door policy, problem
solving, and arbitration) (Tr. 92, 445-449, 463-465; Ex. C-2). Thereafter, Perry filed his
discrimination complaint under the Act, alleging that he was discharged for having a lost-time
accident and raising a safety complaint.

1666

Findines of Fact and Conclusions of Law
In order to establish a prima facie case of discrimination under Section 105(c) of the
Act, 4 a complaining miner bears the burden of establishing that 1) he engaged in protected
activity and 2) the adverse action of which he complained was motivated in any part by the
protected activity. Secretary ofLabor on behalfofPasula v. Consolidation Coal Co.,
2 FMSHRC 2786 (October 1980), rev 'don other grounds sub nom. Consolidation Coal Co. v.
Marshall, 663 F.2d 1211 (3rd Cir. 1981 ); Secretary ofLabor on behalfofRobinette v. United
Castle Coal Co., 3 FMSHRC 803 (April 1981 ); Secretary ofLabor on behalfofJenkins v.
Hecla-Day Mines Corp., 6 FMSHRC 1842 (August 1984); Secretary ofLabor on behalfof
Chacon v. Phelps Dodge Corp.. 3 FMSHRC 2508 (November 1981), rev 'don other grounds sub
nom. Donovan v. Phelps Dodge Corp., 709 F .~d 86 (D.C. Cir. 1983).
The operator may rebut the prima facie case by showing that no protected activity
occurred or that the adverse action was in no part motivated by the protected activity. Pasula,
2 FMSI_-IRC at 2799-2800. If the operator cannot rebut the prima facie case in this manner, it,
nevertheless, may defend affirmatively by proving that it was also motivated by the miner' s
unprotected activity and would have taken the adverse action for the unprotected activity alone.
/d. at 2800; Robinelte, 3 FMSHRC at 817-818; see also Eastern Assoc. Coal Corp. v. FMSHRC,
813 F.2d 639, 642 (4'h Cir. 1987); Donovan v. Stafford Const. Co., 732 F.2d 954,958.:959 (D. C.
Cir. 1984);Boichv. FMSHRC, 719F.2d 194,195-196(6111 Cir.-1983)(specificallyapprovingthe
Commission's Pasula-Robinette test).
Perry has met the first step in establishing a prima facie case of discrimination. It is clear
from the record that Perry never engaged in a protected work refusal (Tr. 178), and his testimony
of numerous complaints to management, that he couldn' t perform truck driving duties because of
pain and that he feared he would hurt somebody, was not supported by the record (Tr. 123-126,
133-137, 178, 231-234). However, I find that Spoon's testimony established that Perry had
complained to him about foot pain associated with driving trucks, at least once, sometime around
late October/early November 1993. Also, I credit Perry's testimony that he told management he
feared hurting somebody and conclude, therefore, that his complaint was raised in a manner
sufficient to be protected under the Act. Spoon testified as follows:

- --·----- -4

Section 105(c)(1) of the Act provides that a miner cannot be discharged, discriminated
against or interfered with in the exercise of his statutory rights because: (I) he "has filed or made
a complaint under or related to this Act, including a complaint...of an alleged danger or safety or
health violation;" (2) he "is the subject of medical evaluations and potential transfer under a
standard published pursuant to section 101 ;" (3) he "has instituted or caused to be instituted any
proceeding under or related to this Act or has testified or is about to testify in any such
proceeding;" or, (4) he has exercised "on behalf of himself or others ...any statutory right afforded
by this Act."

1667

Q. What did he tell you about his foot bothering him and when?
A. He told methat it was uncomfortable for him to drive the truck because of the
angle of his foot on the accelerator is the only thing I remember. As far as getting
on or off the truck, he didn't say anything about that bothering him.

Q. Was that just a comment or was it a conversation? Did he go further and say,
"Therefore, I'm not handling this, I want to do something else, I think its
hazardous," or was it just a comment (Tr. 424)?
A. It was just a comment that I can remember. The only thing he said was it hurt
his foot a little bit. ·
Q. What do you mean thinking about it? I mean he says to you that it hurt his
foot to drive [aJ truck, what would have been your response?
A. My response would have been that the doctor has more to say about whether
or not the guy is able to drive the truck or not and if he has a little bit of
discomfort in his ankle it seems like tnat would go away after awhile. I mean, I
didn' t feel it was unsafe for him to drive the truck at all.

Q. Did he tell you this more than one time?
A. No, just once.

Q. Did I ask you if you remember when he told you that?
A. It seemed like just right after he went back on the trucks from his light duty,

just after he had been released, so that's why I didn't think much about it
(Tr. 425).
Perry has failed to establish, aprimafacie case, however, since he has not met his burden
of proving the second step--that Phelps Dodge's decision to discharge him was motivated in any
way by his protected complaint. Perry attempted to establish a causal connection between his
protected safety complaint in October/November 1993 and discharge in February 1995 by
testifying to a course of harassment by management upon his return to duty from the crush injury
to his foot. Specifically, he alleges that he was forced by Phelps Dodge to return to work in
March 1993 (Tr. 114 ), verbally abused by management when he was on light duty (Tr. 117121), forced to drive trucks despite his complaints and denied retraining (Tr. 134-137), underpaid
while he was on light duty (Tr. 186-189), and discharged in May/June 1994 (Tr. 128-132), in
addition to the discharge of February 3, 1995.

1668

The record indicates that Perry was returned to work on light duty upon medical release
and instructions from the company physician, Dr. Snyder (Tr. 115-116; Ex. C-8). Aside from his
testimony that management officials Spoon, Hill, Davenport and Sanders were giving him a hard
time about faking the residual limitations of his foot injury while he was on light duty, Perry did
not produce any witnesses who corroborated his testimony of verbal abuse or being forced back
to duty before he was physically able, and the record as a whole fails to substantiate these
allegations.
By his own testimony, Perry admitted that, while on light duty, he requested that
management place him in the truck driver position, after he had obtained medical clearance to
drive from his personal physician, Dr. Robertson (Tr. 119-120, 168; Ex. C-8). The evidence
further establishes that Perry was properly paid as a spray attendant while in the light duty status,
that Phelps Dodge held the truck driver position open for him until he was physically capable of
performing those duties. and appropriately paid him at a higher rate after he had assumed the
position (Tr. 184-189; Ex. C-5).
Respecting Perry's allegation that he was denied retraining, there is no evidence of such
request except his bare testimony. Moreover, while Dr. Robertson's September 27, 1994, report
of Perry' s final examination and dis~harge from active medical care mentions that &m felt he
was unable to continue truck driving, Dr. Robertson recommended duties that did not require
heavy lifting, prolonged standing, or prolonged ~use of the right foot (Ex C-8). It is
reasonable to conclude, from the record in its entirety, that the truck driving position did meet
Dr. Robertson's vocational limitations for Perry, since Perry not only drove trucks from October
1993 until January 1995, but frequently volunteered to work through his lunch periods, rather
than resting his foot (Tr. 178, 235-238, 481, 484-485).
Finally, there is no record of a prior break in duty in 1994. Perry testified that he was not
actually discharged by Phelps Dodge in May/June 1994, and his testimony that he was threatened
with discharge as another mode of harassment was neither credible nor supported by the record
(Tr. 129-133, 346-350; see Ex. C-2).
Likewise, Perry has failed to establish that Phelps Dodge's decision to discharge him on
February 3, 1995, was motivated in any part by his complaint to the company that driving trucks
posed a safety hazard to himself and his coworkers. Phelps Dodge's drug policy is set forth in its
Employee Handbook as follows:
Alcohol and illicit drug use and abuse constitute a significant safety hazard
in the work place. An employee who uses illicit drugs or abuses alcohol is a
hazard to himself and to his fellow employees. Such a situation cannot be
tolerated. In the interests of all concerned, the Company intends to make a
vigorous effort to keep alcohol and drugs out of the work place.

1669

An employee who is involved in a property damage accident, or an
accident which can be expected to result in lost time will be tested for the
presence of alcohol or drugs in his system. An employee who has a prohibited
level of alcohol or drugs in his or her system is subject to discipline up to and
including discharge. An employee who fails to cooperate with the administration
of an alcohol or drug test will be subject to discharge (Ex. R-1, 21-22).
Moreover, the Employee Handbook's list of "the more common types of...misconduct"
constituting dischargeable offenses, includes "Violation of the Drug and Alcohol Policy" at #7
(Ex. R-1, 22).
The record establishes that new employees are given the Employee Handbook, and that
the drug and alcohol policy is sent to employees' residences yearly by the company manager, the
policy is posted on bulletin boards throughout the mine, and it is discussed in monthly tailgate
safety meetings and communications meetings between management and its employees (Tr. 1820, 408-409). This policy sets forth the prohibited level of drugs and/or alcohol, including any
detectable amounts of an illicit drug (including amphetamines), and provides as follows:
An employee who fails to cooperate with or attempts to undermine the
administration of an alcohol or drug test will be subject to discharge. An
employee in possession of illicit drugs or alcohol will also be subject to discharge.
In addition, when testing is not mandatory, an employee will be subject to
discipline or discharge where the employee's actions, performance or condition
suggest that the employee may have used illicit drugs or abused alcohol or
prescribed drugs. If the employee denies the presence of these substances, in·
his/her system, then he will be given an opportunity to verify the circumstances
by providing the required body fluid samples for analysis (Ex. C-16).
Perry testified that he had read the Employee Handbook in May 1994, and that he was familiar
with the drug and alcohol policy before the incident on January 28, 1995 (Tr. 208-210, 212; Ex.
R-5).
Respecting the events of January 28, 1995, which precipitated Perry's discharge, Perry
admitted, through testimony, that he used the word "crystal" during emergency medical
treatment, when explaining to Zimmermann and Brooks what he had ingested:
Q. So the what happened?
A. We are at the hospital. I got down, went to the emergency room there and
Mr. Zimmermann was there at the time. He started asking me questions, what
kind of medication, .your name, occupation. And he asked me had I been taking
medication. I said, "I have been taking Darvocet, Percocet for my injuries that I

1670

had before." And he asked me, "Anything else you have been taking?" I said
"Yes." I mentioned those ephedrine pills, but I couldn't remember the name at
the time, so I said it was like a speed-like substance. And he said, "Well, explain
to me." And I go, "A speed-like substance like crystal," I said. I never should
have said that. He goes, "You took that?" And I go, "No, I didn't take that. I
took ephedrine pills. They are little white tablets."
Q. You did say "ephedrine?"

A. Yes. And I told that to Mr. Brooks also.
Q. But you also said that you had taken a crystal-like substance?
A. I was trying to describe it, I .said speed-like _substance.

Q. Did you use the word "crystal?"
A. Yes.
Q. So you said "speed-like" and "crystal-like" substance?

A. Yes. And Mr. Zimmermann then asked me, "Was it like a powder
substance?" I says, "No, like a regular tablet, " which I bought at a gas station in
Silver City (Tr. 151-152).

* * * *
Q. I'm sorry. Did you ever use the word "crystal" in the hospital?

A. Yes.
Q. You said you were trying to describe the other substance, ephedrine; is that
correct?
A. Yes.

Q. Is there any possibility in your own thinking that since you used the word that
you could have been misunderstood to have said that you took crystal meth?
A. Yes (Tr. 176).
Consequently, I conclude that Perry made statements to management officials that created a
reasonable belief that he had taken an illicit drug (Tr. 30-32, 387-388).

1671

Phelps Dodge asserts that it discharged Perry for failure to prove his innocence by
submitting to Phelps Dodge sponsored drug and alcohol testing (Tr. 87,418, 445-447; Ex. R-4).
Zimmermann testified that during emergency treatment at the clinic (also where Phelps Dodge
sponsored drug and alcohol testing is administered), when he requested that Perry take the test,
Perry refused and would not sign the Consent and Chain of Custody forms (Tr. 33-38).
Moreover, both Zimmermann and Spoon testified that, during the meeting at the mine office,
Spoon explained the company's drug and alcohol policy, explained the consequences of refusal
to take the test, and gave Perry several additional opportunities to return to the clinic for testing
(Tr. 41-44, 413-415). Perry gave inconsistent and contradictory testimony as to whether he had
consented to be tested while in the emergency room, by asserting that he was unaware that he
was being asked by Phelps Dodge to do so (Tr. 158-159), and that he had agreed to be tested but
was unable to urinate (Tr: 153, 156-158); on cross-examination, he conceded that he did not want
to be tested because he had ingested a caffeinated substance (Tr. 250-251 ). However, despite any
incoherence or confusion at the clinic, which may have been caused by Perry's medical
condition, Perry admitted, through testimony, that he refused to take the test when given
opportunities later that morning:
Q. When you got to the mine office with Mr. Spoon and Mr. Zimmermann-A. Yes.
Q. --did you agree to take it then?
A. No.

Q. Why not?

A. I felt he was being harassed. Since my injury I just--ever since my injury I
have been harassed and I felt that I was on my own time.
Q. Okay. You didn't fee] as though you had to take a test on your own time?
A. Right.

Q. When you got issued the notice of suspension did you still have the same
feeling that you were on your own time and you weren't going .to take the test?
A. Yes (Tr. 177).

Therefore, I credit the testimony of Zimmerman and Spoon that Perry refused to consent to drug
and alcohol testing at the clinic and at the old Morenci mine office.

1672

Phelps Dodge views non-compliance with its drug and alcohol policy as a serious offense
that jeopardizes the safety of its workforce. The company is committed to a drug and alcoholfree work environment and·, without exception, discharges employees who fail to cooperate or
undermine the administration of its testing program (Tr. 24-24, 438-440, 459, 472-473). Perry's
attempt to prove otherwise by citing for comparison similarly situated employees treated more
favorably than he (Bobby Kuykendall, Marty Allen and Ricardo Gonzalez) has failed, because he
has not produced any evidence to show that these employees were involved in similar
circumstances (Tr. 180-183, 272-273). Moreover, the record establishes that Frank Cordova,
cited by Perry as proof that Phelps Dodge harasses and discharges employees who have been
involved in lost-time accidents, was discharged for excessive A WOLs (absences without leave)
and failure to pass the company's drug and alcohol test (Tr. 314,451, 427-428; see also
Exs. R-7 to 17).
Finally, Perry's reliance on the negative drug and alcohol test that he ultimately
submitted to Hill during his 5-day suspension is misplaced (Tr. 98), since the test was not
sponsored by Phelps Dodge in accordance with its drug and alcohol policy (Tr. 97, 254, 36&-369,
419, 422). Furthermore, Spoon testified credibly that had Perry consented to testing immediately
upon request, either at the clinic or the mine office, the company would have waited as long as
necessary for Perry to have produced a urine sample (Tr. 103,422).
Overall, Perry's inconsistent, illogical, and often unresponsive testimony appeared
disingenuous and highly suggestive of"cutting the pattern to fit the cloth," i.e., constructing his
case in retrospect. While I have given him the benefit of the doubt in finding his complaint
timely filed and that he had engaged in protected activity, the combination ofhis testimony with
the fact that he never discussed his lost-time accident, his safety complaint, nor harassment with
his representative, John Shock, or with management during Phelps Dodge's appeal process,
seriously undermines his credibility (Tr. &4-85, 103, 458, 467-468, 475, 47&; Ex.C-6). In short,
Perry never convinced me that he held a good faith belief that he was discharged for
discriminatory reasons.
Assuming, arguendo, that Perry had established a prima facie case of discrimination
under Section 105(c), Phelps Dodge has clearly rebutted his case by proving that Perry was
discharged for a legitimate, business-related reason, all employees who violate Phelps Dodge's
drug and alcohol policy are discharged, and therefore, Perry would have been discharged for
violating that policy, irrespective of his complaint that his driving trucks posed a safety hazard.

1673

ORDER
Accordingly, inasmuch as the Complainant has failed to establish, by a preponderance of
the evidence, that he was discharged for engaging in activity protected under the Act, it is
ORDERED that the complaint of Clyde W. Perry against Phelps Dodge Morenci, Inc., under
Section 105(c) ofthe Act, is DISMISSED.

~~~
Administrative Law Judge

Distribution:
Mr. Clyde W. Perry, P.O. Box 504, Tyrone, NM 88065 (Certified Mail)
Laura E. Beverage, Esq., Jackson & Kelly, 1660 Lincoln Street, Suite 2710, Denver, CO 20264
(Certified Mail)
\mh

1674

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

OCT 2 0 1997
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEVA 97-34
A. C. No. 46-01286-03969

V.

Windsor Mine
WINDSOR COAL COMPANY,
Respondent

DECISION
Appearances: Alan Paez, Esq. Office ofthe Solicitor, U.S. Department ofLabor, Arlington,
Virginia; William Hulvey, Conference and Litigation Representative, Mine
Safety and Health Administration; BarbourvilJe, Kentucky, for the Secretary;
David M. Cohen, Esq., American Electric Power, Lancaster, Ohio, for
Respondent .
Before:

Judge Fauver

This is a civi l penalty action under section 105(d) of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 801~ gg., involving a section 104(d)(1) citation.1
Having considered the hearing evidence and the record as a whole, I find that a
preponderance of the substantial, reliable, and probative evidence establishes the Findings of
Fact and further findings in the Discussion below:

FINDINGS OF FACT
1. Citation No. 4179895 was issued on June 21, 1996, by MSHA Inspector Ronald G.
Taylor, alleging a significant and substantial (S&S) violation of30 C.F.R. § 75.400 due to an
unwarrantable failure to comply.

1

/Section 104(d)1) Citation No. 4179895 was originally issued as a section 104(d)(1)
order. The Mine Act provides for increasingly severe enforcement sanctions under
section 104(d) of the Act so that some violations hinge on the issuance of a prior citation. In this
case, the section 104(d)( 1) citation on which Order No. 4179895 was based subsequently was
reduced to a section 104(a) citation. This had the effect of changing Order No. 4179895 to a
section 104(d)( 1) citation.

1675

2. Inspector Taylor observed extensive accumulations of loose coal and coal dust along
the No.9 conveyor belt, varying from a few inches deep to as much as 54 inches deep and spread
out along the length of the No.9 conveyor belt, which approximately 3,000 feet long.
3. Tom Kacsmer, who was the UMWA escort, accompanied Inspector Taylor on his
inspection of the No.9 belt and also observed extensive accumulations of loose coal and coal
dust along both sides of the belt with coal piled up under the bottom rollers. In some areas
Mr. Kacsmar observed bottom rollers running in loose coal, stuck rollers and places where the
·
belt was turning in loose coal. He noted that the belt was running in dry, loose coal.
4. Inspector Taylor measured the accumulations with a 16-foot retractable metal tape
measure. He was also familiar with the distance between the belt structures, which was ten feet.
5. The No. 10 belt head conveys coal to the No. 9 belt tail, at Crosscut No. 227. The
coal proceeds to the No. 9 belt head, at Crosscut 191, which feed the No. 8 belt tail, and belt
No. 8 takes the coal out of the mine.
6. Inspector Taylor found accumulations of loose coal and coal dust on the No. 9 belt
head up to Crosscut 206. In places, the accumulation was up to the bottom of the belt with
rollers turning in coal dust and loose coal. At Crosscut 204 and 205, Inspector Taylor observed
an accumulation 50 feet long, with rollers and the belt running in the accumulation. In places,
the bottom of the belt was turning in or rubbing on the loose coal and coal dust. In some areas
the coal was packed up around the rollers.
7. From the beginning of the No.9 belt, at Crosscut 191, to about Crosscut 194, the
accumulations were dry. The remaining accumulations varied from wet to damp to dry.
8. At the tail of the No.9 belt, Inspector Taylor observed the deepest accumulation,
which measured 54 inches deep, 12Y:z feet long, and 75 inches wide and was higher than the belt.
The loose coal and coal dust had "humped up" and pushed the belt up.
9. At Crosscut 201, Inspector Taylor observed a bottom roller that was hot to the touch
because the bearing was defective. There was loose coal and coal dust under that area.
10. Inspector Taylor observed no methane along the No.9 belt at the time of the
inspection. However, Windsor Mine liberated about 50,000 cubic fe.e t of methane in a
24-hour period, subjecting the company to 15-day spot methane checks under the Mine Act.
11. Inspector Taylor issued 11 citations charging a violation of section 75.400 at the
Windsor Mine between April 12 and June 5, 1996. After the issuance of eaclr citation, Inspector
Taylor discussed with mine management the problem of accumulations and the need to maintain
the belts free of loose coal and coal dust.

1676

12. Wayne Porter, the belt coordinator, was aware that there were major spillage
problems with the·No. 9 belt prior to the issuance of Citation.No. 4179895. A few days before
the citation, Larry Moore observed the No. 9 belt fabric had a center tear, about 150 feet long,
and a second tear along the side of the belt about 5 inches wide and 500 feet long, that caused
major spillages.
13. Mr. Moore observed the coal rolling off the belt, and he could hear the coal pinging
against the rollers as it W!!nt down the belt line. Mr. Moore informed Foreman Barton of this
problem and the foreman said he would take care of it.
14. The next day, Mr. Moore was assigned to clean up the tail area along the No.9 belt.
He observed that the tear down the middle had been repaired. However, the accumulations from
the 500-foot tear on the side caused most of the spillage and that tear had not been repaired.
When he told another foreman, Bob Talbert, about the problem, Mr. Talbert said he already knew
about it.
15. Inspector Taylor and Tom Kacsmar, the UMWA escort, were informed on June.21,
1996, by Wayne Porter, belt coordinator, and Bob Talbert, foreman, that a piece ofthe No.9 belt
fabric, 5 inches wide and 500 feet long, had ripped the week before the inspection, causing
spillage, and the company was trying to get by until vacation.
16. Larry Moore was assigned to help clean up the accumulations along the No. 9 belt to
abate the violation cited by Inspector Taylor. Mr. Moore saw coal packed up around the tail
roller and belt, and he could not see the bottom of the belt when he arrived on the scene at
3:20a.m. The tail piece was completely covered with coal from the tail roller out to the
crossover, which was about 25 feet away. Another miner who was helping to abate the violation
arrived and had done a Jot of shoveling on the walk side where he could still not see halfway up
the frame of the tailpiece because of accumulations. On the side opposite the walk side he could
not see the tailpiece because of the accumulation. Mr. Moore observed float coal dust on the belt
structure and rails, and the accumulations he shoveled were comprised of loose coal and fine coal
that did not contain big lumps. Mr. Moore observed rock dust on the ribs in the area around the
tailpiece but saw no rock dust on the floor of the tailpiece, which sat on a cement slab. He
observed coal all over the cement slab area with no rock dust underneath it, and he did not find
any rock dust mixed in with the coal accumulations that he shoveled.
17. In order to abate Citation No. 4179895, Mr. Moore worked with another miner to
shovel the areas on both sides and under the tailpiece for 20 to 25 feet. Mr. Moore came onto the
section at about 3:20a.m., and worked with the other miner until about 6:25a.m., until the
25-foot area around the tailpiece was cleaned up. Both men took a 25 minute lunch break.
18. Mr. Moore was also assigned to clean the area around Crosscuts .195 and 196 near
the No. 9 head drive, to abate the violation. He and another miner came from the tailpiece and
began working there at about 6:40 a.m. They worked with three other miners who had been on

1677

the site already, and the five of them worked until 7:30a.m., when the next shift came to relieve
them. These miners were directed by Mr. Porter to continue shoveling further up the belt line
since Mr. Moore and the crew had nearly cleaned up the accumulations around Crosscut 195 and
196. Mr. Moore observed that the accumulations he shoveled in the area from Crosscut 192 (the
drive) to Crosscut 196 were fairly dry.
19. At 10:22 a.m., on June 21, 1996, Inspector Taylor terminated Citation No. 4179895
after the cited accumulations were cleaned up. It took eight or more men on the midnight shift
and ten or more men on the day shift to clean up the accumulations and abate the violation.
DISCUSSION WITH FURTHER FINDINGS. CONCLUSIONS

Violation of Section 75.400
The evidence shows a violation of the safety standard involved, which provides:
Coal dust, including float coal dust deposited on rock-dusted surfaces,
loose coal, and other combustible materials shall be cleaned up and not be
permitted to accumulate in active workings, or on electric equipment therein.
Respondent does not contest that section 75.400 was violated, but contends that the
Secretary failed to prove that the violation was "significant and substantial" ("S&S") and due to
an " unwarrantable failure" to comply within the meaning of section 104(d)(I) ofthe Act.

Significant and Substantial
The Commission has held that a violation is S&S 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 ( 1981 ). In Mathies Coal Company, the Commission delineated a
four-prong test for determining whether a violation is S&S:
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.

Mathies Coal Co., 6 FMSHRC 1, 3-4 (1984); see also Austin Power, Inc. v. Secretary ofLabor,
861 F.2d 99, 103-04 (5th Cir.l988) (approving the Mathies test).

1678

Under the third element of the Mathies test, evaluation of the likelihood of an injury is
made assuming continued normal mining operations. (U. S. Steel Mining Co.• Inc.,
7 FMSHRC 1125, 1130 (1985)) and the relevant time frame includes both the time that the
violative condition existed prior to the citation and the time that it would have existed if normal
mining operations had continued. (Halfway, Inc., 8 FMSHRC 8, 12, (Jan 1986)). "Reasonable
likelihood" as used in the Afarhies test does not mean "a probability greater than 50 percent" or
that the Secretary must prove that it was "more probable than not" that the violation would result
in injury. It simply means that the violation was "reasonably likely" to result in injury.
U.S. Steel Mining Co., Inc., 18 FMSHRC 865 (1996).
The extensive accumulations in this case presented discrete safety hazards of causing a
fire or propagating a fire. Inspector Taylor observed stuck and broken rollers along the No. 9
belt in the areas of the cited accumulations. These could reasonably act as ignition sources. He
also observed a hot bottom belt roller with a missing bearing underneath the No. 9 conveyor belt
in the area of the accumulations at Crosscut 201, as noted in the body of Citation No. 4179895
and listed in Citation No. 4179894. Citation No. 4179894, issued by Inspector Taylor on the
same day, and not contested, indicates that approximately 18 top and bottom rollers were either
broken or stuck along the No. 9 belt. Other citations issued on the same day by Inspector Taylor
and not contested add to the hazards of the loose coal and coal dust accumulations cited in
Citation No. 4179895. (See Gov. Exhs. 2, 3, 4, 5, 6.) The conditions cited in Citation
No. 4179893, issued that morning, increased the hazard of a be~t fire along the No. 9 belt because
holes in five permanent stoppings along the adjacent intake aircourse track entry would allow
smoke from a fire to travel to the other sections.2
The evidence amply supports Inspector Taylor's opinion that in the event of a fire serious
injury was likely due to inhalation of smoke and fire contaminants, and possibly death due to
asphyxiation. As the Court of Appeals for the Seventh Circuit observed in considering a similar
case:
Nor was anything more than [the inspector's] opinion necessary to support
the common sense conclusion that a fire burning in a coal mine would present a
serious risk of smoke and gas inhalation to miners who are present. Indeed, a
brief review of the legislative history of the 1977 Act makes clear that fire is one
of the primary safety concerns that has motivated federal regulation of the coal
mining industry. [Citations omitted.]

J!uck Creek Coal, Inc. v. Secretary ofLabor, 52 F.3d 133, 135 (7lh Cir. 1995)).

2

I Although Inspector Taylor did not detect methane during his inspection of the No.9

belt, he testified that methane emitted at the Windsor Mine was 521, 562 cubic feet per 24-hour
period for the 3'd Quarter ofFY 1996, and this placed the company on 15-day methane spot
checks, pursuant to section 103(i) of the Act.

1679

I find that the violation was reasonably likely to result in a fire or the propagation of a fire
causing death or serious injuries. The violation was therefore S&S under the Mathies test.

Unwarrantable Failure
The Commission has held that a violation is "unwarrantable" within the meaning of
section 104(d)( 1) of the Act if it is due to "aggravated conduct" constituting more than ordinary
negligence. Emory Mining Corp., 9 FMSHRC 1997,2001-2004 (1987). "Unwarrantable
failure" is characterized by conduct such as "reckless disregard," "intentional misconduct,"
''indifference," or "a serious Jack of reasonable care." Rochester & Pittsburgh Coal Co.,
13 FMSHRC 189, 194 ( 1991).
In considering a violation of section 75.400, the extensiveness and duration of the
combustible accumulations, prior notices to the operator, and the operator's efforts to clean up
and prevent accumulations are all important factors in determining whether the violation was due
to an unwarrantable failure to comply. Jim Walter Resources, Inc., 19 FMSHRC 480,485
(1997); and Doss Fork Coal Co., 18 FMSHRC 122, 125 (1996).
The preshift reports revealed significant accumulations along the No. 9 belt from June 13
until June 21, 1996 - the day Inspector Taylor issued Citation No. 4179895. The on-shift
records revealed that only some of the areas had been cleaned. Inspector Taylor's visual
inspection of the belt line on June 21, 1996, revealed significant accumulations along the No. 9
conveyor belt, varying from a few inches deep to as much as 54 inches and spread out along the
length of the No.9 belt. The evidence shows that Respondent failed to take adequate measures
to clean up and prevent the extensive and widespread combustible materials, and 'that the
violative accumulations existed for a substantial period before the date of the citation.
Mine management was well aware of the accumulations along the No. 9 belt prior to the
issuance of Citation No. 4179895. Larry Moore was assigned to do clean up work along the
No. 9 belt on two occasions several days before Citation No. 4179895 was issued. On the first
occasion, he observed that the accumulations were extensive and widespread and that major
spillage problems were caused by two tears in the conveyor belt. One tear was in the center of
the belt. The other tear, which was much longer, was about 5 inches wide, 500 feet long, on one
side of the belt. He reported the accumulations and belt tears to a supervisor on his assigmnent
to clean up accumulations; second, before the date of the citation, Mr. Moore observed that the
center tear had been repaired, but the 500 foot tear had not been repaired and that the
accumulations were extensive and widespread. He reported these conditions to a supervisor, Bob
Talbert, but Respondent decided to delay repairing the belt until the belt was shut down during
the miners' 2-week vacations, which was to begin July 1.
When Inspector Taylor and Mr. Kacsmar met with Supervisor Porter after the issuance of
the citation, Mr. Porter told them that a rip in the belt fabric about 5 inches wide, 500 feet long
caused excessive spillage of loose coal, but that the company was trying to "get by" until the belt
would be shut down for repairs during the upcoming vacation period. Thus, even after its own .

1680

employee, Larry Moore observed the excessive accumulations and belt problems on two separate
shifts a few days before the issuance of Citation No. 4179895, and reported the conditions to two
supervisors, Respondent failed to take the necessary measures to clean up the violative
accumulations and prevent further accumulations. See: Quinland Coals, Inc., 10 FMSHRC 705,
709 (1988) (unwarrantable failure where violative conditions were obvious and extensive, and
operator had knowledge of conditions and history of similar conditions); and Peabody Coal Co.,
14 FMSHRC 1258, 1262-1263 (1992) (unwarrantable failure where the violative accumulations
were "obvious" anq "~xtensive"). The detailed description of the coal dust and loose coal
accumulations in the body of the citation, in InspectorTaylor's notes, and in the testimony of
Inspector Taylor and other government witness establishes that these were extensive and obvious
accumulations. Indeed, the accumulations observed by Inspector Taylor at the tailpiece alone
(70 inches wide, 12 feet, 6 inches long, and 45 inches deep) are similar to the accumulations in
Jim Walter Resources, Inc., 19 FMSHRC 480,487-88 (1997), where the Commission reversed
an administrative law judge' s finding of no unwarrantable failure concerning an accumulation
20 feet by 15 feet and nearly 4 feet deep, which the Commission observed to be both substantial
and extensive.
In addition, before the instant citation was issued, Respondent assigned only one miner
(Larry Moore) to clean up around the No. 9 tailpiece and he had to cover several other belts as
welL The efforts of this one person could be nothing more than an empty gesture in light of the
major accumulations at the tailpiece and the number of man-hours actually required for
abatement of the violative accumulations. See: Peabody Coal Co., 14 FMSHRC at 1262.
I find that Respondent's violation of section 75.400 was due to aggravated conduct
beyond ordinary negligence. It was therefore an "unwarrantable" violation within the meaning
of the Act.

Civil Penalty Criteria
Under section 11 O(i) of the Act, the Commission and its judges assess all civil penalties
under the Act. The Commission or judge is not bound by the penalty proposed by the Secretary.'
Penalties are assessed ~ nQYQ based upon the six criteria provided in section 11 O(i).3 Secretary
ofLabor v. Sellersburg Stone Co., 5 FMSHRC 287 (1983), affd Sellersburg Stone Co. v.
FMSHRC, 736 f.d 1147 (7'h Cir. 1984).

3

/Section 11 O(i) provides: "The Commission shall have authority to assess all civil
penalties provided in this Act. In assessing civil monetary penalties, the Commission shall
consider the operator's history of previous violations, the appropriateness of such penalty to the
size of the business of the operator charged, whether the operator was negligent, the effect on the
operator's ability to continue in business, the gravity of the violation, and the demonstrated good
faith of the person charged in attempting to achieve rapid compliance after notification of a
violation. In proposing civil penalties under this Act, the Secretary may rely upon a summary
review of the information available to him and shall not be required to make findings of fact
concerning the above factors."

1681

The purpose of civil penalties is to deter violations of the Act and safety and health
standards. To be successful in inducing effective and meaningful compliance, "a penalty should
be of an amount which is sufficient to make it more economical for an operator to comply with
the Act's requirements than it is to pay the penalties assessed and continue to operate while not ·
in compliance." S. Rep. No. 181, 95'h Cong., P' Sess. 40-41 (1977), reprinted in Senate
Subcommittee on Labor, Committee on Human Resources, 95th Cong. 2d Sess., Legislative
History ofthe Federal Mine Safety and Health Act of 1977, at 628-29 ( 1978).

Size of the Operator
Respondent is a large operator.

History of Violations
In the 24-month period before the inspection, Respondent's overall history of violations
was moderate. However, its history of violations of30 C.F.R. § 75.400 was poor.

Gravity
The gravity of the violation was very serious. The violation was S&S within the meaning
of the Act.

Good Faith Abatement
After the citation was issued, Respondent made a good faith effort to achieve rapid
compliance.

Ability to Continue jn Business
Payment of the penalty assessed wil1 not adversely affect Respondent's ability to
continue in business.
Ne&dh:ence
The evidence shows that the violation was due to a high degree of negligence and an
unwarrantable failure to comply.

Assessment of Penalty
The Secretary submits that her proposed penalty of$1,200 is inadequate to effectuate the
intent and purpose of the Act with respect to the last factor discussed, negligence. The Secretary
points out that, prior to the issuance of Citation No. 4179895, Inspector Taylor spoke to mine
management not once but nearly a dozen times about the need to clean up accumulations around

1682

the mine's conveyor belts. This last fact, which would not have been known to MSHA' s
assessments office when it was proposing a penalty, is a factor that must be taken into
consideration in assessing a penalty.
Respondent clearly was on notice about the problem but chose to ignore the
accumulations and treat the violation as part of the cost of doing business. As shown in the
Findings of Fact, above, Respondent chose to delay belt repairs and clean up work necessary to
abate the violation until the vacation period began, i.e., when production of coal would cease.
This calculated business- decision demonstrates aggravated conduct far beyond ordinary
negligence. Negligence was high and the violation was "unwarrantable" within the meaning of
the Act.
The record shows that section 75.400 violations began rising well before the issuance of
Citation No. 4179895, nearly doubling from the 2"d to 3'd quarter of Fiscal Year 1995.
Furthermore, all 11 of the recent section 75.400 citations were for coal dust and float dust
accumulations along belt Jines (Gov. Exh. Nos. 9-19), and 2 of the 11 were for violations
specifically along the No.9 belt (Gov. Exh. Nos. 13, 14).
Exhibit R-17 shows that three other section 104(d)(l) citations (unwarrantable violations)
were issued to Windsor Coal Company in the last 24 months for section 75.400 violations. Two
were assessed at $2,000 and one at $1,500. The proposed penalty of$1,200 for the instant
section 104(d)(l) citation is low and out ofline with the others when all the relevant factors of
this case are taken into consideration, especially where the inspector repeatedly spoke to mine
management about the need to prevent belt accumulations and management decided to continue
using the defective belt and not abate the instant violation until an upcoming vacation period,
when production would cease.
Based upon the six statutory criteria, I find that a civil penalty of $4,000 is appropriate for
the violation found above.

CONCLUSIONS OF LAW
1. Respondent' s Windsor Mine is subject to the Act.
2. Respondent violated 30 C.F.R. § 75.400 as alleged in Citation No. 4176895.

1683

ORDER
WHEREFORE IT IS ORDERED that:
1. Citation No. 4179895 is AFFIRMED.
2. Respondent shall pay a civil penalty of$4,000 within 30 days of the date of this
Decision.

cJ~~v~
William Fauver
Administrative Law Judge
Distribution:
Alan G. Paez, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard,
Room 516, Arlington, VA 22203 (Certified Mail)
·
David M. Cohen, Esq., American Electric Power, Service Corporation, Fuel Supply Department,
One Memorial Drive, P. 0 . Box 700, Lancaster, OH 43130-0700 (Certified Mail)
dcp

1684

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

OCT 2 3 1997.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEST 96-184-M
A. C. No. 42-01429-05501 A7C

V.

White Mesa MiJI
ENERGY TRUCKING, INC.,
Respondent

DECISION
Appearances: Kristi Floyd, Esq., Office of the Solicitor, U. S. Department of Labor, Denver,
Colorado, for the Secretary;
Bradley Reber, Vice President, Energy Trucking, Inc., Kanab, Utah, for
Respondent.
Before:

Judge Fauver

This is a civil penalty action under section 105(d) of the Federal Mine Safety and Health
Act of 1977,30 U.S.C. § 801 ~~·
Having considered the hearing evidence and the record as a whole, I find that a
preponderance of the substantial, reliable, and probative evidence establishes the Findings of
Fact and further findings in the Discussion below.

FINDINGS OF FACT
1. Respondent, Energy Trucking, Inc., an independent contractor, is regularly engaged in
hauling uranium ore for Energy Fuels Nuclear, Inc. The W'anium produced from such ore is sold
and used in or with a substantial effect upon interstate commerce.
2. At all relevant times, Respondent was performing a contract to haul uraniwn ore for
Energy Fuels Nuclear, Inc. from a stockpile near Kanab, Utah, to Energy Fuel's White Mesa Mill
processing plant, about 260 miles from Kanab. Respondent hauled uraniwn ore 24 hours a day,
7 seven days a week and employed about 15 truck drivers to haul uraniwn ore. In general, the
employees provided their own trucks, with a lease charge to the company.

1685

3. On October 10, 1995, about 12:10 a.m., Energy Fuel's White Mesa Mill notified
MSHA of a fatal accident that had occurred about 11 :05 p.m., on October 9. A driver,
Ivan F. Dial, employed by Respondent, was run over by an unattended tractor that was rolling
down a grade.
4. Mr. Dial had 5 years, 7 months experience in mining. All of his mining experience
was in the position of a truck driver. He had been employed by Respondent for 1 year, 7 months.
5. Mr. Dial arrived at the White Mesa Mill around 10:50 p.m., with a load of ore from
the stockpile near Kanab. He checked in at the scale house and drove a "dumper tractor" owned
by Energy Fuels. A dumper tractor is a tractor that has been modified to dump a semi-trailer.
6. Mr. Dial disconnected his tractor, hooked up the dumper tractor, and drove to the
stockpile where he dumped the load of ore.
7. He then drove the dumper tractor with the empty trailer back to his tractor, in order to
disconnect the dumper tractor and hook up his tractor to the empty trailer.
8. When Mr. Dial disconnected the dumper tractor from the trailer, the engine was
running, the transmission was in neutral, the parking brakes were not engaged, and chocks were
not placed under the wheels. Although the area where the trail~r was parked was fairly level,
dumper tractor was parked just over the crest of a six percent grade. The tractor started to roll
down the grade. Mr. Dial apparently ran after it in an attempt to climb into the cab to stop the
vehicle. He fell and was run over by the left outrigger wheel. He died about 45 minutes later.

DISCUSSION WITH FURTHER FINDINGS.
CONCLUSIONS
The Secretary has charged three violations:
Citation No. 4665206 charges that Mr. Dial had not received the mandatory training
required for a newly employed experienced miner under 30 C.F.R. § 48.26.
Citation No. 4665207 charges that the dumper tractor was improperly parked on a grade
without setting the parking brakes or chocking the wheels, in violation of 30 C.F.R. § 56.14207.
Order No. 4665208 charges that six employees (besides Ivan Dial) were not given the
safety training required for newly employed experienced miners under 30 C.F.R. § 48.26.
Although Respondent classified its drivers as "lessor-operators" rather than employees,
its answer to the Secretary's Petition does not raise a defense that Respondent was not required to
comply with the Act and safety and health standards promulgated under the Act with respect to
the drivers on the ground that they were not employees. I find that the Secretary proved that they

1686

were employed by Respondent as drivers, despite their classification, that Respondent employed
them in work subject to the jurisdiction of the Act, and that Respondent was required by the Act
to comply with mandatory safety and health standards with respect to the drivers' performance of
such work.

Citation No. 4665206 and Order No. 4665208
The citations and order charge violations for failure to provide training required by
30 C.F.R § 48.26. Section 48.22 provides that a "miner" for the purpose of section 48.26 means
"any person working in a surface mine ... who is engaged in the extraction and production
process, or who is regularly exposed to mine hazards, or who is a maintenance or service worker
employed by the operator or . . . contracted by the operator to work at the mine for frequent or
extended periods."
Respondent's drivers made daily trips to Energy Fuels's White Mesa Mill to transport
and unload uranium ore. This work was frequent and regularly exposed them to mine hazards,
such as radiation, dust, and vehicle and equipment accidents. They were therefore subject to
section 48.26, which provides:

Training of newly employed experienced miners; minimum courses of
instruction.
(a) A newly employed experienced miner shall receive and complete
training in the program of instruction prescribed in this section before such miner
is assigned to work duties.
(b) The training program for newly employed experienced miners shall
include the following:
(1) Introduction to work environment. The course shall include a visit
and tour of the mine. The methods of mining or operations utilized at the mine
shall be observed and explained.
(2) Mandatory health and safety standards. The course shall include the
mandatory health and safety standards pertinent to the task~ to be assigned.

(3) Authority and responsibility ofsupervisors and miners '
representatives. The course shall include a review and description of the line of
authority of supervisors and miners' representatives and the responsibilities of
such supervisors and miners' representatives; and an introduction to the operator's
rules and the procedures for reporting hazards.

1687

(4) Transportation controls and communication systems. The course
shall include instruction on the procedures in effect for riding on and in mine
conveyances; the controls for the transportation of miners and materials; and the
use of the mine communication systems, warning signals, and directional signs.
(5) Escape and emergency evacuation plans; fire warning and
firejighting. The course shall include a review of the mine escape system; escape
and emergency evacuation plans in effect at the mine; and instruction in the fire
warning signals and firefighting procedures.
(6) Ground controls; working in areas ofhighwalls, water hazards, pits,
and spoil banks; illumination and night work. The course shall include, where
applicable, an introduction to and instruction on the highwall and ground control
plans in effect at the mine; procedm es for working safely in areas of highwalls,
water hazards, pits, and spoil banks, the illumination of work areas, and safe work
procedures for miners during hours of darkness.
(7) Hazard recognition. The course shall include the recognition and
avoidance of hazards present in the mine, particularly any hazards related to
explosives where explosives are used or stored at the mine. ·
(8) Such other courses as may be required by the District Manager based
or circumstances and conditions at the mine.

Violation
Under 48.23, the training required by section 48.26 must be approved by MSHA under a
training plan submitted by the mine operator for approval, and must be taught by an instructor
who has been approved by MSHA.
Energy Fuels had an approved training plan and instructors who were approved under
section 48.26. However, Respondent did not have an approved training plan and its drivers had
not been trained under Energy Fuels' plan. Nor were they trained by an instructor approved by
MSHA.
The safety training that Respondent's drivers received did not meet the requirements of
section 48.26 and did not approach the scope, detail, and content of the safety standards training
required by section 48.26.
The Secretary proved a violation of section 48.26 as alleged in Citation No. 4665206 and
Order No. 4665208.

1688

Gravity
The basic purpose of the safety training required by section 48.26 is to ensure that the
employees understand the safety standards that apply to their work and have the necessary
knowledge and skills to apply them in order to avoid accidents. The failure to provide safety
training required by section 28.26 created a reasonable likelihood that the Respondent's drivers
would not have sufficient knowledge of the safety standards and the necessary skills to apply
them in order to avoid accidents. It was therefore reasonably likely that Respondent's violations
of section 48.26 would.result in an accident with serious injuries. Indeed, the fatality in this case
indicates that the driver had not had sufficient training to understand the importance of
complying with the "safety standards pertinent to the tasks assigned," which are required
training subjects under section 48.26(b)(2). The violations were "significant and substantial"
within the meaning of the Act.

Neelieence
The violations of section 48.26 could have been prevented by the exercise of reasonable
care. Respondent's drivers had regular and frequent exposure to mine hazards at Energy Fuel's
White Mesa Mill. Their duties plainly brought them within the coverage of section 48.26. I
conclude that Respondent's violations of section 48.26 were due to ordinary negligence.

Citation No. 4665207
This citation charges a violation of section 56.14207, which provides:

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.
When Mr. Dial left the dumper tractor unattended to unhook it from the trailer, the
parking brake was not set and the wheels were not chocked or turned into a bank. However, the
vehicle was just over the crest of a·six percent grade and was therefore "parked on a grade."
The Secretary proved a violation of section 56.14207 as alleged in Citation No. 4665207.
The violation could have been prevented by the exercise of reasonable care. I find that it
was due to ordinary negligence.
The violation was reasonably likely to result in an accident involving serious injuries. It
was therefore a "significant and substantial" violation within the meaning of the Act.

1689

CIVIL PENALTIES
Civil Penalies
Under section 11 O(i) of the Act, the Commission and its judges assess all .civil penalties
under the Act. The Commission or judge is not bound by the penalty proposed by the Secretary.
Penalties are assessed ~ llQE2 based upon six criteria provided in section 11 O(i): ( 1) the
operator's history of previous violations, (2) the appropriateness of the penalty to the size of the
business, (3) the operator's negligence, (4) the effect on the operator's ability to continue in
business, (5) the gravity of the violation, and (6) the operator's good faith in abatement of the
violation. Secretary of Labor v. Sellersburg Stone Co., 5 FMSHRC 287 (1983), afr d
Sellersburg Stone Co. v. FMSHRC, 736 f.d 1 i47 (71h Cir. 1984).
In evaluating the fourth factor, "in the absence of proof that the imposition of authorized
penalties would adversely affect [an operator's ability to continue in business], it is presumed
that no such adverse effect would occur." Spurlock Mining Company, Inc., 16 FMSHRC 697,
700 (1994), quoting Sellersburg Stone Co., 5 FMSHRC 287. The burden of proof is on the
operator. If an adverse effect is demonstrated, a reduction in the penalty may be warranted.
However, "the penalties may not be eliminated ... , because the Mine Act requires that a penalty
be assessed for each violation." Spurlock Mining,~. 16 FMSHRC at 699, citing 30 U.S.C.
§ 820(a); Tazco.Inc., 3 FMSHRC 1895, 1897, (1981).
Tax returns and financial statements showing a loss or negative net worth are, by
themselves, not sufficient to reduce penalties because they are not indicative of the ability to
continue in business. Spurlock Mining, Inc., 16 FMSHRC at 700, citing Peggs Run Coal Co.,
3 IBMA 404,413-414 (1974).
The purpose of civil penalties is to deter the operator and others similarly situated from
violating the Act and safety and health regulations. To be successful in the objective of inducing
effective and meaningful compliance, "a penalty should be of an amount which is sufficient to
make it more economical for an operator to comply with the Act's requirements than it is to pay
the penalties assessed and continue to operate while not in compliance." S. Rep. No. 181,
95111 Cong., 1st Sess. 40-41 (1977), reprinted in Senate Subcommittee on Labor. Committee on
Human Resources. 951h Con~. 2d Sess, Le~istative Histozy of the Federal Mine Safety and
Health Act of 1977. at 628-29 (1978).
The ability to continue in business in only one of six criteria. Since the other criteria
must also be considered, it would be inappropriate to rule that penalties should be nominal or
reduced by a set percentage whenever an operator establishes that the proposed penalties would
have an adverse effect on its ability to continue in business. Penalties must still be assessed for
each violation, with a deterrent purpose. For example, if an operator is financially unsound and
cannot pay its debts and taxes, section 11 O(i) still does not exempt it from penalties "sufficient to
make it more economical ... to comply with the Act's requirements than it is to pay the penalties
assessed and continue to operate while not in compliance." S. Rep.~·

1690

Respondent's Size. Financial Condition. and Ability to Continue jn Business

At the time the two citations and order were issued, Respondent would be considered a
small to medium sized independent contractor. Respondent operated 5 days a week, 11 to
13 hours a day and employed 15 drivers. Over a 52 week period, this would amount to
50,700 hours of work on its contract business.
By the time of the hearing, Respondent had reduced its drivers to three and was working
about 10,140 hours per year. This activity would be considered a small sized business.
Around January 1966, Respondent had laid off all of its drivers, because Energy Fuels
went into bankruptcy. However, in July 1966, Respondent resumed hauling for Energy Fuels
and went from a 15-truck operation to a3-truck operation. The three trucks are owned by
Bradley Reber, Vice President of Respondent, who leases the trucks to Respondent.
Despite the bankruptcy proceedings by Energy Fuels, Respondent received all past
amounts due from Energy Fuels, about $200,000.
Respondent's tax return for 1995 shows gross receipts of $1 ,342,893 and payments to
"lessor-operators"of $1 ,114,764, i.e., about $74,318 per truck and driver for the 15 trucks
operating in 1995. Taxable income was a negative amount,- $2,309. Respondent is essentially a
"pass through" business whereby almost all of its income passes through the company to one or
more "lessor-operators." Since the hearing, almost all of Respondent's income has been paid to
Vice President Bradley Reber for his lease of three trucks. Mr. Bradley owns 50 percent of the
corporation's stock.
A corporation structured like Respondent's would effectively have an exemption from
civil penalties under the Act if its reported net losses were accepted as proof of an inability to pay
substantial penalties and continue in business. However, net operating losses are not proof of an
inability to continue in business. Also, corporations are reasonably required to maintain
sufficient capital to cover their potential liabilities, including civil penalties, when they work in
an industry that is regulated to protect the public interest in health and safety. Respondent has
not explained its failure to capitalize.
Respondent is a small sized business. I find that Respondent has failed to meet its burden
of proving that the proposed civil penalties of$12,000 would adversely affect Respondent's
ability to continue in business. I also find that the proposed penalties are appropriate to the size
of the business.
Nealipnce apd Grayjty of the violations

. I have considered and made·findings with respect to these factors.

1691

Good ·Faith Abatement and Histoo of Violations
As to each of the violations, Respondent demonstrated a good faith effort to achieve rapid
compliance after notice of the violation. Respondent's history of prior violations does not
indicate a basis for raising or lowering the civil penalties.
Considering the six criteria for civil penalties in section 11 O(i) of the Act, I find that the
proposed civil penalties are reasonable and warranted by the evidence. Accordingly, Respondent
is assessed the following Civil penalties:
Citation/Order

Civil Penalty

4665207
4665206
4665208

$6,000
5,000
1,000
CONCLUSIONS OF LAW

1. Respondent 's business is subject to the Act.
2. The Secretary proved the violations alleged in Citation Nos. 4665206 and 4665207
and Order No. 4665208.
ORDER
WHEREFORE IT IS ORDERED that:
1. Citation Nos. 4665206 and 4665207 and Order No. 4665208 are AFFIRMED.
2. Respondent shall pay civil penalties of $12,000 in three consecutive monthly
installments of $4,000 each, due on the first day of each month, beginning December 1, 1997.
Provided: If Respondent fails to pay any installment when due, the total amount remaining shall
be due immediately with interest accruing from the default date until the remainder of the penalty
is paid. The applicable interest rates will be the rates announced by the Commission's Executive
Director.

{()~~~
Willaim Fauver
Administrative Law Judge

1692

Distribution:
Kristi Floyd, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway,
Suite 1600, Denver, CO 80202-5716 (Certified Mail)
Bradley Reber, Vice President, Energy Trucking, Inc., P. 0. Box 51, Kanab, UT 84741 (Certified

Mail)
dcp

1693

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

~OCT 2 7 1997
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. WEV A 97-95
A. C. No. 46-01286-03985

WINDSOR COAL COMPANY,
Respondent

Windsor Mine
DECISION

Appearances: Alan G. Paez, Esq., Office of the Solicitor, U.S. Department of
Labor, Arlington, Virginia, and Lynn Workley, Conference and
Litigation Officer, for the Petitioner;
David A. Laing, Esq., Porter, Wright, Morris and Arthur,
Columbus, Ohio, for the Respondent.
Before:

Judge Koutras
Statement of the Case

This proceeding concerns proposals for assessment of civil penalties filed by the
petitioner against the respondent pursuant tp section llO(a) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 820(a), seeking civil penalty assessments for alleged violations
of mandatory safety standards 30 C.F.R. § 75.364(b)(2) and 75.400. The respondent filed an
answer contesting the alleged violations, and a hearing was held in Wheeling, West Virginia.
One of the violations (75.364(b)(2)) was settled, and testimony and evidence was received with
respect to the remaining violation. The parties filed posthearing briefs, and I have considered
their respective arguments in my adjudication of this matter.
A~~licable Statutozy and Reiulator.y Provisions

I. The Federal Mine Safety and Health Act of 1977, Pub. L. 95-164, 30 U.S.C.

§ 820(i) kt s.e_Q.

.

2. Section IIO(i) of the 1977 Act, 30 U.S.C. § 820(i).

1694

3. 30 C.F.R. § 75.364(b)(2) and 75.400.
4. Commission Rules, 29 C.F.R. § 2700.1 '-\ ~·

The issues presented in this proceeding are ( 1) whether or not the respondent violated the
cited mandatory safe~y standard; (2) whether the violation was significant and substantial (S&S);
(3) whether the violation was the result of the respondent's Wlwarrantable failure to comply with
the cited safety standard; and (4) the civil penalty to be assessed for the violation taking into
account the civil penalty assessment criteria foWld in section 11 O(i) of the Act.
Stipt!lations
The parties stipulated to the following (Exhibit ALJ-1 ) :
1. The Administrative Law Judge and the Federal Mine Safety and Health
Review Commission have jurisdiction to hear and decide this civil penalty
proceeding pursuant to Section 105 of the Federal Mine Safety and Health Act of
1977.
2. Windsor Coal Company is the owner and operator of the Windsor Mine.
3. Operations of the Windsor Mine are subject to the jurisdiction of the Act.
4. Windsor Coal Company may be considered a large mine operator for purposes
of30 U.S.C. § 820(i).
5. The maximum penalty which could be assessed for this violation pursuant to
30 U.S.C. § 820(a) will not affect the ability of Windsor Coal Company to remain
in business.
6. MSHA Inspector Lyle R. Tipton Wei$ acting in his official capacity as an
authorized representative of the Secretary of Labor when he issued Order
No. 3501233. ·
7. A true copy of the Order listed in paragraph 6 was served on Windsor Coal
Company or its agent as required by the Act.
8. The Order listed in Paragraph 6 is authentic and may be admitted into
evidence for the purpose of establishing its issuance and not for the purpose of
establishing the accuracy of any statements asserted therein.

1695

9. The order listed in Paragraph 6 has not been the subject of previous review
proceedings.
10. MSHA's Proposed Assessment (Form 1000-179 (MSHA)) contained in
Exhibit A attached to the Secretary's petition accurately sets forth:
(a) The size of American Electric Power Company in production
tons or ho~s worked per year.
(b) The size, in production tons or hours worked per year, of the
coal or other mine at which the citations and/or orders at issue in
this proceeding were issued.
(c) The total number of assessed violations for the twenty-four
(24) months preceding the month of the referenced citation and/or
order.
(d) The total number of inspection days for the twenty-four (24)
months preceding the month of the referenced citation and/or
order.
Discussion
Section 104Cd)( 1) non-"S&S" Order No. 3 723270, 1:15 p.m., September 19, 1996, cites
an alleged violation of 30 C.F.R. § 75.364(b)(2), and the condition or practice states as follows:
The 101(c) petition for modification which was granted on 10-26-94, in lieu ofthe
required examination of the North Mains right side return was not being complied
with.. The record books required by the petition shows that the daily examinations
were not being conducted on Saturdays and Sundays when persons, other than
certified examiners, are working in the part of the mine ventilated by the 44
Hollow fan, or the shift prior to persons working in the part of the mine ventilated
by the 44 Hollow fan. These required daily examinations are supposed to be
conducted by a certified person as required by 101(c) petition No. M-93-279-C.
By motion filed pursuant to Commission Rule 31, 29 C.F.R. § 2700.31, immediately
prior to the hearing , the parties proposed to settle this violation. The initial proposed penalty
assessment was $1 ,000.00, and the respondent agreed to pay a penalty assessment of$500.00, in
settlement of the violation.
In support of the proposed penalty reduction, the petitioner's counsel submitted a full
discussion and disclosure as to the facts and circumstances surrounding the issWll'!ce of the order
in question. Counsel stated that he obtained additional information concerning the factual

1696

circumstances !'Urrounding this violation as they relate to the operator's negligence. Specifically,
counsel stated that he learned that during MSHA's investigation before the granting of Petition
M-93-279-C, as well as after it was granted, the respondent and MSHA had expressed their
beliefs as to what circumstances would require daily examinations to take place and what would
trigger an examination of the South Seals area, based on the location of miners in the ·other parts
of the Windsor Mine ventilated by the 44 Hollow fan. These expressed beliefs were not clearly
delineated so as to eliminate any misunderstandings by the parties. Accordingly, counsel
asserted that the parties agree that the respondent's negligence is mitigated and that the proposed
penalty assessment reduction is warranted. Under the circumstances, the petitioner requested
that the order be modified to a section 104(a) citation, with a "moderate" degree of negligence.
After careful consideration of the arguments in support of the motion to approve the
proposed settlement, I conclude and find that the proposed settlement disposition is reasonable
and in the public interest. Accordingly, pursuant to 29 C.F.R. § 2700.31, the motion IS
GRANTED, and the settlement IS APPROVED.
Section 104(d)( I) "S&S" Order No. 3501233, 11 :30 a.m., Sept~mber 19, 1996, cites an
alleged violation of 30 C.F.R. § 75.400, and the condition or practice is described as follows:
An accumulation of combustible material consisting of float coal dust, very dark
black in color, loose coal spillage, spillage of fine dry loose coal and coal dust in
contact with the conveyor belt and bottom structure rollers along the mains
10 mother belt entry on the structure, rockdusted surfaces of the mine floor, roof
and ribs, and connecting crosscuts left and right of the entry. The total distance of
this 6,000 foot long entry containing float coal dust was 3,600 feet. The float coal
dust started at the belt drive and extending inby to 260 stopping. Spillage ofloose
coal and fine dry loose coal was present under the majority of the bottom belt and
in contact with the bottom rollers.

At 254 stopping one conveyor belt bottom structure roller had bearings clear out
of the roller, visual signs of heating up and was in contact with spillage with
heavy accumulations of float coal dust present.
At 268 stopping spillage of loose coal was present aiong the left walkway for a
distance of 50 feet in length, one foot deep and one foot wide.

At 275 stopping spillage 20 feet long, 3 feet wide, and 2 feet deep in contact with
rollers.
·At 276 stopping spillage was 10 feet long, 3 feet wide and 2 feet deep.
248 stopping, spillage 1 foot deep, I foot wide and 80 feet long.

1697

These conditions for the most part were being carried as reported in the mine
record books and would have taken days to accumulate -to the degree described in
this action.
Petitioner's Testimony and Evidence
MSHA Inspector Lyle R. Tipton, testified as to his experience and training and confirmed
that he inspected the mine on September 19, 1996, and issued the disputed order. He stated that
company representative Jim Fodor and UMWA safety committeeman Bill Cox accompanied him
during his inspection. He explained that he reviewed the September 16 to 19, 1996, preshift and
onshift reports for the number 10 belt prior to his inspection, and noticed a large number of
entries made for conditions that were noted as reported and uncorrected (Tr. 19-25; Exhibit P-1 ).
Mr. Tipton stated that he began his inspection at the number 10 conveyor belt drive and
then walking toward the number 11 belt. He immediately observed accumulations of float coal
dust, "very dark black in color" at the belt drive and other locations along the belt as described in
his order, including heavy coal spillage ranging from 20 to 80 feet in length at various belt
locations, and some of the spillage was in contact with the bottom belt structure ro1ler or
conveyor. He also observed accumulated coal "fines" deposited under the belt, and they were in
contact with the bottom belt. He estimated that 50 percent of the length of the belt line, or
approximately 3,000 feet, was covered with float coal dust and spillage ranging from "inches
upwards to an average of two feet." The coal "fines" under the belt ranged from 4 to 6 inches.
He stated that he and Mr. Fodor agreed to the depth of the accumulations and counted the bed
rails for the length (Tr. 26-29).
Mr. Tipton confirmed that he collected one sample of the fine dry coal dust at a defective
bottom roller location to substantiate that it was coal dust, but he either "misplaced the sample or
the lab never sent me the results back" (Tr.29). He determined that the accumulations were dry
~y sweeping the float coal dust that was present on the belt structure with his hand causing it to
fly in suspension, and kicking the bottom accumulations. He stated that the coal fines under the
belt were in contact with the bottom belt and rollers, and that the spillage along the belt would be
in contact with the ends of the bottom rollers (Tr. 30).
Mr. Tipton stated that the belt was equipped with a point type fire sensor system, backed
up by a water deluge system at the belt drive. He believed this was the least effective "old type "
system for extinguishing a fire, and it did not include CO monitors. He observed no rock dust on
top of any of the accumulations, but did see rock dust under the accumulations at some locations.
He confirmed that he walked the entire length of the number 10 belt and issued a violation for
obstructed walkways or travelways at numerous conveyor locations and a violation for
unsupported roof in several conveyor locations. He further stated that a mine examiner is
required to travel the belt areas each shift, and that he observed four persons working along the
belt during the inspection (Tr. 30-35).

1698

Mr. Tipton stated that he based his "significant and substantial" finding on the fact that
the combustible coal accumulations were present near a very.likely frictional ignition source,
namely, a deteriorated bottom belt rolJer "with the bearings blown out of it." The roller was in
direct contact with fine dry coal dust and float coal dust. He·believed the coal dust
accumulations created "a hazard of a possible fire and/or ignition, and he explained that the belt
was "dragging on coal fines that were dry and located in the majority of that 3,000 foot area,"
creating a source of friction. He also believed it was obvious from his observation that the
deteriorated roller bearing was heating under load (Tr. 35-37). He further stated as follows at
(Tr. 111):
·

A. I specifically addressed that roller because it was pointed out to
mine management as a highly likely or reasonably likely ignition
source due to the fact that the bearings were failed and visible signs
of heating were present on that particular rolJer, and it was in direct
contact with fine, dry coal and coal dust.
Mr. Tipton was of the opinion that there was far in excess of enough accumulations of
very dark black and thick coal dust and float coal dust present along the belt to cause and
propagate a fire. In view of the deteriorated roller that he observed, he believed it was
reasonably likely that a belt fire would have occurred if normal mining had continued (Tr. 39). If
this were to occur, he further believed that the four miners he observed working along the belt
would have to escape using their rescue apparatus because there was no primary adjacent
escapeway along the belt. They would also be exposed to the effects of any smoke, and would
have to travel to the track or adjacent entry using their personal protective devices in order to
obtain their breathing apparatus to escape from the mine (Tr. 40-42).
Mr. Tipton explained his high negligence and unwarrantable failure findings as follows at
(Tr. 43-44):
A. My initial observations from the preshift mine records book
which indicated that a large number of conditions were present
along this conveyor and there's no reported corrections in this
book.
My inspection immediately following that, I found larger
accl:lfl1ulations of combustible material which had obviously taken
some time to accumulate to that degree, placing both of the preshift
record books and my personal observations, I determined that it
caused an unwarrantable failure and the mine operator to comply
with Title 30, CFR 75.400.

• • • •
1699

A. As the coal is transported out of the conveyor belt it's wet. The
fine particles that exist in that coal will stick to the conveyor belt.
As that conveyor belt travels back or on its return trip of the
bottom of the belt, the normal air currents of the mine dry these
fine particles out. As the bottom rollers and/or vibrations strikes
the bottom belt, it causes these particles to drop to the mine floor
under the mine belt.

Q. And it takes a great deal of time for those accumulations to
build up then?
A. Yes, sir. You've got a belt there that's 6,000 feet in length, so
it has a 6,000-foot return belt also. That' s a long area for these
fines to travel and become deposited.
Now, once they have reached as I observed four to six inches in
depth, several days and/or shifts have went by to accumulate to
that degree.

Q. Is it possible that the accumulations you observed along the
Number 10 belt could have accumulated in one shift?
A. No, it' s impossible.
Mr. Tipton believed the coal spillage was caused by a misalignment of the belt and stated
that "it takes time to build up" the accumulations under the belt. He further believed that the
accumulations resulted from a lack of regular maintenance. He stated that the violation was
entered in the preshift book for September 19, 1996, and also believed that the same conditions
were noted as early as September 16 (Tr. 46). He identified Exhibits P-4 through P-9 as copies
of prior coal accumulations violations of section 75.400, from June to September 3, 1996 (Tr. 4748). He confirmed that he has inspected the mine since 1978, and has cited the belt many times
for violations of section 75.400, and he was of the opinion that this constituted a poor
compliance record. He stated that he and Mr. Fedor discussed the coal accumulations as they
traveled, and Mr. Fedor offered no explanations. The order was terminated on the next shift by
Inspector James Jeffers (Tr. 50-51).
On cross-examination, Mr. Tipton reiterated his reasons for issuing the order as follows at
(Tr. 52):
A. The conditions were -the determination for the issuance of
the (d) action was determined first by the examination of the preshift mine record book which indicated that a large nwnber of
conditions were present along the Number 10 conveyor belt.

1700

.A follow-up personal inspection of that area and observing
conditions identical to or very closely to identical to the same
conditions listed in the book were present along the conveyor belt.
These conditions, based on my experience, they appeared to have
existed for a large number of days or time; and, therefore, I
determined that to be an unwarrantable failure to permit these
conditions to exist for that length of time.
Mr. Tipton confirmed that he arrived at the belt drive area sometime between 8:00 and
9:00 a.m., and made his unwarrantable failure decision to shut the belt down at ll :30 a.m. (Tr.
53). The belt was not running when he arrived at the area, but four men were working spreading
rock dust (Tr. 55).
Mr. Tipton stated that he was not aware that a bulk duster had been assigned to the
Number l 0 belt for the shift in question, and before deciding to issue the order he did not check
to ascertain the work assignments for that belt on the September 19, day shift. However, when
he arrived on the surface the safety committee gave him a copy of the "safety run," and Mike
Roxby discussed with him the work that had been done on the belt the previous day, and
mentioned that four men were working on the belt (Tr. 57). He conf)nned that he did not ask to
review the work assignments for the September 19, day shift (Tr. 59). He was not aware that a
rock duster had "flipped a rail" and had not yet arrived at the belt area when he inspected it (Tr.
62).
Mr. Tipton stated that during the course of the AAA inspection, he and Inspector Jeffers
had inspected 11 of the 14 main mine belts. During the three days prior to September 19, they
inspected the number 8, 9, 10, and 4B belts, for a distance of 14 miles. During this four-day
inspection period, only one violation was issued for a violation of section 75.400 (Tr. 66).
Mr. Tipton confirmed that during this time the mine experienced an area of unstable roof at the
number 10 belt "which they managed to control to some degree and remain in production" (Tr.
67). He described the event as follows at (Tr. 67-68):
A. It was rails loading up, blowing down. A portion of the area
had failed. The remainder of the belt sticking through was, oh, I'm
going to guess, ten feet that was unstable or dangered off roof
immediately in by that area. There was roof material down, and it
was fairly extensive. They opened the breakthrough and brought a
scoop car in and cut the belt and scooped the majority of that out
after the stoper bolting.
Mr. Tipton confirmed that he would have reviewed the preshift and onshift books for the
number 10 belt prior to entering the mine on September 19, but he could not state with certainty
if he reviewed the entries further back than one day prior to that date. He further ~xplained some
notations that he made on his notes from his review of the examination books, including his

1701

notations concerning the cited accumulations (Tr. 70-74). He further explained as follows at
(Tr. 74-76):
If I find accumulations of float coal dust over a large or extensive
area and these accumulations have built up to a significant
magnitude to where there are heavy accumulations of float coal
dust neglected by mine management, yes, it would be a
contributing factor in my determining that it was an unwarrantable
·
failure.
Q. In this particular case, was it?
A. Yes, it was.

Q. Where on the preshift report for the day shift of the Nineteenth
is that specific condition?
A. "Needs cleaned, needs dusted, needs cleaned and coal
spillage," these are all mine examiner terms indicating that we
have accumulations of combustible materials along the conveyor.
Q. So, basically, you looked at every entry on the preshift and
determined that each one of those was a reference to the float dust
that you cited?
A. Each one of them indicates specifically "needs cleaned, needs
dusted." Like, for instance, in here if you see "needs bolts spotted"
and you see parenthesis below "needs bolts spotted," all the
numbers to the left of that are the locations that bolts need spotted.
Now, when you see "needs cleaned, needs dusted, needs cleaned,"
parenthesis below that, all the numbers to the left of it, "OW'' or
WW'' mean "opposite walk" or "walk side," these are the areas that
are needing cleaned or needing dusted.

Q. So your conclusion was that the conditions that you've cited in
your order are contained - - every one of those is contained on the
day shift preshift examiner's report for the Nineteenth?
A. I'm convinced that they are very similar if not identical in
nature, yes.

1702

Mr. Tipton confirmed that there is no methane at the cited belt location (Tr. 113). He also
confirmed that the belt was idle .and that the cited roller at stopping number 254 was not hot at
the time of his inspection. However, he observed that the rolJer "showed evidence" that it was
hot at one point in time, and he explained as follows at (Tr. 114):
A. Yes, you could see where the metal began to melt from the
field bearing and under continued normal mining operations, that
thing would have definitely heated up and been a potential ignition
source.
Mr. Tipton confirmed that the walkway obstruction and roof support violations that he
issued during his September 19, inspection were section 104(a) citations. Although the
conditions were noted in the preshift books, he did not consider them to be unwarrantable for the
following reasons (Tr. 125):
A. Areas like that are frequently marked or dangered off.
Obstructions to the walkway, although they may be present, don't
necessarily constitute an unwarrantable failure. It depends on the
magnitude of these obstructions, whether there's been any
evidence of persons trying to correct.
I think you '11 find here in one area of my notes where it says some
visible evidence of cleaning or shoveling in this area. I believe that
was in reference to a walkway obstruction cleaning, if I'm not
mistaken. Like I say, it goes back some time.
Mr. Tipton stated that the respondent has a poor compliance history compared to other
mines in his inspection area. He stated that violations of section 75.400 "are commonplace at
that mine, and they're commonplace on the conveyor belts at that mine in particular, and have
been that way for years and years and years" (Tr. 126). He acknowledged that the respondent
received a reclamation award but he was not familiar with its MSHA safety ranking (Tr. 127).
William R. Cox, testified that he is employed by the respondent and serves as a union
safety committeeman. He participated in a union "safety run" on September 3, 1996, on the
number 8, 9, 10 belts, and he was accompanied by union president and safety committeeman
Roger Sparks, ru1d respondent's safety director Chuck Kellman. He identified Exhibit P-1, as a
list of safety hazards observed at that time that was typed up from a rough draft of the items
noted. He stated that the entire number 10 belt needed cleaning and dusting on September 3, and
there were some bad rollers and stands. A bottom roller in one area that had caused a fi.re was
removed during that run. The roller at the 252 crosscut had a missing bearing and the fine coal in
the area ignited due to the friction (Tr. 137-141). He stated that "there was a lot of fine coal that
had accumulated under the belt in several areas over a period of shifts" (Tr. 141 ) . ..

1703

Mr. Cox stated that he accompanied Inspector Tipton during his September 19, 1996,
inspection of the number 10 belt, and it was running when the inspection started but was shut
down because of a problem on another belt. He described what he observed as follows at
(Tr. 142-143):
A. . We observed the belt from the discharge area to 260 crosscut, it
was blackened in color and had float dust along it and we had
bottom rollers that were frozen from fine coal being packed around
them, and we had some rollers bad, some stands that were cut in
two, and we had some areas that needed bolted or posted.

We had some men working on the belt, and the condition was-like I said, the 260 crosscut, 227 needed dusted but inby was
dusted and clean.
Mr. Cox stated that the accumulations under the belt did not result form a recent coal spill
because they were under the bottom rollers extending the width of the belt, and spillage would
occur only at the belt edges. He observed the presence of ignition sources, and described them as
dry coal fines under the bottom belt, and broken or stuck rollers consisting of dry fine coal that
had "caked" around the roller. He believed the accumulations could have created a mine fire or
an explosion (Tr. 145).
Mr. Cox was ofthe opinion ~at the conditions ofthe number 10 belt on September.3, and
19, "were equal." He stated that "there had been work done but it really-- the overall
maintenance was basically the same" (Tr.145). He described the work that had been done as
rock dusting from crosscut 260 toward crosscut 289, which was the area from the middle of the
belt towards the tail, and some repair work that was done in other areas (Tr. 146).
On cross-examination, Mr. Cox stated that other safety committee members made a
safety run on the number 7 belt on September 3, and all of these inspections were in response to
the safety committee's raising the issue of the condition of the belts with management. He
confirmed that the notation "area between discharge and take-up needs cleaned" on Exhibit P-1 0,
refers to an area of approximately 100 feet, and it is the only notation on the list referring to areas
that needed to be cleaned on the number 10 belt (Tr. 150).
Mr. Cox confirmed that he discussed the results of his belt and haulage inspections with
mine superintendent Joseph Matkovitch. He also reviewed th~ actions taken by management to
address the items that needed attention, and confirmed that his notes reflect the corrective actions
that were taken. He could not recall telling Mr. Matkovitch that he was pleased with the progress
of the corrective actions taken by management (Tr. 151-15 3).
Mr. Cox stated that he provided Mr. Tipton with a copy of his inspection list (Exhibit PI 0) on the mine surface on September 19, after his inspection. Mr. Cox discussed'some of his

1704

notations indicating some of the work that was done to address the items on his list (Tr. 155157). He confirmed that just prior to the inspection on September 19, by Mr. Tipton, he recalled
that Inspector Jeffers complimented safety manager Roxby about the conditions of the mine belts
(Tr. 159). He confirmed that on September 19, the area from crosscut 260 to the tail had been
rock dusted (Tr. 159).
Mr. Cox stated that there are a significant number of weekends devoted to belt work on
overtime, and that 25 miners have been recalled in 1997, and some in 1996, and a lot of these
men were assigned to the belts (Tr. 160). He confirmed that the respondent annua11y receives
one of the best safety rankings of the major national coal producers (Tr. 161).
In response to further questions, Mr. Cox stated that the overall condition of the number 8
and 9 belts on September 3, were the same as the number 10 belt that day. After reviewing
Exhibit P-1 0, he stated that other than cleaning the walk side at stoppings 273 to 278 on
September 18, and dangering off and roof bolting a fall at stopping 274, there is no indication of
any other work on the number 10 belt between September 14 and 18, 1996 (Tr. 162). He stated
that management never indicated to him that any other work had been done on the number 10
belt between September 14 and 18, 1996, to address the items listed on Exhibit P-10 (Tr. 163).
Mr. Cox stated that the notations regarding the items listed are confined to work done on
those items, and it was possible that other work was being done on the number 7, 8, and 9 belts
during this same time frame (Tr. 165). Mr. Cox commented on several additional notations
made on the list, and he agreed that some of the conditions noted were addressed at some time or
other (Tr. 167-173). Mr. Cox was not aware of any injuries or fatalities associated with coal
accumulations at the mine (Tr. 173).
Mr. Cox acknowledged that coal spillage does occur along the sides of the belt when the
belt is running, but that coal accumulations over a period of time would be located under the
middle of the belt, and wi11 accumulate to the point where they will be in contact with the bottom
belt or packed around the rollers and sometimes "freeze" or prevent the rollers form turning. The
spillage noted by Inspector Tipton at the 248, 254, 268, 275, and 276 stoppings could have
occurred days or shifts earlier, or the last time coal was run on the belt (Tr. 176). Coal spillage is
normally hand shoveled while the belt is running during production or idle shifts (Tr. 177).
Jimmy W. Welch, employed by the respondent as a longwall shield man for eight years,
testified that he was familiar with the mine belts, including the number 10 belt, and that he
maintained them when he worked as·a beltman and shuttle car operator. He stated that he
worked on the number 10 belt on September 19, 1996, on the afternoon shift when the order was
issued, and he was assigned to help clean it up. He stated that six union and two management
people were cleaning belt rollers and under the belt take-up unit. He described the coal
accumulations as "dry on top and wet further down." In his opinion, the coal that he cleaned up
consisted of accumulations and not spillage. In response for an opinion as to how long it would
take for the accumulations to occur, he stated "just coming back on the take-up; cOming back on

1705

the bottom rollers" (Tr. 184). Mr. Welch stated that he worked one and half to two hours
cleaning and rock dusting, and that 15 to 18 other miners were also cleaning the number 10 belt
by shoveling the bottom roller stands and the accumulations (Tr. 185-186).
Mr. Welch stated that when he arrived at crosscuts 247 to 249, he observed ..some
accumulation but it wasn' t bad." He also observed "a few" bottom rollers in contact with the
accumulations, "but most of them were clear." He considered the coal under the belt to be
accumulations rather than spi llage, and speculated that it may have taken "a few shifts" to occur.
He also observed float dust on the belt rails and in the breakthroughs, and stated that the area
needed to be rock dusted. He observed some black places, and described the area as "dull,
grayish color. It wasn't real white like it had been rock dusted" (Tr. 188). In his opinion, the
conditions were the result of a lack of maintenance often enough to stop the accumulations.
In response to several bench questions, Mr. Welch stated that he had never previously
worked the number 10 belt area and that he was assigned to clean the belt as part of the
abatement crew after the section was shut down by Mr. Tipton's order (Tr. 189). He finished his
work cleaning and shoveling three-to four breaks at 11 :30 p.m., and that he observed miners on
three other sections were also shoveling (Tr. 191-192).
Roger E. Sparks, employed by the respondent as an electrician for 14 to 15 years, testified
that he is president of the UMWA local union, and serves on the grievance and safety
committees. He stated that he initially observed the condition ofthe number 10 belt when he
arrived there at approximately 10:00 p.m. on September 19, 1996, to accompany inspector James
Jeffers who was there to inspect the belt and abate the order. He stated that 20 to 30 people were
working and shoveling the belt, and that the order was terminated shortly after 11 :00 p.m., after a
..lot of work" was done cleaning and dusting the belt, and after Mr. Jeffers examined the belt and
found it in order (Tr. 193-196).
On cross-examination, Mr. Sparks stated that he was not present when Mr. Tipton
inspected the belt and issued the order on September 19, 1996. He confirmed that he was present
when the union safety committee inspections were made on the number 8, 9, and 10 belts on
September 3, 1996. He explained that the belts were examined at that time in response to a letter
sent to MSHA by a union member who described the conditions of the belts as "bad and
horrible." However, the letter was rescinded after the inspections revealed that many of the
conditions "were not as bad as we was led to believe" (Tr. 199).
Mr. Sparks identified Exhibit R-21, as the notes made by safety committeeman Cox
during the September 3, 1996, belt inspection, and Exhibit R-22 as the notes he made during that
inspection. He confirmed that he walked one side of the number 10 belt, and Mr. Cox walked
the other side. He stated that the condition of the mine top was the "biggest problem" noted
during that inspection. He reiterated that he had no knowledge of the number 10 belt conditions
observed by Inspector Tipton on September 19, 1996, and only observed them when he was with
Mr. Jeffers during his abatement inspection (Tr. 201-205)
·.

1706

MSHA Special Investigator James L. Jeffers, testified that he inspected the number 10
belt line on September 19, 1996, after mine superintendent Matkovitch summoned him to the
mine to abate the order issued by inspector Tipton. He observed 15 to 20 people shoveling,
cleaning, and rock dusting the belt, and confirmed that he terminated the order at 11 :30 p .m.,
after the work on the belt was completed. He was of the opinion that the number of people
working to abate the conditions indicated that there were a lot of coal accumulations. The
number of people could also indicate that the respondent wanted the conditions corrected in a
hurry. He confirmed that he did not see the belt conditions when Mr. Tipton initially inspected
the belt and issued his order. He confirmed that the order was issued at 11 :30 a.m., and he
terminated it at 11 :30 p.m. (Tr. 206-213).
On cross-examination, Mr. Jeffers stated that if the ·number 10 belt is shut down there is
no way to transport coal out of the mine from the other sections. He confirmed that there was a
shift change between the time the order was issued and his arrival at 8:30 or 9:00p.m. (Tr. 214215). He assumed that he had inspected other belts at the "44 hollow" mine area a day or two
prior to September 19, and could not recall issuing any accumulations violations on those belts.
He did recall that the belts "were in pretty good condition" (Tr. 216).
Inspector Tipton was recalled, and distinguished coal "spillage" and coal
"accumulations" as follows (Tr. 219-220):
THE WITNESS: Spillage that's been left over a long period of time would then
be classified as accumulation. Spillage that just occurs is something that could
normally happen. Along the belt drive of whatever and you would have spillage
which is a natural occurrence or something that you deal with routinely and on the
spot.
JUDGE KOUTRAS: Like at 276 stopping, spillage was ten feet long, three feet
wide and two feet deep. Now, is that spillage?
THE WITNESS: That would be spillage that was left instead of being cleaned up.
That's normal1y evidenced when you can see that spillage is-- that accumulation
of float coal dust on top of it or if you can see evidence where they've rock dusted
over the top of the spillage, then you know that it' s been at that time allowed to
accumulate and it' s not just spillage. ·
Respondent' s Testimony and Evidence
Charles R. Kellam, respondent' s Director of Human Resources, testified that he has been
so employed for 15 years and is a certified miner and mine supervisor. He is responsible for
safety, training, and labor relations and supervises two people in mine safety and training
matters. He stated that the respondent received a 1996 State of West Virginia safety recognition
for an outstanding safety record for mining over 30 million tons of coal with no fatatities, and a

1707

company safety award for conducting the safest mining operation. In 1996, the parent company
was ranked number three in safety nationwide, and the last fatality at the Windsor mine occurred
in 1957 (Tr. 221-223).
Mr. Kellam stated that the mine employs 140 hourly miners in its underground
operations, and has 45 surface employees. He stated that the safety committee has four miner
members and that he interacts on a regular basis with that committee. He stated that the mine has
12 belt lines that are use9 to transport coal out of the mine, and that the number 10 belt line
extends from crosscut numbers 227 to 289 as shown on the mine map (Exhibit R-1) (Tr. 228).
Mr. Kellam stated that in September 1996, he discussed the condition of the number 10
belt with union representatives Cox and Sparks. They decided to examine the mine belts after a
letter was written to MSHA critical of the mine belt systems. The inspection took place on
September 3, 1996, and they examined the number 8, 9, and 10 belts. He identified Exhibit R-3,
as his notes of the inspection, and he recalled that Mr. Sparks commented that he was impressed
that the belt systems "were as good as they were compared to what he had been led to believe by
other people" (Tr. 231 ).
Mr. Kellam stated that there were no problems with coal spillage or float coal dust on the
number 10 belt on September 3, 1996 (Tr. 232). He identified Exhibit R-4, as a summary ofthe
work done on the number 10 belt from September 10 through 1.9, and Exhibit R-5, as a roof fall
report prepared by Mr. Roxby on September 12, concerning a fall on the number 10 belt (Tr.
235). He stated that the fall had an impact on the day-to-day work on the number 10 belt (Tr.
236).
Mr. Kellam stated that in May 1994, the mine had a major reduction in force of one-third
of its employees due to the loss of a production contract, and approximately 75 miners were laid
off. However, 40 to 45 were called back when another contract was received, and he identified
Exhibit R-6 as a list of eight miners recalled on August 13, 1996, who were assigned primarily to
work on the belt systems (Tr. 236-237). Mr. Kellam stated that three days prior to the September
19, 1996, order issued by Mr. Tipton, major belt inspections were conducted by Mr. Tipton and
Mr. Jeffers, and no violations of section 75.400 were issued (Tr. 238).
On cross-examination, Mr. Kellam was of the opinion that the number 8, 9, and 10 belts
were in good condition when the September 3, 1996, belt inspections were conducted. One hot
roller was discovered, but the belt was shut down immediately and the roller was changed
out (Tr. 239). He stated that the roof fall in question occurred at 6:38a.m., on September 12,
1996, over an area 25 feet by 17 feet by 6 feet thick, and was cleaned up several days later
(Tr. 241). He explained the work that is reflected on Exhibit R-4, as follows at (Tr. 243-245):

Q. So if someone gets a work assignment sheet, and they say
they've completed work along, say, the 257 crosscut and the
240 crosscut, how would you know that work has been done in that
particular shift to record in the on-shift book?

1708

A. Well, the foreman that had it done, it would be his
responsibility to put it in the on-shift book; what work he
completed.
BYMR. PAEZ:

Q. So, Mr. Kellam, ifl could direct your attention, then, to Exhibit
R-4, it .appears to me that a lot of the work that's listed here is what
would be considered normal maintenance; is that correct?
A. A lot of it is normal maintenance. That' s what we normally do;
maintain our belt systems, yes.

Q. So is there anything in parti.cular here that you can pick out that
you were taking extra efforts to deal with the items that you found
on the safety run of September 3, 1996?
A. Not that I can see right oflhand, no.
Mine Superintendent Joseph B. Matkovich, testified that he has served in that capacity for
12 years, has 31 years of mining experience, and has W~st Virginia and Ohio mine foreman
certificates. He disagreed with the unwarrantable failure order issued by Mr. Tipton for the
following reasons (Tr. 249-250):
A. First of all, I felt that we were not unwarrantable on this violation of Number
10 belt being that we had people working there. We had people prior to the
Nineteenth working there.
We had our safety runs that were brought up in here previously on 5, 6, 7,
8, 9 and 10 belts. All the haulage along those belts, we were working on all of
those subjects at the same time. We had a fall at 209 on a haulage, the fall on 274
on the 10 belt, and we were covering everything that we could cover to the best of
our ability at the time all of this occurred.
Q. Was there anything else going on with the other belts that impacted your-A. Yes. At the same time the three days previous to the Nineteenth, nine of our
belt lines were walked by Mr. Tipton and Mr. Jeffers, and any of the items that
they found along those belt lines, we had to direct people in those directions and
follow up on everything that was pointed out to us there.

Mr. Matkovich stated that after the September 3, 1996, belt safety inspecti<;ms, he was
given a list of items that needed attention (Exhibit P-1 0) and he compiled work lists for his
supervisors to take care of the items. He met daily with safety committeeman Cox to discuss the

1709

work that needed t.o be finished on all of the belts and haulage area. He confirmed that additional
work may have been done on the number 10 belt that may not ~ave been reflected on the work
list. Additional work lists were compiled for the number 5 through 9 belts and haulage areas
which he reviewed with Mr. Cox every day. Mr. Matkovich was under the impression that Mr.
Cox seemed pleased with the safety run work that was being accomplished (Tr. 250-254).
Mr. Matkovich stated that work on the number 10 belt started on September 4 and 5, to
address the items noted du~ng the safety run of September 3. A roof fall area was dangered off
at crosscut 274, and on September 12, a second fall occurred outby that area in an intersection
and that fall "settled down onto the belt" (Tr. 256). Prior to this, the belt area from the tail to the
282 crosscut was rock dusted. On September 6 or 7, another fall occurred on the number 9 belt
haulage at the 209 crosscut which prevented access to the mine supplies. No supplies could be
transported to the number 10 belt area until the haulage area was cleaned up and bolted, and the
trolley wire repaired (Tr. 257). Mr. Matkovich stated that the number 10 belt roof fall on
September 12, was significant and unusual, and he described the work that was done to clean up
that area during the week-end on six shifts until it was completed by the day shift on September
16. At that time, the stopping was still being repaired and materials were being brought in to
start cleaning the area (Tr. 259-261 ).
Mr. Matkovich stated that the roof fall prevented access to the number 10 belt areas out by
crosscut 274 and the bulk rock dusters could not reach those areas. Further, miners were
working in the belt entry on the same ventilation split and any rock dusting outby would have
exposed those miners to the dust (Tr. 261 ). He further stated that work continued on the number
9 belt to abate two violations, and on the 3-B and 5 North belt abating other violations issued by
Mr. Tipton. None of these violations were section 75.400 violations (Tr. 262).
Mr. Matkovich stated that he spoke with Mr. Tipton on September 19, before he went
into the mine and informed him that work was in progress on the number 8, 9, and 10 belts and
commented that ..I'm about halfway down those belt lines on things I want to do, and we're not
completely done down there on the 10 belt" (Tr. 263). He further explained as follows at
(Tr. 263-264):

Q. Did you have any discussion with him after he wrote the order?
A. Well, we had some discussion outside about all the work and things that we
had been doing, but Mr. Tipton just felt that the things he saw there was
unwarrantable on our part in not assigning people to those areas. I tried to explain
that we were working everywhere in the coal mine, trying to keep everything
going. It was not just that belt was our only object that needed taken care of.

Mr. Matkovich reviewed the number 10 belt preshift and on-shift fire boss book pages for
September 16 to 19, 1996, and confirmed that he reviews and countersigns the books every
morning and discusses the work that needs to be done with his mine and shift foreman. He stated
that he reviews "13 books on our side of the mine and 11 books on the other side of the mine"

1710

(Tr. 268). He explained some of the entries made in the books and the work assignment lists that
he prepared for his foreman and belt coordinator Porter (Tr. 266-275). The work assignments for
Mr. Porter were for the afternoon shift on September 16, and midnight shift of September 17,
(Exhibit R-11; Tr. 275-277).
Mr. Matkotvich identified Exhibits R-12 through R-19, as work assignments made to
correct conditions that were noted during the belt safety run inspections, and Exhibit R-20 as the
manpower roster for the day shift. He explained the work assignments shown. He stated that the
September 12, roof fall caused the number 10 belt "to run off' and resulted in coal spillage along
the belt line. He confirmed that spillage can occur along the entire belt in one hour (Tr. 281 ).
In response to a question as to whether the number 10 belt conditions cited by Mr. Tipton
on September 19, 1996, are reflected in the preshift and on-shift reports, Mr. Matkovich stated as
follows (Tr. 283):
A. There's general things in there that would be similar to what Mr. Tipton had
written. Back on these things here, on the R-17 it show work done on the
midnight shift prior to the Nineteenth, a whole list of things that were reported
corrected on that belt, on the Number 10 belt; things being worked on all through
the period that we discussed from 9/3 clear to 9/ 19 on all our belt lines and
following the inspector's violations. And we continually around the clock worked
on and corrected things that needed taken care of. And there was items on there
that was corrected, items that reappeared because something else happened. So,
we continually worked on everything that occurred.
Mr. Matkovich further explained the work performed on the number 10 belt as reflected
by the September 19, midnight on-shift report (Tr. 285-286; Exhibit R-17).
On cross-examination, Mr. Matkovich explained that the "C" and "I'' notations on the
work assignment reports reflect corrected and incompleted work performed, and the fact that
these notations are not made at all does not mean that no work was performed (Tr. 288). He
stated that he did not see the number 10 belt after Mr. Tipton issued his order on September 19,
and that he last walked the belt the last week of August (Tr. 289).
Mr. Matkovich stated that the roof fall conditions that prevented the rock dusting
machine from coming to the number 10 belt were taken care of and supplies could get through
after September 11. However, when the fall occurred on September 12, the machine rock duster
could not be used because the dust would affect the miners working in the area (Tr. 300). He
reviewed some of the preshift book entries for September 16 through 18, and explained the
notations made (Tr. 302-307). He stated that miners were assigned to the entire number 10 belt
line in order to abate the order, and that ''we did underneath and both sides dusted the entire area
to make sure that the belt line was in perfect shape. So we did about twice as much as what was
·
mentioned on the order" (Tr. 312).

1711

Wayne o; Porter testified that he is employed by the respondent as a belt coordinator and
was so employed in September, 1996. He has 24 years of mining experience and supervises the
miners working on the belt lines, and personally takes care of the day and afternoon shifts. The
midnight shift is taken care of by one of his foremen with whom he leaves a list of work that may
be needed (Tr. 313-315).
Mr. Porter disagreed with the issuance of the order because he had preshifted the nwnber
10 belt prior to Mr. Tipton's inspection, people were working on the belt when the order was
issued, and he had people working on the belt during the prior shift (Tr. 316-317). He ~xplained
some of the work assignments reflected in Exhibits R-18 and R-19, and stated that he would have
made the assignments for September 19, sometime prior to 8:00a.m., for the miners starting the
morning shift. He recalled that the rock duster never reached the number 10 belt that day
(Tr. 319).
Mr. Porter confirmed that Exhibit R-16, reflects the work assignments that he made for
the afternoon shift on September 18, and each of the six people assigned to work would have
worked on the number 10 belt. The work assignments would have been based on the entries
made in the fire boss books (Tr. 321-323).
Mr. Porter stated that in preshifting the belts, the notation "no hazardous conditions
observed" means that "you found nothing hazardous to the people working underground along
that belt line in that area" (tr. 325). He stated that he does not expect items listed in a preshift
report to be totally corrected by the next shift and that this would be impossible. However, if he
were to encounter coal dust or spillage in contact with a roller he would clean it up right away
(Tr. 326).

Mr. Porter stated that his work assignments for the number 10 belt prior to September 19,
were affected by the roof falls on that belt as well as the number 9 haulage belt. Further, the
No. 274 fall area on the number 10 belt was dangered off and the bulk rock duster could not be
used because it would expose the miners working on the belt to the dust because the air would
travel in the direction of their work area. He explained that extra people were assigned to correct
violations issued by Mr. Jeffers and Mr. Tipton on other belts prior to the order issued on the
number I 0 belt (Tr. 328-331 ).
Mr. Porter stated that the conditions noted in Mr. Tipton's order were not present when
he examined the belt on September 18. He did not believe that any hazardous conditions existed
on the number 10 belt when he examined it on September 18, and he disagreed with Mr. Tipton's
statement that it would have taken days for the conditions that he cited to accumulate. He
confirmed that he found the roller that Mr. Tipton said was hot, and he picked it up and found
that it was not hot. In his judgment, the roller looked rusty (Tr. 332).

1712

In commenting on the notations on the preshift examiner's report for September 16
through 18 (Exhibit R-7), that certain itemized conditions had been "reported" several times with
no corrections shown, Mr. Porter explained that "by law you either have to show a correction to
it or carry it over" (Tr. 334). He further stated as follows at (Tr. 335).
JUDGE KOUTRAS: For the Eighteenth, the same thing. So, am I to assume that
for all of these days that same condition was being noted in the on-shift - - I mean
in the preshift book and just noted as reported, so that means that nothing was
done to take care of those, is that correct, those particular conditions?
THE WITNESS: That's what-- when it says "reported," that's telling you it's
been reported. The on-shift sheets shows no corrections being done.
JUDGE KOUTRAS: And that the condition still existed?
THE WITNESS: That's correct.
On cross-examination, Mr. Porter stated that it was possible to hand dust the number 10
belt line that could not be dusted by the machine duster (Tr. 337). He confirmed that the belt was
not running when he viewed it at 1:30 p.m., after Mr. Tipton issued his order at II :30 a.m., and
that it was possible that the hot roller in question may have cooled off during that time (Tr. 338).
In response to further questions, Mr. Porter stated that he observed no belt rollers turning
in coal when he preshifted the number 10 belt on September 18, and could not recall any
missing rollers without referring to the roller book. If he had observed a roller with a missing
bearing, he would have left it alone if it was not hot, but would have removed it immediately if it
was hot. He observed no significant differences between the conditions he observed on
September 18 and September 19 (Tr. 340).
Mr. Porter stated that he observed no roller with the bearing completely out at the 254
stopping as noted in the order, and he observed none of the coal dust, float coal dust, or dry loose
spillage and accumulations in contact with any rollers as noted in the order. He stated that he did
observe some belt spillage but dido't note it because it was already noted in the preshift book
(Tr. 342). He believed that a significant accumulation can occur under a belt in a short period of
time and that "you can get a belt to run off instantaneously and spill the whole length of the belt
lirie in whatever time it takes that belt to travel that length" (Tr. 346).
Findjn~s and Conclusions

Fact of Violation
The respondent is charged with a violation of mandatory safety standard 30 C.F.R. §
75.400, for failing to clean up the cited coal accumulations. Section 75.400, provides as follows:

1713

Coal dust, including float coal dust deposited on rock-dusted surfaces, loose coal,
and other combustible materials, shall be cleaned up and not be permitted to
accwnulate in active workings, or on electric equipmenftherein.
The respondent does not challenge the fact that the cited conditions constitute a violation
of section 75.400 (Tr. 12-15, 102, 354; post-hearing brief, pg. 2) . . The respondent's dispute
concerns Inspector Tipton's unwarrantable failure finding. Under the circwnstances, I conclude
and find that the evidence presented by the petitioner, coupled with the respondent's tacit
admission, establish a violation of section 75.400, and the violation is AFFIRMED.
Si~nificant and Substantial Violation

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 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 S&S "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 3-4 (January 1984 ), the Commission explained its
interpretatjon of the term "S&S" as follows:
In order to establish that a violation of a mandatory safety standard is
significant and substantial under National Gypsum the Secretary of Labor must
prove: (1) the underlying violation of a mandatory safety standard; (2) a discrete
safety hazard - - that is, a measure of danger to safety contributed to by the violation;
(3) a reasonable likelihood that the hazard contributed to will result in an injury;
and (4) a reasonable likelihood that the injury in question will be of a
reasonably serious nature.
See also Austin Power. Inc. v. Secretary, 861 F.2d 99, 103-04 (5th Cir. 1988), ~
9 FMSHRC 2015, 2021 (December 1987) (approving Mathies criteria).
The question of whether any particular violation is S&S must be based on the particular
facts surrounding the violation, including the nature of the mine involved, Secretazy of Labor v.
Texas~ulf. Inc., I 0 FMSHRC 498 (April 1988); You~hio~heny & Ohio Coal Company,
9 FMSHRC 2007 (December 1987). Further, any determination of the significant nature of a
violation must be made in the context of continued normal mining operations. National Gypsum,
3 FMSHRC 327, 329 (March 1985). Halfway. Incorporated, 8 FMSHRC 8 (January
1986),

m.

In United States Steel Minio~ Compapy. Inc., 7 FMSHRC 1125, 1129, {August 1985),
the Commission stated further as follows:

1714

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
Minjn~ 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 nrust be significant and
substantial. U.S. Steel Minin~ Company. Inc., 6 FMSHRC 1866, 1868 (August 1984).
The Commission reasserted its prior determinations that as part of any "S&S" finding, the
Secretary must prove the reasonable likelihood of an injury occurring as a result of the hazard
contributed to by the cited violative condition or practice. Peabody Coal Company,
17 FMSHRC 508 (April 1995); Jim Walter Resources. Inc., 18 FMSHRC 508 (April 1996).
The respondent' s brief does not address the "S&S" issue. After careful consideration of
all of the evidence presented with respect to this citation, and for the reasons which follow,
I conclude and find that the petitioner has established by a preponderance of the credible
evidence that the violation of section 75.400 was significant and substantial (S&S).
The Commission has held that "coal is, by its nature, combustible." Mid-Continent
Resources. Inc., 16 FMSHRC 1218, 1222 (June 1994). The credible testimony oflnspector
Tipton and safety committeeman Cox establishes that the cited accumulations were rather
extensive, dry, black in color, and inadequately rock dusted. Although the cited belt may not
have been running during the course of the inspection, Mr. Tipton observed a deteriorated bottom
belt roller with a blown bearing that he believed was hot at one time. The roller was in direct
contact with dry coal and dry float coal dust. He also observed coal spillage and accumulated
coal fines deposited under the belt that were in contact with the bottom belt roller structure, and
he indicated that the belt was "dragging" on the dry coal fines. He concluded that the defective
roller and dragging belt were potential frictional ignition sources that presented a possible fire
and/or ignition hazard, and that it was reasonably likely that a belt fire would have occurred if
nonnal mining operations had continued. He further believed that four miners working on the
belt line would be exposed to hazardous smoke from the fire.
Although the cited be1t was. equipped with a water deluge system at the belt drive,
Mr. Tipton stated that a belt fire would have to be addressed by the use of water hoses hooked up
at 500 foot intervals along the belt line. Given the fact that the inspector found float coal dust
along 3,600 feet of the 6,000 foot belt line, I cannot conclude that water hoses hooked up at 500
foot intervals would effectively extinguish any extensive belt fire or adequately deal with any
explosion resulting from float coal dust and frictional belt and roller ignition sources. Further,
even though there is no evidence of any methane at the location of the belt, the fact remains that
the presence of float coal dust on a running belt with potential ignition sources such as hot ·
defective rollers, rollers turning in loose dry coal accumulations, and a belt dragging and/or in
contact with loose dry coal accumulations and/or spillage, presented serious pote~?-tial fire and
explosion hazards.

1715

Mr. Cox testified that during a number 10 belt safety run on September 3, 1996, a bottom
belt roller with a missing bearing ignited some coal fines causing a fire. On September 19, 1996,
he observed black dry float coal dust on the belt, frozen bottom rollers with dry fine coal packed
around them, and some ''bad" rollers and stands. He confirmed that men were working on the
belt, and he believed that the dry coal fines and defective rollers were ignition sources and that
the coal accumulations could have resulted in a mine fire or explosfon.
Mr. Welch, who was assigned to clean up the belt to abate the order, testified that he
observed some belt rollers in contact with the coal accumulations and described some of the coal
as "black" in some places, and "dull, grayish" in others, rather then white, and it did not appear
to be rock dusted.
Although mine superintendent Matkovich and belt coordinator Porter disagreed with
Inspector Tipton's order and unwarrantable failure finding, I find no credible testimony on their
part rebutting the credible testimony of Mr. Tipton and Mr. Cox, which I conclude support Mr.
Tipton's "S&S" finding.
I have found that a violation of section 75.400, has been established. I further conclude
and find that the existence of loose, dry, black coal, coal dust, and float coal dust accumulations
and spillage at the number 10 belt line on September 19, 1996, some ofwhic~ were in contact or
clo.se proximity to the aforementioned ignition sources, presented a discrete fire and explosion
hazard, and that it was reasonably likely that in the course of continued normal mining
operations, a serious potential for a fire or explosion was present along the belt line.
I further conclude and find that in the event of a fire or explosion at the cited belt line, it
would be reasonably likely that anyone working at, or in the proximity of the belt, would be at
risk and exposed to injuries of a reasonably serious nature or death. Under all of these
circumstances, I conclude and find that the inspector's "S&S" finding was reasonable, and IT IS
AFFIRMED.
Unwarrantable Failure Violation
The governing definition of unwarrantable failure was explained in Zei2ler 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.
·

1716

In several decisions following Zeigler Coal Company 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." Ener~y Minim~ Corporation,
9 FMSHRC 1997 (December 1987); You~hiogheny & Ohio Coal Company, 9 FMSHRC 2007
(December 1987); Secretary of Labor v. Rushton Mining Company, 10 FMSHRC 249 (March
1988). Referring to its prior holding in the Emery Mining case, the Commission stated as
follows in YoughiogheJ?y & 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. • • •
In New Warwick Mining Company, 18 FMSHRC 1568, 1573 (September 1996), the
Commission affirmed an unwarrantable failure violation of section 75.400, and reiterated that it
"has recognized that a number of factors are relevant in determining whether a violation is the
result of an operator's unwarrantable failure, such as the extensiveness of the violation, the
length oftime that the violative condition has existed, the operator's efforts to eliminate the
violative condition, and whether an operator has been placed on notice that greater efforts are
·
necessary for compliance."
The Commission further held that "repeated similar violations may be relevant to an
unwarrantable failure determination to the extent that they place an operator on notice that
greater efforts are necessary for compliance with a standard," citing Peabody Coal Co.,
14 FMSHRC 1258, 1261 (August 1991); and Drummond Co., 13 FMSHRC 1362, 1368
(September 1991 ).
In the New Warwick Minin~ Company case, the record reflected that during the

1717

immediate preceding inspection before the issuance of the violation, MSHA found 16 violations
of the same standard, and that twice during the two days preceding the issuance of the violation
the inspector informed the mine operator that similar accumulations were not permitted and
received assurances from the operator that preventive measure would be taken to avoid
unwarrantable failure violations. In the Peabody Coal Co., case, at 14 FMSHRC 1263, the
Commission took note of the fact that in finding an unwarrantable failure violation of section
75.400, the judge properly considered the fact that Peabody had been cited 17 times over the
preceding six and a half months for similar violations, and that the cited conditions had been
noted in approximately seven of the preceding preshift reports, and were obvious and extensive
requiring significant abatement efforts.
In affirming an unwarrantable failure order for a violation of section 75.400, the
Commission in Enlow Fork Mining Company, 19 FMSHRC 517 (January 1997), noted the
undisputed fact that no one was cleaning the cited accumulation when the inspector arrived on
the section. Regarding the operator's abatement efforts, the Commission held that where an
operator has been placed on notice of an accumulation problem, the priority level that it places
on abating the problem is a factor properly considered in the unwarrantable failure analysis,
citing Peabody, 14 FMSHRC at 1263-64; U.S. Steel Corp., 6 FMSHRC at 1263 1423, 1437
(June 1984) (unwarrantable failure may be proved by a showing that the violative condition was
not corrected or remedied prior to issuance of a citation or order). In the Enlow Fork case, the
Commission rejected the operator's assertion that its prompt post-citation abatement efforts
militate against an unwarrantable failure determination, and held that such efforts are not relevant
in any determination of whether the operator has engaged in aggravated conduct in allowing the
violative condition to occur, 19 FMSHRC 17.
In Jim Walters Resources. Inc., 19 FMSHRC 480 (March 1997), the Commission
reversed a judge' s determinations that three violations of section 75.400, noted in three section
104(d)(2) orders were not the result of unwarrantable failures by the operator, and reinstated each
of the orders. The Commission cited its prior holdings in New Warwick Mining Company and
Peabody Coal Company, and reiterated that any analysis as to whether a violation of section
75.400, constitutes an unwarrantable failure to comply ~ust take into consideration such relevant
factors as the obvious and extensive nature of the accumulations; the duration of the
accumulations, and whether they were recorded in the preshift examination books; prior citations
for identical accumulations conditions; a prior history of section 75.400, violations putting the
operator on notice of a problem requiring heightened scrutiny to prevent such conditions; and the
efforts made by the operator to abate, or otherwise take corrective or remedial actions prior to an
inspector's arrival and issuance of a violation. In Amax Coal Company, 19 FMSHRC 846,851
(May 1997), the Commission affirmed an unwarrantable failure violation of section 75.400, and
citing Enlow Fork. Mining Co., ~. held that repeated similar violations may be relevant to an
unwarrantable failure finding to the extent .that they serve to put an operator on notice that greater
efforts were necessary for compliance.

1718

Petitioner's Ar2uments
In its post-hearing brief, the petitioner asserts that beginning on September 16, 1996, the
preshift reports revealed accumulations along the length of the No. 10 belt, and they were noted
in the preshift books from September 16 until September 19, 1996, the day Inspector Tipton
issued his Order. Petitioner points out that Inspector Tipton noted that the preshift records
revealed that these areas had not been cleaned, and upon visual inspection of the belt line, he
found significant accumulations varying from a couple of inches in depth to as much as two feet
in depth, as well as float coal dust along 3,600 feet of the 6,000-foot long belt. Based on the
preshift and on-shift reports, as well as his visual observations, Inspector Tipton determined that
respondent's failure to clean up or prevent these accumulations was due to its unwarrantable
failure. Petitioner maintains that while the preshift reports showed extensive accumulations
reported along the No. I 0 Belt as far back as September 16, 1996, the on-shift reports
demonstrate that the respondent took inadequate measures to ensure that the accumulations
reported in the preshift examinations were entirely cleaned up between September 16 and
September 19, 1996. Under these circumstances, and citing Drummond Co. Inc., 13 FMSHRC
1362, 1368 (Sept. 1991 ), and New Warwick Mining Co., 16 FMSHRC 2451, 2455 (Dec. 1994),
the petitioner concludes that the violative conditions existed, in whole or in part, for a significant
amount of time even though the respondent conducted a regular preshift examination of the belt.
Acknowledging that the respondent submitted work sh~ets showing that it made some
effort to clean up the accumulations along sections of the cited belt, the petitioner asserts that the
work sheets are somewhat duplicative of the work reflected in the on-shift reports, and help to
confirm that areas were never cleaned underneath the belt during the period from September 16
to September 19, 1996. Further, relying the on-shift reports, the testimony of longwall employee
Jimmie Welch, and the conditions observed by both Inspector Tipton and Safety Committee~an
Cox when the order was issued, petitioner concludes that the respondent's efforts were woefully
incomplete and ineffective, as is evidenced by both the extent of the accumulations and the
amount of time it took to abate the citation. Petitioner points out that it took 20-30 miners from
approximately 11 :30 a.m. until 11 :30 p.m., to completely clean up the accumulations and rock
dust the areas covered by the order and that this lengthy period of abatement covering two shifts
demonstrates the extent of the accumulations.
Citing the testimony of union president and safety committeeman Sparks at (Tr. 202208), the petitioner maintains that mine management was well aware of the problems along the
belt prior to the issuance of the order, and that even after admitting that it was aware of the
problems after the September 3, 1996, safety run, the respondent failed to take the necessary
measure to clean up the violative accumulations.
Citing Peabody Coal Co., 14 FMSHRC 1258, 1262-63 (August 1992), and Jim Walter
Resources. Inc., 19 FMSHRC 480 (March 1997), the petitioner argues that the respondent's
failure to immediately clean up the accumulations, especially after they had been reported in the
preshift reports for several days, constitutes a high level of negligence. The petitioner further
believes that the detailed description of the amount of coal dust and loose coal accumulations

1719

described in both Lhe body of the order and in Inspector Tipton's notes establishes that these were
extensive accumulations.
The petitioner asserts that the respondent failed to completely clean up the accumulations
and/or ensure that the accumulations due to this spillage were being adequately cleaned while
production was taking place. Even though Inspector Tipton was later told that work had been
done on the belt and that four miners were assigned to rock dust, the petitioner maintains that the
efforts of these four persons were clearly inadequate, especially in light of the number of manhours it required for respondent to clean up the v.iolative accumulations. The petitioner points
out that even in the face of the safety run and the preshift reports that showed a problem with the
belt. the respondent continued to run coal.
The petitioner cites the fact that from June to September 3, 1996, six prior section 75.400,
citations were issued by Inspector Tipton and others, and that Mr. Tipton had issued a section
104(d)(l) order for a violation of section 75.400, just two weeks earlier than the order in this case
for accumulations along another belt line. The petitioner concludes that these violations signaled
to mine management that accumulations along the belt lines were a problem that needed to be
addressed and that the conveyor belts needed to be kept in better shape. However, petitioner
concludes that even after these numerous warnings, respondent failed to take the proper
corrective action and allowed accumulations to get out of hand, forcing Inspector Tipton to issue
another section 104(d)(1) order.
In response to the respondent's reliance on its overall safety record, the petitioner asserts
that the mine compliance record (Exhibit P-12), shows that there was a special problem with
section 75.400 violations, which totaled 99 paid violations in the 24 months prior to and
including the issuance of the order on September 19, 1996. The petitioner submits that all of
these factors establish unwarrantable failure on the part of the respondent.
In response to the respondent's production of UMWA work assignment sheets showing
some additional work done on the belt which was not reflected in the on-shift records, the
petitioner points out that no credible reason was given for why these work records were not note$1
in the on-shift reports, and that Safety Director Kellam admitted that the work done was nothing
more than ordinary maintenance and not the extra work that needed to be done to take care of the
belt. as noted in the safety run notes. Petitioner concludes that these work records still fail to
establish that all the accumulations along the cited belt had been completely cleaned up prior to
the inspection and that the work sheets and on-shift records reveal that respondent focused its
efforts on normal maintenance and toward the area of the tailpiece, not along the length of the
belt towards the head from the belt drive to the center of the belt line where Inspector Tipton
noted most of the accumulations.

In conclusio~ the petitioner asserts that the testimony of Inspector Tipto~ Mr. Co~ and
Mr. Welch establish that the accumulations were extensive and obvious. Further, the preshift
reports that noted accumulations reported along the length of the belt in conjunction with the onshift reports that showed piecemeal work done to clean up or cover up the accumulations with

1720

hand dust establish that the respondent knew of the problems along the belt, yet failed to take
adequate measures to ensure proper clean up of the violative conditions. Petitioner concludes
that this indifference to obvious mine hazards and a disregard for the safety of miners by mine
management constituted aggravated conduct by the respondent and supports Inspector Tipton's
unwarrantable failure finding.
Respondent's ArKuments
The respondent asserts that Inspector Tipton, s unwarrantable failure allegation is
premised on his belief that the conditions he encountered were "identical or very close" to the
conditions existing for a significant amount of time in the most recent preshift examination book,
and on the fact that there were "no reported corrections" in those books. The respondent
contends that the inspector "is wrong on each count." As part of its post-hearing brief, the
respondent has included a summary of the conditions cited at the six specific belt locations noted
in the order, a reference to when these conditions appeared in the preshift examination book, and
the corrective responses made by the respondent to those conditions.
The respondent notes that although Inspector Tipton could not recall how far back he
went in the most recent preshift examination book, that book commenced on the afternoon shift
of September 16, 1996 (Exhibit P-1). Respondent finds it significant that Mr. Tipton's notes
made following his review of that book, prior to his physical inspection of the belt, references
only roof bolts and does not mention areas needing cleaning or dusting (Exhibit P-2, pg. 1).
Further, even though the notes make reference to the union safety run on September 3, 1996,
Mr. Tipton stated that his unwarrantable failure finding was IlQt based in any part on that safety
run (Exhibit P-2, pg. 5, Tr. 117).
With regard to the cited float coal dust starting at the belt drive (crosscut 227) to crosscut
260, the respondent points out that these conditions did not appear in the preshift book until the
following preshift examination for the midnight shift on September 19, 1966, approximately
eight hours before Inspector Tipton arrived at the No. 10 belt. Respondent maintains that miners
on the midnight shift were assigned to dust that area, that this assignment was repeated for the
day shift, and that two track men were assigned on the day shift to take a bulk duster to complete
the rock dusting. (R-19). However, that bulk duster derailed and did not make it to the No. 10
belt prior to Mr. Tipton's inspection that morning, and when he issued his order, Mr. Tipton was
unaware that two men had been assigned that shift to bring the duster to the belt (R-19), Tr. 5456-7).
With respect to the alleged spillages noted in the order, the respondent asserts that the
reported spillage at cross-cut 248 did not appear, if at all, until a preshift examination for the day
shift on September 19, 1996; that there is no indication until that same preshift examination on
September 19 that a roller was in contact with spillage at cross-cut 254; that there was no
reference at all to spillage at cross-cut 254 until the preshift for the midnight shift on
September 19 (at which time assignments were made to clean this area); that there ·i s no reference
in the preshift examination for the day shift on September 19 pertaining to spillage at cross-cut

1721

268; and that spillage in the left walkway (opposite walkway side) at cross-cuts 275 and 276
appeared in the preshift examination report for the midnight shift on September 19, and was the
subject of work orders for the midnight shift and for the day shift on September 19. Further,
respondent points out that there is no reference prior to the preshift examination for the midnight
shift on September 19 of the need to clean under the rollers at these locations.
Citing my decision in Consolidation Coal, 16 FMSHRC 54, 91 (January 1994), where I
noted that recurrent coal ~ccumulations are inherent by-products of large scale mining operations
and are not unusual events justifying an unwarrantable failure order simply because no one is
cleaning them up when an inspector happens on the scene and finds them, the respondent
concludes that the existence of any coal accumulations on September 19, does not support any
inference that like conditions existed for prior significant periods of time. The respondent asserts
that the absence of the cited conditions from the preshift examination books prior to the midnight
shift on September 19, 1996, was confirmed by the testimony of belt coordinator Wayne Porter,
the only witness to have observed the condition of the cited belt in the several days prior to the
issuance of the order. Respondent points out that Mr. Porter conducted preshift examinations of
the belt on September 17, and September 18, 1996, and noted that there were no hazardous
conditions observed. He also testified at the hearing that the conditions he observed on
September 19, 1996 following the issuance of the order were not present during his preshift
examinations.
The respondent asserts that not all of the conditions noted by a preshift examiner in a
report are in fact "violations," and as an example, points out that several areas noted on
September 19, 1996, as needing cleaning were not cited by Inspector Tipton (such as cross-cuts
260-264, 272-274,277-278, 243-246, Exhibit P-1, pg. 7).
The respondent maintains that Inspector Tipton's contention that the conditions he cited
existed in the preshift books for a long period of time without correction is simply wrong
because most of the conditions cited appeared for the first time in the preshift examiner's report
for the midnight shift on September 19, 1996, or in the preshift examiner's report for the day
shift on September 19. In each instance, the respondent contends that work assignments were
given, and work was commenced to address those conditions. The respondent concludes that it
must be afforded a reasonable period of time to correct conditions observed during a preshift
examination before the requisite "inexcusable" or "unjustifiable" conduct necessary to sustain an
unwarrantable failure allegation is found, citing Consolidation Coal, 17 FMSHRC 1068, 1070
(June 1995) (ALJ Feldman). Accordingly, the respondent believes that whether by reference to
the preshift examiner's reports, or the testimony of the only witness on the cited belt in the days
prior to September 19, 1996, the inspector's conclusions that the cited conditions had existed for
a significant period of time and were the result of high negligence and an unwarrantable failure
are unsupported.
The respondent asserts that Inspector Tipton's contention that there were "no reported
corrections" of the reported conditions is in error in that the on-shift report for the.aftemoon shift
of September 18 (Exhibit P-1, p. 14) reflects the following work performed on the cited belt;

1722

1. dusting from the head to the drive;
2. cleaning under the drive;
3. rehanging the guard protecting the drive and take up;
4. cleaning from cross-cut 269 to cross-cut 272, both sides;
5. sweeping from cross-cut 262 to cross-cut 270, both sides;
6. cleaning from cross-cut 238 to cross-cut 241, both sides;
7. cleaning the tail area, opposite walkway side; and
8. replacing a bed rail at the cross-cut 272.
Likewise, the respondent asserts that on the midnight shift on September 19, 1996, the
on-shift report (Exhibit P-1, p. 16), reflects the foUowing work:
1. cleaning from cross-cut 282 to cross-cut 260, walkway side;
2. cleaning at cross-cuts 276 and 278, walkway side.
The respondent points out that it would be virtuaUy impossible to have corrected any
conditions that appeared for the first time in the preshift examination book for the day shift on
September 19, 1996, because the report was brought out at 8:00a.m., and Inspector Tipton
arrived at the belt between 8:00a.m. and 9:00a.m., that day (Tr. 54).
Finally, the respondent points out that the September 18, afternoon shift and
September 19, midnight shift show additional work on the belt, including the changing of a total
of 70 rollers and changing bad belt stands. (R-16, R-17). Further, though not "corrections" in
the on-shift reports, additional significant ongoing work on the belt is reflected in the safety run
(P-1 0) and in the records detailing the five continuous days of clean-up and restoration of the
roof fall area. (R-4, R-8 through R-12). Under the circumstances, the respondent concludes that
the alleged absence of any corrections to the reported belt conditions is unsupported. The
respondent further concludes that the record does not support the inspector's contention that the
cited conditions existed for a significant period of time without correction, but to the contrary,
reflects that the respondent was devoting considerable attention to the cited No. 10 belt, as well
as the other belts. Accordingly, the respondent maintains that the violation was not the result of
aggravated conduct, and that the petitioner has failed to establish that the conditions cited were
inexcusable, unjustifiable, or the result of willful misconduct or a serious lack of reasonable care
amounting to an unwarrantable failure to comply with the requirements of section 75.400.
Respondent requests that the order be modified to a Section 104(a) citation, and that the proposed
penalty assessment of $2,500.00, be significantly reduced.

1723

The Extensive Nature of the Accumulations
The re~pondent does not deny that the cited coal accumulations constituted a violation of
section 75.400. The testimony and evidence adduced by the petitioner established that the cited
loose coal and coal dust accumulations covered a rather extensive area along the cited 6,000 foot
belt in question, including float coal dust along a 3,600 foot area of the belt. Although the sum
total of the loose coal spillage at the stopping locations noted in the order is 160 feet, a relatively
short distance along the 3,600 foot belt line, the float coal dust that reportedly existed was
extensive.
Further, the unrebutted evidence presented by the petitioner establishes that abatement of
the order was achieved after approximately 15 to 20 miners were put to work over a two-shift
period correcting the conditions. While it may be true that the post-order abatement efforts
included belt conditions other than coal accumulations, the fact remains that the bulk of the work
was devoted to abating and·terminating the order citing the coal accumulations. Under the
circumstances, I conclude and find that the cited coal accumulations that constituted a significant
and substantial (S&S) violation of section 75.400, covered a rather extensive area of the No. 10
belt line.
Notice ofthe Respondent's Alleged Coal Accumulations "Special Problems."
In Conso1idation Coal, 16 FMSHRC 54, 91 (January 1994), I noted that recurrent coal
accumulations are inherent by-products of large scale mining operations and are not unusual
events justifying an unwarrantable failure order simply because no one is cleaning them up when
the inspector happens on the scene and finds them.
In the instant case, the credible and unrebutted evidence establishes that the respondent's
mine has 15 belts constituting approximately 14 miles of belt lines that are used to transport over
one-million tons of coal out of the mine yearly. Given the large scope of this mining operation,
I cannot conclude that the respondent's compliance record of ninety-eight section 75. 400,
violations over a previous 24-month period, is indicative of a "special accumulations problem."
The respondent's compliance record (Exhibit P-12), reflects that ninety-six of the prior
violations were issued as section 104(a) citations, and eleven of these w~re issued as non-"S&S"
violations, including a citation issued on July 1, 1996 (No. 4180027), on the Number 10 belt
(Exhibit P-6). Only two prior section 104(d)(l) unwarrantable failure citations were issued
during the 24-~onth period in question, one on December 7, 1995, and one on May 17, 1995,
and there is no evidence that they were issued on the No. 10 belt. Indeed, with the exception of
the July 1, 1996, non-"S&S" No. 10 belt citation, I find no evidence that any of the other prior
violations were issued on that belt. With regard to the July 1, 1996, citation, I note that the
inspector found that the belt "was being cleaned up with the roof fall at the time that citation was
issued." .

1724

The only prior section 104(d)(1) order citing a violation of section 75.400, was issued by
Inspector Tipton; on the No. 5 belt on September 3, 1996 (Exhibit P-4). That violation was
settled by the parties, and the respondent paid the full civil penalty assessment. Indeed, the
respondent has paid the full amount of the proposed civil penalty assessments for all of the prior
section 75.400, violations noted as part of its compliance record, fifty of which were assessed at
$204.00, each, and the remaining assessments ranging from $147.00 to $267.00.
Respondent's belt coordinator, Wayne Porter, testified that a belt line can change its
characteristics with every revolution. He further stated that a belt can "run ofT instantaneously"
and cause significant accumulations under the belt in a very short period of time, as well as
instantaneous spillage along the entire length of the belt (Tr. 346). Inspector Tipton attributed
the coal spillage to a belt misalignment, as weJl as lack of regular maintenance, and longwall
helper, Welch, belieyed the accumulations could have occurred over a few shifts or by the coal
"just coming back on the take-up; coming back on the bottom rollers" (Tr. 184).
I am not totally convinced that Inspector Tipton actually knew how long the cited coal
spillage conditions had existed. He admitted that he was uncertain as to whether he reviewed the
preshift reports covering the days earlier than September 18, one day prior to the issuance of the
September 19, 1996, order (Tr. 70). Nor am I convinced that he knew with any degree or
reasonable certainty that the preshift entries that he reviewed prior to his inspection described the
same spillage conditions at the same location that he observed ·<;luring his inspection. Indeed,
Mr. Tipton's order, on its face, states "that these conditions for the most part were being carried
as reported in the mine books and would have taken days to accumulate to the degree described
in this action." Further, when asked in the course of the hearing whether each of the conditions
described in his order are noted in the September 19, preshift book, he responded "I'm convinced
that they are very similar if not identical in nature" (Tr. 76).
More significantly, Inspector Tipton testified that during a three-to-four day period
immediately preceding the issuance of his order on September 19, 1996, he and Inspector Jeffers
inspected 11 additional belts, as well as the cited number 10 belt, covering a distance of some 14
miles, and although some violations were noted and issued, IlQ violations of section 75.400, were
issued for coal accumulations. Indeed, Inspector Tipton confirmed that his September 19, order
citing a violation of section 75.400, was the only violation issued during this three or four day
period (Tr. 64- 66). I have difficulty reconciling this testimony with the petitioner's suggestion
that the respondent had a serious on-going "problem" with coal accumulations that were ignored
and uncorrected for unreasonably long periods of time.
With respect to the cited float coal dust conditions cited by the inspector in the order
starting at the belt drive (crosscut 227), and extending inby to the No. 260 crosscut, I take note of
the fact that these conditions and crosscut locations do not appear in the preshift and inshift
reports for September 16, through September 18, 1996. As correctly noted by the respondent,
this condition.was first noted for the midnight preshift examination on September. I 9, 1996, and
was brought out at 8:00a.m., immediately prior to the issuance of the order at 1 I :30 a.m.

1725

Further, the day shift work assignments for September I9, I996, included the belt drive areas as
places that needed corrective action.
The Respondent's Efforts to Address and Correct the Cited Conditions
The petitioner's suggestion that the respondent failed to take any corrective action after
being made aware of the number I 0 belt conditions as early as September 3, I996, is not well
taken. Local union and.safety committee president, Roger Sparks, testified that in response to a
union letter to MSHA regarding the conditions on the No. 8, 9 and I 0 belts, a joint unionmanagement "safety run" examination of those belts was initiated on September 3, 1996.
Although some belt conditions needed to be corrected, Mr. Sparks confirmed that "it wasn't as
bad as we were led to believe," and that the letter was rescinded (Tr. 199).
Mr. Sparks confirmed that following the September 3, union safety run, safety
committeeman, Cox, and mine superintendent Matkovich continued to meet and monitor the
work that was being done to correct the conditions noted during the safety run (Tr. 203-204).
Safety committeeman Cox confirmed that this was the case, and that his meetings with
Mr. Matkovich, continued to the day the order was issued on September 19. Mr. Cox explained
that the meetings specifically addressed the number 10 belt, and he referred to several corrective
actions, including cleaning and dusting, that was done, begirming on September 4, and
continuing to September 18, 1996 (Tr. 151-152; E~ibit P-1 0).
Mine Superintendent Matkovich testified that the items noted by Mr. Cox were
immediately addressed, and he confirmed that he met daily with Mr. Cox while the work to
correct the conditions was in progress. Mr. Matkovich testified that he made notations
concerning the work that was performed, and the notations reflect that cleaning the area between
the belt discharge and take-up was done on September 9, 1996, and that one-halfofthe area was
cleaned. Additional notations reflect that cross-cut areas 24 to 249, which included the area
where rollers were turning in coal was addressed on September 13, 1996, and that other crosscuts
not included on Mr. Cox's list were cleaned on September 9, and 18, 1996, (crosscuts 257-275
and 273-278). Further, notations reflect that two belt areas were dusted on September 4-5, 1996
(Exhibit P-1 0; Tr. 252 - 253).
The onshift report for the September 17, 1996, day shift reflects that the cleaning required
at crosscut locations 274 to 287, was "worked on," and the afternoon shift report for that day
reflects that the spillage at the belt head was "corrected," and that work was being done to clean
the belt drive. The onshift report for the September 18, 1996, day shift reflects the same
"corrected" and "Being worked on" notations, as well as a notation that the required cleaning at
crosscut locations 274 -287, and 287-278 were corrected. The September 18,4:00 p.m., on-shift
report reflects that the cleaning and sweeping at the belt side locations at crosscuts 269-272, 262270,238-271, and outer tail walkway was completed and the conditions were all corrected.
Inspector Tipton himself testified that four men were working spreading roek dust when
he arrived at the No. 10 belt area on September 19, 1996. Although the men were spreading rock

1726

dust by hand, th~ respondent's credible evidence reflects that a bulk rock duster usually available
could not be brought to the area because of a roof fall on the belt line.
Although Mr. Tipton testified that he did not check the work assignments scheduled for
the belt on September 19, he confirmed that respondent's safety manager, Mike Roxby discussed
the belt work that had taken place the previous day, and the fact that four men were working on
the belt when the order was issued (Tr. 57).
Safety Committeeman, Cox, confirmed that when he walked the No. 10 belt with the
inspector on September 19, prior to the issuance of the order, men were working on the belt, and
the area from crosscut 260 toward the 289 crosscut to the tail had been cleaned and rock dusted
(Tr. 142-146; 159).
Human Resources Manager Charles Kellam confirmed that all of the belts were inspected
during the September 3, safety run, and he accompanied Mr. Sparks and Mr. Cox on the
inspection of the No.8, 9 and 10 belts, and prepared a report (Exhibits R-3); Tr. 229-234).
He confirmed that work was performed on the belts to correct the conditions noted during the
safety run, and that work was performed on the number I 0 belt from September 10, to the
midnight shift on September 19, 1996, and is recorded in a work report prepared at his direction
(Exhibit R-4 ). This report reflects intermittent cleaning and dusting a number of areas along the
number 10 belt line during these time periods.
The preshift report for September 16, 1996, reflects that crosscut locations 274 to 287,
needed cleaning and that the conditions were reported. Although the same notations appear on
the preshlft report for September 17, 1996, the onshift report for the day shift on that day reflects
that the conditions were "worked on." Mr. Tipton's order states that spillage was present at
stopping 275 for a distance of 20 feet, and at stopping 276 for a distance of I 0 feet. The
remaining crosscut locations noted in the preshift (274, and 277-287) were not cited in the order,
and Inspector Tipton agreed that it was possible that these areas could have been cleaned up
when the order was issued (Tr. 83). Under the circumstances, since these crosscut locations are
not included in the order, I can only conclude that the conditions were either cleaned up or
overlooked by the inspector.
In Utah Power and Li~ht Co., 11 FMSHRC 1926, 1933 (October 1989), the Commission
held that the operator did not demonstrate unwarrantable failure because before and during the
inspection, miners were shoveling the accumulations and attempting to abate the condition. On
the facts of the case at hand, while it may be true that all of the cited coal accumulations may not
have been cleaned up at the time of the September 19, 1996, inspection, the respondent's credible
evidence establishes that the belt conditions were not ignored and that men were assigned to take
corrective action, men were working rock-dusting the belt, some of the conditions were
corrected, and work was in progress to correct the remaining conditions. Under aU of these
circumstances, I agree with the respondent's position in this case and cannot concJ!Jde that the
petitioner has established a case of ag~ravated conduct supporting the inspector's unwarrantable

1727

failure finding. Accordingly, that fmding IS VACATED, and the contested order IS MODIFIED
to a section I 04(a) "S&S" citation.
Size of Business and Effect of Civil Penalty Assessment on the Respondent's Ability to Continue
in Business
The parties have stipulated that the respondent is a large mine operator and that payment
of the proposed civil penalty assessment for the violation of section 75.400, will not adversely
affect its ability to contint:te in business.
Histozy of Prior Violations
Respondent's overall compliance history (Exhibit P-12), for the period September 24,
1994, to September 19, 1996, reflects that it fully paid civil penalty assessments totaling
$120,970.00, for 715 violations, 235 of which were "single penalty" non-"S&S" violations. With
the exception of one section 104(d)(1) citation issued on November 29, 1995, and one issued on
May 17, 1995, sill of the remaining listed violations were issued as section 104(a) citations.
Although I cannot conclude that the respondent's overall history of prior violations is
particularly good, for an operation of its size, I cannot conclude that it warrants any increases in
the civil penalty assessment that I have made for the violation that has been affirmed.
Good Faith Abatement
The record reflects that the order was terminated at 11:30 p.m., on Septembe·r 19, 1996,
after the accumulations were removed and rock dust was applied where needed. I conclude and
find that the respondent timely abated the violation in good faith after the order was issued.
Gravity
Based on any "S&S" findings and conclusions, I conclude and find ·that the violation of
section 75.400, was a serious violation.

Taking into account the fact that miners were assigned to correct the conditions, and that
work was done by the respondent on the cited belt prior to the issuance of the order, the fact that
men were rock dusting the belt the day the order was issued, and the fact that the mechanical
rock dusting machine could not reach the affected belt area due to a roof fall on the belt, I
conclude and find that the violation was a result of the respondent's failure to take reasonable
care, and that this constitutes a moderately ordinary level of negligence.

1728

Civil Penalty Assessment
Based on the foregoing findings and conclusions, and my ik IlQ.Y.Q consideration of the
civil penalty assessment criteria found in section II O(i) of the Act, I conclude and find that a
civil penalty assessment of $1 ,000.00, is reasonable and appropriate for the violation of section
75.400, that has been affirmed.

ORDER

IT IS ORDERED as follows:
1.) Section 104(d)(l) non-"S&S" Order No. 3723270, September 19, 1996,30 C.F.R.
75.364(b)(2), IS MODIFIED to a section 104(a) non-"S&S" citation, with a moderate
level of negligence. A civil penalty assessment of$500.00, is imposed as part of the
settlement that has been approved for this violation.
2.) Section 104(d)(l) "S&S" Order No. 3501233, September 19, 1996, 30 C.F.R. 75.400,
IS MODIFIED to a section 104(a) "S&S" citation, with a moderate level of negligence.
A civil penalty assessment of $1 ,000.00, is imposed for the violation.
3.) Payment of the aforesaid civil penalty assessments shall be made to MSHA within
thirty (30) days of the date of this decision and order, and upon receipt of payment, this
matter is dismissed.

Administrative Law Judge
Distribution:
Alan G. Paez, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Blvd.,
Suite 516, Arlington, VA 22203 (Certified Mail)
David A. Laing, Esq., Porter, Wright, Morris & Arthur, 41 South High Street, Columbus, OH
4321 5 (Certified Mail)

/mea

1 729

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268

OCT 2 8 1991
CnnLPENALTYPROCEEDINGS

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

Docket No. WEST 95-434-M
A.C. No. 26-00500-05542

v.

Docket No. WEST 95-467-M
A.C. No. 26-00500-05543

NEWMONT GOLD COMPANY,
Respondent

South Area - Gold Quarry

DECISION
Appearances:

Jeanne M. Colby, Esq., and Mark R. Malecki, Esq., Office of the Solicitor,
U. S. Department of Labor, San Francisco, California and Arlington,
Virginia, for Petitioner;
Henry Chajet, Esq., and David Farber, Esq., Patton Boggs, Washington,
D.C., for Respondent.

Before:

Judge Manning

These cases are before me on petitions for assessment of penalties filed by the Secretary
of Labor, acting through the Mine Safety and Health Administration ("MSHA"), against
Newmont Gold Company (''Newmont"), pursuant to sections 105 and 110 of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 815 and 820 (the "Mine Act"). The petitions allege
four violations of the Secretary's safety and health regulations. A hearing was held in Elko,
Nevada, and expert testimony was taken in Falls Church, Virginia. The parties presented
testimony and documentary evidence, and filed post-hearing briefs.

I. FINDINGS OFFACT
A.

The Citations and Orders

1. On March 13, 1995, MSHA Inspector Michael Drussel issued Citation No. 4140248 at
the South Area- Gold Quarry (the "mine") in Eureka County, Nevada, under section 104(a) of
the Mine Act alleging a violation of30 C.F.R. § 56.2001 1. The condition or practice section of
the citation states:

1730

The old screen removed from the ZADRA was placed near the
containment area at the AARL building. Visible mercury was on
the screen. No warning signs were posted warning of the hazard.
The inspector determined that it was unlikeli~-that the -alleged violation would cause an injury or
illness and that it was not of a significant and substantial nature ("S&S"). He determined that the
violation was caused by Newmont' s moderate negligence. The Secretary proposes a penalty of
$50.00 for the alleged·violation. Section 56.20011 provides as follows:
Areas where health or safety hazards exist that are not immediately
obvious to employees shall be barricaded, or warning signs shall be
posted at· all approaches. Warning signs shall be readily visible,
legible, and display the nature of the hazard and any protective
action required.
2. On March 14, 1995, Inspector Drussel issued Citation No. 4140245 at the mine under
section 104(d)(l) of the Mine Act alleging a violation of30 C.F.R. § 56.20014. The condition or
practice section of the citation states:
The office in the AARL building contained mercury vapor as
measured with a Jerome mercury vapor analyzer. The average
reading was 23.3 f.1g/m3 • The company routinely takes six Jerome
readings a day in this office as part of [its] mercury monitoring
program. These readings showed mercury has been present in this
office. Visible mercury was found on the desktop on February 28,
1995. The AARL operator was required to use this office for
eating his lunch. No person shall be allowed to consume food or
beverages in any area exposed to a toxic material. This is an
unwarrantable failure.
The inspector determined that it was reasonably likely that the alleged violation would cause an
injury or illness and that it was S&S. He determined that the violation was caused by
Newmont's high negligence. The Secretary proposes a penalty of$1,000.00 for the alleged
violation. Section 56.20014 provides as follows:
No person shall be allowed to consume or store food or beverages
in a toilet room or in any area exposed to a toxic material.
3. On March 14, 1995, Inspector Drussel issued Order No. 4140246 at the mine under
section 104(d)(l) of the Mine Act alleging a violation of 30 C.F.R. § 56.20014. The condition or
practice section of the citation states:
The lunchroom for the ZADRA employees contained mercwy
vapors as measured with a Jerome mercwy vapor analyzer. The

1731

average reading was 22.2 J,tg/m3• The company routinely takes six
Jerome readings a day in this lunchroom as part of [its] mercury
monitoring program. These readings show that mercury vapors
have been present in this lunchroom. The ZADRA employees
were required to use this lunchroom for eating their lunch. No
person shall be allowed to consume food or beverages in any area
exposed to a toxic material. This is an unwarrantable failure.
The inspector determined that it was reasonably likely that the alleged violation would cause an
injury or illness and that it was S&S. He determined that the violation was caused by
Newmont's high negligence. The Secretary proposes a penalty of$1,200.00 for the alleged
violation.
4 . On March 14, 1995, Inspector Drussel issued Order No. 4140247 at the mine under
section 104(d)(l) of the Mine Act alleging a violation of30 C.F.R. § 56.20011. The condition or
practice section of the citation states:
The old scrubber removed from the AARL was cleaned then tested
for mercury contamination. This scrubber was stored at the
boneyard. Mercury contamination test results received in
November 1994 showed mercury contamination. The scrubber
was not removed from the boneyard or marked of the hazard.
When the scrubber was inspected to show visible mercury, Jerome
readings showed mercury vapors present. This is an unwarrantable
failure.
The inspector determined that it was unlikely that the alleged violation would cause an injury or
illness and that it was not S&S. He determined that the violation was caused by Newrnont's high
negligence. The Secretary proposes a penalty of $1,500.00 for the alleged violation.
B.

Back(Uound

After gold-bearing rock is excavated at the mine, Newmont uses a complex benefaction
process to remove the gold from the host rock. The procedure used to separate the gold from the
rock includes, among other things, a cyanide leach process. As part of that process, carbon is
impregnated with gold solution and then sent through the "carbon-handling" area, which consists
of the AARL and ZADRA facilities. In the AARL facility, gold is chemically stripped from the
carbon for further refining. In the ZADRA facility, the carbon is sized for reuse. Mercury is
found in the gold-bearing rock at the mine. As a consequence, mercury is generated during the
carbon-handling process. The mercury that is present is elemental mercury. Elemental mercury
is commonly used in thermometers, thermostats, and batteries. It vaporizes quickly in warm
conditions and, as discussed below, is harmful in its vaporized form. In contrast, organic
mercury compounds are readily absorbed by dennal contact and through ingestion. Organic
mercury compounds and inorganic mercury salts are not present at the mine and are not involved

1732

in these cases. Except where I state otherwise, whenever I use the word "mercury" in this
·
decision, I am referring to elemental mercury.
ll. SUMMARY OF THE PARTIES' ARGUMENTS
A. The Citation and Order Nleging Violations of Section 56.20014
1. The Secretazy
The Secretary argues that section 56.20014 is a performance standard that requires the
Secretary to establish two elements to prove a violation. First, she must establish that the area
cited was a toilet room or a place where food or beverages were consumed. Second, she must
establish that the cited area was "exposed to a toxic material." She contends that there can be no
dispute that the cited offices were used as lunch and break rooms where food and beverages were
both consumed and stored. She also contends that these areas were exposed to mercury from the
surrounding production areas. The Secretary contends that Newmont's interpretation of the
standard to require the Secretary to prove that the toxic material was present in sufficient
quantities to present a clear health hazard is incorrect. She maintains that the Secretary is not
required to show that the quantity of mercury detected presented a hazardous dose level.
Similarly, she contends that she is not required to establish that mercury presents a serious health
risk when ingested. Rather, the Secretary argues that mercury is a toxic material as a matter of
law. She contends that mine operators "are obliged, under the tenns of this regulation, to take all
reasonable steps to prevent mercury exposure in eating and dining areas." (S. Br. at 25) . .The
Secretary states that the standard is clear on its face. She disagrees with Newmont's position that
unless the term "toxic material" is interpreted to have a dose level component, the standard is
impermissibly vague and violates Newmont's due process rights.
The Secretary also argues that Newmont's failure to prevent its employees from eating in
areas exposed to a toxic material demonstrates its unwarrantable failure to comply with the
standard. She contends that Newmont had been aware of the conditions cited by the inspector for
six years and did nothing to correct the conditions. She points to the fact that in 1992 Newmont
improved the lunchroom at its refmery at the mine after determining that employees were eating
and consuming beverages in areas that were exposed to mercury vapors. The Secretary also
contends that Newmont's defense that it was not in violation of the standard so long as mercury
vapor did not exceed the threshold limit value ("TLV") for mercury, incorporated by the
Secretary through 30 C.F.R. §56.5001, is inherently unreasonable. The Secretary also relies on
complaints made by miners to Newmont managers about the presence of mercury in the AARL
and ZADRA offices (the "offices") to establish aggravated conduct. The Secretary seeks to
increase the penalty for these alleged violations to $5,000 each.
2. Newroont
Newmont argues that to establish a prima facie case, the Secretary must prove that the
mercury alleged to be present in the offices when food and beverages were consumed was a toxic

1733

material. It contends that the record establishes that the elemental mercury at issue in these cases
was not a toxic material because it was not present in such quantities to present a health hazard.
Newmont maintains that there is no dermal contact risk associated with elemental mercury. In
addition, its states that ingestion of elemental mercury, at least at the levels present fu the offices,
does not present a health hazard. Newmont contends that inhalation of mercury vapor is the only
exposure route of concern for elemental mercury. MSHA has a specific regulation addressing
mercury vapor at section 56.5001. Under that regulation, the average permissible dose of
mercury vapor that MSHA allows miners to be exposed to over a working shift is 50 micrograms
(Jlg). 1 Newmont contends that unless the amount of mercury vapor in the offices exceeds 50
micrograms, a health hazard is not present and the rooms have not been exposed to a toxic
material as that term is used in the standard.
Newmont also con~ends that the Secretary's interpretation of section 56.2001.4 is
arbitrary, capricious, and contrary to law. First, it contends that the Secretary failed to
distinguish between the health risks associated with elemental mercury and the risks posed by
other forms of mercury. Second, it argues that basic toxicology and industrial hygiene provide
that the dosage of a substance determines whether it poses a health hazard. This is, because all
substances are toxic to the human body at a given dosage level, a substance cannot be considered
to be a toxic material unless the dose at which miners are exposed is taken into consideration. It
believes that unless the Secretary establishes that the mercury detected by Inspector Drussel
presented a significant risk of harm to employees, the citation and order must be vacated.
Finally, Newmont argues that the Secretary's prior inconsistent interpretation of the
standard and prior inconsistent actions of her inspectors, precludes giving her present
interpretation any deference. It contends that it was not provided with fair warning of the
conduct that was prohibited by the standard because a reasonably prudent person familiar with
the mining industry and the protective purposes of the Secretary's standards would not have
known that the presence of mercury vapor below the TLV violated the standard.
B . The Citation and Order Alleging Violations of Section 56.20011
1. The Secretazy
The Secretary argues that Newmont violated the standard when it placed a contaminated
discarded mercury scrubber from the AARL in a boneyard without providing a barricade or
warning. She contends that it also violated the standard when it placed a dewatering screen from
the AARL in a containment area without providing a barricade or warning. She contends that the
cited equipment contained mercury that presented a he~lth hazard. The Secretary maintains that
both pieces of equipment were in open areas where employees could come in contact with them.

1

The TLV for mercury under section 56.5001 is 0.05 milligrams per cubic meter of air
(mglm ). Since Inspector Drussel measured mercury vapor in micrograms, I also use micrograms
throughout this decision. 50 micrograms (f.lg ) is equal to 0.05 milligrams (mg).
3

1734

Finally, the Secretary contends that Newmont's violation with respect to the scrubber was the
result of its aggravated conduct because it was aware of the hazard and did nothing to prevent
employees from being exposed to the hazard.
2. Newroont
Newmont makes many of the same arguments with respect to this citation and order as it
did with respect to the alleged violations of section 56.20014. It contends that the Secretary did
not establish that the cited equipment presented a health or safety hazard within the meaning of
the standard. Newmont argues that the citation and order were issued because of a "potential"
hazard rather than because a hazard existed. Further, Newmont argues that, after the citation and
order were issued, it monitored for mercury vapor at the scrubber and screen and the results were
well below the TLV. Finally, it argues that the Secretary did not provide reasonable notice that a
bead of mercury on a·piece of equipment would requiJ:e a warning sign or a barricade.
Ill. DISCUSSION WITH FURTHER FINDINGS
AND CONCLUSIONS OF LAW
A. The Citation and Order Alleging Violations of Section 56.20014
I. Introduction
The cited standard is quite brief. For purposes of theses proceedings it provides that no
person shall be allowed to consume or store food or beverages in any area exposed to a toxic
material. Although Newmont introduced evidence designed to raise questions as to whether food
or beverages were in fact stored or consumed in the offices on or about March 14, 199 5, I find
that the overwhelming evidence establishes that they were. Whether miners were encouraged by
Newrnont to take their meal breaks in other areas, or that consuming or storing food and
beverages in the offices was not officially sanctioned by Newmont is irrelevant. The evidence
shows that miners were not prohibited from drinking beverages, eating food, or storing beverages
and food in the offices. The standard states that "no person shall be allowed to" consume food or
beverages in an area exposed to a toxic material or to store food or beverages in such area. The
record demonstrates that Newmont allowed such activities in the offices.
The issue then is whether the offices were areas "exposed to a toxic material," as that
phrase is used in the standard. There is no question that mercury vapor was present in the
offices. Newrnont's own records show that mercury vapor was present. (Ex. S- 112). Newmont
took mercury vapor samples six times a day in the offices using a Jerome monitor. The question
is whether the presence of mercury vapor establishes that the area was exposed to a toxic
material. The Secretary maintains that the evidence establishes that mercury is a toxic material at
any dosage level. She states that mercury is a universally recognized poisonous substance. She
believes that there is no known universally safe level for exposure to mercury and she rejects
Newmont's contention that at certain dose levels mercury is not toxic to humans. She states that
the dose level at which mercury is safe for all persons has not been definitively determined.

1735

Consequently, she believes that mercury must be presumed to _be a toxic material at any dose that
is detectable by standard industrial hygiene instruments. She further argues:
MSHA asserts mercury to be a "toxic material" as a matter of law. Mine
operators are obliged, under the tenils of this regulation, to take all reasonable
steps necessary to prevent mercury exposure in eating or dining areas.
(S. Br. at 25). Accordingly, the Secretary contends that because she demonstrated that mercury
vapor was present in a detectable amount in each office and that mercury is a toxic material, she
established violations of section 56.20014.
Newrnont strongly disagrees with the Secretary's interpretation of the standard. As
stated above, Newrnont contends that the Secretary must establish that the mercury vapor that
was detected by Inspector Drussel on March 14 was a toxic material. It maintains that the 23.3
J..Lg/m 3 and 22.2 J..Lg/m 3 readings obtained by Inspector Drussel show that a toxic material was not
present because at that dose mercury is not toxic. Newmont characterizes the Secretary's
interpretation as a "zero tolerance policy." It contends that under this interpretation, the
Secretary can issue a citation in the offices if an inspector detects any level of mercury that can
be measured with a Jerome monitor. Newmont argues that this interpretation is inherently
unreasonable.
Mercury can potentially enter the human body by three routes: through the skin, through
the digestive tract, and through inhalation. In order to understand the issues raised in this case it
is important to consider the relative risks posed by these three potential routes of entry. I discuss
each in tum below.
a. Risks Posed by the Inhalation of Mercury
The inhalation of mercury fumes can present significant health risks. About 80% of all
inhaled mercury vapor is absorbed into the human body through the lungs. If a person is exposed
to mercury fumes at the TLV, he will absorb about 400 micrograms of mercury during an 8-hour
shift.
b. Risks Posed by Dermal Contact with Mercury
I find that dermal contact with elemental mercury does not pose as significant a health
risk. Very little mercury is absorbed through the skin. The dermal absorption rate is only 2.2%
of the inhalation rate and only about 50% of the mercury that is absorbed into the skin enters the
body. The rest stays in the skin and is sloughed off. I credit the evidence presented by Newmont
that only about .8 percent of any mercury exposed to the skin is actually absorbed into the body.
c. Risks Posed by the Ingestion of Mercury
It is clear that ingestion of mercury in the quantities that would be possible in the offices
does not present a health risk to miners. The ingestion rate for mercury is between .0 I and .00 I

1736

of a percent. If a miner ate a sandwich that contained a bead of.mercury, only a negligible
amount of mercury would remain in his body. I agree with Newmont's evidence that such an
event is "toxicologically irrelevant." It is highly unlikely that anyone would get mercury
poisoning by eating small amounts of mercury, even over a period of time.
d. Conclusions
I conclude that inhalation is the primary exposure route for elemental mercury that is of
concern in these cases. Of course, mercury vapor can enter the offices in a number of ways. It
can come in through the doors and the ventilation systems. In addition, miners can get beads of
liquid mercury on their clothing. If mercury is on a miner's clothing or boots, the mercury can
contaniinate an otherwise clean environment.
2. Did Newmont Violate Section 56.20014?
There is no dispute that mercury is a toxic material if it is detected at levels above 50
J..Lglm over a working shift. The issue is whether mercury is a toxic material, as that term is used
in the standard, if it is detected at levels significantly less than that, around 22 to 24 Jlg/m3• The
Secretary maintains that the TLV is irrelevant in this case because all she needs to prove is that
the offices were exposed to a toxic material. She argues that mercury is a toxic material at all
detectable levels because ''the dose level at which mercury is assuredly safe for all persons
(including female miners of childbearing age) has not been determined." (S. Br. at 25).
3

Newmont argues that a material is toxic if it is poisonous to hwnans. A toxic material is
a poisonous material. It contends that any material is poisonous to humans if the exposure is
sufficient. Thus, it maintains that one must·consider the dose when determining if a material is
toxic. Without taking the dose into consideration, everything is toxic and the term "toxic
material" becomes meaningless. It argues that it is the dose that makes the poison. It relies on
the testimony of its expert witnesses in making this argwnent. It also points to the fact that
dental amalgams (fillings) are widely reported to produce between 3 and 29 Jlgs of mercury
vapor within a person's mouth, 24 hours a day, 365 days a year. Such fillings are not considered
to be hazardous to humans. Because Inspector Drussel detected low levels of mercury vapor in
the offices, Newmont contends that no health risk was posed and a toxic material was not
present.
The Secretary argues that the offices were exposed to a toxic material because Newmont
failed to adequately assure that liquid mercury and mercury vapors would not enter into and
remain in the offices. She contends that because ofNewmont's deficient industrial hygiene
practices, Newmont exposed the two offices to ambient mercury vapor and liquid mercury
originating from the production areas. She points to the fact that during the years proceeding
March 1995, Newmont did not have in place an industrial hygiene protocol to keep the offices
clean. For example, miners would enter the offices without removing or washing their boots or
personal protective equipment, which could be contaminated with mercury from the plant.
Another example relied upon by the Secretary was the fact that the offices were not adequately

1737

ventilated so that air containing mercury vapor would enter the offices from the plant. As proof
of this constant contamination, the Secretary relies on Newmont's mercury monitoring results for
the offices.
Although the parties presented extensive evidence at the hearing, the dispute primarily
concerns the interpretation of the standard. Each side presented evidence to support its
interpretation. Thus, it is important to carefully consider the legal issues raised to support the
conflicting interpretations.
I find that detectable levels of mercury vapor were frequently present in the subject
offices in the year preceding March 1995. (Ex. S-112). Mercury vapor was generally present in
the offices during the first three months of 1995 in the range of 8 to 30 Jlg/m3, but occasionally
higher readings were obtained. There were several readings between 50 and 60 Jlg/m3 and one in
excess of 300 j.!g/m3 because the AARL office had not been recently cleaned. (Ex. S-112 at 2880
and 2940). Newrnont contends that Jerome mercury monitors do not provide accurate
measurements to assess personal exposures, but only provides a rough measure of potential
mercury vapor sources.
Jerome monitors take an instantaneous reading. Even if several readings are taken, they
may not represent the 1LV because the readings are not time-weighted over the shift. I agree
with Newmont that a person can obtain a wide range of Jerome readings in a single room over a
period of a few minutes, even when the instrument is properly calibrated and used. The record
also shows that certain chemicals used in the plants can cause a Jerome monitor to detect the
presence of mercury. In this instance, however, the record contains hundreds of Jerome readings
taken in the offices over a long period of time. Accordingly, I find that I can properly conclude
that mercury vapor was present 'in the offices on a consistent basis, but that the amount of.such
vapor was almost always below the TLV. Even in those instances where readings above 50
Jlg/m3 were made, the 1LV may not have been exceeded because the readings were not timeweighted.
a. Plain Meaning of Standard
Because the Secretary asserts that mercury is a toxic material as a matter of law, she
argues that she is not required to establish that mercury was present at hazardous levels the time
the citations were issued. She interprets section 56.20014 to presume that a hazard exists when
detectable mercury vapor is found. She contends that the plain meaning of the words in the
standard supports her interpretation. In addition, she states that the standard must be interpreted
so as to "effectuate its purposes." (S. Br. at 26). In the alternative, the Secretary argues that the
Commission should defer to her reasonable interpretation of the standard.
I find that the plain language of the standard does not automatically lead to the
Secretary's interpretation. The concept of an area being "exposed to a toxic material" is
somewhat ambiguous. In addition, the purpose of the standard is not entirely clear. Newrnont
interprets the standard to apply only to ingestion hazards. It believes that the standard is designed

1738

to keep food and beverages from becoming contaminated with.toxic substances. Accordingly, I
give Newmont's argwnents the benefit of the doubt and reject the Secretary's position that the
plain language of the standard precludes any interpretation of the standard other than her own
interpretation.
b. Deference
It is well established that an agency's interpretation of its own regulations should be given
"deference ... unless it is plainly wrong" and so long as it is "logically consistent with the
language of the regulation and ... serves a permissible regulatory function." General Electric Co.
V EPA, 53 F.3d 1324, 1327 (D.C. Cir 1995)(citations omitted); Buffalo Crushed Stone, Inc., 19
FMSHRC 231, 234 (February 1997). In addition, the legislative history of the Mine Act states
that "the Secretary' s interpretations of the law and regulations shall be given weight by both the
Commission and the courts." S. Rep. No. 181, 95th Cong., 1st Sess. 49 (1977), reprinted in
Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2nd Sess.,
Legislative History ofthe Federal Mine Safety and Health Act of 1977 at 637 (1978).
Newmont contends that no deference is owed the Secretary' s interpretation because her
interpretation of this standard has been inconsistent. Newmont relies on a number of factors in
making this argument. First, it states that Inspector Drussel inspected these offices on many
occasions; he knew or had reason to know that a low level of mercury vapor was generally
present, and he drank coffee in the offices. Second, it states that the Secretary's prior written
interpretation of the standard does not support her present interpretation. 1bird, it maintains that
the Secretary's interpretation of an identical standard under OSHA is inconsistent with her
interpretation under MSHA. Finally, it states that the Secretary does not consistently apply her
interpretation.
I find that although the Secretary' s policies have not always been clearly enunciated, her
policies have been sufficiently consistent to consider the application of deference. Inspector
Drussel admitted that prior to March 1995, he knew that miners ate in the offices. (Tr. 1185).
He admitted that prior to March 1995, he believed that the offices were in compliance with
MSHA standards. /d. He also admitted that prior to March 1995, be believed that the "action
level" for mercury vapor was 50 1-1g/m3 for personal samples. Finally, Inspector Drussel testified
that prior to March 1995, he knew that mercury vapor was in the AARL office and he personally
drank coffee in that office, but he did not issue any citations for violating section 56.20014. (Tr.
1202-03). From this testimony, Newrnont concludes that the Secretary did not consider mercury
vapor at levels below 50 1-1g/m3 to present a hazard in areas where food or beverages are
consumed and did not believe that the conditions in Newmont's offices violated the standard.
Newmont contends that this shows that the Secretary's prior interpretation of the standard is
inconsistent with her present interpretation.
Newmont has stretched Inspector Drussel's testimony beyond recognition. The fact that
one inspector drank coffee in an area in which mercury vapor was present does not indicate that
the Secretary has changed her interpretation of the standard. From this testimony, it appe~ that

1739

the local MSHA office relied on personal samples taken in accordance with section 56.5001
when testing for mercury. At most, it shows that MSHA was not enforcing section 56.20014 at
the Newmont facility. An agency's failure to strictly enforce a particular standard cannot be the
basis for finding that its prior interpretations of the standard were inconsistent. As I stated at the
hearing, an MSHA inspector's failure to issue any citations at a mine does not establish that the
Secretary has determined that the mine operator is in compliance with all MSHA safety and
health regulations. The fact that previous citations had not been issued cannot be the basis for
rejecting deference to the Secretary's interpretation.
Newmont also relies on a prior written interpretation issued by the Secretary. In 1981, the
Secretary issued a Metal and Nonmetal Mine Safety and Health Inspection and Investigation
Manual ("I & I Manual''). For section 56.20-14, the old section number for the standard, the I &
I Manual states: "The purpose of this mandatory standard is to ensure that foods or beverages
are not stored or consumed in areas where toxic materials or unsanitary conditions could
contaminate the food and cause illness." (Ex. R-59A at 66-S-4). Newmont contends that the I &
I Manual shows that the standard has previously been interpreted as a food contamination
standard, not an airborne contaminant standard. It argues that this interpretation is entirely
inconsistent with the position that the Secretary is taking in this case.
In July 1988, the Secretary issued MSHA's Program Policy Manual (the "Manual"),
which superseded the I & I Manual. The Manual does not contain any interpretation of the
standard at issue and states on the cover page that it "includes all policies currently in effect
which were issued prior to July I, 1988." Paul Balanger, one of the drafters of the Manual,
testified that any applications contained in the old I & I Manual that were not applicable or were
deemed unnecessary were not included in the new Manual. (Tr. 1421-1422). Thus, to the extent
that the I & I Manual included an inconsistent interpretation, it was deleted about seven years
prior to the date the citation and order were issued.
·
The introduction for the section of the I & I Manual discussing mandatory standards
states:
The following application of standards is to assist
inspectors in determining the intent and purpose of the given
standard. They do not have the force of law and do not supersede
or override the standards themselves, and are subject to policy
change.
(Ex. R-59A at 66-A-1). Thus, the I & I Manual specifically provided that the applications were
not binding, did not override the language of the standard, and could change over time.
Although I find that there is some tension between the application set forth in the I & I
Manual and the Secretary's present interpretation of section 56.20014, it is not so inconsistent as
to hold that the Secretary's interpretation in this case is not entitled to any deference. In the cases
cited by Newmont to support its position, the agency in question had a history of prior

1740

inconsistent enforcement, the agency changed procedures through an internal staff memorandum
that had been established by regulation, or the agency refused to adhere to the precedent of its
own internal review board even though it followed such precedent in previous and subsequent
cases that were very similar.

In this case, MSHA issued a policy statement in 1981 that was revoked in 1988 that
generally indicated that the focus of the standard was to prevent the contamination of food.
There has not been ariy showing of prior inconsistent enforcement. If there is any inconsistency,
it is that the agency did not direct its resources to the enforcement of the cited standard until
recently.
Newmont_also relies on the Secretary's enforcement of the same standard under OSHA.
It points to the analogous regulation of the Department of Labor's Occupational Safety and
Health Administration ("OSHA") that defines "toxic material" to mean a material that is present
in a concentration that exceeds the TLV or, in the absence of an applicable standard, "which is of
such toxicity so as to constitute a recognized hazard that is causing or is likely to cause death or
serious physical harm." (N. Br. at 27, quoting 29 C.F.R. § 1910.141(a)(2)(viii)). Thus, the
Secretary limits OSHA's similar standard, at 29 C.F.R. § 1910.141(g)(2), to situations where
mercury is detected above the TLV. If mercury is detected in eating or drinking areas at levels
below the TLV, the equivalent OSHA standard is not violated.
The Commission and the courts owe deference to the Secretary, not to the Assistant
Secretary for Mine Safety and Health or to his staff. Thus, Newmont's argument has some
appeal. I find, however, that there are some important differences between the underlying OSHA
and MSHA statutes. Under the OSHA statute, a safety or health standard must be "reasonably
necessary or appropriate to provide safe or healthful employment and places of employment." 29
U.S.C. § 652(8). The Supreme Court has interpreted this requirement to mean that the Secretary,
when promulgating a health standard, must determine that the standard is "reasonably necessary
and appropriate to remedy a significant risk of material health impairment.'' Industrial Union
Dep 'tv. American Petroleum /nst., 448 U.S. 607, 639 (1980). The Mine Act does not include
such a requirement. The Secretary is not required to establish during rulemaking that a proposed
MSHA standard is necessary to "remedy a significant risk." ld Under the Mine Act, the
Secretary is authorized to promulgate standards "as may be appropriate ... for the protection of
life and prevention of injuries ...." 30 U.S.C. § 8ll(a); National Mining Ass 'n v. Mine Safety &
Health Admin., 116 F.3d 520, 527 (D.C. Cir. 1997). The Secretary of the Interior originally
promulgated section 56.20014, under the Federal Metal and Nonmetal Mine Safety Act, using the
OSHA standard as a starting point. He did not incorporate the OSHA definition of"hazardous
material" in the standard. Accordingly, I find that the Secretary's different interpretation of a
similar standard under the OSHA statute is grounded in that statute and should not be the basis
for refusing to defer to the Secretary's interpretation of the standard in this case.
Finally, Newmont contends that deference is not owed the Secretary's interpretation of
the standard because she does not consistently apply this interpretation. Newmont provides
examples of inconsistent enforcement. Oxygen and carbon dioxide, for example, are hazardous

1741

at high doses, yet 'M SHA does not issue citations if oxygen or carbon dioxide are detected in a
lunchroom. Silica dust is another example. It is well docwnented that silica presents a health
hazard, yet MSHA does not cite mine operators if silica dust is detected in a lunchroom at levels
below the TLV. Newmont asserts that the Secretary is enforcing the standard on an arbitrary and
ad hoc basis. The Secretary contends that she is not required to apply the standard to all other
toxic materials in the same manner as mercury. She states that "MSHA's consistency of
application from substance to substance is based on a decision-making process that will look to
factors such as the natw:e of the material, its physical properties, warning properties, paths of
exposure, feasibility of detection and control, and the standard of care." (S. Reply Br. at 26).
She also states that she will "rationally apply the regulation to these other substances in other
envirorunents on the basis of the nature of the toxic material, including its health effects and
routes of absorption, the nature of the environment and feasibility of detection and control, as
well as the recognized levels and types of control mandated by reasonably prudent industrial
hygiene and occupational health practice." (S. Br. at 35).
I agree with the Secretary that the fact that she does not enforce section 56.20014 with
respect to silica dust, for example, in the same way that she enforces the standard with respect to
mercury is not important when considering deference. There are many reas9ns why the Secretary
may not be as stringent with silica dust in lunchrooms including, but not limited to, the
impracticality of controlling low levels of silica dust at mines. It appears to me that the Secretary
is concerned that Newmont was not doing all that it could to eliminate elemental mercury in the
offices. She believes that Newmont was not following recognized industrial hygiene practices
with respect to the control of mercury in the offices. Her interpretation is entitled to deference
even though she may not interpret the standard as stringently with respect to other toxic
materials.
In conclusion, I fmd that Newmont has not presented sufficient reason to not apply the
concept of deference to the Secretary's interpretation of section 56.20014. In addition, I find that
the Secretary's interpretation is reasonable and consistent with the purpose of the Mine Act. The
prevention of occupational illness is one of the fundamental purposes of the Mine Act.
Consolidation Coal Co., 8 FMSHRC 890, 895 (June 1986). Standards under the Mine Act are
broadly interpreted to achieve the goal of protecting the safety and health of miners. Section
56.20014 does not contain a dose level and there is no implication that the term "hazardous
material" only applies if the material is detected at a level above the TLV. Thus, I conclude that
the Secretary's interpretation of the standard is reasonable. Newmont is not contending that
reducing the level of mercury to detectable levels was technically or economically infeasible.
The record makes clear that significant reductions in mercury vapor levels can be obtained using
available industrial hygiene practices. Other gold mines in northeast Nevada have successfully
implemented these practices at their lunchrooms. Such practices include, for example, separating
offices and control rooms from eating areas, locating changing rooms and boot washes adjacent
to eating areas, and establishing positive pressure ventilation systems for eating areas. Newmont
had previously instituted some of these measures for the lunchroom at its refmery and instituted
such measures to abate the citation and order at issue here.

1742

It is important to keep in mind that the Mine Act is a strict liability statute. Asarco v.
FMSHRC, 868 F.2d 1195 (lOth Cir. 1989). When a violation of a standard occurs, the "operator
is automatically assessed a civil penalty." (/d at 1197). The Mine Act imposes no general
requirement that a violation of a standard create a safety or health hazard in order for the citation ·
to be valid. Allied Products Co., 666 F.2d 890, 892-93(5th Cir. 1982). Thus, if a condition
violates a standard, a citation is proper. Newmont's argument that the Secretary's interpretation
is unreasonable and not entitled to deference because she failed to demonstrate that the health of
miners was directly affected is misplaced. I find that the Secretary established that the cited
offices had been exposed to a toxic material as that term is used in the standard. ·

3. Would a Reasonably Prudent Person Have Reason to Know that Section 56.20014
Applied when Mercuzy is Detected at Levels Below the TLV?
As stated above, the plain language of the standard does not automatically lead to the
interpretation that the Secretary advanced in this proceeding.. I held that the Secretary's
interpretation is entitled to deference, however, because it is reasonable and consistent with the
purposes of the Mine Act. A final and distinct inquiry is whether the Secretary provided mine
operators with sufficient notice of the requirements of the standard. Would a person of ordinary
intelligence know what was required by the standard or would he have to guess at its meaning?
The language of section 56.20014 is "simple and brief in order to be broadly adaptable to
myriad circumstances." Kerr-McGee Corp., 3 FMSHRC 2496,2497 (November 1981);
Alabama By-Products Corp., 4 FMSHRC 2128,2130 (December 1992). Such broadly written
standards must afford notice of what is required or proscribed. U.S. Steel Corp. , 5 FMSHRC 3, 4
(January 1983). In "order to afford adequate notice and pass constitutional muster, a mandatory
[health] standard cannot be 'so incomplete,.vague, indefinite, or uncertain that [persons] of
common intelligence must necessarily guess at its meaning and differ as to its application'" Ideal
Cement Co., 12 FMSHRC 2409,2416 (November l990)(citation omitted). A standard must
"give a person of ordinary intelligence a reasonable opportunity to know what is prohibited, so
that he may act accordingly." Lanham Coal Co., 13 FMSHRC 1341, 1343 (September 1991).
When faced with a challenge that a safety standard failed to
provide adequate notice of prohibited or required conduct, the
Commission bas applied an objective standard, i.e., the reasonably
prudent person test. The Commission recently summarized this
test as "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."

/d. (citations omitted). To put it another way, a safety standard cannot be construed to mean
what the Secretary intended but did not adequately express. "The Secretary, as enforcer of the
Act, has the responsibility to state with ascertainable certainty what is meant by the standard he
has promulgated.'' Diamond Roofing Co. V. OSHRC, 528 F.2d 645, 649 (5th Cir. 1976).

1743

Newmont argues that the Secretary failed to provide notice to mine operators that the
safety standard applies when mercury is present in levels below the TLV. Newmont argues that
based on MSHA' s past enforcement actions, prior policy statements, and the Secretary's
interpretation of the similar OSHA standard, a reasonably prudent person would agree with
Newmont's interpretation. Newmont relies on the I & I Manual, discussed above, arguing that
the only written guidance the Secretary has issued is contrary to her current interpretation.
Newmont argues that the mining industry reasonably believed that the section 56.20014 was a
food contamination standard and that mercury vapor below the 1LV was never an issue with
MSHA inspectors. It states that no policy statements .were issued and no public announcements
were made by the MSHA concerning its "new'' interpretation of the standard.
Newmont also relies on the testimony of a number of witnesses. First, it points to the
testimony of Margie Zalesak, MSHA' s chief of health, that the Secretary's interpretation of the
standard with respect to lunchrooms was never specifically communicated to the mining
community. (Tr. 2758). Newmont argues that Ms. Zalesak could not articulate how MSHA
exercises its enforcement discretion under the standard. (Tr. 2770-71). Michael Simmons, who
was a foreman in the carbon-handling area at the time the citation and order were issued, testified
on behalf of the Secretary. He testified that at the time the citation and order were issued he
believed that the mine was in compliance with MSHA standards, as long as mercury vapor in the
offices was kept below the TLV. (Tr. 1018-19). Dennis J. Tobin, MSHA's manager of the Elko,
Nevada, field office, testified that he had always thought in terms of the TLV and had not
thought about applying section 56.20014 to levels below the TLV. (Tobin Dep. at 21-22)? Mr.
Tobin further testified that if a mine operator were to ask him what the word "toxic" means in
section 56.20014, he would refer to the TLV book. (/d. at 54-55). Inspector Drussel testified
that, in March 1995, his application of the "lunch room standard" changed. (Tr. 1203).
Newmont contends that this change was ma<;ie without any advance notice to Newmont or the
mining community in general.
Thomas H. Koenning, chief of the toxic materials division of MSHA' s Denver Safety and
Health Technology Center ("Denver Tech"), testified that MSHA would not normally cite a work
area where mercury was detected below the 1LV because such levels are generally considered to
be safe. (Koenning Dep. at 67). Galen Trabant, an industrial hygienist with Denver Tech,
testified that the MSHA standard for mercury is 50 J..1g/m3 and .that he is not aware of any other
MSHA standard for mercury exposure. (Trabant Dep. at 23). Mr. Trabant visited the South Area
Gold Quarry on March 28, 1995, along with other MSHA officials and conducted a mercury
health hazard survey, as described in the Denver Tech report. (Ex. R-4).
The Secretary approaches the notice issue from a different direction. She contends that
Newmont knew that mercury vapor was present in the offices. She believes that she established
that Newmont had "subjective knowledge that it needed to take effect~ve steps to remedy

2

At the hearing, upon joint motion of the parties, the deposition transcripts of a number
of individuals were admitted into evidence in lieu of testimony.

1744

mercury exposures in lunchrooms." (S. Br. At 36). The Secretary points to steps Newmont took
in 1992 to clean up an eating area in its refinery. She states that the fact that Newmont
implemented the measures required by the standard at the refinery shows that it knew what the
standard required. For example, a change area was provided at the lunchroom in the refinery and
employees are required to remove coveralls and personal protective equipment before entering
the lunchroom. The Secretary also states that although Newmont's industrial hygienist advised
employees not to eat pr drink in "any mercury exposure area," Newmont failed to provide an area
for miners in carbon-handling where they could follow the industrial hygienist's advice. (Ex. S127 p. 1).
The Secretary also relies on a memorandum sent to Kim Redding, a miner at the facility,
on March 2, 1995, from Frank Hanagarne, who was manager of carbon-handling and the refmery.
(Ex. S-127 pp. 46-49). In that memo, Mr. Hanagame discussed measures that Newmont uses to
control employee exposure to mercury. Under the heading "Personal Hygiene," Mr. Hanagame
stated that the company is "concerned about the lack of a separate clean area for a lunch room for
the workers." (ld at 48). He went on to explain that Newmont purchased a trailer for this
purpose and that it would be installed as soon as other necessary work was completed. The
Secretary maintains that this memo shows that mine management knew that the offices were
exposed to mercury, were "potentially contaminated," and knew that remedial steps were
necessary. (S. Br. at 37). The Secretary also contends that Newmont was put on notice of the
requirements of the standard when, at an August 1994 meeting, Mr. Redding claimed that the
offices violated section 56.20014 and _read the standard aloud to management. (Tr. 377,491-92,
920-21).
In addition, the Secretary relies on a NIOSH criteria document that "indicates that food
and beverages should not be consumed in mercury work areas." ( S. Br. at 38; Ex. R-6 appendix
III, Art. 7(a)). She also relies on the material safety data sheet for mercury that states: "Do not
eat, drink, or smoke in any work area." (Tr. 2628). In conclusion, the Secretary maintains that
the text of the section 56.20014 and the factors set forth above provided more than enough notice
of the requirements of the standard.
The Secretary's argument that Newmont had subjective knowledge of the requirements of
the standard is not well taken. The fact that Newmont took actions to improve the lunchroom for
the refmery, that internal memoranda stated that managers were concerned about the lack of a
clean lunchroom, or that Newmont was in the process of installing a trailer for use as a
lunchroom does not establish that Newmont had knowledge of the Secretary's interpretation of
section 56.20014. In Lanham, a citation was issued for the failure of an independent contractor
to wear a safety line while placing a tarp over the bed of a haul truck. There is no dispute that a
reasonably prudent person would see a danger of falling when standing on the top of a haulage
truck unrolling a tarp. Indeed, in that case the driver of the truck fell about ten feet to his death
while unrolling the tarp. The issue in that case was whether a reasonably prudent person would
know that the safety standard required the use of safety belts and lines when placing a tarp on a
truck. The MSHA inspector testified that he had never observed a safety belt or line being used

1745

on a truck and had ·not previously "considered the standard applicable to the tarping of trucks."
13 FMSHRC 1343.
The issue under the reasonably prudent person test in the present case is not whether
Newmont was on notice that mercury is hazardous or that mercury was present in the offices.
The issue is whether a reasonably prudent person would have reason to know that mercury vapor
in a range of 22 to 24 f.Lg/m3 was a toxic material that was prohibited in an area where food or
beverages are consumed ~r stored. An agency provides notice of the meaning of the standard
through the language of the standard itself, written interpretations that it has issued, prior
enforcement actions, and other actions it has taken that shed light on its interpretation. Although
this is a close issue, I find by a preponderance of the evidence that a reasonably prudent person
with knowledge of the mining indust:ty and the protective purposes of the standard would have
recognized that beads of liquid mercury and mercury vapor in the range of 22 to 24 f.Lg/m3 were
prohibited where food or beverages were stored or consumed under the standard.
First, the language of the standard itself indicates that areas where food or beverages are
consumed require more stringent controls against toxic materials than work areas at a mine. If,
as argued by Newmont, only substances above the TLV were prohibited in eating areas, then the
regulation is redundant. The same standard of care would be required in lunchrooms as in the
plant itself. If mercury is not a hazardous material, as that term is used in the standard, unless it
is present in a quantity or dose greater than the established TL V, then section 56.20014 serves no·
purpose with respect to areas where people eat and store food and beverages. Such a reading
does not square with the purposes of the Mine Act or the language of the standard when read in
conjunction with section 56.5001. Construing sections 56.5001 and .20014 harmoniously, a
reasonably prudent person would conclude that areas where persons eat or store food cannot be
exposed to toxic materials, including mercury, even if the TLV were not exceeded. That is,
section 56.20014 should not be construed to incorporate the TLV for mercury as a floor below
which exposure is permitted under the standard. Such a person would realize that section
56.20014 is more stringent than section 56.5001 where food is stored and eaten.
The mercury readings obtained by Inspector Drussel were not a rare excursion above the
norm; his readings were consistent with the readings that had been taken in the offices by
Newmont for the previous year. In addition, the bead of mercury that was noted was not such an
unusual event as to constitute an aberration. ·A reasonably prudent person would recognize that
mercury is a toxic material. The fact that Inspector Drussel may not have detected a quantity of
mercury that is universally considered to be a harmful dose at the time of his inspection does not
change that fact. I find that a reasonably prudent person would interpret the standard to require
an operator to reduce the amount of mercury in eating and drinking areas to levels that are as low
as can reasonably be obtained. As stated above, existing technology allows mine operators to
reduce the amount of mercury in eating areas to levels that are significantly below·that measured
by Inspector Drussel. The standard gives sufficient notice to reasonable persons that mine
operators are required to take steps to prevent eating areas from being exposed to mercury, at
least in the quantities detected by the inspector.

1746

Newmont's argument that MSHA's prior inconsistencies were misleading is not well
taken. Although I recognize that the I & I Manual was relied upon by the metal mining industry
for a number of years, a reasonably prudent person would not rely on an interpretive manual in
1995 that was explicitly superseded in 1988. An interpretative manual is generally not binding
on the Secretary when it is in effect, and it is unreasonable to rely on such a manual six years
after it has been replaced.
In addition, the testimony cited by Newmont does not support its argument. Ms. Zalesak
simply stated that MSHA had not issued a policy letter with respect to section 56.20014. The
Secretary is not under a duty to issue interpretative bulletins for safety and health standards. The
testimony of Mr. Tobin must be read in context. At the time of the inspection, Mr. Tobin worked
in a different MSHA district where mercury contamination was not an issue. He stated that he
had not read the subject standard prior to becoming a field office supervisor in Nevada and was
not experienced with mercury issues. (fobin Dep. at 24, 50). A reasonably prudent person
under the Commission's test is ·s omeone who is familiar with the subject matter at hand, not a
person who has not thought about the issue.

Mr. Simmons testified that although he believed the mine was in compliance as long as
the TLV was not exceeded, he had his "own suspicions, but ... kept his mouth shut." (Tr. 1020).

Mr. Simmons questioned in his own mind whether the conditions in the offices created a hazard.
Finally, the testimony ofMSHA personnel from Denver Tech does not support Newmont's
position. They testified about section 56.5001 and the TLV. They did not state that unless the
TL V is violated, there can be no violation of section 56.20014.
Inspector Drussel testified that he had not applied section 56.20014 to the cited offices
prior to March 1995. (Tr. 1203). Prior to the time of his inspection, he did not believe that
readings below the TLV violated the standard. (Tr. 1205-06). As with Mr. Tobin, he had not
previously considered whether section 56.20014 should be applied to mercury vapor in eating
areas. MSHA's failure to enforce a standard does not establish MSHA policy that can be relied
upon by a reasonably prudent person. A mine operator cannot reasonably rely on the lack of
enforcement by MSHA to establish that a standard was not violated.
I believe that this case presents a different situation than in Lanham. In that case, the only
testimony on the issue was from the MSHA inspector. He testified that he had never cited an
operator for failing to tie off when tarping a truck and that "he had never observed safety belts or
lines used in such situations in more than 40 years of mining experience." 13 FMSHRC 171011(ALJ on remand). The issue was whether a reasonably prudent "person would have
recognized that attaching a tarp to a truck without utilizing safety belts and lines was prohibited
by the regulation." !d. at 1711. Based on the evidence, the judge determined that the "practice of
using safety belts and lines while tarping trucks is rarely if ever followed in the coal industry.,
!d. at 1712. In the present case, on the other hand, the record contains at least some evidence
that other gold mine operators provided a separate eating area for its employees that was kept as
free of mercury as was reasonably possible. (Tr. 160-63, 1533, 1542-45). The testimony cited by
Newmont establishes than Inspector Drussel, had not previously considered how to apply the

1747

standard to Newmont' s offices when mercury was present at leyels below the TLV. He did not
testify that he had previously thought about the issue and determined that the standard was not
violated in such circumstances. Moreover, neither Inspector Drussel nor any other witness
testified that metal mines rarely, if ever, provide clean lunchrooms for employees.
.As stated above, I find that the mining industry was provided with sufficient notice of the
requirements of section 56.20014. I believe, however, that the issue is a close one and that
MSHA could and should have done a better job of commwricating the standard's requirements to
the mining commwrity for the benefit of miners. The failure to provide such guidance
unnecessarily delayed the day when all mines provide clean lunchrooms for miners. I have taken
Newmont's arguments into consideration when evaluating the unwarrantable failure allegations
and the negligence criterion of section II O(i), as discussed below.
4. Were the Violations of a Significant and Substantial Nature?
An S&S violation is described in section 104(d)(l) of the Mine Act as a violation "of
such nature as could significantly and substantially contribute to the cause and effect of a ... 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. National Gypsum Co., 3
FMSHRC 822,825 (April1981). In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission set out a four-part test for analyzing S&S issues. Evaluation of the criteria is made
assuming "continued normal mining operations." US. Steel Mining Co., 6 FMSHRC 1573, 1574
(July 1984). The question of whether a particular violation is S&S must be based on the
particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (April 1988).

In order to establish that the violations are S&S, the Secretary must establish: (1) the
underlying violation of the health standard; (2) a discrete health hazard, a measure of danger to
health, contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to
will result in an illness; and (4) a reasonable likelihood that the illness in question will be of a
reasonably serious nature. Consolidation Coal Co., 8 FMSHRC 890, 897 (June 1986).
I fmd that the Secretary established the first two elements of the Commission's S&S test,
but did not establish the third element. Under the third element, the Secretary must establish that
it is reasonably likely that the hazard contributed to by the violation will result in an illness, but is
not required to show that it is more probable than not that an illness will result from the
violation. US. Steel Mining Co., 18 FMSHRC 862, 865 (June 1996). In support of her position,
the Secretary argues that Congress unambiguously declared itself in favor of preventing disability
from any occupationally related disease. She contends that "the evidence supports the conclusion
that the failure to control mercury exposures in the two break areas, if allowed to continue,
assuming nonnal continued mining operations, could reasonably be expected to cause mercuryrelated illness." (S. Br. at 41 ). The Secretary relies on the level of mercury that was present in
the offices in the weeks prior to March 14, 1995, the reports of beads ofliquid mercury in the
offices, and the lack of precautions to prevent employees from bringing contaminated clothing

1748

and personal protective equipment into the offices. The Secr~tary also relies on a different TLV
for mercury that has not been adopted by MSHA.
I agree that the elimination of occupational illnesses is one of the key goals of the Mine
Act. Nevertheless, there has not been any showing that the exposures resulting from the .
violations contributed to any mercury related illness. It is important to put the violations into
context. Newmont violated section 56.20014 because it permitted employees to eat, drink, and
store food and beverages in an area exposed to a toxic material. The fact that mercury was
present in the offices was a violation only because of the presence of food and beverages. The
testimony established that employees spent a significant amount of time in the offices, not
because they were eating or drinking beverages, but because their work required them to be in the
offic.es. IfNewmont had established a separate lunchroom in 1994, the employees' exposure to
mercury would not have been significantly reduced at the time of the inspection. Employees
would only be in the lunchroom while eating lunch and perhaps during breaks. 3
Assuming continued normal mining operations, employees would be working in the
offices and the plants throughout the day and would be exposed to mercury vapor at about the
same levels as detected by Inspector Drussel and measured by Newmont. There is nothing in the
record to indicate that employees would have changed their behavior in the offices if food and
beverages had been prohibited in the offices. They would have taken off their personal
protective equipment, including respirators, upon entering the offices and worked at the desks
and control panels. It is also highly likely that employees would have taken breaks in the offices,
even though they could not eat or drink. Thus, employees would have been exposed to the same
levels of mercury, except during their lunch break, without violating MSHA standards. The
Secretary's witnesses were concerned about the exposures in the offices because employees take
off their protective equipment and let "down their guard" when they eat and consume beverages.
(Tr. 2370-71, 2377-78). But, as stated above, I find that these concerns would have existed in the
offices whether or not Newmont violated section 56.20014. (Tr. 31 09-l 0). Newmont abated the
violations by establishing a separate lunchroom in a trailer adjacent to the AARL building. The
issue is whether the two violations were S&S, not whether exposures to 24 J..lg/m3 of mercury are
S&S in the abstract. There has been no showing that food or beverages were being contaminated
with mercury and it is highly unlikely that anyone would become ill by ingesting small amounts
of mercury.
The Secretary sought to establish the S&S nature of the violations by introducing
evidence of the medical records of Kim Redding. I held that such records were not admissible,
because they are not relevant. Even if I assume that Kim Redding suffered from a mercury-

3

I can safely assume that Newmont would not allow its employees to spend lengthy periods
of time in a separate lunch room away from the plants and offices. Employers require employees
to . remain at their duty stations except during established breaks. In addition, the Secretary
established that Newmont required its carbon-handling employees to remain in the offices or the
plants at all times while the plants were running.

1749

related illness, I cannot relate such an illness back to the violations at issue. Mr. Redding spent a
considerable amount of time in the plants where his exposure to mercury was generally greater.
He also spent a considerable amount of time in the offices. As stated above, he would have spent
about the same amount of time in the offices even if the standard were not violated. Prior to mid1994, Newmont employees were not required to use respirators while in the plant, so Mr.
Redding was exposed to mercury vapor throughout the working day, even when he was not in the
offices.
The Secretary also relies on the TLV established by the American Conference of
Governmental Industrial Hygienists ("ACGIH") for mercury in 1996. This TLV has not been
adopted by MSHA. The 1.996 TLV is 25 ~g/m3 for an eight-hour shift. In early 1995, the
employees in the Carbon-Handling Department were working 12-hour shifts. The Secretary
argues that for a 12-hour shift, the 1996 TLV should be 16.5 ~g/m3 because each shift is 50
percent longe~.
I reject the Secretary's argument for several reasons. First, as stated above, employees
spend the vast majority of their time.in the offices working, not eating or drinking. IfNewmont
had previously established a separate lunchroom, the employees' exposure to mercury vapor
would not have been significantly different. The Secretary did not establish a connection
between the violations and the exposure. Second, the Secretary has not adopted the 1996 TLV
for mercury. The Secretary cannot contend that the health of an employee is protected
throughout the plant including areas where personal protective equipment is not generally worn
so long as he is not exposed to more than 50 ~g/m3 over an eight-hour period, but that any
exposure above 25 ~g/m3 in an area where food or beverages are consumed creates a significant
and substantial health hazard.' If food or beverages are not consumed or stored in the offices, the
Secretary allows employees to be exposed to up to 50 J.lg/m3• Thus, ifl accept the Secretary's
argument, employees can be legally exposed to levels of mercury in the plants that are reasonably
likely to result in an illness. Under the Secretary's regulatory scheme not only are such
exposures not S&S, they are not even violations. If the Secretary believes that a miner's health is
endangered if he is exposed to more than 25 ~g/m3 of mercury vapor over an eight-hour shift, she
should amend section 56.5001 through rulemaking.
Finally, Newmont established by a preponderance of the evidence that it had in place a
mercury medical monitoring program to protect the health of all employees. Newmont
established this program in mid-1994 under the supervision Dr. James Craner, an occupational .
health physician, and Dr. David Hogle, a local physician. The program was designed to monitor
the mercury levels in Newmont employees. Employees in the carbon-handling department were
given annual physical examinations to test for possible toxic effects of mercury and submitted
24-hour urine samples. The samples were analyzed for mercury content using a Biological

4

Although Newmont took a large number of mercury readings in the offices, these readings
are not a time-weighted average. Thus, a high mercury reading may be an abnormal, short-term,
excursion that would not be reflected in a time-weighted mercury reading.

1750

Exposure Index ("BEl"). The BEl is a well-recognized method, developed by the ACGIH, of
measuring the exposure of an individual to a hazardous substance such as mercury. It takes into
consideration all exposure routes, not just inhalation of mercury vapor. Dr. Melissa McDairnlld,
an associate professor of medicine at the University of Maryland and former chief medical officer
with OSHA, testified on behalf of the Secretary. (fr. 2269-70). She testified that the BEl is a
better indicator of individual exposure to a toxic substance than determining an individual's
exposure through the TLV for that substance because it "measures exactly what got into the
worker." (Tr. 2313). The BEl for mercury is 35 micrograms per gram of creatinine in the urine.
Newmont set its internal standard at 20 micrograms for an extra measure of protection. Dr.
McDairmid testified that 20 micrograms is a well-recognized cut-off point for mercury. (Tr.
2347-48). In 1994 and 1995, no employee exceeded 30 micrograms while eight employees
tested between 20 and 30 micrograms in 1994, and 2 employees tested in that range in 1995.
(Ex. R-6 p. 7). Of course, this procedure measured mercury exposure from throughout the
plants, not just from the offices.
Newmont also collected weekly urine samples from carbon-handling employees. These
samples were not analyzed using the BEl in micrograms per gram of creatinine in the urine.
Instead, mercury levels were measured in parts per billion. This measurement does not take into
consideration such factors as the weight of the individual, the amount of liquid consumed, and
the individual 's age. (Tr. 2348-51). Without correcting for creatinine, outside factors can
influence the reading and significantly skew the results plus or minus 30%. (Tr. 3001-04).
Nevertheless, such measurements provide a rough indication of an individual's mercury intake, at
least if enough samples are taken over a period of time. Several individuals had readings above
35 micrograms. (Tr. 2356-57; Ex. S-206). If a group of individuals consistently provides
samples at that level over a period of time and these samples are confirmed by samples that are
corrected for creatinine, it is reasonably likely that some of the group will develop health
problems. (Tr. 2358-59). These high readings, however, could have been caused by mercury
exposure in areas of the AARL and ZADRA facilities where employees may be legally exposed
to up to 50 J..lg/m3 of mercury vapor. There is no evidence to tie these readings to the offices,
much less to exposure caused by the consumption or storage of food and beverages.
Dr. Jonathan B. Borak, associate clinical professor of internal medicine at Yale
University, testified on behalf ofNewmont. Dr. Borak teaches occupational medicine and is
involved in developing practice standards in occupational medicine. He reviewed the medical
monitoring program in place in Newmont and concluded that the program was a "very specific
and complete protocol" and it "exceeded the standard of care." (Tr. 2999-3001, 3083-85). I
credit Dr. Borak's testimony in this regard. While Newmont's program did not guarantee that no
employee would be overexposed to mercury, it reduced the risk of overexposure.
Dr. McDairmid testified that one cannot determine an exposure limit, whether by TL V or
BEl, "below which you can reliably guarantee that no one will suffer abnormal health
consequences." (Tr. 2309). She further stated that "it is very difficult to choose a specific
exposure level and be able to say with surety that no [employees] will suffer health consequences
if they are exposed below that concentration." (Tr. 2308, 2467-68). Such concerns cannot be the

1751

basis for an S&S fmding in this case because they are too vague·and undefined. There has been
no showing that the violations in these cases presented a reasonable likelihood that the hazard
contributed to by the violations will result in an illness, assuming continued mining operations.
4. Were the Violations the Result ofNewmont's Unwarrantable Failure?
The Commission has held that unwarrantable failure is aggravated conduct constituting
more than ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 2004 (December 1987).
Unwarrantable failure is characterized by such conduct as "reckless disregard," "intentional
misconduct," "indifference," or a "serious lack of reasonable care." !d. at 2003-04; Rochester &
Pittsburgh Coal Co., 13 FMSHRC 189, 193-94 (February 1991). The Commission has held that
"a number of factors are relevant in detennining whether a violation is the result of an operator's
unwarrantable failure, such as the extensiveness of the violation, the length of time that the
violative condition has existed, the operator's efforts to eliminate the violative condition, and
whether an operator has been placed on notice that greater efforts are necessary for compliance."
Mullins and Sons Coal Co., Inc., 16 FMSHRC 192, 195 (February 1994)(citation omitted).
The Secretary argues that Newmont knew that mercury vapor was present in the offices
for at least four years prior to the date the citation and order were issued. Newmont's "failure to
remove employees from the hazard of exposure to mercury, a well-recognized toxic material, in
view of the long history of exposure in the cited areas, was unjustifiable." (S. Br. at 46). She
also argues that Newmont had been warned of the violation. For example, the Secretary refers to
a memorandum of a former industrial hygienist for the company warning that drawing air into the
AARL office from the plant "could potentially increase the mercury exposure" for employees in
the office. (Ex. S-127 p. 3). The Secretary also relies on the changes made at the refinery
lunchroom in 1992 and the complaints made by employees. The Secretary also maintains that
Newmont' s reliance on the TL V was misplaced and that, in any event, some of the Jerome
readings in the offices were above the TLV.
I have no difficultly in concluding that the Secretary did not meet her burden of proving
that these violations were the result ofNewmont's unwarrantable failure. In reaching this
conclusion, I have relied on a number of factors. First, for the reasons set forth above in
discussing the reasonably prudent person test, I fmd that the Secretary made little effort to advise
the mining industry of the requirements of section 56.20014. The Secretary had not been
enforcing this standard with respect to mercury at gold mines. Newmont's mine had been
inspected on a number of occasions and MSHA inspectors had been in the subject offices.
Inspector Drussel, for example, testified that he had not applied the provisions of the standard to
the offices prior to 1995, because he did not believe that readings below the TL V violated the
standard. (Tr. 1203-06). Although I found that the mining industry was provided with sufficient
notice of the terms of the standard to meet the reasonably prudent person test, I hold that the
evidence discussed with respect to that issue is relevant here. I find that such evidence helps to
establish that Newmont's failure to keep the level of mercury in the offices below that detected
by Inspector Drussel was not the result of its reckless disregard or indifference to the
requirements of the standard or a serious lack of reasonable care.

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Second, Newmont relied, to a large extent, on its medjcal evaluation program to make
sure that employees were not over-exposed to mercury. Rather that separately focusing on the
offices, Newmont took into consideration employee exposure to mercury from all sources. This
program is described in detail above. While Newmont's program was not perfect, it
demonstrates that Newmont was concerned about employee exposure to mercury, at least since
mid-1994.
Third, the Secretary's argument that some of the Jerome readings in the offices "exceeded
the TLV" is misplaced. The fact that Jerome readings above 50 J.Lg/m3 are detected does not
indicate that the 1LV was exceeded because Jerome readings are not time-weighted. In addition,
the citation and order charge that certain specified amounts of mercury vapor were detected in the
offices. Although the historic readings kept by Newmont help validate Inspector Drussel's
measurements and establish a history of mercury vapor in the offices, I base my decision in this
case on the conditions. described in the citation and order. Newmont has never been cited for a
violation of the 1LV for mercury anywhere in its carbon-handling operations. It established a
respirator program in mid-1994 to protect employees in the AARL and ZADRA plants.
Although this is not an important factor in my decision, it establishes that Newmont was not
indifferent to mercury exposure.
Fourth, Newmont was in the process of installing a trailer outside the AARL building in
March 1995 to be used for storing and consuming food and beverages. The trailer was not being
used at the time of the inspection because water and power lines needed to be connected. The
trailer was used to abate the citation on the day the citation and order were issued.
I conclude that the Secretary did not establish that the violations were caused by
Newmont's aggravated conduct. Although the violations had existed for a considerable length of
time, there were mitigating notice issues, as discussed above. Newmont had been making
considerable efforts to monitor and control mercury exposure throughout the carbon-handling
department without focusing specifically on the offices. Finally, Newmont had not been put on
notice that greater efforts were necessary beyond what it was in the process of implementing at
the time of the MSHA inspection. Although a case· could be made that Newmont was not doing
enough prior to August 1994, the record makes clear that it was making significant
improvements in the fall of that year and in the first quarter of 1995.
I find that the Secretary established, however, that the violations were caused by
Newmont's moderate negligence. First, I agree with the Secretary that, given the presence of
food and beverages in the offices, Newmont was not doing enough to control the entry of
mercury into the offices. Standard industrial hygiene practices require that when employees enter
eating areas certain "housekeeping" precautions be taken. Personal protective equipment and any
contaminated clothing should be removed prior to entering the eating area. Employees should be
able to clean their boots and wash their hands prior to entry. In addition, the eating area should
be designed so that it can be easily kept clean. Michael Lynham, an industrial hygienist with
Denver Tech, described an optimal program for constructing and maintaining a clean lunch area.
(Tr. 2047-65; Exs. S-20 & S-25). Although section 56.20014 does not necessarily require a

1753

program as elaborate as the one described by Mr. Lynham, I find that Newmont could have been
doing more to control mercwy in the offices due to the fact that food and beverages were there.
Second, general principles of industrial hygiene provide that individuals should not eat or
drink in the presence of mercwy. The material safety data sheet and the NIOSH criteria
document for mercwy state that employees should not eat or drink in any mercwy work area.
(Tr. 2628; Ex. R-6 appendix III, Art. 7(a)). Moreover, MSHA developed a health hazard
information card for mercwy entitled "Working with Mercury." (Ex. S-76). This card states, on
the back, that "[t]ood should not be stored, dispensed, or eaten in any place that might be
contaminated with mercwy." (/d; see also 2631-34) While these sources relate to all forms of
mercwy, not just elemental mercwy, they help to establish that Ne~ont's failure to provide a
cleaner area for eating and storing food was the result of its moderate negligence.
B. The Citation and Order Alle~ni Violations of Section 56.20011
1. Introduction
The boneyard where the scrubber was stored is in remote areas of the mine property.
Employees are not generally in the boneyard unless they are looking for a piece of equipment that
may be of use. A piece of equipment may be removed from this area for reuse from time-to-time
or parts from the equipment may be removed. In some instances, a torch may be used on the
equipment to remove a piece. Thus, the boneyard was used as a salvage yard on an occasional
basis.
At the time of the inspection, the boneyard was enclosed with a berm and was equipped
with a gate. The gate was not locked and there were no warning signs indicating that mercwy
was present or could be present in the area. Inspector Drussel observed beads of mercwy inside
the pontoons of the scrubber. (Tr. 1137-40; Ex. S-5). He took a mercwy reading with his
Jerome meter at a hole in the pontoon and obtained a reading of 145 J..Lg/m3 • (Tr. 1142-43; Ex. S3 p. 8). He took another reading of514 J..Lg/m3. /d The scrubber had been originally used in the
AARL and was placed on a leach pad for cleaning several months before the MSHA inspection.
Baseline testing for mercwy was conducted by Newmont's industrial hygiene department and
readings around 3 11g/m3 were obtained. {Tr. 1786; Haimon Dep. 113; Ex. R-28). The scrubber
leaked mercury while it was at the leach pad. (Ex. S-126 "Investigation Report" dated 8/4/94).
Newmont cleaned the scrubber and also engaged an independent contractor to clean the scrubber
at some point after that occurrence but before it was moved to the boneyard. (Tr. 954-56, 979)
Wipe samples of the scrubber were taken for analysis in October 1994. (Tr. 1151-53; 614, Ex. S11 0 pp 1-7). The scrubber was moved to the boneyard prior to Inspector Drussel's inspection on
March 14, 1995. The inspector issued Order No. 4140246 .under section 104(d)(1) of the Mine
Act alleging a non-S&S violation of<section 56.20011. The condition was abated by moving the
scrubber to a different location and labeling it as a hazard.
On the previous day, Inspector Drussel saw an old dewatering screen from the ZADRA
facility near the AARL building. The screen was next to the ball storage area for the ball mills.

1754

He observed beads of mercury on the screen. (Tr. 941, 1114). He did not take any samples for
mercury. (Tr. 1246-47). The area was not posted or barricaded. Inspector Drussel issued
Citation No. 4140248 under section 104(a) of the Mine Act alleging a non-S&S violation of
section 56.20011. The condition was abated by moving the screen to a different location and
labeling it as a hazard.
2. Did Newroont Violate Section 56.20011?
The cited standard provides, as relevant here, that areas "where health or safety hazards
exist that are not immediately obvious to employees shall be barricaded, or warning signs shall
be posted at all approaches." Newmont contends that it did not violate this standard because the
Secretary's witnesses only testified that the scrubber and screen presented a "potential hazard" to
employees. Newmont contends that the language of the standard makes clear that an actual
hazard must exist. In addition, it points to the Secretary's Program Policy Manual, which
provides that the standard applies to areas where "health or safety hazards exist but are not
obvious." Newmont maintains that any mercury on the scrubber or screen did not pose a hazard
to anyone in those areas. As proof of its argument, Newmont refers to the sampling done at the
scrubber and screen by its safety director after the order was issued. Devices used to measure an
employee's exposure to mercury were hung directly above the equipment for a full eight-hour
shift, as if someone were standing above each piece for an entire shift. In both instances the
results were below the TLV for mercury.
I fmd that the Secretary established a violation in each instance. Newmont's argument
that tries to draw a distinction between a hazard and a "potential" hazard is without merit. A
potential hazard is simply a hazard that may cause harm. Any hazard will fit that definition. If a
wooden box filled with explosives were present in the boneyard, it would present a potential
hazard. Such a box could sit there for 20 years and not harm anyone, or someone could be killed
the day after it is put there. The issue is whether the scrubber and screen presented a health
hazard that was not immediately obvious. I find that the mercury on this equipment presented a
hazard to employees. (Tr. 2691-99). An employee trying to move the equipment, for example,
could get mercury on his hands or clothing. As a consequence, the employee could breathe the
mercury fumes for a considerable length of time. If this exposure is the employee's only
exposure to mercury, it is highly unlikely that he will be harmed in any way. Employees at the
mine, however, are exposed to mercury vapor from many sources so such an exposure would add
to their total body burden. The fact that, at the time of the inspection, the mercury on the screen
had formed an amalgam is not controlling. In addition, I fmd that the hazard presented by the
mercury vapor, which cannot be seen or smelled, was not immediately obvious.
The Secretary interprets the phrase "health or safety hazard" in the standard broadly for
the protection of miners. Given 'the purposes of the Mine Act, the Secretary's interpretation is
reasonable. She is not required to establish that the alleged hazard created an imminent danger or
that the hazard was likely to cause an employee immediate harm. As stated with respect to the
violations of section 56.20014, I concluded that mercury vapor is a toxic material. I incorporate
my analysis of those violations here and conclude that the mercury observed by Inspector Drussel

1755

created a health hai:ard for employees. As with the section 56.20014 violations, I find that the
Secretary is not required to show that mercury vapor violated the TLV in order to establish a
violation of section 56.20011. I believe that the regulation is rather clear on its face and I defer
to the Secretary's interpretation, in any event. I also conclude that section 56.20011 does not
present the notice issues that were presented by section 56.20014. I find that the language of the
standard provides a reasonably prudent person with sufficient notice of its requirements. In
addition, the Program Policy Manual makes clear that storage facilities and dumps commonly
contain toxic substances such as acids, gases, dusts, and radiation that create imperceptible health
hazards. A reasonably prudent person would recognize that equipment in the boneyard that had
mercury on its surfaces presented a hazard that was not immediately obvious.
I find that these violations were not serious. It was unlikely that anyone would be harmed
by the mercury on the screen and scrubber because of their location, the small quantity of
mercury present, and the low levels of fumes emitted. It must be remembered that Inspector
Drussel took his Jerome readings at the scrubber next to a hole that had been cut into the
pontoons so the readings were much higher than what an employee would likely be exposed to if
he were working on or around the scrubber. Inspector Drussel determined that the violations
were not S&S.
3. Was the violation in the Boneyard the Result ofNewxnont's Unwarrantable Failure?
The Secretary contends that the scrubber violation was caused by Newmont's
unwarrantable failure because she believes that Newmont was aware of the hazard created by the
scrubber but did nott.ing to prevent employees from being exposed. The Secretary relies to a
large extent on conditions that existed when the scrubber was still at the leach pad, such as the
report that mercury was leaking from the scrubber in August 1994. (Ex. S-126 "Investigation
Report" dated 8/4/94). The Secretary contends that this report demonstrates that Newmont knew
that the scrubber created a hazard and that it needed to be posted. The Secretary points to the
testimony of a Newmont supervisor that he wanted the scrubber to be encased in concrete.
(Sawyer Dep. at 182-83). The Secretary also maintains that the wipe samples that were taken
after the scrubber was cleaned by a contractor indicated that mercury was still present.
I find that the Secretary did not establish that this vio-lation was caused by Newmont's
unwarrantable failure to comply with section 56.20011. First, the condition of the scrubber in
August 1994 is of little relevance. While it might have been a good idea to encase the scrubber
in concrete, the fact that Newmont did not do so does not establish its unwarrantable failure.
Instead, Newmont attempted to clean the scrubber. When testing indicated that mercury residue
was still present on the scrubber, Newmont had a contractor clean the scrubber more thoroughly
before it was moved to the boneyard. (Tr. 979, 1043-45, 1635-36, 1784-87; Ex. R-28).
The Secretary states that a conversation between Inspector Drussel and Newmont officials
demonstrates that Newmont was aware that the scrubber still contained a significant amount of
mercury after it was cleaned a second time. (Tr. 1151-52, 614; Ex S-110 pp 1-7). This evidence
is too imprecise to make an unwarrantable failure finding. The record does not reveal when the

1756

scrubber was cleaned by the contractor or when it was moved to the boneyard. The exhibit is not
of much help because I am unable to interpret it or determine·when the samples were taken in
relation to the events at issue. It is not clear to me that Newmont management knew that the
scrubber contained significant amounts of mercury when it was moved to the boneyard. The
Secretary bears the burden of proof on this issue. I find that the Secretary established that both
violations of section 56.20011 were the result ofNewmont's moderate negligence.

IV. APPROPRIATE CIVIL PENALTIES
Section 11 O(i) of the Mine Act sets forth six criteria to be considered in determining
appropriate civil penalties. I find that Newmont was issued about 58 citations and orders in the
24 months preceding March 14, 1995. (Tr. 1500-07; Ex. S-2). I also find that Newmont is a
large gold mine operator. I further find that the penalties assessed in this decision will have no
effect on Newmont's ability to continue in business and that all of the violations alleged in the
citations and orders were quickly abated in good faith. I find that the gravity of the section
56.10014 violations was low for the same reasons that I found that the violations were not S&S,
as set forth above. I fmd that Newmont's negligence with respect to these violations was
moderate for the reasons set forth in the unwarrantable failure discussion, set forth above. I find
that the gravity of the section 56.20011 violations to be low, as acknowledged by Inspector
Drussel. I also find that Newmont's negligence with respect to these violations was moderate.
Based on the penalty criteria, I find that the penalties set forth below are appropriate for the
violations.

V. ORDER
The parties presented a great deal of evidence in these cases. Because of the size of the
record, I could not discuss in this decision all of the testimony and exhibits that were admitted
into evidence. Any evidence in the record that is not consistent with my findings and
conclusions in these cases is hereby rejected. The parties also presented a large number of
motions in these cases. These motions were made in writing or were presented orally at the
hearing. Such motions were made prior to the hearing, during the hearing, and after the hearing.
I ruled on the vast majority of these motions. Any motions that were not granted or otherwise
ruled upon are hereby denied.
Based on my fmdings and conclusions set forth above and the criteria in section 11 O(i) of
the Mine Act, 30 U.S.C. § 820(i), I enter the following order:

1. Citation No. 4140245- This citation is affirmed, but is modified to a section 104(a)
citation. The S&S and unwarrantable failure determinations are deleted, the gravity is found to
be low, and the violation is found to have been caused by Newmont's moderate negligence. A
penalty of$600.00 is assessed for this violation of30 C.F.R. § 56.20014.

1757

2. Order No. 4140246 - This order is affirmed, but is m·odified to a section 104(a)
citation. The S&S and unwarrantable failure determinations are deleted, the gravity is found to
be low, and the violation is found to have been caused by Newmont's moderate negligence. A
penalty of$600.00 is assessed for this violation of 30 C.F.R. § 56.20014.
3. Order No. 4140247- This order is affirmed, but is modified to a section 104(a)
citation. The unwarrantable failure designation is deleted and the violation is found to have been
caused by Newmont's moderate negligence. A penalty of $300.00 is assessed for this violation
of30 C.F.R. § 56.20011 .
4. Citation No. 4140248 - This citation is affirmed and a penalty of $300.00 is assessed
for this violation of30 C.F.R. § 56.20011.

Accordingly, the citations and orders set forth above are hereby AFFIRMED, as
modified in this decision, and Newmont Gold Company is ORDERED TO PAY the Secretary
of Labor the sum of$1,800.00 within 30 days of the date of this decision.

'
Richard W. Manning
Administrative Law Judge

1758

Distribution:

Jeanne Colby, Esq., Office of the Solicitor, U.S. Department of Labor, 71 Stevenson St., Suite
1110, San Francisco, CA 94105-2999 (Certified Mail)
Mark R. Malecki, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson
Boulevard, Arlington, VA 22203- I 954 (Certified Mail)
Henry Chajet, Esq., and David Farber, Esq., Patton Boggs, 2550 M Street, NW, Washington,
DC 20037-1350 (Certified Mail)

RWM

1759

FEDERAL MINE SAFETY AMD HEALTH REVIEW COMMISSION
1730 K STREET, N.W., 611t FLOOI
WASHINGTON, D.C. 20006

October 30, 1997

SECRETARY OF LABOR,
Mine Safety and Health
Administration, (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. KENT 93-369
A.C. No. 15-14074-03634

v.
PEABODY COAL COMPANY,
Respondent

Martwick Underground

ORDER

Before: Judge Merlin
It is hereby ORDERED that a penalty of$189, the original penalty amount, be
ASSESSED in this case and that the operator PAY this amount within 30 days of the date of this
order.
It is further ORDERED, that this case be DISMISSED.

Paul Merlin
Chief Administrative Law Judge

Distribution:
Anne T. Knauff, Esq., Office of the Solicitor, U.S. Department of Labor, 2002 Richard Jones
Rd., Suite B-201 , Nashville, TN 37215
Caroline A. Henrich, Esq., Peabody Coal Company, P.O. Box 1233, Charleston, WV 25324
jhe

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oU . S. GOVERNMENT PIUNT111G OFFICE: 1997-432-922/83379